Brigitte Bosmann v Bundesagentur für Arbeit - Familienkasse Aachen.
Date: 2008-05-20
10. In principle, Mrs Bosmann is, under Paragraph 62 of the Law on Income Tax, entitled to German child benefits which were, initially, granted by the Bundesagentur. However, after Mrs Bosmann took up, on 1 September 2005, employment in the Netherlands, she was, by a decision of 18 October 2005, refused payment of those benefits from October 2005. The Bundesagentur construed the relevant provisions of Community law as meaning that Mrs Bosmann is subject only to the legislation of the Member State of employment, namely that of the Kingdom of the Netherlands, so that the Federal Republic of Germany cannot be regarded as the competent State, liable to pay those benefits.
16. The aim of the provisions of Title II of Regulation No 1408/71, which determine the legislation applicable to workers moving within the Community, is to ensure that the persons concerned shall be subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and to avoid the complications which may result from that situation. That principle is expressed in Article 13(1) of Regulation No 1408/71 which provides that a worker to whom that legislation applies shall be subject to the legislation of a single Member State only (see Case 302/84 Ten Holder  [1986] ECR 1821, paragraphs 19 and 20).
17. Under Article 13(2)(a) of Regulation No 1408/71, a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State. The effect of determining that a given Member State’s legislation is the legislation applicable to a worker pursuant to that provision is that only the legislation of that Member State is applicable to him (see Ten Holder , paragraph 23).
20. Since the law applicable to the situation of an employed person in one of the situations covered by the provisions of Title II of Regulation No 1408/71 is to be determined in accordance with those provisions, the application of provisions from another system of legislation is not thereby always precluded (see Case C‑302/02 Laurin Effing  [2005] ECR I‑553, paragraph 39).
24. As regards Article 10(1)(a) of Regulation No 574/72, it is clear from its wording that it is intended to resolve cases of overlapping of rights to family benefits where they are due, simultaneously, irrespective of conditions of insurance or employment, in the relevant child’s Member State of residence and, in application of Article 73 of Regulation No 1408/71, in the Member State of employment.
25. However, as the German Government and the national court observe, the facts of the case in the main proceedings do not establish that type of ‘overlapping’ of family benefits, since the right to child benefit in the Member State of employment is, in this case, excluded, pursuant to that State’s legislation, in view of the ages of the children of the applicant in the main proceedings.
27. It follows that Community law does not require the competent German authorities to grant Mrs Bosmann the family benefit in question.
28. However, neither can the possibility of such a grant be excluded, because, as is clear from the contents of the file submitted to the Court, it is apparent that, under the German legislation, Mrs Bosmann may be entitled to child benefit solely because of her residence in Germany, which is for the national court to determine.
29. In that context, it is appropriate to note that the provisions of Regulation No 1408/71 must be interpreted in the light of Article 42 EC which aims to facilitate freedom of movement for workers and entails, in particular, that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the Treaty (see Case C-205/05 Nemec  [2006] ECR I‑10745, paragraphs 37 and 38).
30. Likewise, the first recital in the preamble to Regulation No 1408/71 states that the provisions which that regulation contains for coordination of national social security legislations fall within the framework of freedom of movement for workers who are nationals of Member States and should contribute towards the improvement of their standard of living and conditions of employment.
31. In the light of those factors, it must be held that, in circumstances such as those of the main proceedings, the Member State of residence cannot be deprived of the right to grant child benefit to those resident within its territory. While, under Article 13(2)(a) of Regulation No 1408/71, a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State, the fact remains that the purpose of that regulation is not to prevent the Member State of residence from granting, pursuant to its legislation, child benefit to that person.
32. Ten Holder , to which the German Government referred in its written observations, and Case 60/85 Luijten  [1986] ECR 2365, referred to by the national court, cannot put in question the foregoing interpretation of Regulation No 1408/71. Ten Holder  covered a case of refusal by the competent Member State’s authorities to grant a benefit and, in that context, the Court held that the effect of determining, pursuant to Regulation No 1408/71, that a given Member State’s legislation is the legislation applicable to a worker is that only that legislation is applicable to him ( Ten Holder , paragraph 23). That principle was reiterated by the Court in Luijten , having regard to the likelihood of the simultaneous application of the legislation of the State of employment and of that of the State of residence permitting those covered to receive child benefit. Consequently, read in their specific contexts, which differ from that of the main proceedings, those judgments cannot serve as a basis for precluding a Member State, which is not the competent State but which does not subject the right to child benefit to conditions of employment or insurance, from being able to grant such a benefit to one of its residents, since the possibility of such a grant arises, in actual fact, from its legislation.