Romana Slanina v Unabhängiger Finanzsenat, Außenstelle Wien.
Date: 2009-11-26
22. The purpose of Article 73 is to guarantee members of the family of a worker subject to the legislation of a Member State who are residing in another Member State the grant of the family benefits provided for by the applicable legislation of the former State (see Joined Cases C‑245/94 and C-312/94 Hoever and Zachow  [1996] ECR I-4895, paragraph 32, and Case C-255/99 Humer  [2002] ECR I-1205, paragraph 39).
25. Thus, first of all, that provision makes express reference to national legislation, defining a ‘member of the family’ as ‘any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided …’, that is to say, in the case in the main proceedings, by the FLAG.
26. Secondly, Article 1(f)(i) of Regulation No 1408/71 introduces the proviso ‘where, however, the said [national] legislations regard as a member of the family or a member of the household only a person living under the same roof as the employed or self-employed person, this condition shall be considered satisfied if the person in question is mainly dependent on that person. …’
27. Accordingly, it is for the referring court to establish whether the condition laid down in Article 1(f)(i) of Regulation No 1408/71 is met in the present case, that is to say, whether the child, although not having lived with her father during the period at issue in the main proceedings, could be regarded for the purposes of national law as a ‘member of the family’ of her father and, if that is not the case, whether she could be regarded as being ‘mainly dependent on’ him.
30. In that regard, it should be noted that the fact that Ms Slanina and her ex-husband are divorced is irrelevant. The Court has already held that although Regulation No 1408/71 does not expressly cover family situations following a divorce there is nothing to justify the exclusion of such situations from the scope of Regulation No 1408/71. One of the normal consequences of a divorce is that custody of the children is granted to one of the parents, with whom those children will reside. It is possible, for a variety of reasons (in this case as the result of a divorce), that the parent with custody of a child will leave his or her Member State of origin and settle in another Member State in order to work there, as in Humer , or, as in the case in the main proceedings here, to take up employment there only some years after establishing his or her residence there. In such a case, the residence of the minor child will also be transferred to that other Member State (see Humer , paragraphs 42 and 43).
31. It should be observed that family benefits by their nature cannot be regarded as payable to an individual in isolation from his or her family circumstances. It is therefore irrelevant that the person to whom the family benefits are to be awarded is Ms Slanina rather than the worker himself, namely, Ms Slanina’s ex-husband (see Humer , paragraph 50).
36. If it emerged that such was the case, it would be necessary to apply the rule against ‘overlapping’ in Article 76 of Regulation No 1408/71. That provision is intended to resolve cases where entitlement to family benefits under Article 73 of that regulation overlaps with entitlement to family benefits under the national legislation of the family members’ State of residence by reason of the carrying on of an occupation (see Case C‑543/03 Dodl and Oberhollenzer  [2005] ECR I‑5049, paragraph 53).