Caisse nationale des prestations familiales v Ulrike Wiering and Markus Wiering.
Date: 2014-05-08
40. It should be recalled, first, that while Article 73 of Regulation No 1408/71 provides that a worker subject to the legislation of a Member State is entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State as if they were residing in that State, that provision, albeit a general rule governing family benefits, is not in any event an absolute rule (see, to that effect, Case C‑16/09 Schwemmer  EU:C:2010:605, paragraphs 41 and 42).
42. Accordingly, where there is a risk of overlap between rights under the legislation of the Member State of residence and rights under the legislation of the Member State of employment, Article 73 of Regulation No 1408/71 must be considered in the light of the overlap rules in the latter and in Regulation No 574/72, in particular Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72 (see, to that effect, Schwemmer EU:C:2010:605, paragraphs 43 and 44).
44. Consequently, Article 76 of Regulation No 1408/71 is not applicable to a situation such as that in the main proceedings (see, to that effect, Case C‑543/03 Dodl and Oberhollenzer  EU:C:2005:364, paragraph 53, and Schwemmer  EU:C:2010:605, paragraph 46).
47. Accordingly, the Court has ruled that the exercise by a person having the care of children — in particular, by the spouse of the person entitled in pursuance of Article 73 of Regulation No 1408/71 — of a professional or trade activity in the children’s Member State of residence suspends, under Article 10 of Regulation No 574/72, the right to allowances in pursuance of Article 73 of Regulation No 1408/71 up to the amount of the allowances of the same kind actually paid by the Member State of residence, irrespective of who is designated as directly entitled to the family allowances by the legislation of the Member State of residence (see, to that effect, Dodl and Oberhollenzer  EU:C:2005:364, paragraph 59, and Case C‑153/03 Weide EU:C:2005:428, paragraph 30).
49. Subject to verifications to be carried out by the referring court, it follows that the Federal Republic of Germany was the Member State primarily responsible for paying family benefits to Mr and Mrs Wiering for the period in question in the main proceedings, so that they may have been entitled to claim from the competent institution of the Member State in which Mr Wiering was employed, that is the CNPF, only a supplementary allowance equivalent to the difference between the total amount of benefits provided under Luxembourg law and the total amount of benefits received in Germany (see, to that effect, Case C‑119/91 McMenamin  EU:C:1992:503, paragraph 26).
54. According to the Court’s case-law, social security benefits must be regarded, irrespective of characteristics peculiar to the various national laws, as being of the same kind when their purpose and object together with the basis on which they are calculated and the conditions for granting them are identical. On the other hand, characteristics which are purely formal cannot be regarded as relevant criteria for the purpose of classifying benefits (see, inter alia, Case 171/82 Valentini  EU:C:1983:189, paragraph 13, and Case C‑102/91 Knoch  EU:C:1992:303, paragraph 40).
55. However, the Court has stated that, in view of the numerous differences between the national social security schemes, if the basis for the calculation and the conditions for the grant of benefits were required to be exactly the same, the prohibition on overlapping benefits contained in Article 12 of Regulation No 1408/71 would be applied to a considerably lesser extent. Such a result would run counter to the aim of that prohibition, which is to obviate unjustified duplication of social security benefits (see Knoch  EU:C:1992:203, paragraph 42).
56. The Court has also held that it follows from the wording of that provision that overlapping occurs not only when one person is entitled to two different family benefits at the same time, but also when two different persons - in this case two parents - are entitled to such benefits in respect of the same child. The spirit of the provisions of Regulation No 1408/71 governing the overlapping of family benefits and the solutions therein provided for in the event of overlapping demonstrate that the aim of the provision in question is to prevent not only the direct recipient of a family benefit, namely the worker, but also the indirect recipients thereof, that is to say the members of the worker’s family, from receiving two benefits of the same kind at the same time (see, to that effect, Case C‑168/88 Dammer  EU:C:1989:652, paragraphs 10 and 12).
62. It is ultimately a matter for the referring court, which alone has jurisdiction to assess the facts in the main proceedings and interpret national legislation, to verify, having regard to those elements, whether ‘Elterngeld’ may be regarded as a benefit of the same kind as the Luxembourg family allowances and whether it may therefore be taken into account for the purpose of calculating the supplementary allowance to which Mr and Mrs Wiering may be entitled (see, to that effect, Case C‑539/11 Ottica New Line di Accardi Vincenzo  EU:C:2013:591, paragraph 48 and the case-law cited).
63. However, the Court of Justice, which is called on to provide answers of use to the referring court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable that court to give judgment (see Ottica New Line di Accardi Vincenzo  EU:C:2013:591, paragraph 49 and the case-law cited).
71. Therefore, while ‘Elterngeld’ constitutes a ‘family benefit’ within the meaning of Article 1(u)(i) of Regulation No 1408/71 (see, by analogy, Case C‑275/96 Kuusijärvi  EU:C:1998:279, paragraph 60), it cannot in any event be classified as a ‘family allowance’ within the meaning of Article 1(u)(ii) of that regulation.
74. The Court has thus held, in connection with Article 10 of Regulation No 574/72, that for it to be possible to regard family benefits as being payable under the legislation of a Member State, the law of that State must recognise that the family member who works in that State has the right to the payment of benefits. It is therefore necessary for the person concerned to fulfil all the conditions, as to both form and substance, imposed by the domestic legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits (see Schwemmer  EU:C:2010:605, paragraph 53).