Caisse nationale des prestations familiales v Ursula Schwarz, née Weide.
Date: 2005-07-07
18. The Court notes as a preliminary point that both the child-raising allowance provided for by the BErzGG (Joined Cases C‑245/94 and C‑312/94 Hoever and Zachow  [1996] ECR I-4895, paragraphs 18 to 27) and the child-raising allowance under the 1988 Law, which bears similarities to the German child-raising allowance, fulfil the conditions for being considered as ‘family benefits’ within the meaning of Article 4(1)(h) of Regulation No 1408/71.
19. The Court has already held, however, that the rule that a person is subject only to the legislation of the Member State of employment laid down by Article 13 of Regulation No 1408/71 does not preclude certain benefits being governed by the more specific rules of that regulation (see, inter alia, Case C-119/91 McMenamin  [1992] ECR I-6393, paragraph 14).
20. With respect to family benefits, Article 73 of Regulation No 1408/71 provides that a worker subject to the legislation of a Member State shall be 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.
23. It appears from both the case-file and the observations submitted to the Court that a person in Ms Weide’s situation is, pursuant to Article 73 of Regulation No 1408/71, entitled to the child-raising allowance provided for by the 1988 Law because of her status as a person employed in Luxembourg, a status which remains for as long as that person is covered by a general or special social security scheme in Luxembourg (see, to that effect, Case C-543/03 Dodl and Oberhollenzer [2005] ECR I‑0000, paragraph 30), and at the same time fulfils the conditions for receiving the child-raising allowance under the legislation of the Member State of residence, namely the Federal Republic of Germany, which makes entitlement to such an allowance subject not to the prior carrying on of an occupation but rather to residence in Germany.
25. It is settled case-law that, in order to provide a useful reply to the court which has referred to it a question for a preliminary ruling, the Court may be required to take into consideration rules of Community law to which the national court did not refer in its questions (see, inter alia, Case C-60/03 Wolff & Muller  [2004] ECR I‑0000, paragraph 24).
28. As pointed out by the Court in paragraphs 17 and 18 of McMenamin , under the rule against overlapping of benefits laid down in Article 10(1)(a) of Regulation No 574/72, allowances payable by the Member State of employment take priority over allowances payable by the Member State of residence, which are consequently suspended. However, where a professional or trade activity is exercised or pursued in the Member State of residence, Article 10(1)(b)(i) of Regulation No 574/72 lays down the converse rule that the right to allowances payable by the Member State of residence prevails over the right to benefits payable by the Member State of employment, which are then suspended.
30. The Court has interpreted this passage as intended by the legislature, namely as meaning that the exercise by a person having the care of children, and, 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 Member State of residence of the children 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 ( McMenamin , paragraphs 20 to 27).
31. As stated by the Advocate General in point 39 of her Opinion and as stated inter alia in paragraph 60 of Dodl and Oberhollenzer , amendments to Article 10 of Regulation No 574/72 in relation to the wording of that provision as it applied at the time of the proceedings which gave rise to the judgment in McMenamin  are not such as to affect this interpretation.
32. Thus, the Court held in paragraph 64 of Dodl and Oberhollenzer  that where a person having the care of children, in particular the spouse or partner of the employed person, carries out a professional or trade activity in the Member State of residence, where the legislation of the Member State of employment and that of the Member State of residence each provide for an entitlement to family benefits in respect of the same member of that person’s family and for the same period, the family benefits must be paid by the Member State of residence in application of Article 10(1)(b)(i) of Regulation No 574/72, irrespective of who is designated as being directly entitled to those benefits by the legislation of that State. In that situation, the payment of family benefits by the Member State of employment is to be suspended up to the sum of family benefits provided for by the legislation of the Member State of residence.