Agentur für Arbeit Krefeld — Familienkasse v Susanne Fassbender-Firman.
Date: 2014-11-06
28. It should be recalled, at the outset, 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 however an absolute rule (see judgments in Schwemmer , EU:C:2010:605, paragraphs 41 and 42, and Wiering , C‑347/12, EU:C:2014:300, paragraph 40).
29. Accordingly, when there is a risk that rights under the legislation of the Member State of residence will overlap with rights under the legislation of the Member State of employment, Article 73 of that regulation must be considered in the light of the rules against overlapping 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 judgments in Schwemmer , EU:C:2010:605, paragraph 43, and Wiering , EU:C:2014:300, paragraph 42).
30. As its heading indicates, Article 76 of Regulation No 1408/71 contains ‘[r]ules on priority in cases of overlapping entitlement to family benefits under the legislation of the competent State and under the legislation of the Member State of residence of the members of the family’. It is clear from its terms that that article is intended to resolve questions relating to the overlapping of rights to family benefits payable under, on the one hand, in particular, Article 73 of that regulation and, on the other, the national legislation of the State of residence of family members conferring entitlement to family benefits by reason of carrying on an occupation (see judgments in Dodl and Oberhollenzer , C‑543/03, EU:C:2005:364, paragraph 53, and Schwemmer , EU:C:2010:605, paragraph 45).
37. The Court has held that the purpose of the latter provision is to enable the Member State of employment to suspend the entitlement to family benefits, even if no application for the payment of benefits has been made in the Member State of residence and, consequently, no payment has been made by that Member State (judgments in Schwemmer , EU:C:2010:605, paragraph 56 and Pérez García and Others , C‑225/10, EU:C:2011:678, paragraph 49).
38. Although the Court had ruled, before paragraph 2 was added to Article 76 of Regulation No 1408/71 by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1), that there is no suspension of the entitlement to family benefits payable in the country of employment of one of the parents when the other parent resides with the children in another Member State and pursues there a professional or trade activity but does not receive family benefits for the children on the ground that not all the conditions laid down in the legislation of that Member State for the actual receipt of such benefits, including the condition that they must first be applied for, are satisfied (judgments in Salzano , EU:C:1984:343, paragraph 11; Ferraioli , EU:C:1986:168, paragraph 15, and Kracht , EU:C:1990:279, paragraph 11), the effect of that amendment to Article 76 of Regulation No 1408/71 is to allow suspension of entitlement to the family benefits provided under Article 76(1) of that regulation, even when an application has not been made for benefits in the Member State of residence.
42. In that context, it should be borne in mind that, according to settled case-law, a benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual, discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see the judgment in Lachheb , C‑177/12, EU:C:2013:689, paragraph 30 and the case-law cited).
44. It is a requirement of the principles of legal certainty and of transparency that migrant workers and their family members should have the benefit of a clear precise legal situation enabling them to ascertain not only the full extent of their rights but also, as the case may be, the limitations of those rights (see, by analogy, judgment in Altmark Trans and Regierungspräsidium Magdeburg , C‑280/00, EU:C:2003:415, paragraphs 58 and 59).