1. This request for a preliminary ruling concerns the interpretation of Articles 1(u)(i), 4(1)(h) and 76 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Council Regulation (EC) No 1606/98 of 29 June 1998 (OJ 1998 L 209, p. 1) (‘Regulation No 1408/71’), and of Article 10(1)(b)(i) of Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71 (OJ 1972 L 74, p. 1), in the version amended and updated by Regulation No 118/97 (‘Regulation No 574/72’).
2. The request has been made in proceedings between the Caisse nationale des prestations familiales (National Agency for Family Benefits) (‘CNPF’) and Mr and Mrs Wiering, German residents working, respectively, in Luxembourg and Germany, concerning the CNPF’s refusal to pay them a supplementary family allowance for their children. Legal context EU law
3. The first, fifth, eighth and tenth recitals in the preamble to Regulation No 1408/71 are worded as follows: ‘Whereas the provisions for coordination of national social security legislations fall within the framework of freedom of movement for persons and should contribute towards the improvement of their standard of living and conditions of employment; … Whereas it is necessary, within the framework of that coordination, to guarantee within the Community equality of treatment under the various national legislations to workers living in the Member States and their dependants and their survivors; … Whereas employed persons and self-employed persons moving within the Community should be subject to the social security scheme of only one single Member State in order to avoid overlapping of national legislations applicable and the complications which could result therefrom; … Whereas with a view to guaranteeing the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible, it is appropriate to determine as the legislation applicable, as a general rule, that of the Member State in which the person concerned pursues employment or self-employment’.
4. Article 1 of Regulation No 1408/71 defines the terms used in the field of social security.
5. Article 1(u) of that regulation provides as follows: ‘(i) the term family benefits means all benefits in kind or in cash intended to meet family expenses under the legislation provided for in Article 4(1)(h), excluding the special childbirth or adoption allowances referred to in Annex II; (ii) family allowances means periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members of the family’.
6. Article 4(1)(h) of Regulation No 1408/71 provides that the regulation is to apply to all legislation concerning the branches of social security dealing with family benefits.
7. Article 12(1) of Regulation No 1408/71 provides as follows: ‘This Regulation can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance. …’
8. Article 13 of Regulation No 1408/71, entitled ‘General rules’, is worded as follows: ‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title. 2. Subject to Articles 14 to 17: (a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State; …’
9. Article 73 of Regulation No 1408/71 states as follows: ‘An employed or self-employed person 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, subject to the provisions of Annex VI.’
10. Article 76 of Regulation No 1408/71 is worded as follows: ‘1. Where, during the same period, for the same family member and by reason of carrying on an occupation, family benefits are provided for by the legislation of the Member State in whose territory the members of the family are residing, entitlement to the family benefits due in accordance with the legislation of another Member State, if appropriate under Article 73 or 74, shall be suspended up to the amount provided for in the legislation of the first Member State. 2. If an application for benefits is not made in the Member States in whose territory the members of the family are residing, the competent institution of the other Member State may apply the provisions of paragraph 1 as if benefits were granted in the first Member State.’
11. Articles 7 to 10 of Regulation No 574/72 lay down the procedure for implementing Article 12 of Regulation No 1408/71.
12. Article 10(1) of Regulation No 574/72 provides as follows: ‘(a) Entitlement to benefits or family allowances due under the legislation of a Member State, according to which acquisition of the right to those benefits or allowances is not subject to conditions of insurance, employment or self-employment, shall be suspended when, during the same period and for the same member of the family, benefits are due only in pursuance of the national legislation of another Member State or in application of Articles 73, 74, 77 or 78 of the Regulation, up to the sum of those benefits. (b) However, where a professional or trade activity is carried out in the territory of the first member State: (i) in the case of benefits due either only under national legislation of another Member State or under Articles 73 or 74 of the Regulation to the person entitled to family benefits or to the person to whom they are to be paid, the right to family benefits due either only under national legislation of that other Member State or under these Articles shall be suspended up to the sum of family benefits provided for by the legislation of the Member State in whose territory the member of the family is residing. The cost of the benefits paid by the Member State in whose territory the member of the family is residing shall be borne by that Member State; …’
13. It should be noted, first, that Regulation No 1408/71 has been replaced by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1), and, second, that Regulation No 574/72 has been replaced by Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004 (OJ 2009 L 284, p. 1), those regulations having become applicable on 1 May 2010, in accordance with Article 91 of Regulation No 883/2004 and Article 97 of Regulation No 987/2009. However, given the material time of the facts in the main proceedings, those facts are governed by Regulations Nos 1408/71 and 574/72. Luxembourg law
14. On 15 March 2013, the Court sent to the Cour de cassation a request for clarification, pursuant to Article 101 of the Court’s Rules of Procedure. The Cour de cassation was requested, inter alia, to provide a more precise description of the Luxembourg family benefits at issue in the main proceedings and the conditions under which they are granted. By letter of 29 April 2013, the Court de cassation stated, inter alia, that the Luxembourg family benefits at issue in the main proceedings are family allowances (‘the Luxembourg family allowances’) and an allowance for bringing up a family, and provided the Court with the text of the provisions of Luxembourg law governing the grant of those benefits. It also pointed out that parental leave allowance was not at issue in the proceedings pending before it, since Mr and Mrs Wiering’s claim in respect of that allowance had been dismissed as inadmissible.
15. According to the information provided by the Cour de cassation, Article 269(1) of the Social Security Code states as follows: ‘The following persons shall be entitled to family allowances, subject to the conditions laid down in this Chapter: (a) any child, for his or her own benefit, actually living in Luxembourg on a continuous basis and officially resident there; (b) for the benefit of his or her family members, in accordance with the international instrument applicable, any person subject to Luxembourg law and to whom Community regulations or any other bilateral or multilateral instrument relating to social security concluded by Luxembourg providing for the payment of family allowances in accordance with the legislation of the country of employment apply. A child forming part of that person’s family unit, as defined in Article 270, shall be regarded as a member of the family. The family members referred to in this provision must reside in one of the countries to which the regulations or instruments in question apply. …’
16. Under Article 271(1) of the Social Security Code, the allowance is payable from month in which the child is born until he or she reaches the age of 18. According to Article 271(3) of that code, family allowances are payable up to the age of 27 in the case of students engaged primarily in secondary education or technical secondary education.
17. Article 299 of the Social Security Code provides as follows: ‘(1) An allowance for bringing up a family shall be granted, on the applicant’s request, to any person: (a) who is officially resident within the meaning of Article 269 in the Grand Duchy of Luxembourg and actually lives there or who is insured on a compulsory basis under the Luxembourg social security scheme by reason of an occupational activity and to whom Community regulations are applicable; (b) who is bringing up in his or her home one or more children in respect of whom family allowances are paid to the applicant or to his or her spouse, from whom the applicant is not permanently separated, or his or her partner … and who satisfy with regard to the applicant the requirements laid down in Article 270 [of the Code, relating to the determination of the family unit]; (c) whose principal activity is bringing up the child or children in the family home and who is not employed or does not receive any equivalent income. (2) By way of derogation from the requirement laid down in paragraph (1)(c), the allowance may also be claimed by any person who is engaged in one or more occupational activities or who receives equivalent income and who, irrespective of the number of hours worked, has income, together with his or her spouse, from whom he or she is not permanently separated, or the person with whom he or she is cohabiting, which, after allowing for deductions for social security contributions, is not more than: (a) three times the minimum wage if that person is bringing up one child; (b) four times the minimum wage if that person is bringing up two children; (c) five times the minimum wage if that person is bringing up three or more children. (3) By way of derogation from the requirements laid down in paragraph 1(c) and paragraph 2, half the allowance for bringing up a family may be claimed by any person who, irrespective of his or her income: (a) is engaged in one or more occupational activities on a part-time basis, where the total number of hours actually worked per week is not greater than half the normal weekly working hours applicable to that person under statute or by virtue of a collective labour agreement, or has equivalent income corresponding to the working hours determined above; (b) is primarily engaged in bringing up the child or children in the family home for a period at least equivalent to half the normal weekly working hours, as determined under subparagraph (a). …’
18. Article 302 of the Social Security Code states as follows: ‘The allowance for brin ging up a family shall be payable from the first day of the month following either the end of maternity or adoption leave or the end of the eighth week after birth. It shall be paid during the month for which it is due. The allowance shall cease to be payable on the first day of the month following the month in which the child reaches the age of two. By way of derogation from the rule laid down in the preceding paragraph: (a) the allowance shall continue to be payable to a recipient who raises in his or her home either twins or three or more children provided that at least one of the children is under four years of age; (b) the age limit for payment of the allowance in the event of the birth or adoption of more than two children shall be two years higher per child in respect of a recipient who satisfies the requirements laid down in subparagraph (a). Where more than one child is adopted and those children are of different ages, the age limit shall be applied by reference to the youngest of the children adopted. The allowance shall also continue to be payable to any person who is bringing up in his or her home a child under four years of age in respect of whom the special supplementary allowance provided for in Article 272(4) has been granted. Entitlement to the allowance shall cease if the conditions for granting it laid down in this Chapter are no longer satisfied.’
19. Article 303 of the Social Security Code reads as follows: ‘The allowance for bringing up a family is EUR 485.01 per month, irrespective of the number of children being brought up in one and the same family home. Where the thresholds laid down in Article 299(2) are applicable, the allowance shall be reduced to the extent that total income, after allowing for deductions for social security contributions and the allowance for bringing up a family, exceeds those thresholds.’
20. Article 304 of the Social Security Code provides as follows: ‘The allowance for bringing up a family shall be suspended up to the amount of any non-Luxembourg benefit of the same kind payable in respect of the same child or children. … [T]he allowance shall not be paid where one of the parents receives in respect of the same child or children the parental leave allowance provided for in Chapter VI of this Volume or a non-Luxembourg benefit received by way of parental leave. …’ German law
21. On 19 March 2013, the Court requested the German Government to indicate, inter alia, the objectives of ‘Kindergeld’ and ‘Elterngeld’ and the conditions under which they are granted. By letter of 17 April 2013, the German Government provided information to the Court concerning those benefits.
22. According to that information, ‘Kindergeld’ is a form of tax concession in respect of the cost of bringing up a family, provided for in Paragraph 31 of the Einkommensteuergesetz (Law on income tax) (‘EStG’).
23. As provided for in that measure, ‘Kindgergeld’ is intended to cover family expenditure and to ensure a minimum standard of living for children.
24. Under Paragraph 62(1) EStG, those entitled, who in most cases will be the parent, must be permanently or ordinarily resident in Germany and liable to tax indefinitely in Germany or treated as such. Article 63(1) EStG provides that the child must be permanently or ordinarily resident in a Member State of the European Union, in Switzerland, Iceland, Lichtenstein or Norway.
25. Pursuant to Paragraph 32(4) EStG, a child is entitled to ‘Kindergeld’, without being required to fulfil any further requirements, until his or her eighteenth birthday, or until his or her twenty first birthday provided that he or she is not employed and is registered as a job seeker with a national employment agency, or until his or her twenty fifth birthday if he or she is undergoing training or performing a recognised form of voluntary service, or, finally, without any age limit if, due to a physical or mental disability, he or she is unable to take care of himself or herself.
26. The amount payable by way of ‘Kindgergeld’, in accordance with the first sentence of Paragraph 66(1) EStG, is EUR 184 per month for each of the first two children, EUR 190 for the third child and EUR 215 for each additional child, irrespective of the income and assets of the family members.
27. Under Paragraph 1(1) of the Bundeselterngeld- und Elternzeitgesetz (the Federal Law on ‘Elterngled’) (‘BEEG’), any person is entitled to ‘Elterngeld’ who is permanently or ordinarily resident in Germany, lives in the same household as his or her child, looks after the child and is bringing him or her up and, either is not employed or is employed only on a part time basis. Paragraph 4(1) BEEG provides that ‘Elterngeld’ is payable from the time of the child’s birth until he or she is 14 months old.
28. In accordance with Paragraph 2(1) BEEG, ‘Elterngeld’ is equivalent to 67% of the income derived from the occupational activity engaged in before the child’s birth. It is paid up to a limit of EUR 1 800 per month for each complete month during which the person entitled to the benefit has not received any income from employment.
29. The first sentence of Paragraph 2(2) BEEG provides that where the income from employment pursued before the birth is less than EUR 1 000, that percentage is increased by 0.1% for every two euros of the balance corresponding to the difference between the sum of EUR 1 000 and that income, up to a maximum of 100%. The second sentence of Paragraph 2(2) BEEG provides that where the income from employment pursued before the birth is more than EUR 1 200, the figure of 67% is to be reduced by 0.1% for every two euros of the balance corresponding to the difference between the total amount of that income and the sum of EUR 1 200, up to a maximum of 65%. ‘Elterngeld’ must be at least EUR 300 per month, pursuant to the first sentence of Paragraph 2(4) BEEG, even if, in accordance with the second sentence of Paragraph 2(4) BEEG, the person entitled did not receive any income from employment before the birth of the child.
30. Under the first sentence of Paragraph 2a(1) BEEG, if the person entitled to ‘Elterngeld’ lives in the same household as, either two children who are under the age of three or with three or more children under the age of six, the amount of ‘Elterngeld’ payable is increased by 10% and that increase cannot amount to less than EUR 75. Under the first sentence of Paragraph 2a(4) BEEG, in the case of multiple births, the amount of ‘Elterngeld’ payable is increased by EUR 300 for the second child and for each additional child. The dispute in the main proceedings and the question referred for a preliminary ruling
31. Mr and Mrs Wiering live with their two children in Trier (Germany). It is apparent from the documents submitted to the Court that Mr Wiering is employed in Luxembourg, while his wife works as a civil servant in Germany.
32. On 12 October 2007, Mr Wiering applied to the CNPF for family allowances in respect of his two children.
33. The CNPF steering committee refused to pay to Mr and Mrs Wiering a supplementary allowance in respect of the family allowances payable for the benefit of their two children, corresponding to the difference between the benefits provided under Luxembourg law and those received under the legislation of their Member State of residence, on the ground that the total amount of the latter benefits, namely ‘Kindergeld’ and ‘Elterngeld’, was greater, for the period from 1 July 2007 to 31 May 2008, than the total amount of benefits payable under Luxembourg law, namely the family allowances and the allowance for bringing up a family.
34. By decision of 31 July 2009, the Conseil arbitral des assurances sociales (Social Security Arbitration Board) dismissed the action brought by Mr and Mrs Wiering against the decision of the CNPF steering committee as unfounded.
35. By judgment of 16 March 2011, on appeal by Mr and Mrs Wiering, the Conseil supérieur de la sécurité sociale (Higher Council for Social Security) varied that decision and found that Mr and Mrs Wiering were entitled to a supplementary allowance in respect of their two children for the period in question. The Conseil supérieur de la sécurité sociale considered that ‘Elterngeld’ is a family benefit which is payable to the family member who is responsible for bringing up the children, not to the children themselves. It therefore took the view that that benefit cannot be taken into account for the purpose of determining any supplementary allowance to be paid to an employed person by way of family allowances to which that person is entitled for the benefit of his or her children, as only the family allowances payable for the same family member, excluding those payable in respect of the other family members, are to be taken into account for the purpose of determining the supplementary allowance.
36. The CNPF lodged an appeal in cassation against that judgment, putting forward four grounds. The second, third and fourth grounds of appeal allege, respectively, infringement of Article 10(1)(b)(i) of Regulation No 574/72, failure to apply Article 10(3) of Regulation No 574/72, and misinterpretation of Article 76(1) of Regulation No 1408/71.
37. The CNPF takes issue with the judgment of the Conseil supérieur de la sécurité sociale for failing, in breach of those provisions, to take account of ‘Elterngeld’ for the purpose of calculating the supplementary allowance.
38. The Cour de cassation is unsure whether only family benefits of the same kind or all the family benefits received by the family of a migrant worker are to be taken into account for the purpose of calculating the supplementary allowance. In those circumstances, the Cour de cassation decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: ‘For the calculation of any supplementary allowance that may be due, in accordance with Articles 1(u)(i), 4(1)(h) and 76 of … Regulation [No 1408/71] and with Article 10(1)(b)(i) of … Regulation [No 574/72], by the competent institution of the State in which the place of work is situated, is it necessary to take into account, as family benefits of the same kind, all the benefits received by the family of the migrant worker in the State of residence - in the present case “Elterngeld” and “Kindergeld”, provided for by German legislation?’ Consideration of the question referred
39. By its question, the Cour de cassation asks, in essence, whether Articles 1(u)(i), 4(1)(h) and 76 of Regulation No 1408/71 and Article 10(1)(b)(i) of Regulation No 574/72 are to be interpreted as meaning that, for the purpose of calculating any supplementary allowance that may be due to a migrant worker in the Member State of employment, all the family benefits received by that worker’s family under the legislation of the Member State of residence, namely, in the present case, ‘Elterngled’ and ‘Kindergeld’, provided for by German legislation, are to be taken into account as benefits of the same kind.
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).
41. Indeed, in accordance with Article 12 of Regulation No 1408/71, that regulation can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance.
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).
43. It is apparent from the documents submitted to the Court that in the main proceedings the legislation of Mr and Mrs Wiering’s Member State of residence, namely the Federal Republic of Germany, confers entitlement to the family benefits at issue in the main proceedings on condition that the recipient is permanently or ordinarily resident in that Member State, and not, as required in order for Article 76 of Regulation No 1408/71 to apply, ‘by reason of carrying on an occupation’. With regard in particular to ‘Elterngeld’, entitlement to that benefit is subject, inter alia, to the requirement of permanent or ordinary residence in Germany and the requirement that the recipient either does not work or does not work full-time, even though, as a general rule, the amount of that benefit is calculated on the basis of income from previous employment.
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).
45. On the other hand, the situation in which entitlement to family benefits in the Member State of residence is not subject to conditions of insurance, employment or self-employment, but rather to a condition of residence, is covered in Article 10 of Regulation No 574/72.
46. In accordance with the overlap rule laid down in Article 10(1)(a) of Regulation No 574/72, benefits paid by the Member State of employment take precedence over benefits paid by the Member State of residence, which are consequently suspended. However, where an occupation is carried on in the latter State, Article 10(1)(b)(i) of Regulation No 574/72 prescribes the opposite solution, namely that the right to benefits paid by the Member State of the residence prevails over the right to benefits payable by the Member State of employment, which are therefore suspended.
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).
48. In that regard, the interested parties represented at the hearing agreed that Mrs Wiering retained her status as a civil servant in Germany during the period in which she received ‘Elterngeld’, which is none the less a matter for verification by the referring court. If that was indeed the case, in so far as Mrs Wiering may therefore be regarded as having worked in Germany during the period in question, the overlap rule applicable to the main proceedings would be Article 10(1)(b)(i) of Regulation No 574/72.
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).
50. Moreover, it should be noted the classification of the various benefits at issue in the main proceedings as family benefits has not been called into question.
51. It is therefore necessary to determine whether, as the CNPF argues, in calculating a supplementary allowance claimed in a situation such as that in the main proceedings, Article 10(1)(b)(i) of Regulation No 574/72 requires account to be taken of all the family benefits received in the Member State of residence of the family of a migrant worker.
52. As the Advocate General observed at point 52 of his Opinion, since Article 12 of Regulation No 1408/71 forms part of Title I of that regulation, concerned with general provisions, the principles set out in that provision are applicable to the rules laid down in both Article 76 of that regulation and Article 10 of Regulation No 574/72 for determining precedence where there is an overlap between rights to family allowances or benefits.
53. It should be noted that, under Article 12 of Regulation No 1408/71, only the right to several benefits of the same kind for one and the same period constitutes an unjustified duplication of benefits.
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).
57. It should be added that Regulation No 1408/71 concerns, on the one hand, ‘family benefits’, defined in Article 1(u)(i) and, on the other, ‘family allowances’, which are a category of ‘family benefits’ and are defined in Article 1(u)(ii) of that regulation.
58. It follows from the foregoing considerations that the various family benefits to which a migrant worker may be entitled under the legislation of the Member State of employment and those received by the worker or his family members under the legislation of the Member State of residence are not necessarily benefits ‘of the same kind’ within the meaning of Article 12 of Regulation No 1408/71.
59. Indeed, while such family benefits are intended, in accordance with Article 1(u)(i) of Regulation No 1408/71, to meet family expenses, they do not necessarily all have the same specific object or the same characteristics or recipients.
60. Moreover, only some of those benefits constitute family allowances within the meaning of Article 1(u)(ii) of Regulation No 1408/71.
61. In order for the overlap rule in Article 10(1)(b) of Regulation No 574/72 to be applicable, it is necessary, for the purpose of calculating the supplementary allowance to which a migrant worker may be entitled in the Member State of employment, to identify, among the various family benefits that worker is entitled to under the legislation of that State and those received by the worker or his family members under the legislation of the Member State of residence, those which are ‘of the same kind’ within the meaning of Article 12 of Regulation No 1408/71, by reference to their object, purposes, the basis on which they are calculated, the conditions for granting them and the persons entitled to such benefits.
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).
64. While it is common ground in the main proceedings that the Luxembourg family allowances are allowances of the same kind as ‘Kindergeld’, Mr and Mrs Wiering nevertheless contend, in essence, that those family allowances are not benefits of the same kind as ‘Elterngeld’. ‘Elterngeld’ should not, therefore, have been taken into account in calculating the supplementary allowance claimed by Mr Wiering from the CNPF.
65. It is apparent from the documents submitted to the Court that the purpose of benefits such as ‘Kindergeld’ and the Luxembourg family allowances is to enable parents to cover the costs associated with the needs of the children and that they are granted irrespective of the income or assets of the family members or whether or not the parents work. It is therefore apparent that the ultimate intended beneficiary of those benefits is not the parents but the children themselves. Furthermore, it would appear that those benefits are periodical cash benefits granted exclusively by reference to the number and age of the children, so that they may be classified as ‘family allowances’ within the meaning of Article 1(u)(ii) of Regulation No 1408/71.
66. As regards ‘Elterngeld’, as observed by the Advocate General at point 66 of his Opinion, it is apparent from the documents submitted to the Court that such a benefit may be distinguished from benefits such as ‘Kindergeld’ and the Luxembourg family allowances in several respects, in so far as concerns their objectives and characteristics and the persons entitled to claim them.
67. According to the information provided by the German Government, ‘Elterngeld’ is intended to help families maintain their standard of living where the parents give priority to looking after their children. The essential object of ‘Elterngeld’ is to contribute to maintaining those standards of living where the parents temporarily give up work, on a full-time or part-time basis, in order to look after their young children.
68. Accordingly, the parent responsible for looking after the child, who does not work, who has given up work temporarily or who works fewer hours, will receive during the child’s first year, depending, as the case may be, on that parent’s income prior to giving up work temporarily or to working fewer hours, compensation for the loss of income which is intended to maintain the family’s standard of living. It should be noted that, as a general rule, ‘Elterngeld’ amounts to 67% of the previous salary and cannot be greater than EUR 1 800.
69. It is therefore apparent that the objective of a benefit such as ‘Elterngeld’ is to enable a parent, in such circumstances, to receive a contribution to enable that parent to maintain his or her family’s standard of living, the amount of that contribution, as a general rule, being linked to the income which the parent earned from his or her previous employment.
70. Thus, unlike ‘Kindergeld’ and the Luxembourg family allowances, ‘Elterngeld’ is not granted solely on the basis of the number of children and the age of the children. While some of the conditions for granting ‘Elterngeld’ are linked to the fact of having a child and the age of the child, it is, in principle, calculated by reference to the salary received by the parent looking after the child before that parent stopped working. The amount payable is increased only if there are several children in the family or in the event of multiple births.
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.
72. Moreover, it should be noted that in the main proceedings the CNPF also included the allowance for bringing up a family in the calculation of the supplementary allowance. As the Advocate General observed at points 34 and 74 of his Opinion and subject to verification to be carried out by the referring court, Mrs Wiering has not claimed that benefit and it is uncertain, in the light of Article 304 of the Social Security Code, whether she would be entitled to it.
73. It should be noted in that regard that, even if that benefit could be regarded as being of the same kind as the Luxembourg family allowances, it is in any event clear from case-law that, in order for it to be concluded in any particular case that there is an overlapping of rights to family benefits, it is not enough, for example, for such benefits to be payable in the relevant child’s Member State of residence and, at the same time, to be merely potentially payable in another Member State where one of the parents of that child works (see Schwemmer EU:C:2010:605, paragraph 52).
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).
75. As a consequence, even if the allowance for bringing up a family were to be regarded as a benefit of the same kind as the Luxembourg family allowances, in the event that the conditions imposed under Luxembourg law for entitlement to the allowance for bringing up a family are not satisfied in the circumstances of the present case, that allowance cannot be taken into account in calculating the supplementary allowance to which Mr and Mrs Wiering may be entitled.
76. In the light of the foregoing considerations, the answer to the question referred is that Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71 and Article 10(1)(b)(i) of Regulation No 574/72 must be interpreted as meaning that, in a situation such as that in the main proceedings, for the purpose of calculating the supplementary allowance to which a migrant worker may be entitled in his or her Member State of employment, it is not possible to take account of all the family benefits received by the worker’s family under the legislation of the Member State of residence since, subject to verifications to be carried out by the referring court, ‘Elterngeld’, provided for under German law, is not a benefit of the same kind, within the meaning of Article 12 of Regulation No 1408/71, as ‘Kindergeld’, provided for under German law, or the family allowances provided for under Luxembourg law. Costs
77. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.