1 The present requests for a preliminary ruling concern the interpretation of the concept of ‘support[ing] a child’, as formulated in the case-law of the Court in the context of the interpretation of Article 45 TFEU, Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35), Article 1(i) and Article 67 of 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 corrigendum OJ 2004 L 200, p. 1) and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).
2 The requests have been made in 12 sets of proceedings between frontier workers and the spouses or registered partners of some of them and the Caisse pour l’avenir des enfants (Children’s Future Fund, Luxembourg) (‘the CAE’) concerning the CAE’s refusal to grant a family allowance to those workers for the children of their spouses or registered partners.
3 Article 2 of Directive 2004/38 is worded as follows: ‘For the purposes of this Directive: … (2) “family member” means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); … …’
4 Article 1 of Regulation No 883/2004 provides: ‘For the purposes of this Regulation: … (i) “member of the family” means: (1) (i) 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; … (2) if the legislation of a Member State which is applicable under subparagraph 1 does not make a distinction between the members of the family and other persons to whom it is applicable, the spouse, minor children, and dependent children who have reached the age of majority shall be considered members of the family; …’
5 Article 3 of that regulation, entitled ‘Matters covered’, provides, in paragraph 1: ‘This Regulation shall apply to all legislation concerning the following branches of social security: … (j) family benefits.’
6 Article 67 of that regulation, entitled ‘Members of the family residing in another Member State’, provides: ‘A person shall be entitled to family benefits in accordance with the legislation of the competent Member State, including for his/her family members residing in another Member State, as if they were residing in the former Member State. …’
7 Article 7 of Regulation No 492/2011, under the heading ‘Employment and equality of treatment’, provides: ‘1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment. 2. He shall enjoy the same social and tax advantages as national workers. …’
8 The relevant provisions of Luxembourg law, as applicable at the time of the facts of the disputes in the main proceedings, are Articles 269 and 270 of the code de la sécurité sociale (Social Security Code) arising from the loi du 23 juillet 2016 portant modification du code de la sécurité sociale, de la loi modifiée du 4 décembre 1967 concernant l’impôt sur le revenu, et abrogeant la loi modifiée du 21 décembre 2007 concernant le boni pour enfant (Law of 23 July 2016 amending the Social Security Code and the Law of 4 December 1967 on income tax, as amended, and repealing the Law of 21 December 2007 on the child bonus), which entered into force on 1 August 2016 (Mémorial A 2016, p. 2348; ‘the Code’).
9 Article 269(1) of the Code, entitled ‘Conditions for award’, provides: ‘An allowance for children’s future, “the family allowance”, is hereby established. The following persons shall give rise to entitlement to the family allowance: (a) any child actually living in Luxembourg on a continuous basis and officially resident there; (b) the members of the family, as defined in Article 270, of any person subject to Luxembourg law and covered by EU 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. The family members must reside in one of the countries to which the regulations or instruments in question apply.’
10 Article 270 of that code states: ‘For the purposes of Article 269(1)(b), the following shall be regarded as members of a person’s family and give rise to entitlement to family allowances: children born within marriage, children born outside marriage and adopted children of the person.’
11 By decisions of the CAE based on Articles 269 and 270 of the Code, the applicants in the main proceedings, who are frontier workers residing in Belgium, Germany or France and pursuing an activity as employed persons in Luxembourg, were either refused family allowances for the children of their spouses or registered partners (Cases C‑299/24 and C‑301/24) or had their entitlement to allowances received for such children withdrawn with effect from 1 August 2016 (Cases C‑296/24 to C‑298/24, C‑300/24 and C‑302/24 to C‑307/24).
12 According to the CAE, since those children did not have a child-parent relationship with the frontier workers concerned, they were not ‘members of the family’ for the purposes of Article 270 of the Code.
13 The conseil arbitral de la sécurité sociale (Social Security Arbitration Board, Luxembourg) upheld the actions brought by those workers for the grant or restoration of the family allowance.
14 However, the conseil supérieur de la sécurité sociale (Higher Social Security Board, Luxembourg) confirmed, by alteration, the decisions of the CAE referred to in paragraph 11 of the present judgment.
15 The applicants in the main proceedings lodged appeals on a point of law before the Cour de cassation (Court of Cassation, Luxembourg), which is the referring court.
16 That court notes that, in its judgment of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a non-resident worker) (C‑802/18, EU:C:2020:269), the Court, on the basis of an interpretation of Article 1(i) and Article 67 of Regulation No 883/2004, read in conjunction with Article 7(2) of Regulation No 492/2011 and with Article 2(2) of Directive 2004/38, made the frontier worker’s entitlement to the payment of the family allowance in respect of the child of his or her spouse or registered partner, with whom that worker does not have a child-parent relationship, subject to proof that he or she supports that child.
17 Since, in the cases in the main proceedings, the conseil supérieur de la sécurité sociale (Higher Social Security Board) considered that the frontier worker’s contribution to the maintenance of the child of his or her spouse or registered partner had not been proven, the referring court is uncertain, referring also to the judgment of 15 December 2016, Depesme and Others (C‑401/15 to C‑403/15, EU:C:2016:955), as to the objective evidence capable of proving that support.
18 Thus, that court asks, in particular, whether evidence of the existence of a joint household shared by the frontier worker and the child concerned is sufficient for the purposes of establishing that that worker supports that child or whether other objective factors, such as the mode of financing that household, should also be taken into consideration. In that context, the question also arises as to the importance to be attached to the age of the child in so far as it follows from that judgment that children are, in any case, presumed to be dependent until the age of 21 years. In addition, it is uncertain as to what importance should be attached to the contribution of the child’s parents to his or her needs, in terms of a maintenance obligation imposed on the parents or visiting and accommodation rights.
19 In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions, which are worded identically in Cases C‑296/24 to C‑307/24, to the Court for a preliminary ruling: ‘(1) (a) Is the condition of “supporting” a child, from which is derived the status of family member within the meaning of the provisions of EU law, as applied by the case-law of the Court of Justice in the context of the free movement of workers and of the receipt by a frontier worker of a social advantage linked to the pursuit, by that worker, of an activity as an employed person in a Member State, for the child of his or her spouse or registered partner, with whom the worker has no child-parent relationship, read alone or in conjunction with the principle that the provisions intended to ensure the free movement of workers must be construed broadly, to be interpreted as being fulfilled, and therefore as conferring entitlement to the receipt of the social advantage, - merely by reason of the marriage or registered partnership between the frontier worker and one of the child’s parents - merely by reason of a joint home or household shared by the frontier worker and the child - merely by reason of the frontier worker’s assumption, in general, of expenditure of whatever kind for the benefit of the child, even when - it covers needs other than essential or maintenance needs - it is made to a third party and benefits the child only indirectly - it is not made in the exclusive or specific interest of the child, but benefits the whole household - it is only occasional - it is less than that of the parents - it is merely insignificant in the light of the child’s needs - merely by reason of the fact that the expenditure is made from a joint account held by the frontier worker and his or her spouse or registered partner, who is a parent of the child, without regard to the origin of the funds present in the account - merely by reason of the fact that the child is under 21 years of age? (b) If the answer to Question 1 is in the negative, is the condition of “support” to be interpreted as being fulfilled, and therefore as conferring entitlement to the receipt of the social advantage, where two or more of those circumstances are present? (2) Is the condition of “supporting” a child, from which is derived the status of family member within the meaning of the provisions of EU law, as applied by the case-law of the Court of Justice in the context of the free movement of workers and of the receipt by a frontier worker of a social advantage linked to the pursuit, by that worker, of an activity as an employed person in a Member State, for the child of his or her spouse or registered partner, with whom the worker has no child-parent relationship, read alone or in conjunction with the principle that the provisions intended to ensure the free movement of workers must be construed broadly, to be interpreted as not being fulfilled, and therefore as excluding the right to receive the social advantage, - merely by reason of the existence of a maintenance obligation imposed on the child’s parents, irrespective - of whether the amount of the maintenance claim is fixed by judicial or conventional means - of the amount at which that maintenance claim was fixed - of whether the debtor actually pays that maintenance debt - of whether the frontier worker’s contribution remedies the failure to pay of one of the child’s parents - merely by reason of the fact that the child lives periodically, in the context of exercising visiting and accommodation rights or alternate residence or another arrangement, with the other parent?’
20 By decision of the President of the Court of 26 June 2024, Cases C‑296/24 to C‑307/24 were joined for the purposes of the written and oral parts of the procedure and the judgment.
21 Without explicitly raising an objection of inadmissibility, the CAE noted in its written observations that the Court should ‘reject’ the questions referred for a preliminary ruling on the ground that they refer to the assessment of a factual situation which falls within the sole competence of the competent national authorities and, where appropriate, the competent national courts.
22 In that regard, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to interpret and apply national law, while the Court of Justice is empowered only to give rulings on the interpretation or the validity of an EU provision on the basis of the facts which the national court puts before it (judgments of 16 March 1978, Oehlschläger, 104/77, EU:C:1978:69, paragraph 4, and of 7 November 2024, ERB New Europe Funding II, C‑178/23, EU:C:2024:943, paragraph 21 and the case-law cited).
23 As regards the CAE’s arguments, it is sufficient to observe that, by its questions, the referring court is essentially asking the Court to interpret Article 45 TFEU, Article 1(i) and Article 67 of Regulation No 883/2004, read in conjunction with Article 7(2) of Regulation No 492/2011 and Article 2(2) of Directive 2004/38, as interpreted in the case-law of the Court resulting from the judgment of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a non-resident worker) (C‑802/18, EU:C:2020:269, paragraphs 64 and 70), and, in particular, to clarify how the condition for the grant to a non-resident worker, in the Member State of employment, of a family allowance for the child of his or her spouse or registered partner, established by that case-law, according to which that worker must ‘support’ that child, should be interpreted.
24 While it is ultimately for the national authorities and, where appropriate, the national courts to assess whether, for the purposes of granting the family allowance in a given case, that requirement is met, it is for the Court, in accordance with the case-law cited in paragraph 22 of the present judgment, to interpret the provisions of EU law to which the questions referred for a preliminary ruling relate.
25 It follows that the requests for a preliminary ruling are admissible.
26 By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 45 TFEU, Article 1(i) and Article 67 of Regulation No 883/2004, read in conjunction with Article 7(2) of Regulation No 492/2011 and with Article 2(2) of Directive 2004/38, must be interpreted as meaning that the condition for the grant to a non-resident worker, in the Member State of employment, of a family allowance for the child of his or her spouse or registered partner, namely that that worker is required to ‘support’ that child, is satisfied merely by reason of the fact that those persons share the same household or whether other objective factors must be taken into account in order to establish the existence of such support.
27 In that regard, it should be noted, first of all, that, according to settled case-law, a non-resident worker is entitled to payment of a State benefit constituting a social advantage, such as financial aid for higher education studies, not only for his or her own child but also for the child of his or her spouse or registered partner, with whom that worker has no child-parent relationship, where that worker supports that child (see, to that effect, judgment of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraphs 57 to 60 and the case-law cited).
28 Next, as regards, more specifically, a family allowance such as that at issue in the main proceedings, the Court held in its judgment of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a non-resident worker) (C‑802/18, EU:C:2020:269), first, that such a family allowance is a social security benefit among the family benefits covered by Article 3(1)(j) of Regulation No 883/2004. As that is based on the fact that a frontier worker pursues an activity as an employed person in a Member State, it is also a social advantage within the meaning of Article 7(2) of Regulation No 492/2011, which provides that non-resident workers are to enjoy, in accordance with the principle of non-discrimination prohibiting any discrimination based on nationality, the same social and tax advantages as national workers (see, to that effect, judgment of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a non-resident worker), C‑802/18, EU:C:2020:269, paragraphs 24, 31 and 40).
29 Secondly, the Court applied, inter alia, the settled case-law on freedom of movement for workers concerning the conditions for granting financial aid for the pursuit of higher education studies to family members of such workers, referred to in paragraph 27 of the present judgment, and concluded that Article 7(2) of Regulation No 492/2011, which is the particular expression, in the specific area of the grant of social advantages, of the principle of equal treatment enshrined in Article 45(2) TFEU, precludes provisions of a Member State according to which non-resident workers are entitled to receive the family allowance at issue in the main proceedings solely for their own children, and not for a spouse’s children with whom those workers have no child-parent relationship, but whom those workers support, whereas any child residing in that Member State is entitled to receive that allowance (judgment of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a non-resident worker), C‑802/18, EU:C:2020:269, paragraphs 64 and 70 and the case-law cited).
30 In the present case, it is apparent from the documents before the Court that, following that judgment, the conseil supérieur de la sécurité sociale (Higher Social Security Board), by alteration, held that the CAE, after reviewing, in concreto, the cases in the main proceedings, had rightly refused to grant the family allowance at issue in the main proceedings to non-resident workers for the children of their spouse or registered partner, on the ground that those workers did not provide full support for those children.
31 In that regard, it should be noted, in the first place, that, according to the case-law, the provisions establishing the free movement of workers, which constitutes one of the foundations of the Union, must be construed broadly (see, to that effect, judgment of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraphs 58 to 60 and the case-law cited).
32 In the second place, account must be taken of the definition of ‘family member’ in Article 2(2) of Directive 2004/38. The concept of a ‘member of the family’ of a frontier worker able to benefit indirectly from equal treatment under Article 7(2) of Regulation No 492/2011 is the same as that of a ‘family member’ for the purposes of Article 2(2) of Directive 2004/38, which includes the spouse or partner with whom the EU citizen has contracted a registered partnership, the direct descendants who are under the age of 21 or are dependants, and the direct descendants of the spouse or partner (see, to that effect, judgment of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a non-resident worker), C‑802/18, EU:C:2020:269, paragraph 51 and the case-law cited).
33 In that regard, the Court has already clarified that children are, in any case, presumed to be dependent until the age of 21 years, as is apparent, in particular, from Article 2(2)(c) of Directive 2004/38 (judgment of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraph 62), and that the status of dependent member of the family of the child of the spouse or registered partner of a frontier worker may be evidenced objectively by a joint household shared by that worker and the child concerned (see, to that effect, judgment of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraphs 59 and 60).
34 In the latter regard, it may be inferred from that case-law that, where the non-resident worker and the child of his or her spouse or registered partner form a joint household, that objective factor is, in principle, sufficient in itself to demonstrate that that worker supports that child, since the joint household characterises a stable connection between those persons.
35 Any other interpretation would not only be contrary to the principle of a broad interpretation of the provisions establishing the free movement of workers, as stated in paragraph 31 of the present judgment, but would also disregard the case-law referred to in paragraph 32 of the present judgment, which requires account to be taken of the definition of ‘family member’ provided for in Article 2(2) of Directive 2004/38 in the context of the assessment to determine the persons who may benefit indirectly from equal treatment under Article 7(2) of Regulation No 492/2011.
36 Accordingly, in order to determine whether the requirement that the non-resident worker must support the child of his or her spouse or registered partner is met in a given case, it must be considered that proof of the existence of a joint household shared by that worker and that child, irrespective of the age of the child, is sufficient, provided that that child otherwise satisfies the criteria laid down by the legislation of the Member State of employment, in the present case Luxembourg legislation, which governs the grant of the family allowance at issue.
37 It may be presumed, on the basis of the existence of a joint household, that a non-resident worker pursuing an activity as an employed person contributes to covering at least part of the household expenditure, namely, inter alia, the costs of housing and living expenses and, therefore, of meeting the needs of its members, including those of the child of the spouse or registered partner. Therefore, the fact that the non-resident worker shares a household with that child is sufficient to demonstrate that the requirement relating to support for that child is met.
38 Moreover, it is important to emphasise that that joint household does not necessarily have to be on a full-time basis. First, given the prevalence of blended families, as noted by the Advocate General in points 58 and 59 of his Opinion, the child concerned may also live part of the time with his or her other biological or adoptive parent, who is not the spouse or registered partner of the non-resident worker. Secondly, the connecting link between that worker and that child cannot be considered to be severed solely on account of the fact that, because he or she is pursuing studies, the child lives away from that home for part of the time.
39 In the light of the referring court’s questions, it should also be added, first, that, since the existence of a joint household constitutes a sufficient condition for compliance with the requirement relating to support for the child, the national authorities or, where applicable, the national courts cannot require the non-resident worker to establish more specifically, beyond proof of the existence of such a household, that he or she contributes to the daily expenses or to meeting the particular needs of the child concerned.
40 That said, where there is no joint household at all between the non-resident worker and the child concerned, because, inter alia, the child is pursuing studies, other objective factors displaying a certain degree of stability, such as, in particular, contributing to that child’s accommodation, travel and/or living expenses, must be capable of being taken into account in order to enable that worker to demonstrate that he or she continues to support the child.
41 Secondly, the existence of a maintenance contribution payable by the other biological or adoptive parent of the child of the spouse or registered partner of the non-resident worker, a situation envisaged in paragraph 52 of the judgment of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a non-resident worker) (C‑802/18, EU:C:2020:269), or even the existence of visiting and accommodation rights for that parent cannot be regarded as circumstances that would preclude that worker from supporting that child, with whom he or she shares the same household.
42 In that regard, it should be noted, on the one hand, as the Advocate General observed in point 49 of his Opinion, that, in that judgment, the Court referred to the absence, in that case, of such a contribution for the sole purpose of assisting the referring court in its assessment of whether the frontier worker provided for the upkeep of that child. Consequently, the existence of a maintenance contribution payable by the other parent of the child of the spouse or registered partner of a non-resident worker cannot be regarded as a criterion that would rule out the fact that that worker supports the child of his or her spouse or registered partner, with whom he or she shares the same household. That is all the more so since the existence of such a maintenance contribution does not constitute a condition precluding entitlement to a family allowance for the child of the spouse or registered partner of a resident worker with whom that worker shares the same household.
43 On the other hand, to take into consideration the factors referred to in paragraph 41 of the present judgment in order to rule out the fact that the non-resident worker supports the child of his or her spouse or registered partner would amount to interpreting the requirement relating to support for the child in a manner that disregards the principle of a broad interpretation of the provisions establishing the free movement of workers, as recalled in paragraph 35 of the present judgment.
44 Thirdly, it must be stated, as the Advocate General observed in point 61 of his Opinion, that it follows from the presumption of the upkeep by the non-resident worker of the child of his or her spouse or registered partner based on a joint household that the national authorities and, where appropriate, the national courts may refuse to grant the family allowance, such as that at issue in the main proceedings, to that worker only in exceptional circumstances. Such a refusal can be justified only if it is apparent from the case file that that worker has made false declarations or does not contribute, in reality, in any way to the costs associated with the upkeep of the child, as those costs are entirely borne by a third party.
45 In the light of all the foregoing considerations, the answers to the questions referred must be that Article 45 TFEU, Article 1(i) and Article 67 of Regulation No 883/2004, read in conjunction with Article 7(2) of Regulation No 492/2011 and with Article 2(2) of Directive 2004/38, must be interpreted as meaning that the condition for the grant to a non-resident worker, in the Member State of employment, of a family allowance for the child of his or her spouse or registered partner, namely that that worker is required to ‘support’ that child, is satisfied where that worker and the biological or adopted child of his or her spouse or registered partner form a family unit, which is characterised by the existence of a joint household shared by that worker and that child.
46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.