SlideShare une entreprise Scribd logo
1  sur  18
Télécharger pour lire hors ligne
European case law
and family benefits

               27 September 2012
         trESS, Spanish seminar, Sevilla
Pr. dr. J.-Ph. Lhernould, TRESS visiting expert



                                                  1
I – Scope of family benefits
II- Place of residence of family members
III- Overlapping of benefits




                                           2
I – Scope of family benefits
II- Place of residence of family members
III- Overlapping of benefits




                                           3
Broad scope
• "family benefit" means all benefits in kind or in cash intended to
  meet family expenses, excluding advances of maintenance
  payments and special childbirth and adoption Allowances
  mentioned in Annex I
    – family benefits are intended to provide social assistance for workers with dependent
      families in the form of a contribution by society towards their expenses [Kromhout,
      104/84]
    – an allowance which, being granted automatically to families meeting certain objective
      criteria, relating in particular to their size, income and capital resources, may be
      considered a family benefit [Bettacini, C-301/93 : family unit allowance paid to a person
      who is in receipt of an invalidity pension, the amount of the allowance not depending on
      the amount of the invalidity pension but fixed according to the family income and the
      number of persons making up the family unit]
    – Cash benefits to large families + monthly cash benefit, payable for three years, on the
      birth of the third child [Commission v. Greece, C-185/96]
    – «Family credit» encourages workers who are poorly paid to continue working; and
      secondly, is intended to meet family expenses since it is paid only where the claimant' s
      family includes one or more children + amount varies according to the age of the
      children [Hughes, C-78/91]
                                                                                              4
Broad scope
•   A benefit such as a child-raising allowance, which is automatically granted to
    persons fulfilling certain objective, legally defined criteria, without any individual
    and discretionary assessment of personal needs, which is intended to meet family
    expenses and more particularly to remunerate the service of bringing up a child, to
    meet other costs of caring for and bringing up a child and to mitigate the financial
    disadvantages entailed in giving up income from full-time employment [Hoever
    and Zachow, C-245/94]
•   Home child-care allowance: public contribution to a family's budget to alleviate
    the financial burdens involved in the maintenance of children - close link between
    family expenses and the allowance [Maaheimo, C-333/00]
•   Career break allowance granted to parents on parental leave are « assimilated » to
    family benefits [Commission v. Belgium, C-469/02]
•   A benefit such as the advances on maintenance payments granted - objective: to
    relieve the financial burden borne by the parent awarded custody of children
    [Offermans, C-85/99]



                                                                                         5
Beneficiaries
• Spouse and former spouse
  – Where an employed person is subject to the legislation of a MS and
    lives with his or her family in another MS, that person’s spouse is
    entitled to receive a benefit such a child-raising allowance in the State
    of employment [Hoever et Zachow]
  – a divorced person who was paid family allowances by the competent
    institution of the MS in which she was living and where her ex-
    husband continues to live and work maintains in respect of her child,
    provided that child is recognised as a ‘member of the family’ of the ex-
    husband within the meaning of Article 1(f)(i), entitlement to such
    allowances even though she leaves that State and settles with her
    child in another MS, where she does not work, and even though her
    ex-husband could receive those allowances in his MS of residence.
    [Slanina, C-363/08]


                                                                            6
Beneficiaries
• Child
   – where a minor child resides with the parent who has custody in a Member State other
     than the Member State providing the benefit, and where the other parent, who is under
     an obligation to pay maintenance, works or is unemployed in the Member State
     providing the benefit, that child is entitled to receive a family benefit such as the
     advance on maintenance payments [Humer]

• Non-active person
   –    Regulation No 1408/71 does not preclude the legislation of a Member State from
       providing that a person who has ceased all occupational activity in its territory loses the
       right to continue to receive family benefits paid under that legislation on the ground
       that he has transferred his residence toanother Member State where he lives with the
       members of his family [Kuusijärvi, C-275/96 - Those questions were raised in
       proceedings between Mrs Kuusijärvi, a Finnishnational, and Riksförsäkringsverket
       (Swedish Social Security Board) concerning MrsKuusijärvi's entitlement to continued
       payment of parental benefits paid under Swedish legislation (where she worked) after
       she had transferred her residence to Finland, where she did not work]




                                                                                                 7
I – Scope of family benefits
II- Place of residence of family members
III- Overlapping of benefits




                                           8
Waiving of residence clauses
•   ECJ 17 May 1984, Brusse, 101/83
•   ECJ 15 January 1986, Pinna I, 41/84
•   ECJ 14 March 1989, Baldi, 1/88
•   ECJ 22 February 1990, Bronzino, C-228/88
•   ECJ 22 February 1990, Gatto, 12/89
•   ECJ 5 October 1995, Imbernon Martínez, C-321/93
•   ECJ 12 June 1997, Merino García, aff. C-266/95
•   ECJ 30 January 1997, Stöber & Pereira, C-4/95 and C-5/95
•   ECJ 12 June 1997, Merino-García, C-266/95
•   ECJ 5 February 2002, Humer, C-255/99
•   ECJ 7 November 2002, Maaheimo, C-333/00
•   ECJ 7 September 2004, Commission v. Belgium, C-469/02
•   ECJ 20 January 2005, Laurin Effing, C-302/02


                                                               9
Waiving of residence clauses
• So long as a worker remains subject to the social
  legislation of a Member State (MS) he is entitled to the
  family benefits provided for by the legislation of the first
  MS for members of his family residing in the territory of
  another MS, as if they were residing in the territory of
  the first State [Baldi]
       • Based on free movement of workers
• Article 52 of the Treaty precludes national rules which
  cause the taking of a self-employed person's children into
  account when calculating family allowances to be
  dependent upon their residing in that MS [Stöber &
  Peireira]

                                                                 10
Assimilation of facts
• A condition of entitlement to certain family benefits
  whereby a worker' s child must be registered as
  unemployed with the employment office of the MS
  providing the benefits, a condition which can be
  fulfilled only if the child resides within the territory
  of that State, comes within the scope of Article 73
  and must therefore be considered to be fulfilled
  where the child is registered as unemployed with the
  employment office of the MS in which he resides
  [Bronzino]

                                                         11
I – Scope of family benefits
II- Place of residence of family members
III- Overlapping of benefits




                                           12
Priority rules: principles
• The principles underlying Regulation 1408/71 require that if the amount
  of the benefits payable in the state of residence is less than that of the
  benefits payable in the other state, the worker retains the right to the
  higher amount and is entitled to a supplement to the benefits from the
  competent institution of the latter state equal to the difference between
  the two amounts [Ferraioli, aff. 153/84]
    – article 10 ( 1 ) ( a ) of Reg. 574/72 suspends payment of family benefits or family
      allowances payable under the legislation of the state of employment only up to the
      amount received, in respect of the same period and the same member of the family , in
      the state of residence by the spouse pursuing a professional or trade activity within the
      territory of that state [Beeck, 104/80]
• Article 76 of Reg. 1408/71 seeks to give priority , in a case of overlapping
  family benefits , to the benefits of the MS in the territory of which the
  children reside and in which one of the recipients in question pursues a
  professional or trade activity [Robards, 149/82]


                                                                                             13
Reversal of priorities
• The exercise by a person having the care of children, and in particular, by
  the spouse of the person entitled, of a professional or trade activity in the
  MS of residence of the children suspends the right to allowances in
  pursuance of Article 73 of Regulation 1408/71 up to the amount of the
  allowances of the same kind actually paid by the State of residence,
  irrespective of who is designated as directly entitled to the family
  allowances by the legislation of the State of residence [McMenamin, C-
  119/91]
• Where a person having the care of children, in particular the spouse or
  partner of an employed person, carries out a professional or trade activity
  in the MS of residence, the family benefits must be paid by that MS,
  irrespective of who is designated as directly entitled to those benefits by
  the legislation of that State. In that situation, the payment of family
  benefits by the MS of employment is to be suspended up to the sum of
  family benefits provided for by the legislation of the MS of residence [Dodl
  et Oberhollenzer, C-543/03 –see also Ursula Weide, C-153/03, Slanina:
  divorced parents]
                                                                             14
Impact of no effective payment
• There is no suspension of the entitlement to family allowances
  payable in the country of employment of one of the parents when
  the other parent resides with the children in another MS and
  pursues there a professional or trade activity but does not receive
  family allowances for the children , the reason being that not all the
  conditions laid down by the legislation of that MS for the actual
  receipt of such allowances are satisfied [Salzano, 191/83]
• Entitlement to family benefits in the MS in which one of the parents
  is employed is not to be suspended where the benefits or
  allowances are not payable or are no longer payable in the MS in
  whose territory the members of the family reside solely because
  they have not been applied for or re-applied for [Kracht, C-117/89]


                                                                     15
Impact of no effective payment
– A right, which is not subject to conditions of insurance,
  employment or self-employment, to benefits under the
  legislation of a MS in which one parent resides with the
  children in favour of which those benefits are granted cannot
  be partially suspended in a situation in which the former
  spouse, who is the other parent of the children concerned,
  would in principle be entitled to family benefits under the
  legislation of the State in which he is employed, either simply
  by virtue of the national legislation of that State, or in
  application of Article 73 of the said Regulation No 1408/71,
  but does not actually draw those benefits because he has not
  made an application for them [Schwemmer, C-16/09]


                                                                16
Voluntary application of national law
• Article 13(2)(a) does not preclude a migrant worker, who is subject to the
  social security scheme of the MS of employment, from receiving, pursuant
  to the national legislation of the MS of residence, child benefit in the latter
  State
             – It follows that Community law does not require the
               competent German authorities to grant Mrs Bosmann the
               family benefit in question.
             – However, neither can the possibility of such a grant be
               excluded, because, as is clear from the contents of the file
               submitted to the Court, it is apparent that, under the German
               legislation, Mrs Bosmann may be entitled to child benefit
               solely because of her residence in Germany, which is for the
               national court to determine [Bosmann, C-352/06]




                                                                                17
Voluntary application of national law
• Articles 14(1)(a) and 14a(1)(a) do not preclude a MS, which is not
  designated under those provisions as being the competent State, from
  granting child benefits in accordance with its national law to a migrant
  worker who is working temporarily within its territory
    – including in the case where it is established that the worker concerned has not suffered
      any legal disadvantage by reason of the fact that he has exercised his freedom of
      movement, since he has retained his entitlement to family benefits of the same kind in
      the competent MS,
    – and that neither that worker nor the child for whom the benefit is claimed habitually
      resides within the territory of the MS in which the temporary work was carried out.
• Rules of the FEU Treaty on the free movement of workers preclude the
  application of a rule of national law against overlapping in so far as it
  involves, not a reduction in the amount of the benefit corresponding to
  the amount of a comparable benefit received in another State, but
  exclusion from that benefit [ECJ 12 June 2012, Hudzinski, C-611/10]

                                                                                             18

Contenu connexe

Tendances

Esic benifits ppt
Esic benifits pptEsic benifits ppt
Esic benifits pptvaseem18
 
Benefits of Employees State Insurance Act, 1948
Benefits of Employees State Insurance Act, 1948Benefits of Employees State Insurance Act, 1948
Benefits of Employees State Insurance Act, 1948Sheetal Wagh
 
The employee state insurance act 1948 1
The employee state insurance act 1948 1The employee state insurance act 1948 1
The employee state insurance act 1948 1najafalam13691
 
EMPLOYEE STATE INSURANCE ACT 1948
EMPLOYEE STATE INSURANCE ACT 1948EMPLOYEE STATE INSURANCE ACT 1948
EMPLOYEE STATE INSURANCE ACT 1948Mayur Khatri
 
Batas Kasambahay Law
Batas Kasambahay LawBatas Kasambahay Law
Batas Kasambahay LawParla157
 
Solo Parent Welfare Act Of 2000
Solo Parent Welfare Act Of 2000Solo Parent Welfare Act Of 2000
Solo Parent Welfare Act Of 2000Maam Lumanglas
 
Perminant residence v settled status application
Perminant residence v settled status applicationPerminant residence v settled status application
Perminant residence v settled status applicationAlvin Holder
 
Mmfpspv -ministry_of_labour_family_social_protection_and_elderly_-_the_direc...
Mmfpspv  -ministry_of_labour_family_social_protection_and_elderly_-_the_direc...Mmfpspv  -ministry_of_labour_family_social_protection_and_elderly_-_the_direc...
Mmfpspv -ministry_of_labour_family_social_protection_and_elderly_-_the_direc...IMI PQ NET Romania
 
UIF advocacy campaigns (employer presentation)
UIF advocacy campaigns (employer presentation)UIF advocacy campaigns (employer presentation)
UIF advocacy campaigns (employer presentation)Nobulali Myataza
 
2012 - The coördination of Social Security in Europe: applicable legislation
2012 - The coördination of Social Security in Europe: applicable legislation2012 - The coördination of Social Security in Europe: applicable legislation
2012 - The coördination of Social Security in Europe: applicable legislationtrESS Network
 
PRESENTATION OF ESIC
PRESENTATION OF ESICPRESENTATION OF ESIC
PRESENTATION OF ESICsaikishore608
 
expanded maternity leave table
expanded maternity leave tableexpanded maternity leave table
expanded maternity leave tableAngelee Mandreza
 

Tendances (20)

Esic presentation 1
Esic presentation   1Esic presentation   1
Esic presentation 1
 
Benefits Under Esi
Benefits Under EsiBenefits Under Esi
Benefits Under Esi
 
Esic benifits ppt
Esic benifits pptEsic benifits ppt
Esic benifits ppt
 
Benefits of Employees State Insurance Act, 1948
Benefits of Employees State Insurance Act, 1948Benefits of Employees State Insurance Act, 1948
Benefits of Employees State Insurance Act, 1948
 
The employee state insurance act 1948 1
The employee state insurance act 1948 1The employee state insurance act 1948 1
The employee state insurance act 1948 1
 
EMPLOYEE STATE INSURANCE ACT 1948
EMPLOYEE STATE INSURANCE ACT 1948EMPLOYEE STATE INSURANCE ACT 1948
EMPLOYEE STATE INSURANCE ACT 1948
 
Batas Kasambahay Law
Batas Kasambahay LawBatas Kasambahay Law
Batas Kasambahay Law
 
Solo Parent Welfare Act Of 2000
Solo Parent Welfare Act Of 2000Solo Parent Welfare Act Of 2000
Solo Parent Welfare Act Of 2000
 
Perminant residence v settled status application
Perminant residence v settled status applicationPerminant residence v settled status application
Perminant residence v settled status application
 
Esi Act 1948
Esi Act 1948Esi Act 1948
Esi Act 1948
 
Esi Training
Esi TrainingEsi Training
Esi Training
 
Esic
EsicEsic
Esic
 
Mmfpspv -ministry_of_labour_family_social_protection_and_elderly_-_the_direc...
Mmfpspv  -ministry_of_labour_family_social_protection_and_elderly_-_the_direc...Mmfpspv  -ministry_of_labour_family_social_protection_and_elderly_-_the_direc...
Mmfpspv -ministry_of_labour_family_social_protection_and_elderly_-_the_direc...
 
Esic act 1948
Esic act 1948Esic act 1948
Esic act 1948
 
UIF advocacy campaigns (employer presentation)
UIF advocacy campaigns (employer presentation)UIF advocacy campaigns (employer presentation)
UIF advocacy campaigns (employer presentation)
 
2012 - The coördination of Social Security in Europe: applicable legislation
2012 - The coördination of Social Security in Europe: applicable legislation2012 - The coördination of Social Security in Europe: applicable legislation
2012 - The coördination of Social Security in Europe: applicable legislation
 
Workmen Compensation vs ESI
Workmen Compensation vs ESIWorkmen Compensation vs ESI
Workmen Compensation vs ESI
 
PRESENTATION OF ESIC
PRESENTATION OF ESICPRESENTATION OF ESIC
PRESENTATION OF ESIC
 
expanded maternity leave table
expanded maternity leave tableexpanded maternity leave table
expanded maternity leave table
 
Esi act, 1948
Esi act, 1948Esi act, 1948
Esi act, 1948
 

Similaire à 2012 - European case law and family benefits

Cmact1 130917065324-phpapp02 (1)
Cmact1 130917065324-phpapp02 (1)Cmact1 130917065324-phpapp02 (1)
Cmact1 130917065324-phpapp02 (1)mohit1610
 
Solo Parent Welfare Act Of 200 1210581546581233 9
Solo Parent Welfare Act Of 200 1210581546581233 9Solo Parent Welfare Act Of 200 1210581546581233 9
Solo Parent Welfare Act Of 200 1210581546581233 9DENR Employees Union
 
Tpp HR Employment Law update march 2015
Tpp HR Employment Law update march 2015Tpp HR Employment Law update march 2015
Tpp HR Employment Law update march 2015TPP Recruitment
 
CHAPTER-5_Family-Values.pptx
CHAPTER-5_Family-Values.pptxCHAPTER-5_Family-Values.pptx
CHAPTER-5_Family-Values.pptxEmanuelCelestino1
 
Covid19 guidance for multiemployer plans and labor unions webinar
Covid19 guidance for multiemployer plans and labor unions webinarCovid19 guidance for multiemployer plans and labor unions webinar
Covid19 guidance for multiemployer plans and labor unions webinarWithum
 
Tax Facts to Successfully Navigate the Families First Coronavirus Response Act
Tax Facts to Successfully Navigate the Families First Coronavirus Response ActTax Facts to Successfully Navigate the Families First Coronavirus Response Act
Tax Facts to Successfully Navigate the Families First Coronavirus Response ActCitrin Cooperman
 
Families First Coronavirus Response Act: Employer Paid Leave Requirements - F...
Families First Coronavirus Response Act: Employer Paid Leave Requirements - F...Families First Coronavirus Response Act: Employer Paid Leave Requirements - F...
Families First Coronavirus Response Act: Employer Paid Leave Requirements - F...Porfirio Navarro
 
Work-Related Forms & Laws
Work-Related Forms & LawsWork-Related Forms & Laws
Work-Related Forms & LawsDebbie Block
 
PPACA HR3590 Summary
PPACA HR3590 SummaryPPACA HR3590 Summary
PPACA HR3590 SummaryRobert Hutt
 
ESIC( Employee State Insurance Act & Scheme,1948)
ESIC( Employee State Insurance Act & Scheme,1948)ESIC( Employee State Insurance Act & Scheme,1948)
ESIC( Employee State Insurance Act & Scheme,1948)Rahul Mahida
 
Corporate social responsibility ppt
Corporate social responsibility pptCorporate social responsibility ppt
Corporate social responsibility pptGanesh Turerao
 
2020 The Families First Coronavirus Response Act
2020 The Families First Coronavirus Response Act2020 The Families First Coronavirus Response Act
2020 The Families First Coronavirus Response ActCMP
 
PPT Rights and Privileges of Teacher.pptx
PPT Rights and Privileges of Teacher.pptxPPT Rights and Privileges of Teacher.pptx
PPT Rights and Privileges of Teacher.pptxFrancisRicoTobes1
 
Compliance Bulletin - New York Enacts Paid Family Leave Law
Compliance Bulletin - New York Enacts Paid Family Leave LawCompliance Bulletin - New York Enacts Paid Family Leave Law
Compliance Bulletin - New York Enacts Paid Family Leave LawNicholas Toscano
 
The law on maintenance for children (equal responsibilities)
The law on maintenance for children (equal responsibilities)The law on maintenance for children (equal responsibilities)
The law on maintenance for children (equal responsibilities)NurulHayyu1
 
COVID-19 Tax and Business Update
COVID-19 Tax and Business UpdateCOVID-19 Tax and Business Update
COVID-19 Tax and Business UpdateWithum
 
Families First Coronavirus Response Act: What it Does and How to Respond
Families First Coronavirus Response Act: What it Does and How to RespondFamilies First Coronavirus Response Act: What it Does and How to Respond
Families First Coronavirus Response Act: What it Does and How to RespondParsons Behle & Latimer
 

Similaire à 2012 - European case law and family benefits (20)

Cmact1 130917065324-phpapp02 (1)
Cmact1 130917065324-phpapp02 (1)Cmact1 130917065324-phpapp02 (1)
Cmact1 130917065324-phpapp02 (1)
 
Esi
EsiEsi
Esi
 
European rights
European rightsEuropean rights
European rights
 
Solo Parent Welfare Act Of 200 1210581546581233 9
Solo Parent Welfare Act Of 200 1210581546581233 9Solo Parent Welfare Act Of 200 1210581546581233 9
Solo Parent Welfare Act Of 200 1210581546581233 9
 
Tpp HR Employment Law update march 2015
Tpp HR Employment Law update march 2015Tpp HR Employment Law update march 2015
Tpp HR Employment Law update march 2015
 
CHAPTER-5_Family-Values.pptx
CHAPTER-5_Family-Values.pptxCHAPTER-5_Family-Values.pptx
CHAPTER-5_Family-Values.pptx
 
Covid19 guidance for multiemployer plans and labor unions webinar
Covid19 guidance for multiemployer plans and labor unions webinarCovid19 guidance for multiemployer plans and labor unions webinar
Covid19 guidance for multiemployer plans and labor unions webinar
 
Tax Facts to Successfully Navigate the Families First Coronavirus Response Act
Tax Facts to Successfully Navigate the Families First Coronavirus Response ActTax Facts to Successfully Navigate the Families First Coronavirus Response Act
Tax Facts to Successfully Navigate the Families First Coronavirus Response Act
 
Families First Coronavirus Response Act: Employer Paid Leave Requirements - F...
Families First Coronavirus Response Act: Employer Paid Leave Requirements - F...Families First Coronavirus Response Act: Employer Paid Leave Requirements - F...
Families First Coronavirus Response Act: Employer Paid Leave Requirements - F...
 
Work-Related Forms & Laws
Work-Related Forms & LawsWork-Related Forms & Laws
Work-Related Forms & Laws
 
PPACA HR3590 Summary
PPACA HR3590 SummaryPPACA HR3590 Summary
PPACA HR3590 Summary
 
ESIC( Employee State Insurance Act & Scheme,1948)
ESIC( Employee State Insurance Act & Scheme,1948)ESIC( Employee State Insurance Act & Scheme,1948)
ESIC( Employee State Insurance Act & Scheme,1948)
 
esi act 1948.pptx
esi act 1948.pptxesi act 1948.pptx
esi act 1948.pptx
 
Corporate social responsibility ppt
Corporate social responsibility pptCorporate social responsibility ppt
Corporate social responsibility ppt
 
2020 The Families First Coronavirus Response Act
2020 The Families First Coronavirus Response Act2020 The Families First Coronavirus Response Act
2020 The Families First Coronavirus Response Act
 
PPT Rights and Privileges of Teacher.pptx
PPT Rights and Privileges of Teacher.pptxPPT Rights and Privileges of Teacher.pptx
PPT Rights and Privileges of Teacher.pptx
 
Compliance Bulletin - New York Enacts Paid Family Leave Law
Compliance Bulletin - New York Enacts Paid Family Leave LawCompliance Bulletin - New York Enacts Paid Family Leave Law
Compliance Bulletin - New York Enacts Paid Family Leave Law
 
The law on maintenance for children (equal responsibilities)
The law on maintenance for children (equal responsibilities)The law on maintenance for children (equal responsibilities)
The law on maintenance for children (equal responsibilities)
 
COVID-19 Tax and Business Update
COVID-19 Tax and Business UpdateCOVID-19 Tax and Business Update
COVID-19 Tax and Business Update
 
Families First Coronavirus Response Act: What it Does and How to Respond
Families First Coronavirus Response Act: What it Does and How to RespondFamilies First Coronavirus Response Act: What it Does and How to Respond
Families First Coronavirus Response Act: What it Does and How to Respond
 

Plus de trESS Network

2013 - trESS presentation FR
2013 - trESS presentation FR2013 - trESS presentation FR
2013 - trESS presentation FRtrESS Network
 
2013 - trESS presentation EN
2013 - trESS presentation EN2013 - trESS presentation EN
2013 - trESS presentation ENtrESS Network
 
2010 - ANALIZA PRIMEROV
2010 - ANALIZA PRIMEROV2010 - ANALIZA PRIMEROV
2010 - ANALIZA PRIMEROVtrESS Network
 
2010 - Priprave na izvajanje novih Uredb 883/2004/ES in 987/2009/ES
2010 - Priprave na izvajanje novih Uredb 883/2004/ES in 987/2009/ES2010 - Priprave na izvajanje novih Uredb 883/2004/ES in 987/2009/ES
2010 - Priprave na izvajanje novih Uredb 883/2004/ES in 987/2009/EStrESS Network
 
2010 - Modernised EU Social Security Coordination and Old-Age Pensions
2010 - Modernised EU Social Security Coordination and Old-Age Pensions2010 - Modernised EU Social Security Coordination and Old-Age Pensions
2010 - Modernised EU Social Security Coordination and Old-Age PensionstrESS Network
 
2010 - BISTVENE NOVOSTI V UREDBAH 883/04 in 987/09
2010 - BISTVENE NOVOSTI V UREDBAH 883/04 in 987/092010 - BISTVENE NOVOSTI V UREDBAH 883/04 in 987/09
2010 - BISTVENE NOVOSTI V UREDBAH 883/04 in 987/09trESS Network
 
2010 - Kratek pregled zgodovinskega razvoja koordinacije sistemov socialne va...
2010 - Kratek pregled zgodovinskega razvoja koordinacije sistemov socialne va...2010 - Kratek pregled zgodovinskega razvoja koordinacije sistemov socialne va...
2010 - Kratek pregled zgodovinskega razvoja koordinacije sistemov socialne va...trESS Network
 
2010 - Advising Individuals on Their Rights in Europe
2010 - Advising Individuals on Their Rights in Europe2010 - Advising Individuals on Their Rights in Europe
2010 - Advising Individuals on Their Rights in EuropetrESS Network
 
2010 - Review 2009/10
2010 - Review 2009/102010 - Review 2009/10
2010 - Review 2009/10trESS Network
 
2010 - Regulations 883/2004 & 987/2009 - Ongoing work
2010 - Regulations 883/2004 & 987/2009 - Ongoing work2010 - Regulations 883/2004 & 987/2009 - Ongoing work
2010 - Regulations 883/2004 & 987/2009 - Ongoing worktrESS Network
 
2010 - Föräldrapenning
2010 - Föräldrapenning2010 - Föräldrapenning
2010 - FöräldrapenningtrESS Network
 
2010 - Familjeförmåner/Inkomstbaserad föräldrapenning Fallet Sverige
2010 - Familjeförmåner/Inkomstbaserad föräldrapenning Fallet Sverige2010 - Familjeförmåner/Inkomstbaserad föräldrapenning Fallet Sverige
2010 - Familjeförmåner/Inkomstbaserad föräldrapenning Fallet SverigetrESS Network
 
2010 - Öresundsöverenskommelsen - the Öresund application
2010 - Öresundsöverenskommelsen - the Öresund application2010 - Öresundsöverenskommelsen - the Öresund application
2010 - Öresundsöverenskommelsen - the Öresund applicationtrESS Network
 
2010 - Lagvalsreglerna i förordning 883/04
2010 - Lagvalsreglerna i förordning 883/042010 - Lagvalsreglerna i förordning 883/04
2010 - Lagvalsreglerna i förordning 883/04trESS Network
 
2010 - National trESS Seminar - Case studies
2010 - National trESS Seminar - Case studies2010 - National trESS Seminar - Case studies
2010 - National trESS Seminar - Case studiestrESS Network
 
2010 - Where do we stand – what problems do we have?
2010 - Where do we stand – what problems do we have?2010 - Where do we stand – what problems do we have?
2010 - Where do we stand – what problems do we have?trESS Network
 
2010 - Coordonarea modernizată a sistemelor de asigurări de şomaj
2010 - Coordonarea modernizată a sistemelor de asigurări de şomaj2010 - Coordonarea modernizată a sistemelor de asigurări de şomaj
2010 - Coordonarea modernizată a sistemelor de asigurări de şomajtrESS Network
 
2010 - Pregătiri la nivel naţional pentru trecerea la
2010 - Pregătiri la nivel naţional pentru trecerea la 2010 - Pregătiri la nivel naţional pentru trecerea la
2010 - Pregătiri la nivel naţional pentru trecerea la trESS Network
 
2010 - EESSI - Electronic Exchange of Social Security Information
2010 - EESSI - Electronic Exchange of Social Security Information 2010 - EESSI - Electronic Exchange of Social Security Information
2010 - EESSI - Electronic Exchange of Social Security Information trESS Network
 

Plus de trESS Network (20)

2013 - trESS presentation FR
2013 - trESS presentation FR2013 - trESS presentation FR
2013 - trESS presentation FR
 
2013 - trESS presentation EN
2013 - trESS presentation EN2013 - trESS presentation EN
2013 - trESS presentation EN
 
2010 - ANALIZA PRIMEROV
2010 - ANALIZA PRIMEROV2010 - ANALIZA PRIMEROV
2010 - ANALIZA PRIMEROV
 
2010 - CASE STUDIES
2010 - CASE STUDIES2010 - CASE STUDIES
2010 - CASE STUDIES
 
2010 - Priprave na izvajanje novih Uredb 883/2004/ES in 987/2009/ES
2010 - Priprave na izvajanje novih Uredb 883/2004/ES in 987/2009/ES2010 - Priprave na izvajanje novih Uredb 883/2004/ES in 987/2009/ES
2010 - Priprave na izvajanje novih Uredb 883/2004/ES in 987/2009/ES
 
2010 - Modernised EU Social Security Coordination and Old-Age Pensions
2010 - Modernised EU Social Security Coordination and Old-Age Pensions2010 - Modernised EU Social Security Coordination and Old-Age Pensions
2010 - Modernised EU Social Security Coordination and Old-Age Pensions
 
2010 - BISTVENE NOVOSTI V UREDBAH 883/04 in 987/09
2010 - BISTVENE NOVOSTI V UREDBAH 883/04 in 987/092010 - BISTVENE NOVOSTI V UREDBAH 883/04 in 987/09
2010 - BISTVENE NOVOSTI V UREDBAH 883/04 in 987/09
 
2010 - Kratek pregled zgodovinskega razvoja koordinacije sistemov socialne va...
2010 - Kratek pregled zgodovinskega razvoja koordinacije sistemov socialne va...2010 - Kratek pregled zgodovinskega razvoja koordinacije sistemov socialne va...
2010 - Kratek pregled zgodovinskega razvoja koordinacije sistemov socialne va...
 
2010 - Advising Individuals on Their Rights in Europe
2010 - Advising Individuals on Their Rights in Europe2010 - Advising Individuals on Their Rights in Europe
2010 - Advising Individuals on Their Rights in Europe
 
2010 - Review 2009/10
2010 - Review 2009/102010 - Review 2009/10
2010 - Review 2009/10
 
2010 - Regulations 883/2004 & 987/2009 - Ongoing work
2010 - Regulations 883/2004 & 987/2009 - Ongoing work2010 - Regulations 883/2004 & 987/2009 - Ongoing work
2010 - Regulations 883/2004 & 987/2009 - Ongoing work
 
2010 - Föräldrapenning
2010 - Föräldrapenning2010 - Föräldrapenning
2010 - Föräldrapenning
 
2010 - Familjeförmåner/Inkomstbaserad föräldrapenning Fallet Sverige
2010 - Familjeförmåner/Inkomstbaserad föräldrapenning Fallet Sverige2010 - Familjeförmåner/Inkomstbaserad föräldrapenning Fallet Sverige
2010 - Familjeförmåner/Inkomstbaserad föräldrapenning Fallet Sverige
 
2010 - Öresundsöverenskommelsen - the Öresund application
2010 - Öresundsöverenskommelsen - the Öresund application2010 - Öresundsöverenskommelsen - the Öresund application
2010 - Öresundsöverenskommelsen - the Öresund application
 
2010 - Lagvalsreglerna i förordning 883/04
2010 - Lagvalsreglerna i förordning 883/042010 - Lagvalsreglerna i förordning 883/04
2010 - Lagvalsreglerna i förordning 883/04
 
2010 - National trESS Seminar - Case studies
2010 - National trESS Seminar - Case studies2010 - National trESS Seminar - Case studies
2010 - National trESS Seminar - Case studies
 
2010 - Where do we stand – what problems do we have?
2010 - Where do we stand – what problems do we have?2010 - Where do we stand – what problems do we have?
2010 - Where do we stand – what problems do we have?
 
2010 - Coordonarea modernizată a sistemelor de asigurări de şomaj
2010 - Coordonarea modernizată a sistemelor de asigurări de şomaj2010 - Coordonarea modernizată a sistemelor de asigurări de şomaj
2010 - Coordonarea modernizată a sistemelor de asigurări de şomaj
 
2010 - Pregătiri la nivel naţional pentru trecerea la
2010 - Pregătiri la nivel naţional pentru trecerea la 2010 - Pregătiri la nivel naţional pentru trecerea la
2010 - Pregătiri la nivel naţional pentru trecerea la
 
2010 - EESSI - Electronic Exchange of Social Security Information
2010 - EESSI - Electronic Exchange of Social Security Information 2010 - EESSI - Electronic Exchange of Social Security Information
2010 - EESSI - Electronic Exchange of Social Security Information
 

2012 - European case law and family benefits

  • 1. European case law and family benefits 27 September 2012 trESS, Spanish seminar, Sevilla Pr. dr. J.-Ph. Lhernould, TRESS visiting expert 1
  • 2. I – Scope of family benefits II- Place of residence of family members III- Overlapping of benefits 2
  • 3. I – Scope of family benefits II- Place of residence of family members III- Overlapping of benefits 3
  • 4. Broad scope • "family benefit" means all benefits in kind or in cash intended to meet family expenses, excluding advances of maintenance payments and special childbirth and adoption Allowances mentioned in Annex I – family benefits are intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses [Kromhout, 104/84] – an allowance which, being granted automatically to families meeting certain objective criteria, relating in particular to their size, income and capital resources, may be considered a family benefit [Bettacini, C-301/93 : family unit allowance paid to a person who is in receipt of an invalidity pension, the amount of the allowance not depending on the amount of the invalidity pension but fixed according to the family income and the number of persons making up the family unit] – Cash benefits to large families + monthly cash benefit, payable for three years, on the birth of the third child [Commission v. Greece, C-185/96] – «Family credit» encourages workers who are poorly paid to continue working; and secondly, is intended to meet family expenses since it is paid only where the claimant' s family includes one or more children + amount varies according to the age of the children [Hughes, C-78/91] 4
  • 5. Broad scope • A benefit such as a child-raising allowance, which is automatically granted to persons fulfilling certain objective, legally defined criteria, without any individual and discretionary assessment of personal needs, which is intended to meet family expenses and more particularly to remunerate the service of bringing up a child, to meet other costs of caring for and bringing up a child and to mitigate the financial disadvantages entailed in giving up income from full-time employment [Hoever and Zachow, C-245/94] • Home child-care allowance: public contribution to a family's budget to alleviate the financial burdens involved in the maintenance of children - close link between family expenses and the allowance [Maaheimo, C-333/00] • Career break allowance granted to parents on parental leave are « assimilated » to family benefits [Commission v. Belgium, C-469/02] • A benefit such as the advances on maintenance payments granted - objective: to relieve the financial burden borne by the parent awarded custody of children [Offermans, C-85/99] 5
  • 6. Beneficiaries • Spouse and former spouse – Where an employed person is subject to the legislation of a MS and lives with his or her family in another MS, that person’s spouse is entitled to receive a benefit such a child-raising allowance in the State of employment [Hoever et Zachow] – a divorced person who was paid family allowances by the competent institution of the MS in which she was living and where her ex- husband continues to live and work maintains in respect of her child, provided that child is recognised as a ‘member of the family’ of the ex- husband within the meaning of Article 1(f)(i), entitlement to such allowances even though she leaves that State and settles with her child in another MS, where she does not work, and even though her ex-husband could receive those allowances in his MS of residence. [Slanina, C-363/08] 6
  • 7. Beneficiaries • Child – where a minor child resides with the parent who has custody in a Member State other than the Member State providing the benefit, and where the other parent, who is under an obligation to pay maintenance, works or is unemployed in the Member State providing the benefit, that child is entitled to receive a family benefit such as the advance on maintenance payments [Humer] • Non-active person – Regulation No 1408/71 does not preclude the legislation of a Member State from providing that a person who has ceased all occupational activity in its territory loses the right to continue to receive family benefits paid under that legislation on the ground that he has transferred his residence toanother Member State where he lives with the members of his family [Kuusijärvi, C-275/96 - Those questions were raised in proceedings between Mrs Kuusijärvi, a Finnishnational, and Riksförsäkringsverket (Swedish Social Security Board) concerning MrsKuusijärvi's entitlement to continued payment of parental benefits paid under Swedish legislation (where she worked) after she had transferred her residence to Finland, where she did not work] 7
  • 8. I – Scope of family benefits II- Place of residence of family members III- Overlapping of benefits 8
  • 9. Waiving of residence clauses • ECJ 17 May 1984, Brusse, 101/83 • ECJ 15 January 1986, Pinna I, 41/84 • ECJ 14 March 1989, Baldi, 1/88 • ECJ 22 February 1990, Bronzino, C-228/88 • ECJ 22 February 1990, Gatto, 12/89 • ECJ 5 October 1995, Imbernon Martínez, C-321/93 • ECJ 12 June 1997, Merino García, aff. C-266/95 • ECJ 30 January 1997, Stöber & Pereira, C-4/95 and C-5/95 • ECJ 12 June 1997, Merino-García, C-266/95 • ECJ 5 February 2002, Humer, C-255/99 • ECJ 7 November 2002, Maaheimo, C-333/00 • ECJ 7 September 2004, Commission v. Belgium, C-469/02 • ECJ 20 January 2005, Laurin Effing, C-302/02 9
  • 10. Waiving of residence clauses • So long as a worker remains subject to the social legislation of a Member State (MS) he is entitled to the family benefits provided for by the legislation of the first MS for members of his family residing in the territory of another MS, as if they were residing in the territory of the first State [Baldi] • Based on free movement of workers • Article 52 of the Treaty precludes national rules which cause the taking of a self-employed person's children into account when calculating family allowances to be dependent upon their residing in that MS [Stöber & Peireira] 10
  • 11. Assimilation of facts • A condition of entitlement to certain family benefits whereby a worker' s child must be registered as unemployed with the employment office of the MS providing the benefits, a condition which can be fulfilled only if the child resides within the territory of that State, comes within the scope of Article 73 and must therefore be considered to be fulfilled where the child is registered as unemployed with the employment office of the MS in which he resides [Bronzino] 11
  • 12. I – Scope of family benefits II- Place of residence of family members III- Overlapping of benefits 12
  • 13. Priority rules: principles • The principles underlying Regulation 1408/71 require that if the amount of the benefits payable in the state of residence is less than that of the benefits payable in the other state, the worker retains the right to the higher amount and is entitled to a supplement to the benefits from the competent institution of the latter state equal to the difference between the two amounts [Ferraioli, aff. 153/84] – article 10 ( 1 ) ( a ) of Reg. 574/72 suspends payment of family benefits or family allowances payable under the legislation of the state of employment only up to the amount received, in respect of the same period and the same member of the family , in the state of residence by the spouse pursuing a professional or trade activity within the territory of that state [Beeck, 104/80] • Article 76 of Reg. 1408/71 seeks to give priority , in a case of overlapping family benefits , to the benefits of the MS in the territory of which the children reside and in which one of the recipients in question pursues a professional or trade activity [Robards, 149/82] 13
  • 14. Reversal of priorities • The exercise by a person having the care of children, and in particular, by the spouse of the person entitled, of a professional or trade activity in the MS of residence of the children suspends the right to allowances in pursuance of Article 73 of Regulation 1408/71 up to the amount of the allowances of the same kind actually paid by the State of residence, irrespective of who is designated as directly entitled to the family allowances by the legislation of the State of residence [McMenamin, C- 119/91] • Where a person having the care of children, in particular the spouse or partner of an employed person, carries out a professional or trade activity in the MS of residence, the family benefits must be paid by that MS, irrespective of who is designated as directly entitled to those benefits by the legislation of that State. In that situation, the payment of family benefits by the MS of employment is to be suspended up to the sum of family benefits provided for by the legislation of the MS of residence [Dodl et Oberhollenzer, C-543/03 –see also Ursula Weide, C-153/03, Slanina: divorced parents] 14
  • 15. Impact of no effective payment • There is no suspension of the entitlement to family allowances payable in the country of employment of one of the parents when the other parent resides with the children in another MS and pursues there a professional or trade activity but does not receive family allowances for the children , the reason being that not all the conditions laid down by the legislation of that MS for the actual receipt of such allowances are satisfied [Salzano, 191/83] • Entitlement to family benefits in the MS in which one of the parents is employed is not to be suspended where the benefits or allowances are not payable or are no longer payable in the MS in whose territory the members of the family reside solely because they have not been applied for or re-applied for [Kracht, C-117/89] 15
  • 16. Impact of no effective payment – A right, which is not subject to conditions of insurance, employment or self-employment, to benefits under the legislation of a MS in which one parent resides with the children in favour of which those benefits are granted cannot be partially suspended in a situation in which the former spouse, who is the other parent of the children concerned, would in principle be entitled to family benefits under the legislation of the State in which he is employed, either simply by virtue of the national legislation of that State, or in application of Article 73 of the said Regulation No 1408/71, but does not actually draw those benefits because he has not made an application for them [Schwemmer, C-16/09] 16
  • 17. Voluntary application of national law • Article 13(2)(a) does not preclude a migrant worker, who is subject to the social security scheme of the MS of employment, from receiving, pursuant to the national legislation of the MS of residence, child benefit in the latter State – It follows that Community law does not require the competent German authorities to grant Mrs Bosmann the family benefit in question. – However, neither can the possibility of such a grant be excluded, because, as is clear from the contents of the file submitted to the Court, it is apparent that, under the German legislation, Mrs Bosmann may be entitled to child benefit solely because of her residence in Germany, which is for the national court to determine [Bosmann, C-352/06] 17
  • 18. Voluntary application of national law • Articles 14(1)(a) and 14a(1)(a) do not preclude a MS, which is not designated under those provisions as being the competent State, from granting child benefits in accordance with its national law to a migrant worker who is working temporarily within its territory – including in the case where it is established that the worker concerned has not suffered any legal disadvantage by reason of the fact that he has exercised his freedom of movement, since he has retained his entitlement to family benefits of the same kind in the competent MS, – and that neither that worker nor the child for whom the benefit is claimed habitually resides within the territory of the MS in which the temporary work was carried out. • Rules of the FEU Treaty on the free movement of workers preclude the application of a rule of national law against overlapping in so far as it involves, not a reduction in the amount of the benefit corresponding to the amount of a comparable benefit received in another State, but exclusion from that benefit [ECJ 12 June 2012, Hudzinski, C-611/10] 18