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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Offermanns (Free movement of persons) [2001] EUECJ C-85/99 (15 March 2001) URL: http://www.bailii.org/eu/cases/EUECJ/2001/C8599.html Cite as: [2001] ECR I-2261, [2001] EUECJ C-85/99, ECLI:EU:C:2001:166, Case C-85/99, EU:C:2001:166 |
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JUDGMENT OF THE COURT (Fifth Chamber)
15 March 2001 (1)
(Regulation (EEC) No 1408/71 - Definition of 'family benefits - National legislation providing for payment of advances on maintenance payments due by a worker to his minor child - Condition concerning the child's nationality)
In Case C-85/99,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Oberster Gerichtshof, Austria, for a preliminary ruling in the proceedings brought before that court by
Vincent Offermanns and Esther Offermanns
on the interpretation of Articles 3 and 4(1)(h) 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), and of Articles 6 and 52 of the EC Treaty (now, after amendment, Articles 12 EC and 43 EC),
THE COURT (Fifth Chamber),
composed of: A. La Pergola, President of the Chamber, M. Wathelet, D.A.O. Edward (Rapporteur), P. Jann and L. Sevón, Judges,
Advocate General: S. Alber,
Registrar: H.A. Rühl, Principal Administrator,
after considering the written observations submitted on behalf of:
- the Austrian Government, by C. Pesendorfer, acting as Agent,
- the Commission of the European Communities, by V. Kreuschitz and P. Hillenkamp, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of the Austrian Government, represented by G. Hesse, acting as Agent, of the Swedish Government, represented by L. Nordling, acting as Agent, and of the Commission, represented by V. Kreuschitz, at the hearing on 22 June 2000,
after hearing the Opinion of the Advocate General at the sitting on 28 September 2000,
gives the following
The Community legislation
'For the purpose of this Regulation:
...
(u) (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 child birth or adoption allowances referred to in Annex II;
....
'1. This Regulation shall apply to employed or self-employed persons who are or who have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.
'1. Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.
2. ...
3. Save as provided in Annex III, the provisions of social security conventions which remain in force pursuant to Article 7(2)(c) and the provisions of conventionsconcluded pursuant to Article 8(1), shall apply to all persons to whom this Regulation applies.
'This Regulation shall apply to all legislation concerning the following branches of social security:
...
(h) family benefits.
'The Member States shall specify the legislation and schemes referred to in Article 4(1) and (2), the special non-contributory benefits referred to in Article 4(2a), the minimum benefits referred to in Article 50 and the benefits referred to in Articles 77 and 78 in declarations to be notified and published in accordance with Article 97.
'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.
The national legislation
'Minor children who are ordinarily resident in Austria and are either Austrian nationals or are stateless shall be entitled to advances ....
'Advances shall be granted
1. where a writ of execution enforceable in Austria exists in respect of the legal right to maintenance payments and
2. where execution in respect of current maintenance payments ... or, where the person in default of payment of maintenance clearly has no income or other form of regular remuneration, execution ... has not covered in full, in the last six months prior to the submission of that application for the grant of an advance, even one of the maintenance payments due. In that respect, maintenance arrears when recovered shall be set off against the current maintenance debt.
The main proceedings and the questions referred for a preliminary ruling
'(1) Are advances on maintenance payments for minor children of self-employed persons, granted under the Austrian Federal Law on the Grant of Advances on Maintenance for Children (Unterhaltsvorschußgesetz 1985 - UVG - current version in BGBl. p. 451), family benefits under Article 4(1)(h) 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, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 and amended by Council Regulation (EEC) No 3427/89 of 30 October 1989, and is Article 3 of that regulation, concerning equal treatment, therefore applicable in such a case?
(2) If Question 1 is to be answered in the negative:
Are minor children who, like their parents - who are self-employed in the Republic of Austria - are German nationals but ordinarily resident in the Republic of Austria and who are applying for the grant of advances on maintenance under the Austrian Federal Law on the Grant of Advances on Maintenance for Children (Unterhaltsvorschußsgesetz 1985) discriminated against as family members, contrary to Article 52 of the EC Treaty or the first paragraph of Article 6 of the EC Treaty, by virtue of the fact that entitlementto such advances is withheld from them under Article 2(1) of the UVG on the ground that they are German nationals?
The first question referred for a preliminary ruling
Findings of the Court
The second question
Costs
51. The costs incurred by the Austrian and Swedish Government and by the Commission, which have submitted observations to the Court, are not recoverable. 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.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the Oberster Gerichtshof by order of 23 February 1999, hereby rules:
A benefit such as the advances on maintenance payments provided for by the Austrian Bundesgesetz über die Gewährung von Vorschüssen auf den Unterhalt von Kindern (Unterhaltsvorschußgesetz) (Federal Austrian Law on the Grant of Advances on Maintenance for Children) constitutes a family benefit within the meaning of Article 4(1)(h) 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996. Consequently, persons residing in the territory of a Member State to which the provisions of that regulation apply are entitled, in accordance with Article 3 of that regulation, to receive such a benefit under the legislation of that Member State on the same conditions as that State's nationals.
La Pergola
JannSevón
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Delivered in open court in Luxembourg on 15 March 2001.
R. Grass A. La Pergola
Registrar President of the Fifth Chamber
1: Language of the case: German.