Joined Cases C‑216/12 and C‑217/12

Caisse nationale des prestations familiales

v

Fjola Hliddal (C‑216/12)

and

Pierre-Louis Bornand (C‑217/12)

(Requests for a preliminary ruling from the Cour de cassation (Luxembourg))

‛Social security — Regulation (EEC) No 1408/71 — Agreement between the European Community and the Swiss Confederation — Swiss nationals residing in Switzerland and working in Luxembourg — Grant of a parental leave allowance — Concept of a ‘family benefit’’

Summary — Judgment of the Court (Fifth Chamber), 19 September 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Scope — EC-Swiss Agreement on the free movement of persons — Whether included having regard to the grant of the benefits referred to in Regulation No 1408/71 to Swiss nationals under that Agreement

   (EC-Swiss Agreement on the free movement of persons, Annex II; Council Regulation No 1408/71, Arts 1(u)(i) and 4(1)(h))

2. Social security — Family benefits — Definition — Parental leave allowance — Included

   (Art. 157 TFEU; Council Regulation No 1408/71, Arts 1(u)(i) and 4(1)(h))

1.  See the text of the decision.

   (see paras 37-39)

2.  Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community must be interpreted as meaning that a parental leave allowance which is granted on the basis of a legally defined position, without any individual and discretionary assessment of personal needs, constitutes a ‘family benefit’ within the meaning of that regulation.

   First, such an allowance may not be classified as ‘pay’ within the meaning of Article 157 TFEU since (i) the worker is in a situation which is characterised by the suspension of the employment contract and (ii) it is not apparent that the allowance is paid, even indirectly, by the employer itself.

   Second, such an allowance does not constitute substitute income akin to unemployment benefit since the person receiving it has not lost his employment, but has merely decided to suspend the employment relationship.

   Third, family benefits are intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses. In that regard, the concept of meeting family expenses mentioned in Article 1(u)(i) of Regulation No 1408/71 refers, in particular, to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children. A career break allowance granted, subject to certain conditions, to a worker taking a break from his career using parental leave – which is similar to the parental leave allowance – must be treated as a family benefit.

   (see paras 41-44, 49, 51-55, 58-60, operative part)

Joined Cases C‑216/12 and C‑217/12

Caisse nationale des prestations familiales

v

Fjola Hliddal (C‑216/12)

and

Pierre-Louis Bornand (C‑217/12)

(Requests for a preliminary ruling from the Cour de cassation (Luxembourg))

‛Social security — Regulation (EEC) No 1408/71 — Agreement between the European Community and the Swiss Confederation — Swiss nationals residing in Switzerland and working in Luxembourg — Grant of a parental leave allowance — Concept of a ‘family benefit’’

Summary — Judgment of the Court (Fifth Chamber), 19 September 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Scope — EC-Swiss Agreement on the free movement of persons — Whether included having regard to the grant of the benefits referred to in Regulation No 1408/71 to Swiss nationals under that Agreement

   (EC-Swiss Agreement on the free movement of persons, Annex II; Council Regulation No 1408/71, Arts 1(u)(i) and 4(1)(h))

2. Social security — Family benefits — Definition — Parental leave allowance — Included

   (Art. 157 TFEU; Council Regulation No 1408/71, Arts 1(u)(i) and 4(1)(h))

1.  See the text of the decision.

   (see paras 37-39)

2.  Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community must be interpreted as meaning that a parental leave allowance which is granted on the basis of a legally defined position, without any individual and discretionary assessment of personal needs, constitutes a ‘family benefit’ within the meaning of that regulation.

   First, such an allowance may not be classified as ‘pay’ within the meaning of Article 157 TFEU since (i) the worker is in a situation which is characterised by the suspension of the employment contract and (ii) it is not apparent that the allowance is paid, even indirectly, by the employer itself.

   Second, such an allowance does not constitute substitute income akin to unemployment benefit since the person receiving it has not lost his employment, but has merely decided to suspend the employment relationship.

   Third, family benefits are intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses. In that regard, the concept of meeting family expenses mentioned in Article 1(u)(i) of Regulation No 1408/71 refers, in particular, to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children. A career break allowance granted, subject to certain conditions, to a worker taking a break from his career using parental leave – which is similar to the parental leave allowance – must be treated as a family benefit.

   (see paras 41-44, 49, 51-55, 58-60, operative part)