Case C‑378/14

Bundesagentur für Arbeit — Familienkasse Sachsen

v

Tomislaw Trapkowski

(Request for a preliminary ruling from the Bundesfinanzhof)

‛Reference for a preliminary ruling — Social security — Regulation (EC) No 883/2004 — Article 67 — Regulation (EC) No 987/2009 — Article 60(1) — Payment of family benefits where parents are divorced — Definition of the ‘person concerned’ — Law of a Member State providing for the payment of family benefits to the parent who has taken the child into his household — Residence of that parent in another Member State — Failure of that parent to claim family benefits — Possibility of entitlement of the other parent to claim those family benefits’

Summary — Judgment of the Court (First Chamber), 22 October 2015

1. Social security — Migrant workers — Family allowances — Worker subject to the legislation of a Member State — Members of his family residing in another Member State — Grant of entitlement to family benefits for a person who does not reside in the Member State responsible for paying those benefits — Eligibility subject to compliance with all the other conditions for the grant of those benefits laid down by national law — Assessment by the national court

   (European Parliament and Council Regulations No 883/2004, Art. 67, and No 987/2009, Art. 60(1))

2. Social security — Migrant workers — Family benefitss — Worker subject to the legislation of a Member State — Members of his family residing in another Member State — Failure of the parent residing in the other Member State to apply for the grant of family benefits — Condition giving entitlement to the parent residing in the Member State responsible for paying those benefits — No such condition

   (European Parliament and Council Regulation No 987/2009, Art. 60(1))

1.  Article 60(1), second sentence, of Regulation No 987/2009 laying down the procedure for implementing Regulation No 883/2004 on the coordination of social security systems must be interpreted as meaning that the deeming provision included there may lead to the grant of entitlement to family benefits for a person who does not reside in the Member State responsible for paying those benefits where all the other conditions for the grant of those benefits laid down by national law are met, a matter which is for the referring court to determine.

   It is apparent from a combined reading of Article 67 of Regulation No 883/2004 and Article 60(1) of Regulation No 987/2009, first, that a person may claim family benefits for members of his family who reside in a Member State other than that responsible for paying those benefits and, second, that the possibility to apply for family benefits is granted not only to persons who reside in the Member State required to pay the family benefits, but also to all the ‘persons concerned’, who may claim those benefits, including the parents of the child for whom the benefits are claimed.

   (see paras 38, 41, operative part 1)

2.  Article 60(1), third sentence, of Regulation No 987/2009 laying down the procedure for implementing Regulation No 883/2004 on the coordination of social security systems must be interpreted as meaning that there is no requirement that the parent of the child for whom child benefits are paid, who resides in the Member State obliged to pay those benefits, must be granted entitlement to those benefits on the ground that the other parent, who resides in another Member State, has not applied for them.

   It appears both from the wording and the general scheme of Article 60(1) of Regulation No 987/2009 that a distinction must be made between making a claim for family benefits and the right to receive such benefits.

   Furthermore, it is also clear from the wording of that article that it is sufficient if one of the persons able to claim those family benefits makes an application for them, for the competent institution of the Member State to be required to take that application into consideration.

   However, EU law does not preclude the competent institution of a Member State, by applying national law, from finding that the person entitled to receive child benefits is a person other than the person who applied for those benefits.

   Therefore, where all the conditions for the grant of child benefits have been met and those benefits are actually granted, the issue as to which parent is regarded under national law as the person entitled to receive such benefits is irrelevant.

   (see paras 46-50, operative part 2)