6.2.2004   

EN

Official Journal of the European Union

CE 33/25

1.

In Germany, there are a number of measures designed to encourage people to subscribe to supplementary pension schemes (‘Zusatzversorgung’/‘Riesterrente’). The encouragement takes the form of a basic benefit (‘Grundzulage’) and a child benefit (‘Kinderzulage’) to which German workers are entitled if they subscribe to a supplementary pension scheme.

Does the Commission consider that these benefits are social and/or tax advantages pursuant to Regulation No 1612/68 (1) (Article 7(2))? If so, to what advantages is a frontier worker entitled who works in Germany while residing in another Member State if he is liable to tax either without restriction or to a limited extent?

2.

If a frontier worker who is covered by social insurance in Germany and is liable to tax without restriction is entitled to the benefits to encourage subscription to supplementary pension schemes, is his or her partner also entitled to the benefits if he/she does not work either in Germany or in his/her country of residence?

3.

If a frontier worker is covered by social insurance in Germany but is not liable to tax there because, under the terms of the double taxation convention between his country of residence and Germany, he is not permitted to pay tax in Germany, is he nonetheless entitled to the ‘Grundzulage’ and/or ‘Kinderzulage’?

4.

If a frontier worker who is liable to tax either without restriction or to a limited extent is entitled to the benefits to encourage subscription to supplementary pension schemes, is it permitted to terminate these benefits or even demand their repayment if the frontier worker resigns from his job, is dismissed for any reason, is declared unfit for work or retires?

1.

Under article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, migrant workers have the right to equal treatment in ‘tax and social advantages’ as workers of the host Member State. The European Court of Justice has defined these as: ‘all the advantages which, whether or not linked to a contract, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community (2).’ Grundzulage and the supplement Kinderzulage are to be regarded as such advantages, since they are linked to contributions to occupational pension schemes. According to consistent case-law of the Court of Justice, a frontier worker is entitled to the benefit of social advantages (3).

2.

As German legislation now stands, a non-resident partner also gets the benefits for a supplementary pension scheme subscribed by himself, if the couple is treated as tax liable without restriction. This is the case, if either the couple's income is subject to German tax for at least 90 % or if the income not subject to German tax does not exceed EUR 12 272.

In the view of the Commission, as a matter of Community law a non-resident partner is entitled to the benefits if a German worker's partner resident in Germany is also entitled to the benefits.

3.

Again, as German legislation now stands, the right to the basic allowance is linked to the status of being subject to tax without restriction as referred to above. The supplement for children is granted only for those children for which the general children's allowance is paid.

In the view of the Commission, if the benefit in question is properly to be regarded as a social advantage within the meaning of Article 7 of Regulation 1612/68 it should be granted without regard to tax status.

4.

If a frontier worker resigns from his job, is unemployed or incapacitated for work, he can claim social advantages from the Member State of previous employment, in so far as they may be related to the previous employment. In such circumstances Member States may not make payment of social advantages subject to a residence condition and may not claim any repayment in so far as their legislation provides for the recovery of such benefits on emigration.