Joined Cases C-611/10 and C-612/10

Waldemar Hudzinski

v

Agentur für Arbeit Wesel — Familienkasse

and

Jaroslaw Wawrzyniak

v

Agentur für Arbeit Mönchengladbach — Familienkasse

(References for a preliminary ruling from the Bundesfinanzhof)

‛Social security for migrant workers — Regulation (EEC) No 1408/71 — Articles 14(1)(a) and 14a(1)(a) — Articles 45 TFEU and 48 TFEU — Temporary work in a Member State other than that in which work is normally carried out — Family benefits — Applicable legislation — Possibility for child benefit to be granted by the Member State in which the temporary work is carried out but which is not the competent State — Application of a rule of national law against overlapping of benefits which excludes that benefit in the case where a comparable benefit is received in another State’

Summary of the Judgment

1. Social security for migrant workers — Family allowances — Legislation applicable — Worker working temporarily in a Member State other than that in which his work is normally carried out without having a residence for himself and members of his family there — Receipt of family benefits in the competent Member State of residence

   (Council Regulation No 1408/71, as amended by Regulation No 647/2005, Arts 14(1)(a) and 14a(1)(a))

2. Social security for migrant workers — Family allowances — Worker working temporarily in a Member State other than that in which his work is normally carried out

   (Arts 45 TFEU and 48 TFEU)

1.  Articles 14(1)(a) and 14a(1)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 647/2005, must be interpreted as not precluding a Member State, 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 who is subject to unlimited tax liability but is concerned by the social security system of the competent State, including in the case where it is established, first, 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 Member State, and, second, that neither that worker nor the child for whom the benefit is claimed habitually resides within the territory of the Member State in which the temporary work was carried out.

   (see para. 68, operative part 1)

2.  The rules of the TFEU on the free movement of workers must be interpreted as precluding the application, in a situation in which a worker is temporarily posted to a Member State other than the competent State, of a rule of national law, such as that resulting from a rule of national law precluding the accumulation of child benefits, 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.

   (see para. 85, operative part 2)