Brigitte Bosmann v Bundesagentur für Arbeit - Familienkasse Aachen.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Schiemann
• ECLI: ECLI:EU:C:2007:731
• Date: 29 November 2007
• Docket Number: C-352/06
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

Ján MazÁk

delivered on 29 November 2007 (1)

Case C‑352/06

Brigitte Bosmann

v

Bundesagentur für Arbeit – Familienkasse Aachen

(Reference for a preliminary ruling from the Finanzgericht Köln (Germany))

I – (Article 13(2)(a) of Council Regulation (EEC) No 1408/71 – Article 10 of Council Regulation (EEC) No 574/72 – Child benefit for dependent children – Suspension of child benefit paid in the State of residence – Right to benefits of the same type in the State of employment)Introduction

1. By order of 10 August 2006, received at the Court on 25 August 2006, the Finanzgericht Köln (Finance Court, Cologne) (Germany), referred four questions to the Court of Justice for a preliminary ruling under Article 234 EC. Those questions concern the interpretation of Article 13(2)(a) of Regulation (EEC) No 1408/71 of the Council 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 by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 (2) (‘Regulation No 1408/71’) (3) and Article 10 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71, as amended by Regulation (EC) No 647/2005 (‘Regulation No 574/72’). (4)

2. The questions were raised in proceedings brought by Ms Brigitte Bosmann, a Belgian national residing in Germany and pursuing an occupation in the Netherlands, against the Bundesagentur für Arbeit (Federal Employment Agency, ‘the Bundesagentur’), challenging its refusal to grant her German child benefit for her two dependent children on the grounds that her right to child benefit is governed exclusively by the legislation of the State of employment, in this case the Netherlands.

3. The referring court essentially wishes to ascertain whether in a situation where an employed person does not qualify for child benefit in the State of employment on the grounds of the children’s ages, the law of the State of residence, under which that person may be entitled to child benefit, may be applied.

II – Legal framework

A – Community legislation

1. Regulation No 1408/71

4. Article 13 of Regulation No 1408/71, entitled ‘General rules’, provides, so far as is relevant, as follows with respect to the determination of the legislation applicable:

‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

2. Subject to Articles 14 to 17:

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

…’

5. Article 73 of Regulation No 1408/71, entitled ‘Employed or self-employed persons the members of whose families reside in a Member State other than the competent State’, reads:

‘An employed or self-employed person subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI.’

2. Regulation No 574/72

6. Article 10(1) of Regulation No 574/72, which lays down the rules applicable to employed or self-employed persons in cases where rights to family benefits or family allowances overlap, provides:

‘(a) Entitlement to benefits or family allowances due under the legislation of a Member State, according to which acquisition of the right to those benefits or allowances is not subject to conditions of insurance, employment or self-employment, shall be suspended when, during the same period and for the same member of the family, benefits are due only in pursuance of the national legislation of another Member State or in application of Articles 73, 74, 77 or 78 of the Regulation, up to the sum of those benefits.

(b) However, where a professional or trade activity is carried out in the territory of the first Member State:

(i) in the case of benefits due either only under national legislation of another Member State or under Articles 73 or 74 of the Regulation to the person entitled to family benefits or to the person to whom they are to be paid, the right to family benefits due either only under national legislation of that other Member State or under these Articles shall be suspended up to the sum of family benefits provided for by the legislation of the Member State in whose territory the member of the family is residing. The cost of the benefits paid by the Member State in whose territory the member of the family is residing shall be borne by that Member State;

…’

B – National legislation

7. Entitlement to German child benefit is governed by Paragraphs 62 and 63 of the Einkommensteuergesetz (‘EStG’) (Law on Income Tax). The following provisions are relevant here.

8. Paragraph 62.1.1 reads:

‘In respect of children within the meaning of Paragraph 63, a person shall be entitled to child benefit under this law if he has a residence in Germany or normally resides there.’

9. Paragraph 63.1.1 provides:

‘Children shall mean: Children within the meaning of Paragraph 32.1.’

10. Paragraph 32.1.1 reads:

‘Childen are children related in the first degree to the taxpayer.’

Paragraph 32.4.1.2.a provides:

‘A child who has attained the age of 18 years shall be taken into account if he has not yet attained the age of 27 years and is being trained for a profession or occupation.’

III – Factual background, procedure and questions referred

11. Ms Bosmann is a Belgian national who has lived in Germany for many years. She is a single mother of two children, Caroline and Thomas, who live in her household in Germany and are currently studying in Germany. Their own income is beneath the threshold above which entitlement to child benefit in Germany is lost.

12. According to the order for reference, it is undisputed between the parties to the main proceedings that Ms Bosmann would in principle be entitled to German child benefit in accordance with the EStG, on the basis of which she was in fact initially granted child benefit in respect of both children.

13. On 1 September 2005, however, Ms Bosmann took up employment in the Netherlands, whereupon the Bundesagentur, by order of 18 October 2005, cancelled the benefit in respect of the children with effect from October 2005.

14. Ms Bosmann’s objection to that order was rejected by the Bundesagentur as unfounded by determination of 10 November 2005 stating, in particular, that entitlement is excluded by Article 10 of Regulation No 574/72 and that Ms Bosmann, as an employee, is subject in this regard only to the legislation of the State of employment, in this case the Netherlands. According to the Bundesagentur, the fact that that State does not pay child benefit for children aged 18 and over is irrelevant.

15. In her action in the main proceedings, Ms Bosmann argues that the refusal of child benefit is a clear infringement of the right to freedom of movement and claims that the order of 18 October 2005 and the determination of 10 November 2005 should be set aside.

16. In the order for reference, the Finanzgericht Köln points out that if the German EStG alone were to be applied, leaving Community law aside, the applicant would be entitled in Germany to child benefit for her two children. As it is, Ms Bosmann’s entitlement to child benefit is in principle excluded by Community law, in particular by Article 13(1) and (2)(a) of Regulation No 1408/71 and Article 10 of Regulation No 574/72, under which, according to the view expressed by the referring court, (5) Ms Bosmann is subject only to the law of the Netherlands, where, however, because of the children’s ages, she has no entitlement to child benefit or to comparable social benefits.

17. The Finanzgericht Köln questions whether that legal position is compatible with the right to freedom of movement as laid down in Article 39 EC or, indeed, with the general principles of Community law, in particular the principles of non-discrimination and the prohibition of discrimination on grounds of sex. (6)

18. In that regard, the referring court emphasises, inter alia, that, since the question whether a harmonisation measure such as Regulation No 1408/71 is in conformity with primary law falls, as a matter of principle, outside the scope of the preliminary rulings procedure, it is not seeking review of the legality of Regulation No 1408/71, but asking whether it may be narrowly construed in the light of the basic freedoms.

19. Against that background, the Finanzgericht Köln decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Is Article 13(2)(a) of Council Regulation (EEC) 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 to be interpreted restrictively, so as not to preclude entitlement to child benefit in the case of a mother bringing up children on her own in the State of residence (Federal Republic of Germany), who does not receive child benefit in the State of employment (Kingdom of the Netherlands) because of the age of the children?

2. If Question 1 is answered in the negative:

Is Article 10 of Council Regulation (EEC) No 574/72 of 21 March 1972 concerning the implementation of Regulation (EEC) No 1408/71 to be interpreted restrictively, so as not to preclude entitlement to child benefit...