Opinion of the Advocate-General
A - Introduction
1. This reference for a preliminary ruling made by the Oberster Gerichtshof (Supreme Court) of the Republic of Austria again concerns the compatibility with Community law of a provision of the Unterhaltsvorschussgesetz (Law on Advances on Maintenance Payments - the UVG), on this occasion with regard to the requirement to be permanently resident in Austria in order to qualify for advances on maintenance payments.
II - Facts and procedure
2. The applicant, Anna Humer, a minor born on 10 September 1987, is the legitimate daughter of Austrian nationals. The applicant herself is also an Austrian national. The parents' marriage was dissolved on 9 March 1989. The mother has had custody of the child since that time.
3. Initially both parents continued to live in Austria. In 1992 the mother moved to France with the child where both have been ordinarily resident ever since. The father remains ordinarily resident in Austria as before.
4. On 2 November 1993, the father agreed in a court settlement to pay monthly maintenance payments of ATS 4 800 for his daughter. He was at that time employed in a commercial capacity and continued in that occupation until at least 31 January 1998. Thereafter he was unemployed.
5. The mother was a religious studies teacher when she was living in Austria. In the course of the present proceedings the applicant's representative, in response to a question put by the Court, stated in amplification of the facts of the case that the applicant's mother possessed, and taught pursuant to, a qualification from the Catholic church which was recognised by the State pursuant to the concordat with Austria. Following the move to France the applicant's mother was faced with the problem that her teaching qualification was not recognised in France. In order none the less to work as a teacher, she taught German at private schools and at the same time studied at the University of Nantes from which she graduated with a teaching qualification in German as a foreign language in 1994. She continued her studies in order to attain professional status in France comparable with that in Austria. At the same time she worked as a teacher at private schools in France.
6. On 24 July 1998, the applicant made an application to Austria for advances on maintenance payments in the monthly amount of ATS 4 800 from 1 July 1998 for a period of three years. She claimed that her father had for many months been in arrears with the maintenance payments despite repeated enforcement measures and that current maintenance was also not being paid.
7. The court of first instance dismissed the application for advances on maintenance payments because the child and the mother with custody were permanently resident in France. The appeal court varied this order and awarded the applicant monthly advances on maintenance payments of ATS 4 800 pursuant to Article 3 of the UVG, subject, however, to the relevant maximum standard rate under Article 6(1) of the UVG. The court so decided on the basis that the first paragraph of Article 12 EC and Article 43 EC took precedence over discriminatory rules such as those relied on in the present case. It held that in that respect there was no need to obtain a preliminary ruling from the Court of Justice. However, the appeal court granted leave to appeal on a point of law with the result that the court which has now referred the matter was seised of the case. The Fifth Chamber of the Oberster Gerichtshof, in contrast, considers that it is necessary to refer the matter to the Court of Justice of the European Communities for a preliminary ruling.
8. The applicant, the German, Austrian and Swedish Governments and the Commission have submitted written observations to the Court. In addition, the Danish Government presented observations at the hearing.
III - The reference for a preliminary ruling
9. In the grounds of the order for reference, the national court refers expressly to the comments in the order for reference in Offermanns. The national court also points out that in accordance with Article 2(1) of Regulation No 1408/71 and that article's heading members of the families of employed and self-employed persons fall within the scope ratione personae of the regulation. Referring to the judgment in Laumann, which related to the grant of an orphans' pension to children living with their mother in a Member State other than that of their deceased father, the national court finds that the regulation also applies when it is not the worker himself but survivors of his who reside in another Member State. The national court states that this principle can also be extended to the grant of family benefits to children of a living worker under Article 73 of Regulation No 1408/71, because no essential difference is to be discerned in that regard between Article 73 of the regulation and Article 78, which relates to orphans.
10. With regard to the recurring theme in Community law of avoiding rules which might deter a migrant worker from exercising his right to freedom of movement, the national court concedes that the requirement that the child be ordinarily resident in Austria is not such as to deter Austrian workers liable for maintenance from moving abroad to be with their family, or moving abroad with their family, since an entitlement to advances on maintenance arises only where the person liable for maintenance and the child entitled to maintenance do not live in the same household.
11. However, the rules might deter the parent caring for the child from accepting a job in another Member State of the European Union: If the advances are refused, and the parent who is liable for maintenance and does not have care of the child is unwilling to pay, the entire burden for maintenance shifts to the parent who does have care of the child. If that parent, in order to take up an occupational activity, has to move abroad, he or she would have to be prepared to forgo the contribution towards expenses which, under Austrian law, would be financed from advances on maintenance.
12. Furthermore, the national court specifically expresses its uncertainty as to whether the rules at issue can be objectively justified.
13. The national court has referred the following questions to the Court of Justice for a preliminary ruling:
I.(a) Do advances on maintenance payments to the minor children of working persons, or unemployed persons drawing unemployment benefit under Austrian legislation, which are payable in respect of children under the Austrian federal law on the grant of advances on maintenance (Unterhaltsvorschussgesetz 1985 [Law on Advances on Maintenance Payments 1985], hereinafter UVG - current version in BGBl., p. 451) constitute family benefits for the purposes of Article 4(1)(h) of Council Regulation (EEC) No 1408/71 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 and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 and amended by Council Regulation (EEC) No 3427/89 of 30 October 1989, and is Article 3 of the regulation, on equality of treatment, therefore also applicable in such a case?
(b) Do Articles 73 and 74 of Regulation No 1408/71 entitle a child of a marriage who is resident with his or her mother in a Member State other than Austria and whose father is resident in Austria and is working there, or unemployed and drawing unemployment benefit under Austrian legislation, to the award of an advance on maintenance payments under the Unterhaltsvorschussgesetz referred to in paragraph (a) above?
II. If the answer to one of the questions under I is in the negative:
(a) Are advances on maintenance payments under the Unterhaltsvorschussgesetz referred to in Question I(a) social advantages within the meaning of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community?
(b) Does the fact that the child has to be resident in Austria in order to be awarded advances on maintenance payments constitute a prohibited limiting provision under the second indent of Article 3(1) of Regulation (EEC) No 1612/68 in the light of the right to freedom of movement for workers enshrined in Article 48 of the EC Treaty?
(c) Do the provisions of Regulation No 1612/68 give rise to an entitlement, in the person of the child of a worker, to the award of advances on maintenance payments?
IV - Legal background
A - Community law
14. The following provisions of Council Regulation (EEC) No 1408/71 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 and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) and amended by Council Regulation (EC) No 307/1999 of 8 February 1999 (OJ 1999 L 38, p. 1), are relevant to the present case. Regulation No 1408/71, as amended and updated by Regulation No 118/97, provides as follows:
Article 1
Definitions
For the purpose of this Regulation:
...
(f) (i) member of the family means any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Articles 22(1)(a) and 31, by the legislation of the Member State in whose territory such person resides; ...
(ii) ...
...
(u) (i) the term family benefits means all benefits in kind or in cash intended to meet family expenses under the legislation provided for in Article 4(1)(h), excluding the special childbirth or adoption allowances referred to in Annex II;
(ii) ...
(v) ...
Article 2
Persons covered
1. This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.
2. ...
3. ...
Article 3
Equality of treatment
1. Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.
2. ...
3. ...
Article 4
Matters covered
1. This Regulation shall apply to all legislation concerning the following branches of social security:
...
(h) family benefits.
2. ...
15. Article 73 of Regulation No 1408/71 provides:
Employed or self-employed persons the members of whose families reside in a Member State other than the competent State
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.
16. Article 74 of Regulation No 1408/71 provides:
Unemployed persons the members of whose families reside in a Member State other than the competent State
An unemployed person who was formerly employed or self-employed and who draws unemployment benefits under the legislation of a Member State shall be entitled, in respect of the members of his family 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.
17. Council Regulation (EC) No 307/1999 of 8 February 1999 amending 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 and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 with a view to extending them to cover students provides, in so far as relevant to the present case:
Article 1
Regulation (EEC) No 1408/71 is hereby amended as follows:
1. Article 1 is hereby amended as follows:
(a) the following point shall be added after point (c):
"(ca) student means any person other than an employed or self-employed person or a member of his family or survivor within the meaning of this Regulation who studies or receives vocational training leading to a qualification officially recognised by the authorities of a Member State, and is insured under a general social security scheme or a special social security scheme applicable to students;"
(b) in points (f), (i) and (ii), the words "employed or self-employed person" shall be replaced by the words "employed or self-employed person or student";
2. Article 2 shall be replaced by the following:
"Article 2
Persons covered
1. This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.
2. ..."
3. ...
18. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) provides as follows:
PART I
EMPLOYMENT AND WORKERS' FAMILIES
TITLE I
Eligibility for employment
Article 1
...
Article 2
...
Article 3
1. Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply:
- where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or
- where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered.
...
2. ...
...
TITLE II
Employment and equality of treatment
Article 7
1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.
2. He shall enjoy the same social and tax advantages as national workers.
3. ...
4. ...
B - Austrian law
19. Article 2(1) of the Austrian Federal Law on the Grant of Advances for the Maintenance of Children (Unterhaltsvorschussgesetz 1985 - UVG - BGBl., p. 451) provides:
Minor children who are ordinarily resident in Austria and are either Austrian nationals or stateless shall be entitled to advances. For the purposes of implementing this federal law, where the person with whom the child lives in the same household is resident abroad in pursuance of an obligation to serve an Austrian body governed by public law, the child shall be deemed to be ordinarily resident in the area of the court having jurisdiction in respect of his guardianship or custody.
20. Article 3 of the UVG provides:
Advances shall be granted where:
1. a writ of execution enforceable in Austria exists in respect of the legal right to maintenance payments and
2. execution in respect of current maintenance payments ... or, where the person in default of payment of maintenance clearly has no income or other form of regular remuneration, execution ... has not covered in full, over the six months immediately prior to the submission of that application for the grant of an advance, even one of the maintenance payments due. In that respect, maintenance arrears when recovered shall be set off against the current maintenance debt.
V - The first question
Submissions of the parties
21. The applicant claims that the payments made by way of advances on maintenance constitute family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71.
22. The right to advances on maintenance payments was established in Austria in order to make the appropriate financial resources available to children entitled to maintenance in the event that the parent liable for maintenance is defaulting on payments or, in specific cases, incapable of making payment. The child entitled to maintenance receives a payment from the Republic of Austria which he definitively retains, save in cases of abuse. Only around one third of the advances on maintenance paid by the Republic of Austria can be recovered from those in default of payment.
23. The condition for a claim is not social need let alone social plight, but merely the existence of an entitlement to maintenance. Therefore, in essence the payment is not one provided for in law on social assistance but rather a genuine State benefit paid to the dependant of a person in default of payment of maintenance, irrespective of whether that person is self-employed, employed or temporarily unemployed.
24. The State benefits are in the nature of State payments which are retained permanently by the child entitled to maintenance. Therefore, they constitute family benefits within the meaning of the abovementioned regulation.
25. The German Government contends that the Austrian advances on maintenance payments do not constitute family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71.
26. In order for there to be a family benefit within the meaning of Regulation No 1408/71, the grant of advances on maintenance payments under the UVG must be intended to meet family expenses without any individual assessment. However, this is not the case. An advance on maintenance payments is granted only in specific cases. Furthermore, it does not meet family expenses for the purposes of Article 4(1)(h) of Regulation No 1408/71. Family expenses can be met only where the cash payment is also ultimately retained by the family, that is to say where the cash payment is granted to the family as a non-repayable State allowance, for example for maintenance of children. In such cases, the maintenance expenses are definitively assumed by the State to the amount of the cash benefit. However, in the case of advances on maintenance paid by the State, the maintenance expenses are not definitively assumed by the State. That is because such payment does not result in extinguishment of the claim to maintenance from the person liable to pay.
27. The Austrian Government also considers with regard to the first question that advances on maintenance payments under the UVG do not constitute family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71, and that therefore Article 3 thereof is not applicable.
28. Advances on maintenance are based on the child's substantive claim against the parent who owes maintenance. The purpose of the UVG is to ensure that a child receives maintenance in full even where the parent liable for maintenance is in default of payment. The advances in no way constitute social benefits. The basis for the claim is the child's substantive claim against the parent liable for maintenance to which the Federal Government is subrogated where it makes the relevant payments. The maintenance entitlement is not changed in any way in substantive terms by the subrogation to the Federal Government, but instead remains a substantive entitlement to maintenance from the parent who owes maintenance which the Federal Government merely finances in advance precisely in specific cases of emergency provided for in law. Furthermore, it is clear from the reasons stated by the legislature at the time that it did not intend to meet family expenses themselves but merely to facilitate the process involved in enforcing a maintenance claim.
29. The Swedish Government takes the view that an advance on maintenance payments provided for in Austrian law does not constitute a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.
30. In the present case the question arises as to whether the requirements under Article 4(1)(h), in which the term family benefits is used, have been satisfied. Unlike the other provisions of Article 4(1), this term does not make clear which areas and which risks are covered by the provision.
31. Therefore, in considering whether or not a payment constitutes a family benefit it is necessary to take account of which type of family situation and which risks are necessary for the grant of the payment in question. It is not immediately apparent that such a family situation exists where the spouses are divorced or separated. Furthermore, the aim of promoting the free movement of workers is not as central where a family has broken up as where the family members live together, even if in more than one Member State. Moreover, divorced spouses can remarry and find jobs of their own. In such cases the same need for protection does not exist in respect of the spouse who may have previously been entitled to family benefits granted to married couples with one working spouse.
32. The advance on maintenance payments provided for in Austrian law is granted only in cases in which the parents and the children do not live together as a family. In fact it was conceived of with precisely this situation in mind. However, circumstances then exist which are the complete opposite of those intended by the term family benefits.
33. In addition, the advance on maintenance payments provided for in Austrian law can be regarded as a family benefit within the meaning of Regulation No 1408/71 only if it comes under the definition set out in Article 1(u)(i).
34. It is clear from the description of the Austrian rule that the advance on maintenance payments is not a benefit in kind. Thus, the decisive question is whether or not it must be regarded as a benefit in cash intended to meet family expenses.
35. The specific characteristic of the advance on maintenance payments is that it is an advance, made by the public authorities, on the maintenance payments which a person liable for maintenance is to make to a child. Whatever the circumstances, the child must have a claim to the relevant amount against the parent liable for maintenance, even where that parent fails to pay. Thus, the advance on maintenance payments does not constitute an allowance for the child from the public authorities. The requirements for the grant thereof also indicate that it is not a family benefit.
36. The Commission takes the view with regard to the application of Regulation No 1408/71 that the advances on maintenance payments provided for in the UVG are not to be regarded as family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71. It therefore concludes that Articles 73 and 74 of Regulation No 1408/71 are not applicable.
37. With regard to the question whether payments under the UVG fall within the scope ratione materiae of the regulation, the Commission contends that these payments are granted to all minors who - apart from the requirement laid down in Article 2 that they be Austrian nationals or stateless - satisfy the requirements in Articles 3 and 4 of the UVG. In principle every child is entitled to an advance on maintenance payments irrespective of the degree of need or the level of family income. Therefore, it is not a social assistance related benefit which is excluded from the regulation. Thus, in principle the payments under the UVG fall within the scope ratione materiae of Regulation No 1408/71.
38. As regards whether or not the payments also constitute family benefits within the meaning of the regulation, the Commission refers firstly to Kromhout. It follows from that judgment that family benefits are intended to provide social assistance for families in the form of a contribution by society towards their expenses. If the basic idea behind this decision, which focuses on the different purposes of various payments, is applied to the present case, it can be seen that the advances under the UVG pursue an aim other than that of meeting family expenses - the typical aim of family benefits.
39. As regards the scope ratione personae of Regulation No 1408/71, the Commission points out that claims to advances on maintenance payments under the UVG have the distinguishing feature that it is not the father or mother of the child but rather the child himself who has such claims. Thus, it is necessary to consider whether or not the child is to be regarded as a member of the family within the meaning of Article 1(f)(i) of Regulation No 1408/71 and whether the child is covered by the scope ratione personae of the regulation under Article 2(1) where his father or mother is an employed person, a self-employed person or a student. On the basis of the facts set out in the order for reference, the application for an advance on maintenance payments has been valid since 1 July 1998 and it is the activity of the parents since that time that is relevant.
40. In its submissions the Commission proceeds on the basis that the applicant's mother was a student during the period in question and therefore takes no account of her status as an employed person. It states that Regulation No 1408/71 was first extended to cover students by Regulation No 307/1999 on 1 May 1999. However, in respect of the period from July 1998 up to and including April 1999 the child could also be covered by virtue of the status of her father. According to the information provided by the national court, at that time her father satisfied the requirements for entitlement to unemployment benefit under Austrian law. Unemployment benefits under Austrian law must be regarded as insurance payments which form part of the social security system established for employed persons. Therefore, the scope ratione personae of Regulation No 1408/71 extends to the child in the relevant period and does so on account of the legal status of the father.
Appraisal
(a) Scope ratione materiae of Regulation No 1408/71
41. As in Offermanns the first question referred for a preliminary ruling relates to the scope ratione materiae of Regulation No 1408/71. In my Opinion in Offermanns, which was delivered on 28 September 2000, extensive observations are made in points 22 to 48 on the classification of the advance on maintenance payments as a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.
42. In the present case nothing has come to light which would give cause to revise the assessments made in Offermanns. Therefore, I refer in full to all the observations made in the Opinion in that case. I will, however, briefly summarise the essential aspects of the considerations which led to the classification of the advance as a family benefit.
43. The Court has consistently stated that the distinction between benefits which are excluded from the scope of Regulation No 1408/71 and benefits which come within it rests fundamentally on the factors relating to the relevant benefit, in particular its purpose and the conditions for its grant, and not on whether the national legislation describes the benefit as a social security benefit or not. A benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71.
44. There is no dispute that advances on maintenance payments under the UVG are granted on the basis of a legally defined position, without there being scope for a discretionary decision or a requirement to assess personal need. Entitlement to advances on maintenance payments exists where the conditions laid down in Article 3 of the UVG are satisfied.
45. The benefit also relates, in terms of its purpose and the conditions for its grant, to the risks of family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71.
46. In conceptual terms, and when viewed in economic terms, family expenses encompass child maintenance. The material maintenance of a child is to be regarded as an original family expense. A right to maintenance alone is incapable of actually safeguarding maintenance. Therefore, an advance on maintenance financed by the State where the parent liable for maintenance fails to make maintenance payments is capable of meeting family expenses.
47. The State support which a child entitled to maintenance receives directly and which the parent having custody receives indirectly through the advances on maintenance payments is provided at several levels. On the one hand, there is the procedural aspect, which consists in the enforcement of a maintenance entitlement or even, as the case may be, obtaining the writ of execution in the first place. This procedural aspect should not be underestimated. Such State support could possibly even be regarded as a benefit in kind.
48. On the other hand, there is also a not insignificant economic aspect inherent in the advance payments on maintenance. The payment of advances has the effect of making financial resources available at the time at which they are needed. Moreover, the State bears the risk of insolvency. In view of the fact that only around one third of the maintenance payments to which the State is subrogated can be recovered, it would be a simplification to regard the legislation on advances on maintenance as merely procedural assistance or to focus on the provisional nature of the benefit as the advance financing of outstanding maintenance payments. The maintenance costs which have to be met by the parent with sole custody - with whom the child lives in the same household - are increased considerably where the parent liable for maintenance fails to make payments. The advance payments alleviate and offset this part at the time and at the place at which they are necessary. Since the State bears the risk of insolvency, it is possible to assume a net contribution by the State to family expenses in cases of non-enforceable maintenance obligations.
49. When the Court of Justice describes the content and purpose of family benefits, it is clear to it from the relevant provisions that such benefits are intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses.
50. Whereas the grant of child maintenance falls within original family expenses, the recovery of outstanding maintenance is not necessarily a typical family expense but rather a burden typical of the special family situation of parents living apart. As a result of the intervention of the provisions on advances on maintenance, the State, and therefore society, contribute towards the expenses, firstly through the procedural recovery of maintenance payments and secondly through guaranteeing the grant of maintenance. Public resources are used for both aspects and therefore it is entirely possible to conclude that society contributes to the expenses arising from the specific family situation. Consequently, the spirit and purpose of the rules on advances on maintenance payments is to meet family expenses.
51. This view is underpinned by the fact that the advances on maintenance payments are financed out of the Familienlastenausgleichsfonds (Family Support Fund). Although, in order to undermine this argument, reference was made to the judgment in Hughes, which contains the following passage: [t]he method by which a benefit is financed is immaterial for the purposes of its classification as a social security benefit, the Court of Justice advanced this argument to counter the objection in that case that the benefit at issue therein was not a social security benefit because it was not subject to a contribution requirement. Accordingly, the judgment in Hughes cannot prevent the conclusion that the financing of the benefit by the Familienlastenausgleichsfonds can at least be regarded as an indication that advances on maintenance payments constitute family benefits.
52. The fact that the child entitled to maintenance and not a parent has the right to advances on maintenance payments does not preclude the benefit from being classified as a family benefit. The advances are paid to the household in which the child lives and can therefore be regarded indirectly as also a benefit paid to the parent having custody. Moreover, in Hoever and Zachow, the Court ruled that the distinction between personal rights and derived rights did not in principle apply to family benefits.
53. Nor does the fact that the original entitlement to maintenance is a civil-law entitlement preclude the benefit from being classified as a family benefit. The child's original claim for maintenance against his parents is - even if it has to be ascribed to civil law - a claim under family law. Mere classification of this claim as a claim under civil law would constitute an excessively formal limitation which would not do justice to its significance in terms of family law - and, consequently, to the nature of the maintenance payments as a payment intended to meet family expenses, which, although within the family, still operates in a classic manner. Therefore, even if the claim for maintenance must be assigned to civil law, the child entitled to maintenance has a personal claim against the State by virtue of the rules contained in the UVG in the event that the claim to maintenance is not met. As a consequence of the grant of the advances on maintenance payments, the child's original right against the defaulting parent is transferred by subrogation to the State, which can take action against that parent in respect of the debt. It would appear logical to classify the State's standing-in for a claim under family law as a family benefit. Moreover, it is difficult to understand why the State should intervene to meet a claim under purely civil law. The link with the family law aspect - and thus with a family benefit - is therefore clear.
(b) Scope ratione personae of Regulation No 1408/71
54. The scope ratione personae of Regulation No 1408/71 is laid down in Article 2 thereof. Article 2(1) stipulates that the regulation is to apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.
55. Article 1(f)(i) defines member of the family as any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided.
56. In Kermaschek the Court drew a distinction between two categories of persons referred to in Article 2 of Regulation No 1408/71, that is to say workers, on the one hand, and the members of their family and their survivors on the other. Whereas the persons belonging to the first category can claim the rights to benefits covered by the regulation as rights of their own, the persons belonging to the second category can only claim derived rights, acquired through their status as a member of the family or a survivor of a worker, that is to say of a person belonging to the first category.
57. Taking this distinction as a basis, a child claiming a right to an advance on maintenance as a right of his own would almost certainly not fall within the scope ratione personae of Regulation No 1408/71.
58. However, the distinction established in Kermaschek and initially consistently maintained in case-law was, in Cabanis-Issarte, specifically limited to the circumstances underlying Kermaschek. The distinction between rights in person and derived rights may undermine the fundamental Community law requirement that its rules should be applied uniformly, by making their applicability to individuals depend on whether the national law relating to the benefits in question treats the rights concerned as rights in person or as derived rights, in the light of specific features of the domestic social security scheme.
59. Furthermore, as regards the specific case of family benefits, the Court ruled in Hoever and Zachow - as mentioned above - that the distinction between personal rights and derived rights does not in principle apply to family benefits.
60. In order for a child entitled to maintenance to fall within the scope ratione personae of Regulation No 1408/71, it is thus merely necessary to determine that he can derive his status from one or other parent.
61. In the present case the applicant's father, who was liable for maintenance, was, according to the case-file, unemployed at the material time. It can probably be assumed that he was drawing unemployment benefit. Therefore, it is possible to infer that he was at least insured against the risk of unemployment and thus falls within the scope ratione personae of Regulation No 1408/71. Consequently, he confers on his daughter the status of a member of the family within the meaning of Regulation No 1408/71.
62. This is not precluded by the fact that her (Austrian) father lives in Austria and nothing is known as to whether or not he has ever exercised his right to freedom of movement enshrined in Community law. At any rate, his daughter is resident in a different Member State of the Community from him since she moved to a different State together with her mother. Consequently, a situation has arisen to which Community law is relevant.
63. It is true that discrimination against a Member State's own nationals has hitherto been allowed under Community law. The question whether or not citizenship of the Union has fundamentally altered this has not yet formed the subject-matter of a decision of the Court of Justice. However, where a situation arises to which Community law is relevant, it has been clear even in the past that a Member State's own nationals may rely on Community law, and therefore the applicant's reliance on Community law raises no concerns.
64. Furthermore, in so far as the daughter's father merely confers on her the legal status of a member of the family within the meaning of Community law and she claims a right as a right of her own, no problem is posed by the fact that the advance on maintenance payments does not benefit the father but only the daughter.
65. The applicant may also be able to derive her legal status from her mother. So long as it was assumed, on the basis of the facts set out in the order for reference, that the mother resided in France as a student, almost all the parties to the proceedings expressed doubts as to her legal status under Regulation No 1408/71. Under Article 95d of Regulation No 1408/71, the latter has been applicable to students and members of their families only since 1 May 1999. Since that time she has certainly fallen within the scope of the regulation, but in view of the fact that the application for the advance on maintenance was made on 24 July 1998 this may no longer have any relevance.
66. However, the status of an employed person which the applicant's mother had in Austria might, perhaps, have continued, if a certain continuity can be established between the activity engaged in and the studies taken up. There are many indications that such continuity is maintained in the present case. Thus, the applicant's mother could, as a person falling within the scope ratione personae of Regulation No 1408/71, confer upon the applicant the status of a member of the family.
67. However, in the course of the proceedings it emerged - as the national court responsible for taking a decision on the merits will ultimately have to find - that the applicant's mother was gainfully employed immediately after moving to France and thus there is no doubt as to her status as an employed person. In this situation too the applicant's mother would confer upon the applicant the status of a member of the family within the meaning of Regulation No 1408/71.
(c) Applicability of Article 73 and Article 74 of Regulation No 1408/71
68. On the basis of the premiss that advances on maintenance payments must be regarded as family benefits within the meaning of Regulation No 1408/71, the question arises as to what consequences this has in respect of the applicant's benefit entitlement. Article 3 of Regulation No 1408/71 lays down the principle of equality of treatment within the framework of the regulation. Under Article 3(1), persons resident in the territory of one of the Member States to whom the regulation applies are to be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State. Therefore, the provision requires equality of treatment in the State of residence. In the present case, however, the applicant is not claiming social security benefits in her State of residence, that is to say France, but a benefit of her State of origin. Therefore, what is concerned in practical terms is the entitlement to the benefit abroad.
69. Article 10 of Regulation No 1408/71 provides for the waiving of residence clauses in respect of invalidity, old-age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants. Family benefits are not included in this list and therefore the condition that a person be resident in Austria to qualify for an advance on maintenance cannot be disregarded pursuant to Article 10 of the regulation.
70. However, the special rules in Chapter 7 of Title III, entitled Family benefits, must be applied. They contain provisions which preclude any condition that the members of the family entitled to benefit must be resident in national territory. Both Article 73, which applies to employed persons and self-employed persons members of whose families reside in a Member State other than the competent State, and Article 74, which applies to unemployed persons members of whose families reside in a Member State other than the competent State, provide that family benefits may be claimed as if [the members of the family] were residing in that State.
71. Therefore, Article 73 and Article 74 contain a fiction of residence in national territory. This takes precedence over national law. Technically, the interplay between national law and Community law could be construed as meaning that the requirement relating to national residence under national law does not have to be simply disregarded but may be regarded as fulfilled on account of the fiction established by Article 73 and Article 74 of Regulation No 1408/71. At any rate, the fact that the applicant is resident abroad cannot be relied on against her to prevent entitlement. Irrespective of whether or not the father liable for maintenance is gainfully employed or unemployed, the applicant may rely on Article 73 or Article 74 of Regulation No 1408/71 in her capacity as a member of the family.
VI - The second question
72. If the Court concurs with the approach set out above in response to the first question, there is no need to answer the second question. Observations are made below on the second question referred by the national court only in the event that the Court does not agree with the proposed solution.
Submissions of the parties
73. The applicant contends that the fact that she is denied an advance on maintenance solely on the ground that she is resident in France constitutes discrimination against Austrian nationals who have moved abroad in comparison with those who have remained in Austria. The mother of the child also suffers indirect discrimination as a result.
74. The German Government contends that is not possible to apply Regulation No 1612/68 to the grant of advances on maintenance. The application of Regulation No 1612/68 presupposes firstly that a worker has exercised his right to freedom of movement. This is not so in the present case since the father liable for maintenance lives in his home country of Austria. Moreover, a social advantage under Article 7(2) of Regulation No 1612/68 can relate only to benefits in the country in which the migrant worker is employed. Regulation No 1612/68 makes no provision at all for the export of social advantages for members of a migrant worker's family who live abroad.
75. Furthermore, Regulation No 1612/68 is also inapplicable on the facts. Although a member of a migrant worker's family may assert a claim of his own provided for in national law, that claim must be one which under Community law remains derived from the migrant worker and whose satisfaction also constitutes a benefit for the migrant worker. That is because it is clear from Bernini that members of the family are in principle only indirect beneficiaries of the principle of equal treatment. However, in the case of the advance on maintenance under Austrian law these conditions are not satisfied.
76. As regards the applicability of Regulation No 1612/68, the Austrian Government makes the following submissions. Any claim based on this regulation presupposes the status of a worker. On the basis of the facts set out in the order for reference, the Austrian Government assumes that the applicant's mother is not a worker and therefore Regulation No 1612/68 cannot apply. Even if the regulation were applicable, the payments made under the UVG should not be regarded as social advantages within the meaning of Article 7(2) of the regulation. Advances on maintenance are not granted on account of a person's objective status as a worker or of the worker's residence in Austria. The aim is to ensure that a child receives maintenance in full even where the parent liable for maintenance is in default of payment. However, there is no link with a person's status as a worker. Therefore, there is no social advantage within the meaning of the provision.
77. The Swedish Government also takes the view that the provisions of Regulation No 1612/68 concerning social advantages are not applicable to the advance on maintenance provided for in Austrian law. The term social advantages must be viewed in the light of the aim of promoting the free movement of workers within the Community. It must therefore follow that a link must exist between the payment and the worker or at least the previous or future occupational activity of the person concerned. The advance on maintenance is a payment solely for the benefit of the child and not for the benefit of any worker. Consequently, there is no natural link between the payment and a migrant worker, as required by Regulation No 1612/68, or a connection with the objective underlying this regulation, namely promoting the free movement of workers.
78. The Commission states that the national court is seeking, by its second question, to establish:
1. whether advances on maintenance are social advantages within the meaning of Article 7(2) of Regulation No 1612/68,
2. whether the fact that the child has to be resident in Austria in order to be granted advances on maintenance payments constitutes a prohibited limiting provision under Article 3(1) of the regulation, and
3. whether the provisions of Regulation No 1612/68 gave rise to an entitlement, in the person of the child of a worker, to the grant of advances on maintenance payments.
79. In a preliminary remark the Commission points out that the situation in the present case does not correspond to one governed by Regulation No 1612/68. It therefore proposes that the second question referred for a preliminary ruling should be rejected. It makes the following observations only in the event that the Court should nevertheless wish to set out its position thereon. The question as to whether or not there is a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 must be answered in the affirmative. The term social advantage must be interpreted very broadly. According to the case-law of the Court, it covers a number of benefits which may normally be claimed directly as a consequence simply of a change in place of employment or residence without any requirement - as, for example, in the case of benefits referred to in Regulation No 1408/71 - for periods of residence, employment or insurance in order to establish entitlement. Accordingly, it is beyond dispute that the advances on maintenance must be regarded as a social advantage within the meaning of Article 7(2) of Regulation No 1612/68. Even if the advances pursue an aim other than meeting family expenses, they serve to satisfy in full and timeously the maintenance entitlement of minor children. By intervening in the place of the defaulting parent through the payment of advances, the State assumes the risk that it will not be possible to obtain maintenance payments which are owed or not paid. Thus, in a certain way the State helps to recover the debt from the defaulting parent liable for maintenance.
80. The child entitled to maintenance does not fall within the scope ratione personae of Regulation No 1612/68. Nor can such a connection be established through the mother who does not satisfy the criteria for the term worker within the meaning of Regulation No 1612/68. In that respect the Commission takes as a basis the facts as established by the national court.
81. At the hearing, the Commission conceded that, on the basis of the additional facts which had been furnished, the applicant's mother must indeed be considered to possess the status of a worker within the meaning of Regulation No 1612/68. As regards Article 39 EC, the right to freedom of movement of a parent having custody may be impaired. That parent could be deterred from accepting a job offer in another Member State if the child accompanying him or her were to lose his entitlement to advances on maintenance by residing in that Member State.
82. This essentially raises the question of entitlement abroad to social advantages within the meaning of Article 7(2) of Regulation No 1612/68. According to the interpretation placed on Community law by the Court, aims of a purely economic nature cannot justify discriminatory rules. However, in Lenoir the Court recognised the principle that benefits closely linked with the social environment could be made contingent on the recipient being resident in the State of the competent institution. Advances on maintenance might constitute such benefits.
83. The Commission concludes that the provisions of Regulation No 1612/68 cannot establish any right to the grant of advances on maintenance in the person of the child of workers since a minor child does not fall within the scope ratione personae of this regulation.
Appraisal
84. It must in fact be stated with regard to the applicability of Regulation No 1612/68 that the situation in the present case does not correspond to the normal situation contemplated by the regulation. The requirements for equality of treatment linked specifically to access to employment and an employment relationship do not assist the applicant. Even if the freedom of movement for workers exercised by the mother having custody of the minor applicant is taken as the relevant link, the advance on maintenance does not concern her conditions of employment.
85. It can probably automatically be assumed that the advance on maintenance per se constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, since the Court, in its settled case-law, places a very broad interpretation on the term. According to that case-law, the term social advantage encompasses all advantages which, whether or not linked to a contract of employment, 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 the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community.
86. However, the classification of the advance on maintenance as a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 does not give the applicant - possibly through the legal status of her mother - entitlement to the benefit since Article 7 requires equality of treatment in the State of employment. This follows from the wording of Article 7(2), which is unequivocal in that respect, read in conjunction with Article 7(1). In providing that the worker enjoys the same social and tax advantages as national workers, Article 7(2) implicitly refers to Article 7(1). However, the applicant is specifically not demanding equal treatment in France but a benefit from her country of origin. In any event, entitlement abroad to social advantages within the meaning of Article 7(2) has not yet been generally recognised by the case-law of the Court. The Court has countenanced entitlement abroad to benefits, for the purposes of Article 7(2) of Regulation No 1612/68, which are linked directly or indirectly to employment within strict limits only, that is to say where a residence requirement results in unjustified indirect discrimination against an employee who is resident in another Member State. No such situation exists here. Therefore, it must be concluded that here the situation cannot be subsumed under Regulation No 1612/68.
VII - Reliance on the provisions of the Treaty
87. It is none the less clear that the right to freedom of movement enjoyed by the applicant's mother, who has custody, may be impaired by the requirement that the child be resident in Austria in order to be granted advances on maintenance. As the Commission has correctly stated, a parent could be deterred from accepting a job offer in another Member State if the child accompanying him or her were to lose his advances on maintenance by residing in that Member State.
88. Therefore, the question arises as to whether it is possible to rely directly on Article 39 EC or on citizenship of the Union enshrined in Articles 17 EC and 18 EC.
Submissions of the parties
89. The Commission has made extensive comments on this aspect, contending that the applicant's entitlement could possibly be derived from Articles 12 EC, 17 EC, 18 EC, 39 EC and 43 EC. Although the national court did not address this aspect in the questions which it referred for a preliminary ruling, it did incorporate the relevant submissions of the applicant in the grounds of its order. The Commission sets out its view since the application of the abovementioned provision might objectively help to decide the main action.
90. As a national of a Member State (Austria) lawfully residing in the territory of another Member State (France), the applicant comes within the scope ratione personae of the provisions of the Treaty on citizenship of the Union.
91. It is clear from paragraphs 61 to 63 of the judgment in Martínez Sala that Article 8(2) of the EC Treaty (now, after amendment, Article 17(2) EC) attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the EC Treaty (now, after amendment, Article 12 EC), not to suffer discrimination on grounds of nationality within the scope ratione materiae of the Treaty. According to the Court, it follows that a citizen of the European Union lawfully resident in the territory of the host Member State can rely on Article 12 EC in all situations which fall within the scope ratione materiae of Community law.
92. Although the applicant does not rely on the abovementioned provisions in respect of the host Member State but in respect of her Member State of origin, it follows from the case-law of the Court, and in particular Knoors, that the reference in Article 43 EC to nationals of a Member State who wish to establish themselves in the territory of another Member State cannot be interpreted in such a way as to exclude from the benefit of Community law a given Member State's own nationals when the latter, owing to the fact that they have lawfully resided in the territory of another Member State, are, with regard to their State of origin, in a situation which may be assimilated to that of any other persons enjoying the rights and liberties guaranteed by the Treaty.
93. The Court also confirmed this principle in Scholz, which states that any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in another Member State, falls within the scope of the aforesaid provisions. It is true that the applicant in the main proceedings is not a worker, but Articles 12 EC, 17 EC, 18 EC and 43 EC do not take a person's status as a worker as a basis but rather citizenship of the Union or nationality of a Member State.
94. According to Vougioukas, and in order to avoid any discrimination under Article 12 EC, it is logical for a State to treat its own nationals who have exercised their right to freedom of movement and nationals of other Member States who have exercised that right in the same way as its own nationals who have not exercised that right. In the present case this means that the condition relied upon against the applicant that she be ordinarily resident in Austria must be regarded as discriminatory under Community law, and as an infringement of the right to freedom of establishment which may deter an Austrian national from exercising that right.
95. There may perhaps be an objective justification if it is assumed that the advance on maintenance, on which the national court must rule, is to be regarded as a benefit closely linked with the social environment and can therefore be made contingent upon the person having a claim being ordinarily resident in national territory. However, the national court has noted that it is uncertain as to whether the condition of ordinary residence is objectively justified.
96. At the hearing, the Danish Government made observations on the question prompted by the Commission's submissions and asked by the Court, namely the effects of citizenship of the Union. In brief, it essentially takes the view that the institution of citizenship of the Union confers no rights more extensive than those already granted by Treaty law and secondary law.
97. Furthermore, none of the other parties to the proceedings has taken the view that citizenship of the Union per se gives rise to a legal position under which residence in Austria is no longer necessary in order to fulfil the conditions for the grant of an advance on maintenance.
Appraisal
98. The question of the direct applicability of Article 39 EC is relevant in view of the legal status which the applicant may derive from her mother. Since the advance on maintenance for minor children which is at issue necessarily involves financial resources which are regularly paid to the parent having custody, and with whom the minor child or children live in the same household, as the legal representative of the children, or at any rate to the household in which the children live, the possible loss of the support payment may form an important element in the decision-making process of the parent having custody.
99. However, Article 39(2), which lays down a specific prohibition on discrimination, is aimed primarily at equal treatment in the State of employment. The present case does not concern such a problem. Nor, strictly speaking, does it concern a case of discrimination against a State's own nationals since that requires, by definition, that a national of another Member State in a similar situation be enabled by Community law to make a claim. However, in the present case it is not possible to proceed on that basis either.
100. Therefore, the question arises as to whether the applicant can be released from the requirement that she be resident in Austria on the basis of her citizenship of the Union. The question whether and to what extent citizenship of the Union helps in the acquisition of rights which are not dealt with elsewhere in the Treaty or in secondary law is still largely virgin territory in the case-law of the Court.
101. Since a solution has already been proposed above which, by interpretation and application of secondary Community law in the form of Regulation No 1408/71, results in the residence requirement being inapplicable or being deemed to be fulfilled, the question as to the effects of citizenship of the Union need not be pursued at this juncture especially since it would be purely hypothetical in the light of the solution proposed.
VIII - Conclusion
102. For the foregoing reasons I propose that the Court should answer the questions referred for a preliminary ruling as follows:
Advances on maintenance payments to the minor children of working persons, or unemployed persons drawing unemployment benefit under Austrian legislation, which are payable in respect of children under the Austrian federal law on the grant of advances on maintenance (Unterhaltsvorschussgesetz 1985 [Law on Advances on Maintenance Payments 1985] - UVG - current version in BGBl., p. 451) constitute family benefits for the purposes of Article 4(1)(h) of Council Regulation (EEC) No 1408/71 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, both as amended and updated by Regulation (EC) No 118/97 of 2 December 1996 and as amended by Regulation (EC) No 307/1999 of 8 February 1999. Articles 73 and 74 of Regulation No 1408/71 entitle a child of a marriage who is resident with his or her mother in a Member State other than Austria and whose father is resident in Austria and is working there, or unemployed and drawing unemployment benefit under Austrian legislation, to the award of an advance on maintenance payments under the abovementioned Unterhaltsvorschussgesetz.
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