Opinion of Advocate General Pikamäe delivered on 2 June 2022

A. European Union law

B. Austrian law

11. Paragraph 2 of the Bundesgesetz betreffend den Familienlastenausgleich durch Beihilfen (Federal Law on compensation for family expenses by means of allowances) of 24 October 1967 (BGBl. 376/1967; ‘the FLAG’), in the version applicable to the dispute in the main proceedings, provides:

‘(1)

Persons who have their domicile or habitual residence in the federal territory shall be entitled to family allowances

…

1. for adult children who have not yet reached the age of 24 and who are pursuing vocational training

…

(2)

The person entitled to receive family allowances shall be the person to whose household the child referred to in subparagraph 1 belongs. A person to whose household the child does not belong but who is mainly responsible for the cost of maintaining that child is entitled to family allowances where no other person is entitled to receive them under the first sentence of this subparagraph.

(3)

For the purposes of this section, “children of a person” shall mean:

1. that person’s descendants,

…

(5)

A child shall belong to a person’s household where he or she shares with that person a dwelling that forms a single household. A child does not cease to belong to the household where

1. the child stays outside the shared dwelling only temporarily.

…’

12. Paragraph 26(1) of the FLAG states:

‘Any person who has received family allowances which were not due to him or her must repay the amounts in question.’

A. Reformulation of the questions

22. By its fourth and fifth questions, the referring court seeks to ascertain, in essence, whether the third sentence of Article 60(1) of Regulation No 987/2009 precludes national legislation, such as that at issue in the main proceedings, which restricts entitlement to family benefits to the parent who lives with the child, with the result that, even if that parent does not submit an application for the award of such benefits, the other parent, who in fact bears the entire cost of maintaining the child, cannot obtain payment of those benefits.

23. It is therefore necessary, in the referring court’s view, to determine whether, in circumstances such as those in the main proceedings, the other parent derives entitlement to family benefits from that article.

24. In that regard, it seems to me that the judgment in Trapkowski⁽⁵⁾ may provide the referring court with some answers. In the grounds of that decision, the Court recalled, first, that Regulations No 987/2009 and No 883/2004 do not determine the persons entitled to family benefits,⁽⁶⁾ even though they lay down the rules which enable the persons entitled to claim those benefits to be determined.⁽⁷⁾ The Court went on to note that it follows both from the wording and the general scheme of the third sentence 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.⁽⁸⁾ Relying again on the wording of that article, it pointed out that, although it is sufficient if one of the persons able to claim those family benefits makes an application, so that the competent institution of the Member State must take the application from the other parent into consideration, EU law does not preclude such an institution, in accordance with national law, from finding that the person entitled to receive child benefits is a person other than the person who made the application for those benefits.⁽⁹⁾

25. It follows from that case-law that the third sentence of Article 60(1) of Regulation No 987/2009 does not require a Member State to grant a benefit to the ‘other parent’ where the parent entitled to claim family benefits has failed to exercise his or her right. Consequently, that provision does not in any way preclude, in circumstances such as those in the main proceedings, the competent Austrian institution from rejecting the application for the grant of those benefits submitted by DN in the light of the conditions for their award.

26. That said, I note that, in the present dispute, the problem is not really analogous to that addressed by the judgment in Trapkowski since, initially, the competent Austrian institution granted the application submitted by DN in respect of his daughter. That authority has only subsequently demanded the repayment of the sums corresponding to the family benefits granted to DN, relying on, as an alternative ground for recovery, the national provisions providing, first, that family allowances are paid to the person to whose household the child belongs and, second, that any person who receives those allowances which are not due to him or her must repay the amount thereof. It will therefore be for the referring court to rule on the relevance of those grounds for the purpose of deciding on the tax authority’s request for the recovery of family benefits.

27. The interpretation of the third sentence of Article 60(1) of Regulation No 987/2009 is likely to have a decisive impact on the outcome of the dispute since, in the present case, the Austrian tax authority, in the absence of an application by the mother, took into account the application submitted by the father and granted him family benefits in respect of the child. In other words, the referring court will have to determine whether, in such circumstances, the third sentence of Article 60(1) of Regulation No 987/2009 precludes legislation which allows the recovery of family benefits paid to DN in respect of his child.

28. In those circumstances, I consider it necessary, with the aim of providing the referring court with an answer that will be of use to it in the resolution of the dispute, to reformulate the questions which it has referred to the Court.⁽¹⁰⁾

29. I therefore suggest that the Court reformulate the fourth and fifth questions as follows:

Must the third sentence of Article 60(1) of Regulation No 987/2009 be interpreted as meaning that it precludes national legislation which allows the recovery of family benefits awarded, where the person entitled to claim those benefits has failed to exercise his or her right, to one of the persons referred to in that provision whose application has been taken into account by the competent institution?

B. The reformulated questions

30. The questions as reformulated therefore require an interpretation of the third sentence of Article 60(1) of Regulation No 987/2009. Since that regulation was adopted for the purpose of implementing Regulation No 883/2004, I consider it necessary to understand the subject matter and purpose of the rules laid down in respect of family benefits by that second regulation. In the present case, that approach seems to me to be all the more necessary because, according to the case-law of the Court, the meaning and scope of Article 60(1) of Regulation No 987/2009 must, on account of the reference it makes to Articles 67 and 68 of Regulation No 883/2004, be examined in relation to the provisions of those articles.⁽¹¹⁾

31. In order to guarantee freedom of movement for workers as defined in Article 45 TFEU, Article 48 of that Treaty provides, in essence, for the establishment of a system for the coordination of social security schemes. First organised by Regulation (EEC) No 1408/71,⁽¹²⁾ the mechanisms of which had become too complex,⁽¹³⁾ the coordination of social security schemes is now governed by Regulation No 883/2004. As stated in recital 4 thereof,⁽¹⁴⁾ the purpose of that regulation, like that of Regulation No 1408/71,⁽¹⁵⁾ is not to harmonise social security systems but only to ensure their coordination.

32. In order to attain that objective, Regulation No 883/2004 provides inter alia for conflict-of-law rules which make it possible, in the presence of several laws or no law at all, to determine the social security legislation under which benefits may be awarded. Those rules, which are laid down in Articles 11 to 16 of that regulation, are based, in the first place, on the general principle that the law of a single Member State is to apply.⁽¹⁶⁾

33. That said, Regulation No 883/2004 lays down derogating rules which are applicable to the various categories of benefits. To that end, Article 67 of Regulation No 883/2004 determines, in respect of family benefits, the Member State or States competent to provide such benefits.⁽¹⁷⁾ For that purpose, that article establishes a principle that a person may claim family benefits for members of his or her family who reside in a Member State other than the Member State competent for paying those benefits as if they resided in the latter Member State.⁽¹⁸⁾ As the Court states, Article 67 of Regulation No 883/2004 is designed, in essence, to prevent a Member State from being able to make the grant or the amount of family benefits dependent on members of the worker’s family being resident in the Member State paying the benefit.⁽¹⁹⁾

34. Article 67 of that regulation therefore establishes a fiction whereby the whole family is taken into account as if all the persons concerned were subject to the legislation of the competent Member State and resided there. In other words, that article implies a global approach,⁽²⁰⁾ since the competent institution is required in accordance with that provision to examine the situation of the family as a whole in order to determine entitlement to family benefits. Moreover, such a view has been adopted by the Court which, in order to interpret regulations on the coordination of social security systems, held that family benefits by their nature cannot be payable to an individual in isolation from his or her family circumstances.⁽²¹⁾ As the Commission correctly submits, it follows from this that entitlement to family benefits does not apply to one parent alone, but to the family.

35. That global approach seems to me to be entirely consistent with the purpose of family benefits under Regulation No 883/2004. In that regard, in order to determine whether a benefit constitutes a family benefit within the meaning of Article 3(1)(j) of that regulation, reference must be made to the wording of Article 1(z) of that regulation, in accordance with which the term ‘family benefit’ means all benefits in kind or in cash intended to meet family expenses, excluding advances of maintenance payments and special childbirth and adoption allowances mentioned in Annex I to that regulation. Relying on that definition, the Court has consistently held that family benefits are intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses. The Court has also clarified that the phrase ‘to meet family expenses’ is to be interpreted as referring in particular to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children.⁽²²⁾

36. That purpose is also illustrated by Article 68a of Regulation No 883/2004 which seeks to ensure that recipients of family benefits use them for the purposes for which they are intended. To that end, that provision stipulates that, in the event that the recipient of the benefit does not use the family allowance to which he or she is entitled for the maintenance of the members of the family, the amount of those family benefits must be paid to the person who in fact maintains the members of the family.

37. The subject matter and purpose of family benefits are therefore decisive criteria for the application and implementation of the rules laid down in that regard by Regulation No 883/2004. It follows from this that Article 60(1) of Regulation No 987/2009 must be read and interpreted in the light of those characteristics. In that regard, that article⁽²³⁾ provides, in essence, that, where the person entitled to claim family benefits fails to exercise his or her right, the application made by one of the other persons referred to in that provision, which include ‘the other parent’, must be ‘taken into account’ by the competent institution of the Member State whose legislation is applicable.

38. In my view, the third sentence of Article 60(1) of Regulation No 987/2009 reflects the family approach to family benefits laid down in Regulation No 883/2004. I consider that, by providing that the application made by ‘the other parent’ should be taken into account as if it had been submitted by the parent entitled to family benefits, the intention of the EU legislature was to ensure that, in all circumstances, those benefits, in accordance with their purpose, contribute to a family’s budget and meet the expenses incurred by the person who actually maintains the child.

39. By the same token, I take the view, following the reasoning which I have just set out, that the recovery of the sums corresponding to the benefits is possible only in so far as it does not conflict with the scheme of the mechanisms established, in respect of family benefits, by Regulations No 883/2004 and No 987/2009. To that end, in order to assess the merits of the request for recovery, it must be verified whether, following the application made by one of the persons referred to in the third sentence of Article 60(1) of Regulation No 987/2009, the overall assessment of the family’s situation carried out by the competent institution has led to the family benefits actually contributing to family expenses. If the answer is in the affirmative, it seems to me that that article precludes the recovery of family benefits, even if the competent institution has granted those benefits to a person who is not the person designated by national law as being entitled to claim those benefits.

40. Such an analysis is, moreover, consistent with the case-law of the Court. Admittedly, as the Court recalled in the judgment in Trapkowski,⁽²⁴⁾ the consideration stipulated in the third sentence of Article 60(1) of Regulation No 987/2009 does not preclude the competent institution of the Member State from awarding family benefits to a person other than the person who made the application since the conditions for the award of such benefits, including identifying the person entitled to them, come within the scope of national law. However, there is nothing in the wording used in that judgment to suggest that the competent institution is required to reach such a conclusion. Thus, the overall examination of the family situation provided for in that article gives the competent institution the option to award family benefits to a person other than the one designated by national law.

41. In such a situation, challenging that award on the basis of the criteria laid down by national law cannot have the consequence of contravening the structure of the mechanisms for coordinating social security systems established by Regulation No 883/2004. In that regard I would point out that, although the conditions for the award of family benefits are determined in accordance with national law, Member States, when exercising those powers, must comply with EU law.⁽²⁵⁾ It follows from this, in my view, that the determination, under national law, of the person entitled to family benefits must not have the effect of requiring the recovery of those benefits which, following the implementation of the procedure provided for in Article 60(1) of Regulation No 987/2009, have achieved their objective.

42. In any event, the assessment of the merits of the request for the recovery of family benefits made by the Austrian tax authority comes within the exclusive jurisdiction of the national court, which must examine all the particular circumstances of the case. That said, it seems to me that, on the basis of the information provided by the referring court, the interpretation of the third sentence of Article 60(1) of Regulation No 987/2009 which I propose precludes the repayment of the family benefits.

43. Austrian law designated DN’s former wife as the person who could claim family benefits for her adult daughter with whom she resided in Poland. Since the mother failed to exercise her right, DN applied to the competent Austrian institution for the award of those benefits. After having considered that application, that institution granted the family benefits to DN, who paid the full amount of the corresponding sums to his daughter. Moreover, the referring court states that, if DN were required to repay the family benefits, his former wife would not be able to obtain payment thereof since, under Austrian law, the time limit for obtaining payment of those benefits has lapsed.

44. In the light of those factors, I note, first, that the application submitted by DN was taken into account and that the family benefits were then awarded to him in the context of the implementation by the competent institution of the procedure provided for, for the purpose of applying Articles 67 and 68 of Regulation No 883/2004, by Article 60(1) of Regulation No 987/2009. I would point out, next, that, even though they were not paid to the mother, the family benefits actually contributed to the maintenance of the child in respect of whom they were awarded.

45. It seems to me that, in such circumstances, the repayment of the family benefits, required under national law, would have the effect of undermining the rules on the coordination of social security systems laid down in respect of family benefits by the EU legislature.