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EU co-ordination of family benefits

EU co-ordination of family benefits. An overview of the main rules in Regulations n° 883/2004 (BR) & 987/2009 (IR) Prof. dr. Herwig VERSCHUEREN University of Antwerp. Overview. Definitions Priority rules Why? Details Examples Some special guarantees. What are “family benefits”?.

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EU co-ordination of family benefits

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  1. EU co-ordination of family benefits An overview of the main rules in Regulations n° 883/2004 (BR) & 987/2009 (IR) Prof. dr. Herwig VERSCHUEREN University of Antwerp

  2. Overview • Definitions • Priority rules • Why? • Details • Examples • Some special guarantees EU Co-ordination of family benefits Herwig Verschueren

  3. What are “family benefits”? • Definition in Art. 1(z) BR • “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” • Exclusion of some benefits does not prevent the application of other EU legal instruments • Such as Article 7 Regulation 1612/68: equal treatment for “social advantages” • Residence clause considered indirect discrimination on grounds of nationality EU Co-ordination of family benefits Herwig Verschueren

  4. What are “family benefits”? • Broad definition given by the European Court of Justice • National qualification is not determinative • Look at • the constituent elements of each particular benefit, • its purposes and the conditions on which it is granted EU Co-ordination of family benefits Herwig Verschueren

  5. What are “family benefits”? • meeting family expenses is essential and sufficient: guaranteeing standard of living of families with children • child-raising allowance; advances on maintenance payments; compensation for child care at home, … • Compensation for costs at school ? • Not: study grants • But these benefits are “social advantages” within the meaning of Art. 7 Regulation 1612/68 EU Co-ordination of family benefits Herwig Verschueren

  6. Principle of export of benefits • Art. 67 BR: entitlement in competent state including for members of the family residing in another MS • Pensioners entitled to family benefits in the MS competent for their pension EU Co-ordination of family benefits Herwig Verschueren

  7. Need for priority rules: why? • Rules on determination of applicable legislation • Members of the same family may be subject to different legislations • Father works in MS A; mother works in MS B; family resides in MS C: three competent MS: • A because the farther works there • B because the mother works there • C because the economically inactive children reside there • Entitlement on the basis of national law alone (Bosmann ruling of ECJ) EU Co-ordination of family benefits Herwig Verschueren

  8. Need for priority rules: why? • Distinction between own rights and derivative rights is not relevant • Members of the family of a worker (spouse for instance) may claim also own rights in MS where the worker works • See Article 60(1) IR: • “…the situation of the whole family shall be taken into account as if all the persons involved were subject to the legislation of the Member State concerned and residing there, in particular as regards a person’s entitlement to claim such benefits….” EU Co-ordination of family benefits Herwig Verschueren

  9. Priority rules in the event of overlapping (Art. 68 BR) • During the same period for the same family members benefits are provided for under the legislation of more than one MS • Order of priority: • Rights available on the basis of an economic activity • Also in cases of temporary suspension of the activity (sickness, unemployment, maternity…; see Decision F1) • Rights available on the basis of receipt of a pension • Rights available on the basis of residence EU Co-ordination of family benefits Herwig Verschueren

  10. Priority rules in the event of overlapping (Art. 68 BR) • Benefits payable by more than one MS on the same basis • On the basis of an economic activity • MS of residence of the children provided that there is such an activity • If not such activity in the MS of residence: priority for the MS paying the highest amount • Costs shared between the competent MS • See Art. 58 IR EU Co-ordination of family benefits Herwig Verschueren

  11. Priority rules in the event of overlapping (Art. 68 BR) • Benefits payable by more than one MS on the same basis • On the basis of receipt of a pension • Place of residence of the children provided a pension is payable under the legislation of that MS • If not: longest period of insurance of the pensioner • On the basis of residence • MS of residence of the children EU Co-ordination of family benefits Herwig Verschueren

  12. Differential supplements • Family benefits shall in the first place be provided by the prior competent MS • Entitlements to family benefits by virtue of other legislation shall be suspended up to the amount provided by the first MS • A differential amount shall be provided for the sum which exceeds the amount paid by the first competent MS EU Co-ordination of family benefits Herwig Verschueren

  13. Differential supplements • Example: • Family with 3 children lives in MS A; father works in MS B; mother is not economically active • Family benefits in MS A: € 450; in MS B € 300 • MS B : prior competent because of economic activity of the father: it pays first € 300 • MS A: not prior competent: only on the basis of residence: it pays the differential supplement: € 150 EU Co-ordination of family benefits Herwig Verschueren

  14. How to calculate the amounts? • Aggregate per family or per child? • Same family: • MS B (prior competent): • Child 1: €100; child 2 €100; child 3 €100: total €300 • MS A (not prior competent): • Child 1: €50; child 2 €175; child 3 €225: total €450 • Aggregation per family • MS B: €300; MS A: €100 • Aggregation per child • MS B: €300; MS A: €200 • Most MS apply aggregation per family EU Co-ordination of family benefits Herwig Verschueren

  15. How to calculate the amounts? • All types of family benefits should be aggregated • Also income replacement benefits such as parental leave benefits • In most cases much higher than the classic family benefits EU Co-ordination of family benefits Herwig Verschueren

  16. Special guarantees • MS that is not competent by priority shall forward any demand to the other competent MS (Art. 68(3) BR) • Providing the family benefits to the natural or legal person in fact maintaining the members of the family (Art. 68a BR) • Rules on exchange of information and transfer of application between the different competent institutions (Art. 60 IR) EU Co-ordination of family benefits Herwig Verschueren

  17. Conclusions • Chapter on family benefits much simplified compared to the rules in Regulation 1408/71 • Objective: to guarantee the highest possible amount to the family in the event more than one MS in involved EU Co-ordination of family benefits Herwig Verschueren

  18. Thank you for your attention EU Co-ordination of family benefits Herwig Verschueren

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