30.1.2010

Official Journal of the European Union

C 24/12

(Case C-363/08)

(Social security for migrant workers - Family allowances - Refusal - National of one Member State resident with her child in another Member State, while the father of the child works in the former Member State)

2010/C 24/18

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Romana Slanina

Defendant: Unabhängiger Finanzsenat, Außenstelle Wien

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof (Austria) — Interpretation of Article 73 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 (OJ 1971 L 149, p. 2) — National legislation providing for the payment of a family allowance (Familienbeihilfe) to persons who have the care of a child and who are permanently resident on national territory — Refusal to grant the allowance to an Austrian national who has settled with her child in another Member State, the father of the child having remained permanently resident on national territory and being in employment there

Operative part of the judgment

1.Article 73 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, must be interpreted as meaning that a divorced person who was paid family allowances by the competent institution of the Member State in which she was living and where her ex-husband continues to live and work maintains in respect of her child, provided that child is recognised as a ‘member of the family’ of the ex-husband within the meaning of Article 1(f)(i) of that regulation, entitlement to such allowances even though she leaves that State and settles with her child in another Member State, where she does not work, and even though her ex-husband could receive those allowances in his Member State of residence.

2.The fact that a person in a situation such as that of the applicant in the main proceedings is in employment in her Member State of residence, giving entitlement to family allowances, has, under Article 76 of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, the effect of suspending entitlement to family allowances payable under the legislation of the Member State in whose territory her ex-husband is in employment, up to the sum provided for by the legislation of her Member State of residence.

(1) OJ C 285, 8.11.2008.