Brussels, 22/02/2012 (Agence Europe) - The European regulation on social cover for migrant workers does not prevent the member states from granting child benefit to seconded or seasonal workers. Nor, however, does it impose on them any obligations to do so and member states retain the right not to make benefit payments or to reduce the amount, if similar benefits are paid in another state.
This is the interpretation of the above-mentioned regulation (1408/71/EEC) suggested to the Court by Advocate General J. Mazak in his conclusions dated 16 February (Joint Cases C-611/10 and C-612/10) in response to questions from the German Federal Finance Court. This court was approached by two Polish workers resident in Poland, but working temporarily in Germany, who applied for child benefit during the time they were working in the country. Their applications were rejected on the basis that by virtue of Regulation 1408/71/EEC, Polish law, rather than German law, should apply in this case. This regulation provides that as regards social security matters, seconded or seasonal workers working temporarily in another member state continue to be subject to the legislation of the country in which they usually work, rather than that of the member state in which they are effectively working on a temporary basis. Furthermore, German legislation provides for child benefit not to be paid if similar benefits are paid in another state.
Under these circumstances, the German Court asked the Court of Justice: whether, if Germany is not the competent member state according to the above-mentioned regulation and its legislation is not the legislation applicable, EU law prevents Germany from granting child benefit; and whether, in this situation, a member state may exclude or reduce entitlement to family benefits where a similar benefit may be received in another member state.
In response to these questions, the advocate general states first of all that the regulation aims to ensure that the persons concerned are subject to the social security scheme of only one member state in order to prevent more than one system of national legislation being applied and thus to avoid the attendant complications. The same regulation determines the national law applicable, not on the basis of the social security system which is most advantageous to the persons concerned, but by reference to objective factors such as the place of employment or residence. It does not harmonise legislation at European level, but draws up a system of coordination, leaving substantive and procedural differences between the social security systems unaffected. These systems may prove to be more or less advantageous depending on the country to which the workers move. However, the case law of the Court of Justice requires an interpretation in a manner favourable to migrant workers: EU law must not have the effect of depriving a member state - even if it is not the competent state - of the right to grant workers social benefits provided for under its national legislation. In similar cases, the member state is, however, not obliged to grant such benefits and retains the right to determine the conditions under which they may be granted, as well as the amount of such benefits and the period for which they are granted. (FG/transl.fl)