Brussels, 09/06/2016 (Agence Europe) - For the very first time, the European Court of Justice has been asked to define the status of the members of a reconstituted family in three joint cases that pose the same question: how should a child in a reconstituted family be regarded as the child of the step parent for the purposes of a cross-frontier social advantage?
Although the Court has still not made a decision, Advocate General Melchior Wathelet, presented his conclusions to the judges on Thursday 9 June (joint cases 401/15, C-402/15 and C-403/15). He stated that the child within a reconstituted family could be considered the child of the step parent and subsequently benefit from the cross-border social advantages to which the latter has a right.
The three cases concern cross-border workers in Luxembourg who are the step parents of children living in another member state. The Luxembourg authorities refused to grant student grants to these children in accordance with legislation that is in fact also being contested at the Court for other reasons (see EUROPE 11564). These authorities argued that the interested parties were not legally the children of the cross-border workers in question and were only the stepchildren.
The Advocate General believes this argument is flawed and to prove it he pointed to the combination of two principles endorsed by EU law. The first states that a worker in a member state can benefit in any other member state in which he is working from the same social and tax advantages as those enjoyed by national workers (Regulation 492/2011). The second relates to the fact that the children are defined as "the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner" (directive 2004/38).
These two elements, combined with the interpretation of 'family life' as protected by the Charter of Fundamental Rights of the EU and a ruling by the European Court of Human Rights recognise the possibility of 'de facto family ties' and illustrates the status of the family member in charge results from a specific situation. In these cases, it is therefore necessary to define the familial link not in a legal but in an economic manner. Subsequently, the contribution to the maintenance of the child can also be demonstrated by objective factors such as marriage, a registered partnership or a common domicile. (Original version in French by Jan Kordys)