Luxembourg, 20/01/2005 (Agence Europe) - In the Nils Effing case, the European Court of Justice has ruled that in the field of family benefits, when an employed person has been transferred, as a prisoner, to his own Member State in order to serve the remainder of his sentence, the legislation applicable is that of the second Member State so Austrian legislation making family benefits paid to the family of a prisoner in Austria subject to the condition that the prisoner remain in Austria is not contrary to EU law. Ingo Effing, a German national, had his usual place of residence in Austria, and began serving a prison sentence in Austria, but was subsequently transferred to his country of origin, Germany, to serve the remainder of his sentence. Following the transfer, the Austrian authorities terminated the advances on maintenance payments received by his son Nils, who had remained in Austria with his mother, as Austrian legislation requires that the person serve his sentence in Austria. The Austrian Oberster Gerichtshof (Supreme Court) referred a question to the Court of Justice of the European Communities for a preliminary ruling, asking whether the Austrian legislation, as interpreted by the Austrian authorities, gives rise to discrimination on grounds of nationality. The Court of Justice answered yes, noting in its judgment that the Community legislation on social security schemes for workers moving within the EU (Regulation 1408/71/EEC) 'is intended to avoid complications which may result from the overlap of different sets of national legislation.' The Court of Justice states that 'in accordance with settled case-law on the interpretation of the Regulation, advances on maintenance payments are family benefits and that Ingo Effing must be deemed to be an 'employed person', since he was covered by unemployment insurance during his period of incarceration in Germany.'
The Court of Justice explains: 'The Regulation must be interpreted as meaning that, in a situation where a person, following a transfer, has ceased carrying on all occupational activity in a State (Austria) and no longer resides there, the grant of family benefits comes within the scope of the legislation of the Member State where the person resides and, in this case, serves the remainder of his sentence (Germany). Accordingly, the legislation applicable to the person cannot be that of the Member State from which he was transferred.' In the German prison, Ingo Effing preformed paid work, in accordance with the obligation to work imposed on prisoners by German legislation On these grounds, the Court ruled that EU law allows a Member State to make the grant of family benefits to members of the family of an imprisoned Community national subject to the condition that he remain a prisoner in that Member State.