In Caisse pour l’avenir des enfants v FV, GW (C-802/18), the High Council of Social Security of Luxembourg, has referred to the European Court of Justice several questions concern the eligibility for family allowance.
One of the questions referred to the ECJ, concerns the interoperability between two EU legal instruments, Regulation 883/2004 on the coordination of social security systems, and Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States:
“___the definition of member of the family applicable under Article 1(i) of Regulation 883/2004 2 is at odds with the broader definition of family member in Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council 3 when the latter excludes, contrary to what is established by the Coordination Regulation, all autonomy of the Member State in defining a member of the family, and excludes any, subsidiary, concept of a person who is mainly dependent. Must the definition of member of the family under Article 1(i) of Regulation 883/2004 prevail given its specificity in the context of the coordination of social security systems and, above all, does the Member State retain competence to define members of the family who are entitled to family allowances?”
The question contains inter alia an essential presumption: Directive 2004/38 excludes the concept of person who is mainly dependent.
Provided that the presumption is not confirmed, the ECJ is eventually called upon to respond whether “above all, does the Member State retain competence to define members of the family who are entitled to family allowances”.
The negation of the presumption would rule out the relevance of the other sub-questions.
It must be first observed that Directive 2004/38 and Regulation 883/2004 are both adopted on 29 April 2004. The first sub-question is whether two definitions of the same concept, provided for by the said legal instruments, are at odds. Hard to believe.
Pursuant to Article 3 Directive 2004/38, the said directive “shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them”
Family embers who do not accompany or join the Union citizen, may not enforce rights under the said directive, with simple words do not fail under the scope of Article 2 (lays down the definition of family members, in the sense of Directive 2004/38).
Children do not accompany or join the Union citizen, do not qualify as family members in the sense of Directive 2004/38, and as a consequence, their parents cannot be eligible for family allowance only on grounds of the said directive.
Article 1(i) (3) Regulation 883/2004, extends the scope of the definition of family members in the sense of Directive 2004/38, to family members who are not accompanying or joining a Union citizen, but are mainly dependent on the insured person. The latter are not beneficiaries of Directive 2004/38, nevertheless fail under the scope of Regulation 883/2004.
The concept of person who is mainly dependent is not excluded by Directive 2004/38. Such a concept is added by Regulation 883/2004, in the context of entitlement to benefits.
Having regard to the above considerations, the presumption is not confirmed.
The definition of family members, laid down by Regulation 883/2004, is not at odds with the definition provided for by Directive 2004/38.
Member States are not given autonomy to undermine the definition of family members laid down by Directive 2004/38.
Member States are given the autonomy to determine the eligibility for family allowances, within the legal framework established by Regulation 883/2004. The concept of person who is mainly dependent provided for by Article 1(i) (3) Regulation 883/2004, and Article 68a of the said regulation, determine inter alia the extent of the autonomy given to Member States. (see in context Romana Slanina v Unabhängiger Finanzsenat, Außenstelle Wien, C‑363/08, ECLI:EU:C:2009:732, paragraphs 24, 26 and 27).
It can be alleged that there is a perfect interoperability between Directive 2004/38 and Regulation 883/2004.
In regard to the third sub-question, the wording “above all”, is probably meant to call upon the ECJ, to provide grounds for discretionary power given to Member States, in defining members of the family who are entitled to family allowance. We take the view that the wording “above all” designates a wide discretion rather than a competence.
Such a discretion is not provided for by the EU law, and thus cannot be retained. The question reflects a will rather than an interrogation. Article 1(i) Regulation 883/2004, read in conjunction with Articles 2, 3 and 24 Directive 2004/38, does not confer Member States discretion in defining members of the family who are entitled to family allowance. Member States retain only certain competences, provided for by Regulation 883/2004.