Abstract
In early 2018, Austria amended its family benefits law by introducing ‘indexation’ according to the average living costs of the country where the child actually resides. What seems to be, at first sight, a flagrant breach of EU law (in particular of Article 7 of Regulation [EC] 883/2004) is, when looking deeper, much more complicated and might very well be only a symptom of deeply rooted differences in the interpretation of current, post-Lisbon Union law, (i) in particular with regard to the relationship between the traditional prohibition of “discrimination on grounds of nationality” (Article 18 TFEU, Article 21(2) CFR; the ‘Leitmotiv’ of the Treaties) and the “citizenship of the Union” (Article 9 second sentence TEU, Article 20(1), first and second sentence) on the one hand and the further role of the “nationality of a Member State” on the other, which shall, pursuant to Article 9 TEU, third sentence, as well as Article 20(1) TFEU, third sentence, not be replaced by the “citizenship of the Union”, (ii) but also with regard to Article 352 TFEU, the scope of which is, most probably, much smaller than that of its predecessor, Article 308 TEC, (iii) and last but not least, with regard to a proper understanding of the principle of equal treatment, requiring not to treat alike factually different situations. Giving a full picture not only in abstract terms but demonstrating the relevance of the said differences on the concrete example of the interpretation of the above mentioned secondary legislation, the author aims at contributing to bridging gaps and, thus, fostering a better mutual understanding as a vital precondition for the future legal cohesion of the EU.
Highlights
As it is quite well known, the Austrian government formed in December 2017 on the basis of the result of the general elections held on 15 October 2017 – the so called „turquoise-blue“ coalition – had aimed right from the beginning at an „assessment of“ the possibility of an „indexation of family benefits“ – i.e. of specific State allowances destined to support the maintenance of children1, consisting in an adjustment to the real costs of life of the respective child in the respective EU Member States, „in conformity with EU law“
Already in the very first chapter of our story, we find a model quite similar to the currrent Austrian indexation model72, „Article 40 of Regulation No 3 of the Council of the EEC of 25 September 1958 concerning social security for migrant workers ...“73 having „provided that: ‘A wage-earner or assimilated worker who is employed in the territory of one Member State, and has children who are permanently resident or are being brought up in the territory of another Member State, shall be entitled, in respect of such children, to family allowances according to the provisions of the legislation of the former State, up to the amount of the allowances granted under the legislation of the latter State’.“74
„13 years later Regulation 1408/7175 recast that provision“76, this recast was not a general one: Instead, „Article 73 (1) of Regulation No 1408/71 provide[d] that: ‘A worker subject to the legislation of a Member State other than France shall be entitled to the family benefits provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State, as though they were residing in the territory of the first State’“, whilst for workers subject to French legislation“ – and as we may fairly safely assume, for a quite considerable subset of workers posted in the European Economic Community the former regime was kept
Summary
As it is quite well known, the Austrian government formed in December 2017 on the basis of the result of the general elections held on 15 October 2017 – the so called „turquoise-blue“ coalition (of reformed Christian Democrats with chairman – and Austrian federal chancellor Sebastian Kurz and right wing populists, with chairman – and Austrian federal vice-chancellor Heinz-Christian Strache) – had aimed right from the beginning at an „assessment of“ the possibility of an „indexation of family benefits“ – i.e. of specific State allowances destined to support the maintenance of children , consisting in an adjustment to the real costs of life of the respective child in the respective EU Member States, „in conformity with EU law“.2. – the carers of whom were entitled to receive the Austrian Family Benefit the actual amount of this benefit had to be fixed on the basis of the „comparative price levels“ issued by EUROSTAT. By this means of an indexation, „effects of distortion“ occuring when the said benefits were „exported without proper distinction“ were to be avoided.. End of October, the Commission had received the Austrian answer to this “reasoned opinion”8 – this time no longer of the “turquoise-blue” coalition, but by the post Ibiza transitory government which, maintained the position of the former government (as does, up to now, the in early January 2020 newly formated current “turquoise-green” coalition). From that point in time on it took more than half a year until the Commission decided, on 14 May 2020, to refer the matter to CJEU under Article 258 TFEU.
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