Wednesday, May 25 2022
download app
download appDOWNLOAD OUR APP
download google-play
download app-store
Trajan Shipley
share
21st January 2022
Employment & Immigration

AG Richard de la Tour: Austrian legislation on family benefits for cross-border families violates principle of equal treatment

Advocate General Richard de la Tour has delivered his Opinion in Commission v Austria (C‑328/20), advising the Court to rule that Austrian legislation on the adjustment of the amount of family benefits and social and tax advantages for persons working in Austria whose children reside in another Member State is contrary to the principle of equal treatment set out in both Article 4 of Regulation 883/2004 and Article 7(2) of Regulation 492/2011.

In the present case, the Commission had submitted that EU law currently stands, does not allow the Member States a margin of discretion to adjust the amount of family benefits paid by them according to the price level in the State of residence of the child concerned, and that together with the adjustment of certain tax advantages granted to families is discriminatory and cannot be regarded as a necessary and proportionate measure.

In his Opinion, the Advocate General reasoned that there has been an infringement of Articles 7 and 67 of Regulation 883/2004, insofar as it is not permissible under such provisions for a Member State to enact legislation providing for an exception to the principle of strict equivalence of the amount of family benefits by considering that that requirement can be satisfied solely in terms of value.

He also reasoned that there has been an infringement of the principle of equal treatment under Article 4 of Regulation 883/2004 and Article 7(2) of Regulation 492/2011. The Advocate General noted that the distinction made by Austrian legislation making the amount of exportable benefits dependent on a child’s place of residence in the Member States affects migrant workers to a greater extent and thus constitutes indirect discrimination on the ground of nationality. In the present case, he believes that such discrimination is neither appropriate nor necessary in order to establish or restore the supportive function and the fairness of the social system.

The Opinion is available here.

×

Your privacy is important for us

We use cookies to improve the user experience. Please review privacy preferences.

Accept all Settings

Check our privacy policy and cookies policy.

Cookies