ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which is intended to meet family expenses, falls within the scope ratione materiae of Community law as a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.
A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which is intended to meet family expenses, falls within the scope ratione materiae of Community law as a social advantage within the meaning of Article 7(2) of Regulation No 1612/68.
The concept of social advantage covers all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community.
There is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied. For instance, the definition of worker used in the context of Article 48 of the Treaty and Regulation No 1612/68 does not necessarily coincide with the definition applied in relation to Article 51 of the Treaty and Regulation No 1408/71.
In the context of Article 48 of the Treaty and Regulation No 1612/68, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker.
On the other hand, a person has the status of employed person within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, compulsorily or on an optional basis, by a general or special social security scheme mentioned in Article 1(a) of Regulation No 1408/71, irrespective of the existence of an employment relationship.
A national of a Member State lawfully residing in the territory of another Member State comes within the scope ratione personae of the provisions of the Treaty on European citizenship and can rely on the rights laid down by the Treaty which Article 8(2) attaches to the status of citizen of the Union, including the right, laid down in Article 6, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.
Community law precludes a Member State from requiring nationals of other Member States authorised to reside in its territory to produce a formal residence permit issued by the national authorities in order to receive a child-raising allowance, whereas that Member State’s own nationals are only required to be permanently or ordinarily resident in that Member State.
For the purposes of the grant of the benefit in question, possession of a residence permit cannot be constitutive of the right to the benefit when, for the purposes of recognition of the right of residence, it has only declaratory and probative force.
‘Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.’
Judges:
GC Rodriguez Iglesias, P
Citations:
[1998] ECR 1-2691, [1998] EUECJ C-85/96, [1998] ECR I-2591
Links:
Jurisdiction:
European
Cited by:
Cited – Kaczmarek v Secretary of State for Work and Pensions CA 27-Nov-2008
The claimant entered the UK as a student coming from Poland. She then worked as a kitchen maid, but having left that job on becoming a mother was refused income support. She later returned to work. She said that the rules which denied her benefit . .
Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Cited – Zagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Cited – Prix v Secretary of State for Work and Pensions SC 31-Oct-2012
The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused . .
Cited – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
Applied – Revenue and Customs v Ruas CA 23-Mar-2010
The court was asked whether an obligation arose to pay child benefit for the children of a Portuguese worker resident here but no longer working for his children living in Portugal.
Held: The benefit was payable. . .
Cited – Tolley (Deceased) v The Secretary of State for Work and Pensions CA 23-Oct-2013
The Court was asked as to entitlement to receive the care component of disability living allowance when she moved permanently from the United Kingdom to Spain. . .
Cited – Secretary of State for Work and Pensions v Tolley SC 29-Jul-2015
The Court was asked whether the United Kingdom is precluded, by Council Regulation (EC) No 1408/71 on the application of social security schemes to employed persons, self-employed persons and members of their families moving within the Community, . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
Lists of cited by and citing cases may be incomplete.
Benefits
Updated: 03 June 2022; Ref: scu.161807
