Request for a preliminary ruling from the Bundesfinanzgericht (Austria) lodged on 6 August 2020 – QY v Finanzamt Wien für den 8., 16. und 17. Bezirk

(Case C-372/20)

Language of the case: German

Referring court

Bundesfinanzgericht

Parties to the main proceedings

Applicant: QY

Defendant: Finanzamt Wien für den 8., 16. und 17. Bezirk

Questions referred

Question 1:

Is Article 11(3)(e) of Regulation (EC) No 883/2004 ¹ to be interpreted as covering a situation in which a female worker who is a national of a Member State in which she and her children also reside enters into an employment relationship as a development aid worker with an employer established in another Member State, and that employment relationship is subject to the compulsory insurance scheme under the legislation of the State of establishment, and she is posted by the employer to a third country not immediately after being employed but after completing a preparatory period and returning to the State of establishment for reintegration periods?

Question 2:

Does a legal provision of a Member State such as Paragraph 53(1) of the Familienlastenausgleichsgesetz (Law on compensation for family expenses) (FLAG), which, inter alia, makes independent provision for equal status with nationals, infringe the prohibition on the transposition of regulations within the meaning of the second subparagraph of Article 288 TFEU?

Questions 3 and 4 relate to the case where the applicant’s situation falls within Article 11(3)(e) of Regulation No 883/2004 and where EU law requires only the Member State of residence to provide family benefits.

Question 3:

Is the prohibition of discrimination based on nationality enshrined for employees in Article 45(2) TFEU and, on a subsidiary basis, in Article 18 TFEU to be interpreted as meaning that it is incompatible with a national provision such as Paragraph 13(1) of the Entwicklungshelfergesetz (Law on development aid workers (EHG)) in the version applicable until 31 December 2018 (‘old version’), which connects entitlement to family benefits in the Member State not responsible under EU law with the fact that the development aid worker must have had his centre of interests or habitual residence in the territory of the Member State of establishment before commencing employment, whereby that requirement must also be met by nationals?

Question 4:

Are Article 68(3) of Regulation (EC) No 883/2004 and Article 60(2) and (3) of Regulation (EC) No 987/2009 ² of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing social security systems to be interpreted as meaning that the institution of the Member State which was presumed by the applicant to be the State of employment with primary responsibility and to which the application for family benefits was submitted, but whose legislation is applicable on neither a primary nor secondary basis, but in which there is an entitlement to family benefits under an alternative rule of the law of the Member State, must apply by analogy the provisions relating to the obligation to forward the application, to inform the person concerned, to take a provisional decision on the priority rules to be applied and to provide provisional cash benefits?

Question 5:

Is the obligation to take a provisional decision on the priority rules to be applied incumbent solely on the respondent authority, as the institution, or also on the administrative court seised on appeal?

Question 6:

At what point in time is the administrative court obliged to take a provisional decision on the priority rules to be applied?

Question 7 relates to the case where the applicant’s situation falls within Article 11(3)(a) of Regulation No 883/2004 and EU law requires the Member State of employment and the Member State of residence to provide family benefits jointly.

Question 7:

Are the words ‘th[e] institution shall forward the application’ in Article 68(3)(a) of Regulation No 883/2004 and in Article 60 of Regulation No 987/2009 to be interpreted as meaning that those provisions link the institution of the Member State with primary responsibility and the institution of the Member State with secondary responsibility in such a way that both Member States must jointly settle ONE (one as in a singular) application for family benefits, or must the applicant make a separate application for the additional payment that may have to be made by the institution of the Member State whose legislation is applicable on a secondary basis, with the result that the applicant must submit two physical applications (forms) to two institutions of two Member States, which, by their nature, will trigger different time limits?

Questions 8 and 9 concern the period from 1 January 2019, when Austria abolished, alongside the introduction of the indexation of family allowances, the granting of family allowances for development aid workers by repealing Paragraph 13(1) EHG, old version.

Question 8:

Are Articles 4(4), 45, 208 TFEU, Article 4(3) TEU and Articles 2, 3, 7 and Title II of Regulation No 883/2004 to be interpreted as meaning that they generally prohibit a Member State from abolishing family benefits for a development aid worker who takes his family members with him to the place of employment in the third country?

In the alternative, Question 9:

Are Articles 4(4), 45, 208 TFEU, Article 4(3) TEU and Articles 2, 3, 7 and Title II of Regulation No 883/2004 to be interpreted as meaning that, in a situation such as that in the main proceedings, they guarantee to a development aid worker who has already acquired entitlement to family benefits for previous periods of time an individual and specific continuation of that entitlement to family benefits for periods of time, even though the Member State has abolished the granting of family benefits for development aid workers?

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¹ Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

² Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).