Judgment of the Court (Seventh Chamber) of 13 October 2022 (request for a preliminary ruling from the Bundesfinanzgericht – Austria) – DN v Finanzamt Österreich
(Case C-199/21) 1
(Reference for a preliminary ruling – Social security – Regulation (EC) No 883/2004 – Articles 67 and 68 – Family benefits – Right to benefits under a pension – Pensioner in receipt of pensions from two Member States – Member State(s) in which that pensioner is entitled to family benefits – Regulation (EC) No 987/2009 – Third sentence of Article 60(1) – Legislation of a Member State providing for the award of family benefits to the parent who has taken the child into his or her household – Failure by that parent to claim the award of those benefits – Obligation to take into account the application submitted by the other parent – Request for the recovery of family benefits paid to the other parent – Whether permissible)
Language of the case: German
Referring court
Bundesfinanzgericht
Parties to the main proceedings
Applicant: DN
Defendant: Finanzamt Österreich
Operative part of the judgment
1. The second sentence of Article 67 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems
must be interpreted as meaning that, where a person is in receipt of pensions in two Member States, that person is entitled to family benefits in accordance with the legislation of those two Member States. Where the receipt of such benefits in one of those Member States is precluded pursuant to the national legislation, the priority rules referred to in Article 68(1) and (2) of that regulation do not apply.
2. The third sentence of Article 60(1) of 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
must be interpreted as precluding national legislation which allows the recovery of family benefits awarded, where the parent entitled to such benefits pursuant to that legislation has not applied for them, to the other parent, whose application has been taken into account, in accordance with that provision, by the competent institution, and who in fact bears the entire cost associated with the maintenance of the child.
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1 OJ C 242, 21.6.2021.