Judgment of the Court (Fourth Chamber) of 13 June 2013 (request for a preliminary ruling from the Cour du travail de Bruxelles – Belgium) – Office national d’allocations familiales pour travailleurs salariés (ONAFTS) v Radia Hadj Ahmed
(Case C-45/12) 1
(Social security for migrant workers – Regulation (EEC) No 1408/71 – Scope ratione personae – Grant of family benefits to a third-country national with a right of residence in a Member State – Regulation (EC) No 859/2003 – Directive 2004/38/EC – Regulation (EEC) No 1612/68 – Length-of-residence requirement)
Language of the case: French
Referring court
Cour du travail de Bruxelles
Parties to the main proceedings
Applicant: Office national d’allocations familiales pour travailleurs salariés (ONAFTS)
Defendant: Radia Hadj Ahmed
Re:
Request for a preliminary ruling – Cour du travail de Bruxelles – Interpretation of Article 1(f) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2) – Interpretation of Articles 13(2) and 14 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) – Interpretation of Article 18 TFEU and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union – Grant of family benefits to a third-country national who has obtained a permit to reside in a Member State in order to join, not in the context of marriage or registered partnership, a national of another Member State – Presence of another child who is a third-country national – Scope ratione personae of Regulation No 1408/71 – Definition of ‘member of the family’ – National legislation imposing length-of-residence requirement for the grant of family benefits – Equal treatment
Operative part of the judgment
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that a third-country national or her daughter, who is also a third-country national, while their situation is the following:
that third-country national obtained, less than five years earlier, a permit to reside in a Member State in order to join, not in the context of marriage or registered partnership, a national of another Member State, by whom she has a child who has the nationality of the latter Member State;
only that national of another Member State has the status of worker;
in the meantime the cohabitation of the third-country national and the national of another Member State has come to an end; and
both children are members of their mother’s household,
do not come within the scope ratione personae of that regulation, unless that third-country national or her daughter can be regarded, within the meaning of the national legislation and for its application, as ‘members of the family’ of the national of another Member State or, where that is not the case, unless they can be regarded as being ‘mainly dependent’ on him.
Articles 13(2) and 14 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, read in conjunction with Article 18 TFEU, must be interpreted as not precluding the legislation of a Member State by which the latter subjects the grant of guaranteed family benefits to a third-country national, while her situation is as described in point 1 of this operative part, to a length-of-residence requirement of five years although its own nationals are not subject to that requirement.
____________1 OJ C 109, 14.4.2012.