Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 27 February 2023 – XXXX
(Case C-116/23, Sozialministeriumservice)
Language of the case: German
Referring court
Bundesverwaltungsgericht
Parties to the main proceedings
Applicant: XXXX
Other party to the proceedings: Sozialministeriumservice
Questions referred
Is the care leave allowance a sickness benefit within the meaning of Article 3 of Regulation (EC) No 883/2004 1 or, if not, another benefit under Article 3 of Regulation (EC) No 883/2004?
If it is deemed to be a sickness benefit, would the care leave allowance then be a cash benefit within the meaning of Article 21 of Regulation (EC) No 883/2004?
Is the care leave allowance a benefit for the caregiver or the person in need of care?
Consequently, does a situation in which an applicant for the care leave allowance, who is an Italian citizen, and has been permanently resident in Austria in the province of Upper Austria since 28 June 2013, and has also been continuously working in Austria in the same province with the same employer since 1 July 2013 (for which reason there is no indication that the applicant is a cross-border commuter), entered into an agreement with his employer to take care leave in order to care for his father, an Italian citizen who resided in Italy (Sassuolo), throughout the relevant period from 1 May 2022 to 13 June 2022 and applied to the defendant authority for a care leave allowance, fall within the scope of Regulation (EC) No 883/2004?
Does Article 7 of Regulation (EC) No 883/2004 or the prohibition of discrimination enshrined in various pieces of European legislation (e.g. Article 18 TFEU, Article 4 of Regulation (EC) No 883/2004, etc.) preclude a national provision that makes the payment of a care leave allowance conditional upon the person in need of care receiving an Austrian care allowance of level 3 or higher?
Does the EU law principle of effectiveness or the EU law principle of non-discrimination enshrined in various pieces of European legislation (e.g. Article 18 TFEU, Article 4 of Regulation (EC) No 883/2004, etc.) preclude, in a situation such as the present case, the application of national legislation or established national case-law that does not provide any scope to reclassify a ‘care leave allowance application’ as a ‘family hospice leave application’, when clearly a ‘care leave allowance application’ form was used rather than the ‘family hospice leave application’ form, and an agreement was clearly entered into with the employer that referred to ‘nursing care for a close relative’ instead of ‘end-of-life care’, although the underlying facts would – given that the father, who was in need of care, has subsequently passed away – in principle also satisfy the requirements for a care leave allowance under the header of ‘family hospice leave’ if only a different agreement had been entered into with the employer and a different application had been lodged with the authority?
Does Article 4 of Regulation (EC) No 883/2004 or another provision of European Union law (for example Article 7 of the Charter of Fundamental Rights) preclude a national provision (Paragraph 21c(1) of the Bundespflegegeldgesetz (Austrian Federal Care Allowance Act, ‘the BPGG’)) which makes the payment of care leave allowance conditional upon the person in need of care receiving an Austrian care allowance of level 3 or higher, whereas another national provision (Paragraph 21c(3) BPGG), when applied to the same facts, does not make the payment of the allowance conditional upon a similar requirement?
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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).