In Eugen Bogatu v Minister for Social Protection (C‑322/17), the European Court of Justice, analyses the eligibility for family benefits, in the sense of Articles 67 and 68 Regulation 883/2004 on the coordination of social security systems (i.e. entitlement to family benefits where members of the family are residing in another Member State, and priority rules in the event of overlapping benefits).
The case in the main proceedings
The case in the main proceedings concerns a Romanian national who after having been employed in Ireland and subsequently having lost his job, has received only non-contributory benefits (jobseeker’s allowance). whilst remaining insured under the social security scheme of the latter Member State. He was refused family benefits for his children residing in Romania, for the period during which he received the jobseeker’s allowance, on the ground that he could not be regarded as pursuing an activity as an employed person, for the purposes of Article 67 Regulation 883/2004.
Questions referred for a preliminary ruling
The main question referred to the European Court of Justice, can be summarised to whether pursuant to Article 67 Regulation 883/2004, read in conjunction with Article 11(2) said regulation, in order to be eligible for family benefits, a person must be employed in the competent Member State, or alternatively, be in receipt of the cash benefits referred to in Article 11(2).
Summary of the ECJ’s ruling
Interpreting Article 67 Regulation 883/2004, the ECJ observes that:
- It refers to a “person” eligible for family benefits and does not contain any reference to the status of the person concerned.
- It does not set up the criteria of eligibility for family benefits, but only refers to the national legislation of the relevant Member State.
It follows that Article 67 must be interpreted “in the light of its context and the objective that it pursues”
The objective pursued by Article 67 was inter alia to extend the scope of Regulation 883/2004, to categories of persons other than only employed persons previously covered by Regulation 1408/71.
Article 67 must be read in conjunction with Article 68(1)(a).The priority rules laid down by Article 68(1)(a), cover different categories of persons, and not exclusively employed or self-employed persons.
In the light of the above consideration, Article 11(2) Regulation 883/2004, notably the entitlement to cash benefits because or as a consequence of activity as an employed person, does not affect the interpretation of Article 67 Regulation 887/2008.
The ECJ concluded that pursuant to Article 67 Regulation 883/2004, read in conjunction with Article 11(2) said regulation, in order to be eligible for family benefits, it is not necessary for a person to be employed in the competent Member State, or alternatively be in receipt of the cash benefits referred to in Article 11(2).
The ECJ does not follow the Opinion delivered by Advocate General Mengozzi. The latter had suggested that in accordance to the adage “‘lex specialis derogat legi generali’, where a situation is governed by one of the special rules governing connecting factors which are provided for in Title III Regulation 883/2004, the general conflict rules which are set out in Title II the said regulation, do not apply.
Advocate General Mengozzi took the view that in order to preserve the practical effect of the order of priority provided for in Article 68 Regulation 883/2004, to interpret the concept of ‘activity as an employed person’ for the purposes of the said article, reference must be made to the definition laid down in Article 1 Regulation 883/2004 (“activity as an employed person” means any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists”).