(November 6, 2014)

On November 6, 2014 the European Court of Justice (CJEU) ruled in Case C-4/13, Agentur für Arbeit Krefeld - Familienkasse versus Susanne Fassbender-Firman (ECLI:EU:C:2014:2344). 

The following questions were referred to the CJEU for a preliminary ruling:

1. Must Article 76(2) of Regulation No 1408/71 be interpreted to the effect that the competent institution of the Member State of employment enjoys discretion in applying Article 76(1) of Regulation No 1408/71 if no application for benefits has been made in the Member State of residence of the members of the family?
2. If the first question is answered in the affirmative, on the basis of what discretionary considerations may the institution competent for family benefits in the Member State of employment apply Article 76(1) of Regulation No 1408/71 as if benefits had been granted in the Member State of residence of the members of the family?
3. If the first question is answered in the affirmative, to what extent is the discretionary decision by the competent institution subject to judicial review?

The CJEU ruled as follows:

Article 76(2) 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, must be interpreted as authorising the Member State of employment to provide in its legislation for suspension by the competent institution of entitlement to family benefits when no application has been made for family benefits in the Member State of residence. In such circumstances, if the Member State of employment provides for such suspension of entitlement to family benefits in its national legislation, the competent institution is bound to apply that suspension in accordance with Article 76(2) of Regulation No 1408/71, provided that the conditions for the application of that legislation are met, and has no discretion in that regard.

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