Anna Humer, who was born on 10 September 1987,
is the child by marriage of Austrian nationals. The couple divorced on 9 March
1989 and the mother has had custody of her daughter since that date. In 1992
the mother moved with her daughter to France, where she established their ordinary
residence and worked in an employed capacity. The father remained in Austria.
On 2 November 1993 the father assumed an obligation
under a court settlement to make monthly maintenance payments of ATS 4 800
in favour of his daughter. The father was at that time employed in a commercial
capacity and continued in that occupation until at least 31 January 1998 before
subsequently losing his post.
On 24 July 1998 Anna Humer applied to the Republic
of Austria for advances on maintenance payments in the monthly amount of ATS 4 800
for a period of three years. She claimed that, despite 'repeated enforcement
measures', her father's maintenance payments were several months in arrears.
The court of first instance dismissed the application
for grant of an advance on the ground that the child and her mother, who had
custody of her, were not ordinarily resident in Austria, as required under Austrian
legislation. The appeal court ruled in favour of Anna Humer. The Austrian State
thereupon appealed to the court of final instance (the Oberster Gerichtshof),
which referred the matter to the Court of Justice of the EC in order to determine
whether the Austrian rule was compatible with European law.
The Court examines whether an advance on maintenance
payments, as provided for under Austrian legislation, is a family benefit within
the meaning of the Community regulation governing the social security of migrant
workers and members of their families.
The Court refers to its previous ruling in Case C-85/99
Offermanns, in which it held inter alia that the expression 'to
meet family expenses' featuring in the regulation must beinterpreted as referring
to a public contribution to a family's budget designed to alleviate the financial
burdens involved in the maintenance of children. The Court also points out that
the reasons given by the Austrian legislature were to ensure the maintenance
of minor children in cases where their mothers are left to cope alone with their
children and, in addition to the heavy burden of raising their children, find
themselves faced with the additional difficulty of obtaining a contribution
for their maintenance from the father. The Court further stated in its judgment
in Offermanns that it is in order to resolve such difficult situations
that the State must step in and, by paying advances on maintenance payments,
take the place of those persons who are in default of their maintenance obligations.
The Court thus affirms that an advance on maintenance
payments does constitute a family benefit.
The Court also takes the view that a child, one or
other of whose parents is an employed person or is out of work, comes within
the personal scope of the Community regulation as a member of the family
of a worker, even if, following a divorce, the child no longer lives with that
parent.
The Court ruled in Joined Cases C-245/94 and C-312/94
Hoever and Zachow that the spouse of an employed person may be entitled
to an advance on maintenance payments intended in particular to deal with a
failure on the part of the parent by whom maintenance is payable to meet that
obligation. This reasoning applies for all family members, including a minor
child, with the result that such a child enjoys the same direct right.
Further, the right of free movement allowing people
to live in another Member State would be adversely affected if the grant or
amount of family benefits were to depend on their place of residence.
As a result, the fact that a person is living in another
Member State cannot act as a barrier to the grant of a family benefit in cases
where the conditions governing the grant of that benefit are otherwise satisfied.
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Available in: English, French and German. For the full text of the judgment, please consult our internet page
www.curia.eu.int at
approximately 3 p.m. today. For further information, please contact Fionnuala Connolly: |