Free movement of workers in the European Union (EU) and family benefits

Free movement of workers in the European Union (EU) and family benefits

Description

The Ombudsman has investigated a case concerning the granting of child benefit to a minor child attending school in a Member State of the European Union. According to the complaint, the applicant father of the child is a Polish migrant worker, he has two minor children and OGA (Agricultural Insurance Organisation) grants him child benefit only for one child on the grounds that the other child attends high school in Poland. OGA replied to the Ombudsman’s question that the benefit is given for children living abroad only if they are adults attending post secondary education. The Ombudsman reminded to OGA that, for the ten-year residence permit, the principles of EU law are taken into account and the period of residence in another EU Member State counts also. Therefore, there is a no reason why the same should not apply for the children’s residence to another MS, and the benefit should be granted no matter in which MS the child attends school.  It stressed that the explicit extension of the period of granting the benefit when an adult child undertakes higher studies, is not in any way opposed to granting the benefit when the child attends secondary education, even more so because the latter is totally financially dependent on the family income. Therefore, if legislation provides for the greater, (higher education) it should also provide for the lesser (secondary school). In addition, from the point of view of the tax system, minor children who have not reached the age of 18 are the taxpayer’s dependents. The Ombudsman also pointed out that according to settled case-law of the Court of Justice, [Case C-16/09, Gudrun Schwemmer, paragraph 41]  “With respect to family benefits, Article 73 of Regulation No 1408/71 provides that a worker subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State (see Case C-153/03 Weide [2005] ECR I-6017, paragraph 20, and Bosmann, paragraph 17). Consequently, in the case in question, in the light of the EU provisions, the family of the Polish worker who sent one child to the grandmother in Poland to attend High School, is entitled to receive benefits as if all the members of the family were located in the same Member State, in so far as it does not receive the same benefit in Poland. Following the intervention of the Ombudsman, OGA asked the parents to file the necessary documents in order to receive the arrears for the child who attends school in Poland.

 

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