The reason for raising the issue of raising children with disabilities in another Member State was a new decision of the Court of Justice (CJEU) as of 12.03.2020. The proceeding is initiated between SJ and Ministre chargé de la Sécurité sociale.
The facts of the case:
- SJ is a French national, residing in Germany and mother of a disabled person.
- From 1995, she has been paid an amount in respect of assistance for the integrity of mentally disabled children and young people from the City of Stuttgart.
- On 7 July 2010, she applied for payment of her pension in front of the federal pension insurance body, which sent that request to Carsat.
- On 18 March 2012, SJ submitted a complaint to the Carsat appeals board concerning (i) the effective date of her pension and (ii) the failure to take into account of the French Social Security Code, the additional insurance for raising of a disabled child.
- By judgement of 8 April 2015, Social Security Court in Strasbourg, France dismissed SJ’s applications.
- The appeal court accepted the judgement of the Court of First Instance in so far as it concerned the date on which the pension was granted, but it dismissed the rest.
- After a new hearing, the Appeal Court ruled that, in calculating SJ’s retirement pension, the length of SJ’s work experience should be increased by eight quarters due to the raising of her disabled child.
- Carsat brought an appeal before the Court de cassation against that judgement, in respect of which it submitted that the Court of Appeal of Colmar had infringed Article 5 of Regulation No 883/2004 as well as Articles L.351-4-14 and L.541-1 of the French Security Code, by holding that the German assistance and the French allowance were equivalent without ascertaining beforehand whether SJ’s disabled child was affected by a permanent incapacity of at least 80%, thereby qualifying for the increase in the pension rate.
Court de cassation referred the following questions to the Court of Justice for a preliminary ruling
- Does the German assistance fall within the material scope of Regulation No 883/2004?
- If the answer of the first question is affirmative, whether Article 5(a) of Regulation No 883/2004 must be interpreted as meaning that the French allowance and German assistance may be equivalent benefits within the meaning of that provision?
What does the CJEU resolve on the matter?
- By its first question, the Court is pronounced whether Article 3 of Regulation No 883/2004 must be interpreted as meaning that the German assistance constitutes a benefit within the meaning of Article 3 and accordingly falls within the material scope of that regulation.
- According to the Court, the German assistance does not constitute a benefit within the meaning of Article 3 and, therefore, does not fall within the material scope of that regulation.
- By its second question, Article 5 of Regulation No 883/2004 must be interpreted as meaning that:
- The French allowance and the German assistance cannot be considered to be benefits of an equivalent nature, for the purposes of Article 5(a);
- The principle of equal treatment of facts enshrined in Article 5(b) applies in circumstances such as those at issue in the main proceedings.
- Therefore, it is for the competent French authorities to ascertain whether, in the present case, it is established that the fact required for the purposes of that provision has occurred.
- In this connection, those authorities must consider similar facts occurring in Germany as though they had taken place on their own territory.
