C-611/10 and C-612/10 Hudzinski: not obliged yet entitled

Another interesting case coming up on coordination of social security schemes (Regulation No 1048/71 in the case at hand, Regulation 883/2004 today). On 16 February 2012, GA Mazák presented his opinion.

The issue

The issue is fairly straightforward: two Polish citizens are permantly established (with their families) in Poland, but worked for a certain period in Germany. For that period, German taxes were due. Both Polish citizens requested German child benefits (154 euro per month), but Germain authorities rejected the requests arguing inter alia that, under Regulation No 1048/71 (and the popular principle "one worker, one Member State", enshrined e.g. in Article 13(1) of Regulation No 1048/71; see also paragraph 50 of the opinion: "according to established case-law, it is the aim of Title II of Regulation No 1408/71 to ensure that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and thus to avoid the attendant complications. That principle is expressed in Article 13(1) of Regulation No 1408/71, which provides that a worker to whom that legislation applies is to be subject to the legislation of a single Member State only."?
In this case, the question was, however: if Regulation No 1048/71 points to another Member State (Poland), does that preclude the other Member State (Germany) from granting the benefit (to which the person concerned is entitled to on the basis of the legislation of that other Member State). In other words: can a Member State take the Union law as a ground (or rather an excuse) for rejecting a claim, otherwise well-founded under the national law?

The opinion

According to GA Mazák, the answer is no:
53. While stating thus clearly that, pursuant to EU law, the non-competent Member State of residence is under no obligation to grant the child benefit at issue, the Court held in the subsequent part of its judgment in Bosmann that that State was not prevented, however, from granting the child benefit in question pursuant to its national legislation.
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58. To my mind, although the Court had to give judgment on the basis of the specific circumstances of the case, which arguably means that a different reading of the judgment is not excluded, the rationale of Bosmann transcends those factors or conditions and clarifies in a more general fashion the relationship – as characterised above – between, on the one hand, the provisions of Regulation No 1408/71 on the determination of the applicable legislation and, on the other, the possibility arising for a Member State other than the competent State to make such a grant through the application of its own legislation.
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66. This all leads me to conclude that a Member State other than the competent State is not wholly deprived by Regulation No 1408/71 of any possibility of granting workers and members of their family social protection above and beyond, or in addition to, the protection arising from the application of that regulation, and this holds true also in situations such as those at issue, where the worker does not, as a result of exercising his right to freedom of movement, suffer a loss or reduction as compared with the social protection previously enjoyed and where there is, or may be, entitlement to child benefit in the competent State.

My opinion

The conclusion is not unreasonable. After all, it remains Member States' competence to regulate the substance, including the personal scope of their social security system, the only purpose of Regulation No 1408/71 (and Regulation No 883/2004) is to coordinate these systems. The coordination rules guarantee a certain minimum, but if a Member State decides, on its own, to go beyond that minimum, these rules do not, in essence, come to play at all.
On the other hand, this would turn the "one Member State rule" into a rather one-sided principle. It would be a source of obligation for those situations where there is a danger of no Member State being competent, but would be totally indifferent to situations where systems of two (or more) Member States overlap. And this is not without problems. This would be coordination allowing for chaos to remain.
I don't say the Polish citizens concerned should not be entitled to the German child benefits (after all, they paid Germain taxes for the relevant period). All I say is they should not be able to receive child benefits for the same period of time both in Germany and Poland. Why should they be? (On the other hand, GA Mazák does not say Germany should be, simultaneously with Poland, in obligation, under Regulation No 1408/71, it is simply not precluded from granting the benefit. In other words, it is for each Member State to make sure that migration does not lead, in itself, to multiplication of social security benifits, as it is clear this is not the purpose of the EU rules on free movement of persons. The only problem: how do you avoid this where Member States act on a individual basis? Bilateral treaties? Why not through the Union law then?).
Let us see what the Court has to say on the matter.