24 Oct 2016, 35 mins ago

Last week the European Court of Justice (ECJ) confirmed that EU citizens are entitled to claim child benefits in one member state and send them to their children who live in another member state. 

The case of Tomislaw Trapkowski, who worked and resided in Germany, was referred to the ECJ by the German courts for the interpretation of the EU regulations covering family benefits. In August 2012 Mr Trapkowski tried to claim child benefit for his son, who lived in Poland with his mother, Mr Trapkowski’s ex-wife. The child’s mother was in a full time employment and did not receive or apply for any benefits. However, the German Family Allowances Office of the Federal Employment Agency (BfA) refused Mr Trapkowski’s claim on the grounds that “Under German law, family benefits are paid to the parent who has taken the child into his household, since general experience shows that the parent having custody of the child bears higher maintenance costs…it was principally the child’s mother who was entitled to family benefits under German law”. Mr Trapkowski successfully challenged this decision in the German Finance Court which held that he was entitled to family benefit under German law. However, the BfA then appealed against the court’s decision and the matter was referred to the ECJ for interpretation of the EU regulations.

Article 67 of EU Regulation (EC) No 883/2004 states that: “A person shall be entitled to family benefits in accordance with the legislation of the competent Member State, including for his family members residing in another Member State, as if they were residing in the former Member State.” Furthermore, article 60 (1) of Regulation No 987/2009 provides that: “Where a person entitled to claim the benefits does not exercise his rights, an application for family benefits submitted by the other parent, a person treated as a parent, or a person or institution acting as guardian of the child or children, shall be taken into account…”

The ECJ ruled in favour of Mr Trapkowski stating that: “…a person may claim family benefits for members of his family who reside in a Member State other than that responsible for paying those benefits and…that the possibility to apply for family benefits is granted not only to persons who reside in the Member State required to pay the family benefits, but also to all the ‘persons concerned’ who may claim those benefits, including the parents of the child for whom the benefits are claimed”. In summary, in this case the court decided that child benefit can be claimed by a parent or even a guardian in one Member State and then sent back to another Member State, where the child lives.

Decisions of the ECJ are binding on UK courts with no right for a further review. Home Office guidance on European Economic Area (EEA) case law and appeals provide that: “Once a case has been determined by the ECJ, the national courts (and all other national courts) are bound by the interpretation given and there is no right of appeal against the ECJ’s decision”. Therefore, the court’s recent ruling on the child benefit matter will come as an irritant to the UK Government and add further fuel to its campaign to get the EU rules changed in order to stop EU migrant workers who come to UK countries claiming child benefit and sending it back to their home countries. Last November David Cameron claimed that: “People cannot understand how those who have not paid in can immediately take out, and they find it incomprehensible that a family coming from another EU country can claim child benefit from the UK at UK rates and send it back to children still living in their home country. When trust in the European Union is already so low, we cannot leave injustices like this to fester…If your children and your family is at home in your home country while you’re working here, the child benefit will not go from Britain to that country.”

In the context of the current migration crisis in Europe and the on-going tensions between the UK government and the EU institutions, this decision is likely to cause further headaches for Cameron as he continues to prepare to renegotiate the terms of Britain’s membership of the EU.