European Court of Justice: Frontier workers must receive the same social benefits as resident workers
At a glance
- The European Court of Justice (ECJ) dealt with a reference for a preliminary ruling on the different treatment of resident workers and non-resident workers with regard to the receipt of social benefits.
- The referring court asked whether the provisions of the Luxembourg Social Code constitute indirect discrimination by applying different eligibility conditions for social and tax benefits depending on whether the worker is resident or non-resident.
- The ECJ held that a rule under which non-resident workers – unlike resident workers – cannot obtain a social advantage for foster children placed in their household constitutes indirect discrimination on grounds of nationality.
On 16 May 2024, the ECJ dealt with a reference for a preliminary ruling submitted by the Cour de cassation (Luxembourg) on the different treatment of resident workers and non-resident workers with regard to the receipt of social benefits (case C‑27/23).
The referring court asked whether the provisions of the Luxembourg Social Code constitute indirect discrimination by applying different eligibility conditions for social and tax benefits depending on whether the worker is resident or non-resident.
The dispute in the main proceedings
The claimant who works in Luxembourg and resides in Belgium, has frontier worker status and therefore depends on the Luxembourg system for family allowances. He had been receiving child benefit for several years for a foster child placed in his household on the basis of a Belgian court decision. In 2017, the Children's Future Fund (Luxembourg), withdrew his entitlement to this child benefit. It is of the opinion that child benefit is only payable for children who are directly related to the cross-border commuter (legitimate, illegitimate or adopted children). However, foster children living in Luxembourg are entitled to such child benefit, which is paid to the person who has custody of them.
Ruling
The ECJ held that a rule under which non-resident workers – unlike resident workers – cannot obtain a social advantage for foster children placed in their household (for whom they have custody, who are legally resident with them and who actually and permanently reside with them) constitutes indirect discrimination on grounds of nationality. The fact that the decision on placement was taken by a court of a Member State (Belgium) other than the host Member State of the worker (Luxembourg) concerned cannot affect this finding. In so far as frontier workers contribute to the financing of the social policies of the host Member State, in view of the tax and social security contributions which they pay in that Member State by virtue of their employment there, they must be able to enjoy family benefits and social and tax advantages under the same conditions as national workers.