The place of employment in the case of posting to a third country and family benefits

The Case:

This case concerns a woman and her three children, all four of whom are German nationals and have their registered residence in Germany. The husband, who is the father of the three children, is a Brazilian national and has never had a registered residence in Germany.

She has been working as a development worker for some time. Between 2013 and 2016, the family stayed alternately in Germany and Brazil, where the husband owns land and worked as a farmer.

In September 2016, the woman concluded an employment contract with an Austrian non-governmental organisation. According to this contract, the woman’s place of employment was in Vienna and she, as well as the family members, were covered by the Vienna Regional Health Insurance Fund under social security law. After completing the preparatory course (beginning of September – middle of October), she started her foreign assignment in Uganda on 31 October 2016. She was accompanied by her family on this foreign assignment, which lasted until August 2019 and was only interrupted for 3,5 months (17.10.2017 – 07.02.2018) due to the birth of her third child. At this time of interruption, she occupied a room provided for her in her parents’ flat in Germany and received maternity benefits from the Vienna Regional Health Insurance Fund. In the period from 15 August 2019 to 15 September 2019, i.e. the last Monday before the end of her employment contract, she spent a reintegration month in Vienna. During this period, as during the preparation period, the woman had a residence in Vienna, which had been made available to her by the employer under certain conditions, insofar as she and her family could only use it during the preparation period and the reintegration period. During the foreign assignments, the flat in question was made available to other development workers. During these periods, the woman as well as her children and her husband were registered in Austria with their main residence.

While the woman was working as a development worker, her husband, who accompanied her, managed the household. During her assignment, the woman spent her holidays in Germany, where she has bank accounts.

Until September 2016, the woman received child benefits from the competent German authority for her first two children. With the decision of this authority of 26 September 2016, the granting of child benefits was cancelled on the grounds that the Republic of Austria was responsible for family benefits, as the woman was now working in Austria and her husband was not gainfully employed in Germany.

She applied to the tax office for family allowance for her first two children on 05.10.2016 and for her third child on 08.01.2018. She claimed that her family did not have a common residence in Germany or Brazil, as all family members usually accompanied her to her places of assignment when she was deployed abroad. When she filed the applications, Uganda was her place of assignment.

The tax office rejected the applications on the grounds that she was not entitled to Austrian family benefits because she was working as a development worker in a third country. Consequently, she was not employed in Austria within the meaning of Art. 11 III lit. A of Regulation 883/2004 and therefore did not fall within the scope of application of this regulation. Moreover, the accommodation in Vienna did not constitute a “place of residence” and did not permit a “stay” within the meaning of Article 11 III lit. J or k of that regulation, with the result that the Republic of Austria was not the Member State of residence within the meaning of Art. 11 III lit. E of that regulation. Furthermore, the woman was not entitled to family benefits under the national provisions.

She then filed a complaint against these decisions, claiming that the Republic of Austria was the Member State in which she was employed, since according to her employment contract her place of employment was Vienna. Moreover, she had received her instructions from Vienna. The preparatory course had also taken place in Vienna and the reintegration month had been spent there. Furthermore, she had been registered in Vienna and her centre of life interests had been located there.

Therefore, the Bundesfinanzgericht (Austria) decided to stay the proceedings and refer questions to the Court of Justice for a preliminary ruling.


Tenor of the court:

  1. 11 III lit. A of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems 2004 on the coordination of social security systems is to be interpreted as meaning that a worker who is a national of a Member State in which she and her children also reside, who enters into an employment relationship as a development worker with an employer established in another Member State and who, under the legislation of that other Member State, is subject to its compulsory insurance scheme, and who, although not immediately after recruitment, is posted to a third country after completing a preparatory period in the other Member State – in which she spends a reintegration period after returning – is to be regarded as a person pursuing an activity as an employed person within the meaning of that provision in the other Member State.
  2. Article 288 II TFEU must be interpreted as not precluding the adoption of a provision of a Member State the personal scope of which goes beyond that of Regulation No 883/2004 in so far as it provides for nationals of the States party to the Agreement on the European Economic Area of 2 May 1992 to be treated in the same way as its own nationals, provided that that provision is interpreted in conformity with that regulation and its primacy is not called into question.
  3. 68 III lit. A of Regulation No 883/2004 and Article 60 II and III of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004 must be interpreted as meaning that they link the institution of the Member State with priority jurisdiction and the institution of the Member State with subordinate jurisdiction in such a way that the claimant of family benefits only has to submit a single claim to one of those institutions, which must then be dealt with jointly by those two institutions.
  4. 45 and 48 TFEU must be interpreted as not prohibiting a Member State from abolishing, as a general rule, family benefits which it had hitherto granted to development workers who take their family members with them to their place of employment in a third country, provided that, first, that abolition applies without distinction both to beneficiaries who are nationals of that Member State and to those who are nationals of another Member State and, second, that it has the effect of treating the development workers concerned differently not according to whether they exercised their right to freedom of movement before or after the abolition but according to whether they reside with their children in a Member State or in a third country.

ECJ (Eighth Chamber) Judt. V. 25.11.2021 – C-372/20 (Q Y v Finanzamt Österreich)



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