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Social law: family allowances for cross-border workers

Social law: the ruling of the Superior Court of Justice of the European Union of 2 April 2020 puts an end to discrimination.

Cross-border workers can now claim family allowances even if they have no direct filiation link with the children living in their household.

Since the reform of family allowances introduced by the Act of 23 July 2016, many blended families of cross-border commuters have been refused family allowances.

The reason for these refusals lies in the fact that only the biological children of the applicant frontier worker were eligible, as the Social Security Code now states that the following are to be considered as members of a person’s family: i) children born in wedlock ii) children born out of wedlock and iii) adopted children of that person, such qualities giving entitlement to family allowance.

As a result of this reform, the family allowances of many cross-border commuters were withdrawn for the children living in their household, and some who had continued to receive them were faced – two years later – with requests for repayment of the amounts considered by the Caisse pour l’Avenir des Enfants to have been unduly paid.

When the matter was referred to the Conseil supérieur de la sécurité sociale (Higher Council for Social Security) following the refusal to pay family allowances to a frontier worker bringing up his partner’s child in his own household, it decided to refer a question to the Court of Justice of the European Union (ECJ) for a preliminary ruling.

In a long-awaited ruling handed down on 2 April 2020, the judges of the ECJ held that the family allowance linked to a frontier worker’s salaried activity in a Member State constitutes a social advantage and a social security benefit, which are acquired by the cross-border worker in accordance with the Community law principles of assimilation.

Unsurprisingly, the CJEU ruled against Luxembourg, finding that there had been “indirect discrimination on grounds of nationality” and therefore a “breach of the principle of equal treatment” between resident and non-resident workers: a real victory for the blended families of frontier workers.

Luxembourg’s Conseil supérieur de la sécurité sociale will inevitably have to comply with this ruling by the Community court and admit children living in the cross-border worker’s household to family allowances, even if they are not his or her biological children.

The Caisse pour l’Avenir des Enfants itself acknowledges this in its press release of 14 April 2020: “a legislative adaptation of the conditions for granting family allowance is inevitable“.

From now on, all children in the household of a frontier worker whose spouse or registered partner provides maintenance must benefit from Luxembourg social rights, whether or not they are related to the worker.

It is important for all those concerned who have not appealed against the initial refusal to submit their application for family allowances to the Caisse pour l’Avenir des Enfants as soon as possible, as payment will only be made retroactively for the last twelve months from the date of submission of the said application.