The Federal Fiscal Court has ruled that, in child benefit cases involving the United Kingdom, following the expiration of the transitional period in effect through December 31, 2020, EU coordination law under Regulation (EC) No. 883/2004 and Regulation (EC) No. 987/2009 will continue to apply only in certain categories of cases. These regulations serve to coordinate national social security systems, which also include family benefits.
Article 32(1)(d) of the Withdrawal Agreement covers cases in which only the child was in a cross-border situation between the European Union (EU) and the United Kingdom, but not the parent from whom the child derives his or her entitlement. If a parent holds only the nationality of a third country, the old coordination law may still apply.
Practical example:
The plaintiff is a German citizen and has been living in Germany since October 2019 with her minor child, who was born in the United Kingdom and also holds German citizenship. After arriving in Germany, she applied for child benefit in Germany, among other things, for the period from March to August 2022. In her child benefit application, she stated that the child’s father lives in the United Kingdom and has been employed in the restaurant industry there since approximately the year 2000. The Family Benefits Office granted the plaintiff only the difference between the benefits provided in the United Kingdom and the higher German child benefit, as it considered the United Kingdom to have primary jurisdiction due to the child’s father’s employment there. Various inquiries in the United Kingdom did not yield a clear answer as to why there was no entitlement to family benefits in the United Kingdom. The Finance Court granted the claim for full child benefit.
The Federal Fiscal Court (BFH) held that the Family Benefits Office’s appeal was well-founded. According to the court, while the plaintiff does meet the requirements under German law for entitlement to child benefits, the Fiscal Court, based on its findings of fact, wrongly concluded that the coordination rule applied. Since the period in dispute falls only after the transition period set forth in the Withdrawal Agreement, which ended on December 31, 2020, the new coordination law applies only in certain categories of cases, the requirements for which the Finance Court did not establish. In this regard, there were no findings regarding the plaintiff that she was still in a cross-border situation with the United Kingdom at the end of the transition period.
According to the plaintiff’s statements, there was a possibility that the child’s father was merely a third-country national. In that case, coordination under the old coordination law would be an option. The Federal Fiscal Court therefore remanded the case to the Fiscal Court for further fact-finding.