Case C‑328/20

123.With regard to the basis of the second complaint raised by the Commission, which is not disputed, it may be recalled that the Court has held that:

–the concept of a ‘social advantage’, within the meaning of Article7 of Regulation No492/2011, must include all advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the European Union and, consequently, their integration into the host Member State,(98) and

–Article7(2) of that regulation may apply to social advantages which, at the same time, come specifically within the scope of Regulation No883/2004.(99)

124.In the present case, the family allowance and child tax credit are both family benefits which are subject to the principle of equal treatment, set out in Article4 of Regulation No883/2004, and social advantages which are governed by Article7(2) of Regulation No492/2011, whereas the Family Bonus Plus, the sole earner’s allowance, the single parent’s allowance and the tax credit for maintenance payments are subject to the principle of equal treatment set out in Article7(2) of Regulation No492/2011.

125.In that regard, it follows from the case-law of the Court that:

–the principle of equal treatment, as laid down in Article4 of Regulation No883/2004,(100) in accordance, in particular, with Article45(2) TFEU, prohibits not only overt discrimination based on the nationality of the beneficiaries of social security schemes but also all covert forms of discrimination which, through the application of other distinguishing criteria, lead in fact to the same result;(101)

–that prohibition also follows from Article7(2) of Regulation No492/2011,(102) which is the particular expression, in the specific area of the grant of social advantages, of the principle of equal treatment enshrined in Article45(2) TFEU;(103) and

–Article7(2) of Regulation No492/2011 must be accorded the same interpretation as Article45 TFEU.(104)

126.Consequently, the interpretation of Article4 of Regulation No883/2004 and Article7 of Regulation No492/2011, in so far as they are intended to ensure freedom of movement for workers, must be coordinated.

127.With regard to the relationship between those two regulations, the scopes of which overlap,(105) the Court has noted that Regulation No492/2011 is of general application as regards the free movement of workers.(106) It thus reiterated the solution adopted when examining an action for failure to fulfil obligations, which the Commission based on both infringement of Regulation No1408/71, on account of the setting of a residence criterion for sickness benefits to be exportable, and the ability to justify the choice of that criterion, in the light of Article7 of Regulation (EEC) No1612/68 of the Council of 15October 1968 on freedom of movement for workers within the Community.(107) Therefore, the application of Article4 of Regulation No883/2004 may be reserved to situations which are not covered by Regulation No492/2011, even though Regulation No883/2004 contains specific provisions prohibiting residence rules, in particular in Article7.(108)

128.The Republic of Austria submits, primarily, that the mechanism for adjusting family benefits and social and tax advantages does not lead to unequal treatment. It argues, in essence, first, that, since the objective of the benefits and advantages is either to reimburse some of the costs incurred by parents for the maintenance of children, or to reduce their tax burden, the situation of workers with children who are not resident in Austria is not comparable because of the differences in the standard of living between the Member States. Secondly, under the adjustment mechanism, migrant workers receive the support they need according to the cost of living in the child’s State of residence.

129.However, as the Court has held, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or the great majority of those affected are migrant workers, where they are applicable without distinction but can more easily be satisfied by national workers than by migrant workers or where there is a risk that they may operate to the particular detriment of the latter.(109)

130.In the present case, it follows from the criterion relating to the residence of children laid down by the Austrian legislation that the reduction in the amount of family benefits and social and tax advantages essentially affects migrant workers since their children are more likely to reside in another Member State.(110) Moreover, it is very clear from the tables setting the coefficients for adjusting the amounts(111) of benefits in respect of the States bordering the Republic of Austria that, because of the differences in the standard of living in the majority of those States compared with the Republic of Austria, the workers who have exercised their freedom of movement from those States are largely those who will receive benefits and social and tax advantages of a lesser amount than that granted in Austria. According to the data in the Court of Auditors’ report produced by the Commission(112) and referred to by the Republic of Austria, approximately 50% of payments in 2016 concerned children residing in Hungary and Slovakia and 40% of those payments concerned children residing in the Czech Republic, Poland, Romania and Slovenia.

131.That analysis is corroborated by the Austrian Government’s explanations of the estimated effects of the adjustment in relation to the Family Bonus Plus.(113) Those factors are in line with the Court of Auditors’ finding that the number of child beneficiaries increased sixfold between 2004 and 2016 alongside the opening up of the Austrian labour market.(114)

132.In my view, those factors alone are sufficient to establish, without having to examine the additional arguments discussed by the parties, that the distinction in the Austrian legislation which makes the amount of exportable benefits dependent on a child’s place of residence in the Member States affects migrant workers to a greater extent and constitutes indirect discrimination on the ground of nationality which is permissible only if it is objectively justified.(115)

133.To my knowledge, the Court did not expressly refer to that condition when applying Article4 of Regulation No883/2004. However, the Court’s only decision on Article3(1) of Regulation No1408/71 which set out in similar terms the principle of equal treatment is, in my view, transposable.(116) Moreover, I note that the Court has interpreted Article67 of Regulation No883/2004, which is intended to ensure that a worker is not deterred from exercising his or her right to freedom of movement,(117) in conjunction with Article7(2) of Regulation No492/2011, and has assessed the justifications put forward by the referring court on that basis alone. I infer from this that the choice by a Member State to use a residence criterion which applies to family benefits may also be justified on account of the rule of the coordinated interpretation of Article4 of Regulation No883/2004 and Article7(2) of Regulation No492/2011, resulting from their common basis, namely Article45 TFEU, laying down the objective of guaranteeing freedom of movement for workers.(118)

(b)Justification for indirect discrimination

134.According to the Court’s settled case-law on the application of Article7(2) of Regulation No492/2011, in order to be justified, indirect discrimination must be appropriate for securing the attainment of a legitimate objective and must not go beyond what is necessary to attain that objective.(119)

135.The Commission rightly submits that the Republic of Austria does not put forward any ground capable of justifying the indirect discrimination caused by the mechanism for adjusting the amount of benefits and social and tax advantages which it introduced.

136.In the present action, the Republic of Austria submits, first, with the support in essence of the Kingdom of Denmark and the Kingdom of Norway, that adjusting the amount of the benefits is intended to ensure that the support and consequential relief from family expenses correspond in value to those granted in Austria.(120)

137.First, it must, in my view, be reiterated once more that the benefits granted are flat-rate benefits(121) and do not take account of the child’s actual needs. In that regard, I also share Romania’s view that the Republic of Austria cannot use the same arguments to dispute the existence of discrimination and to justify it.

138.Secondly, it is clear from the Commissions’ figures,(122) which are not challenged by the Republic of Austria, that that correspondence in value is not ensured in Austria(123) and that there is no correlation in proportion between the differences in the cost of living found in Austria and the coefficients applied in certain Member States.(124) Moreover, as the Slovak Republic points out, disparities may exist within those Member States(125) which demonstrates the importance of the place in which purchases are made if a system of correspondence with price levels were to be accepted.

139.The Republic of Austria’s argument that the differences in purchasing power are significantly greater, in particular with regard to Bulgaria,(126) which also serves to offset the effects of the adjustment mechanism, is not such as to call into question all of those findings.

140.Consequently, the objective of ensuring that the support and consequential relief from family expenses correspond in value to those granted in Austria is not, in my opinion, capable of justifying the indirect discrimination at issue.

141.Secondly, the Republic of Austria submits that the overriding objective of the mechanism for adjusting the amount of social and tax advantages is the establishment or restoration of the supportive function and the fairness of the social system.

142.Like the Commission, I note, first, that it follows from the Court of Auditors’ report(127) that the adjustment of family benefits in line with the price level in the Member State concerned in relation to the Republic of Austria is likely to result in additional costs, even though that impact is minimised by the Republic of Austria. Those costs must necessarily be borne by all those who contribute to the State budget. In that context, it seems to me appropriate to point out that it is also stated in that report,(128) as the Commission and the Republic of Poland point out, that the reason which could jeopardise the financial equilibrium of the social security system is not the payment of benefits to workers whose children reside outside the Republic of Austria, which accounts for approximately 6%(129) of the expenditure in respect of family benefits, but the lack of appropriate checks with regard to the grant of those benefits.

143.Secondly, I share the views expressed by the Commission(130) and by the EFTA Surveillance Authority and the Republic of Slovenia, according to which it is of fundamental importance to recall that the rules protecting the freedom of movement for workers within the European Union and the EEA,(131) including equality of treatment, are based on an overall system in which, first, the applicable social security legislation is, in general, that of the Member State in which the person concerned pursues his or her activity as an employed or self-employed person(132) and, secondly, migrant workers contribute to the financing of the social policies of the host Member State through the taxes and social contributions which they pay by virtue of their employment there,(133) which justifies the equality of the benefits or advantages granted.(134)

144.In the present case, I note, like the Czech Republic, the Republic of Croatia and the Republic of Poland, that, from a purely economic point of view, since Austrian family allowances are financed by employers’ contributions calculated on the basis of the total amount of workers’ wages, a migrant worker therefore participates in the same way as a national worker in determining the amount of the sums paid by his or her employer.

145.Moreover, with regard to the Family Bonus Plus and the other tax credits at issue, the Republic of Austria stated that those advantages were financed by workers’ income tax, which also invalidates any justification for the Austrian legislature’s choice of non-reciprocity on the basis of an objective of social equity.

146.I am therefore of the opinion that the difference in treatment according to the place of residence of the child of the worker concerned is neither appropriate nor necessary in order to establish or restore the supportive function and the fairness of the social system.

147.For all of the reasons set out above, I consider that the Austrian legislation on the adjustment of the amount of family benefits and social and tax advantages for persons working in Austria whose children reside in another Member State is contrary to the principle of equal treatment set out in both Article4 of Regulation No883/2004 and Article7(2) of Regulation No492/2011.

148.Consequently, I propose that the Court should rule that the second complaint raised by the Commission is well founded.

VI.Costs

149.Under Article138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In so far as the Court should, in my view, grant the form of order sought by the Commission, the Republic of Austria must be ordered to pay the costs.

150.In accordance with Article140(1) and (2) of the Rules of Procedure, under which the Member States, the States, other than the Member States, which are parties to the EEA Agreement, and also the EFTA Surveillance Authority, which have intervened in the proceedings are to bear their own costs, the Czech Republic, the Kingdom of Denmark, the Republic of Croatia, the Republic of Poland, Romania, the Republic of Slovenia and the Slovak Republic, and the Kingdom of Norway and the EFTA Surveillance Authority must bear their own costs.

VII.Conclusion

151.In the light of the foregoing considerations, I propose that the Court should:

(1)Declare that, by introducing an adjustment mechanism in relation to the family allowance and the child tax credit for workers whose children reside permanently in another Member State, the Republic of Austria has failed to fulfil its obligations under:

–Articles7 and 67 of Regulation (EC) No883/2004 of the European Parliament and of the Council of 29April 2004 on the coordination of social security systems, and

–Article4 of Regulation No883/2004 and Article7(2) of Regulation (EU) No492/2011 of the European Parliament and of the Council of 5April 2011 on freedom of movement for workers within the Union;

(2)Declare that, by introducing an adjustment mechanism in relation to the Familienbonus Plus (Family Bonus Plus tax credit), the sole earner’s allowance, the single parent’s allowance and the tax credit for maintenance payments for migrant workers whose children reside permanently in another Member State, the Republic of Austria has failed to fulfil its obligations under Article7(2) of Regulation No492/2011;

(3)Order the Republic of Austria to pay the costs;

(4)Order the Czech Republic, the Kingdom of Denmark, the Republic of Croatia, the Republic of Poland, Romania, the Republic of Slovenia and the Slovak Republic, and the Kingdom of Norway and the EFTA Surveillance Authority to bear their own costs.

1Original language: French.

2OJ 2004 L166, p.1, and corrigendum OJ 2004 L200, p.1.

3OJ 2011 L141, p.1.

4BGBl.376/1967, ‘the FLAG’.

5OJ 1994 L1, p.3, ‘the EEA Agreement’.

6BGBl.400/1988, ‘the EStG’.

7The adjustment of the family allowance and the child tax credit was introduced, with effect from 1January 2019, by the Verordnung der Bundesministerin für Frauen, Familien und Jugend und des Bundesministers für Finanzen über die Anpassung der Familienbeihilfe und des Kinderabsetzbetrages in Bezug auf Kinder, die sich ständig in einem anderen Mitgliedstaat der EU oder einer Vertragspartei des Europäischen Wirtschaftsraumes oder der Schweiz aufhalten (Order of the Federal Minister for Women’s Affairs, Family and Youth and the Federal Minister for Finance on the adjustment of the family allowance and the child tax credit in respect of children permanently residing in another Member State of the European Union or in a State party to the [EEA] Agreement or in Switzerland) of 10December 2018 (BGBl.II, 318/2018), available at: https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20010489&FassungVom=2019-07-08, adopted on the basis of the Bundesgesetz, mit dem das Familienlastenausgleichsgesetz 1967, das Einkommensteuergesetz 1988 und das Entwicklungshelfergesetz geändert werden (Federal Law amending the [FLAG], the [EStG] and the Law on the status of development aid workers) of 4December 2018 (BGBl.I, 83/2018).

8The adjustment of the Family Bonus Plus and the sole earner’s allowance, the single parent’s allowance and the tax credit for maintenance payments was introduced, with effect from 1January 2019, by the Verordnung des Bundesministers für Finanzen über die Anpassung des Familienbonus Plus, des Alleinverdiener-, Alleinerzieher- und Unterhaltsabsetzbetrages sowie des Kindermehrbetrages in Bezug auf Kinder, die sich ständig in einem anderen Mitgliedstaat der EU oder einer Vertragspartei des Europäischen Wirtschaftsraumes oder der Schweiz aufhalten (Order of the Federal Minister for Finance on the adjustment of the Family Bonus Plus, the sole earner’s allowance, the single parent’s allowance and the tax credit for maintenance payments in respect of children permanently residing in another Member State of the European Union or in a State party to the [EEA] Agreement or in Switzerland) of 27September 2018 (BGBl.II, 257/2018), available at: https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20010319, adopted on the basis of the Jahressteuergesetz 2018 (Annual Tax Law 2018) of 14August 2018 (BGBl.I, 62/2018), amending inter alia the EStG.

9See, with regard to the coefficients applied according to the Member States concerned, footnotes7 and 8, and the second indent of point84 of this Opinion by way of illustration of the diversity of the coefficients applied by the Member States bordering the Republic of Austria.

10The Commission refers to the judgment of 2April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (C‑802/18, EU:C:2020:269, paragraphs38 and 39 and the case-law cited; ‘the judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker)’).

11The Commission also reaffirmed its position in response to the argument to the contrary put forward by the Kingdom of Norway based on an example of the reimbursement of 50% of the cost of a pushchair by a family benefit, the amount of which could vary according to the Member State (see also footnote20 of this Opinion). The Commission pointed out that, in such a case, for a migrant worker, the amount of the allowance depends on the cost of his or her expenses. The Austrian adjustment mechanism is based on the presumption that those expenses are incurred in the place where the child resides and disregards the economic and social situation of a child who resides in a Member State other than the State in which the parent works. Consequently, taking the same example, it is unacceptable for the reimbursement for the cost of a pushchair worth EUR100 that is purchased by two workers to be EUR50 if the child resides in Austria and a different amount if that child resides elsewhere, even though the expenditure is identical.

12Case C‑32/18, EU:C:2019:752, paragraph36 and the case-law cited; ‘the judgment in Moser’. Referring also to paragraphs10 and 54 of that judgment, the Commission added that it was precisely because the amount of the Austrian childcare allowance was expressly dependent on the amount of previous earnings that it was possible to calculate its amount on the basis of the economic and social environment of the recipient.

13Case 41/84, EU:C:1986:1; ‘the judgment in Pinna’. See, in particular, paragraph25 of that judgment.

14Regulation of the Council of 14June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L149, p.2). The Commission states that it follows from the judgment of 27September 1988, Lenoir (313/86, EU:C:1988:452, paragraphs9, 11 and 16; ‘the judgment in Lenoir’), that it is not possible to adjust ‘periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members of the family’ to the economic and social environment.

15Opinion of Advocate General Mancini in Pinna (41/84, not published, EU:C:1985:215, point7).

16See AnnexI, Section D, point2(a) to the Extract of the conclusions of the European Council of 18 and 19February 2016 (OJ 2016 C69I, p.1).

17See point56 of this Opinion.

18The Commission refers to Impact assessment SWD(2016)460 final/2, part1/6, p.135, point7.3.2.

19The Republic of Austria and the Kingdom of Norway consider that the link between family benefits and the cost of living is confirmed in the FreSsco report ‘Assessment of the impact of amendments to the EU social security coordination rules on export of family benefits’, contained in AnnexVI to the impact assessment cited in footnote18 of this Opinion, part 3/6, point1.7.2, p.44. The Republic of Austria points out that that demonstrates, in particular, that family benefits are, in principle, adjusted, with that adjustment always being based on inflation rates.

20The Republic of Austria notes that the criterion of the number of children and their age is not in itself decisive in order to assess the nature of the benefit and the specific characteristics taken into account. In that regard, it considers the following example given by the Kingdom of Norway to be ‘eloquent’: ‘Member State A has learned from the statistics that a pushchair costs on average EUR100 and that a reimbursement of 50% therefore amounts to EUR50. In order to avoid the unnecessarily burdensome system of reimbursement, that State decides to pay the benefit from the outset in the form of a flat-rate amount of EUR50, together with an indexation rule correcting the increase in the price of pushchairs for babies. Moreover, in order to ensure that the purpose and function of the benefit are achieved irrespective of the place of residence of the children, which was the case automatically under the previous system for reimbursement, the legislature adds an indexation mechanism to correct the actual costs of purchasing pushchairs in the various Member States’. See, in that regard, footnote11 of this Opinion.

21See Paragraph39(1) of the FLAG.

22The Republic of Austria states that, in addition, the compensation fund for family allowances is financed essentially by a fixed amount of income tax, quotas of corporation tax and income tax and contributions from farming and forestry businesses and compensation from various federal ministries. See Paragraph39(2)(b) to (h) of the FLAG.

23See Paragraph39(2)(a) of the FLAG.

24See Paragraph41(1) of the FLAG.

25See Paragraph41(3) of the FLAG.

26See point34 of this Opinion.

27See the first and second indents of point83 of this Opinion.

28See, by way of illustration, point53 of this Opinion.

29According to the Republic of Austria, recital16 of Regulation No883/2004 does not relate to Article70 of that regulation on the ground that its purpose is to exclude from the rule on exportability special benefits financed by tax providing substitute income or special protection for the disabled which are expressly due at the beneficiary’s place of residence.

30Case C‑85/99, EU:C:2001:166, paragraph41, concerning the interpretation of Article1(u)(i) of Regulation No1408/71 concerning family benefits as distinct from the family allowances which were defined in point (ii) of that provision. See, also, point72 of this Opinion. The rule laid down in Article73(1) of that regulation for the export of family benefits did not apply to those benefits.

31Opinion of Advocate General Slynn in Lenoir (313/86, not published, EU:C:1988:87).

32Linking to the Kingdom of Norway’s statement in intervention, the Republic of Austria also submits that Article67 of Regulation No883/2004 and the case-law of the Court confirm that account must be taken of the specific nature, the purpose and the terms of benefits and, for example, the fact that at issue is a benefit based on the needs of the child or calculated by reference to the parents’ income. Consequently, an obligation to export benefits in absolute amounts in all cases would run counter to Article67– and Article7– of Regulation No883/2004.

33In order to emphasise, also, the importance of making the adjustment in the light of the price level in Denmark, where consumer prices are the highest in the European Union, the Republic of Austria uses as an example a comparison with Bulgaria, which has the lowest consumer prices in the European Union. Thus, in the case of a worker who is a Union citizen and has a one-year-old child, the Danish monthly allowance is 10times higher than that provided for in Bulgaria. With an adjustment in line with price levels in Bulgaria (about index 40 if Denmark is 100), the Danish allowance is four times the amount of the Bulgarian allowance.

34Opinion of Advocate General Mancini in Pinna (41/84, not published, EU:C:1985:215).

35Opinion of Advocate General Mancini in Pinna (41/84, not published, EU:C:1985:215, point7). Emphasis added.

36See point40 of this Opinion.

37Emphasis added in the Republic of Austria’s defence.

38The Republic of Austria refers to the ‘Declaration of the European Commission on the indexation of child benefits exported to a Member State other than that where the worker resides’, which is contained in AnnexV to those conclusions (see footnote16 of this Opinion), and the impact assessment cited in footnote18 of this Opinion, point7.3.2, p.135.

39That mechanism also applies between the Republic of Austria and each of the parties to the EEA Agreement and Switzerland.

40In that regard, the Court noted that the phrase ‘to meet family expenses’ is to be interpreted as referring in particular to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children. See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph38 and the case-law cited).

41See judgments of 19July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475, paragraph38), and in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph69).

42See, inter alia, Article70 of Regulation No883/2004, which concerns special non-contributory cash benefits.

43See judgments of 25November 2021, Finanzamt Österreich (Family allowances for development aid workers) (C‑372/20, EU:C:2021:962, paragraph76), and in Moser (paragraph36 and the case-law cited). Cf. judgment in Pinna (paragraph9), and judgment of 5October 1995, Imbernon Martínez (C‑321/93, EU:C:1995:306, paragraph22).

44See judgments of 7June 2005, Dodl and Oberhollenzer (C‑543/03, EU:C:2005:364, paragraph45); of 22October 2015, Trapkowski (C‑378/14, EU:C:2015:720, paragraph35); and in Moser (paragraphs37 and 38 and the case-law cited). In that judgment, the Court confirmed that Article67 of Regulation No883/2004 is applicable to a worker who works in a Member State other than the one whose legislation is applicable to him. See also Article5(b) of that regulation, which enshrines the principle of equal treatment of facts, which also includes the expression ‘as though’, and judgment of 12March 2020, Caisse d’assurance retraite et de la santé au travail d’Alsace-Moselle (C‑769/18, EU:C:2020:203, paragraphs42 to 44).

45I note, in that regard, that there has been no change since the draft envisaged for the United Kingdom in 2016. See points40 and 56 of this Opinion.

46See, for a reminder of the details of the rule that benefits may not overlap in the case of benefits payable by more than one Member State on the same basis, judgment in Moser (paragraph41).

47Regulation of the European Parliament and of the Council of 16September 2009 laying down the procedure for implementing Regulation (EC) No883/2004 on the coordination of social security systems (OJ 2009 L284, p.1).

48See judgment in Moser (paragraphs42 and 46).

49See judgment of 10July 2019, Aubriet (C‑410/18, EU:C:2019:582, paragraph33 and the case-law cited).

50See point54 of this Opinion.

51See the third indent of point51 of this Opinion.

52See the fourth indent of point51 of this Opinion.

53See judgments in Pinna (paragraph21), and in Lenoir (paragraph14).

54See judgment in Pinna (paragraphs10, 11 and 14).

55See judgment in Lenoir (paragraph16).

56See judgments in Lenoir (paragraph9), for a reminder to the legislative history, and in Pinna (paragraphs9 and 18).

57See judgments of 6July 2006, Kersbergen-Lap and Dams-Schipper (C‑154/05, EU:C:2006:449, paragraph33 and the case-law cited), and of 18December 2007, Habelt and Others (C‑396/05, EU:C:2007:810, paragraph81).

58See recital16 of Regulation No883/2004. It is, in this respect, logical that the EU legislature adopted that criterion on account of the purpose of the benefits, namely to ensure a minimum subsistence income which can be determined only on the basis of the economic and social situation in the place of residence.

59See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraphs36 and 37).

60It should be noted that the FreSsco report, on which the Republic of Austria relied after the Kingdom of Norway (see footnote19 of this Opinion), with regard to the situation in 2016 and 2017, contains no details to that effect and refers only to an adjustment based on the rate of inflation.

61The same is true of the education allowance or the allowance related to a child’s disability, as is apparent from the evidence submitted to the Court for assessment. See the fourth indent of point38 and the fourth indent of point42 of this Opinion.

62See footnote11 of this Opinion. The example given by the Kingdom of Norway demonstrates in that regard that, specifically, the actual level of expenditure is not taken into account in relation to the place of purchase. The same applies to the variety of factors that should be taken into consideration with regard to the situation of migrants, including additional financial burdens on account inter alia of the absence of one of the parents, as noted by Romania.

63The Commission refers to the judgment of 22June 2011, Landtová (C‑399/09, EU:C:2011:415, paragraph42 and the case-law cited).

64The Commission refers to the judgment of 12May 1998, Martínez Sala (C‑85/96, EU:C:1998:217, paragraph25).

65The Commission refers to the judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph45 and the case-law cited).

66The Commission refers to the judgment of 12December 2019, Instituto Nacional de la Seguridad Social (Pension supplement for mothers) (C‑450/18, EU:C:2019:1075, paragraph45 and the case-law cited).

67See point98 of this Opinion.

68See footnote79 of this Opinion.

69See, with regard to that argument in the context of the pre-litigation procedure, point25 of this Opinion.

70The Commission refers to the judgment of 28April 1998, Kohll (C‑158/96, EU:C:1998:171, paragraph41).

71The Commission refers to the report by the Court of Auditors entitled ‘Familienbeihilfe– Ziele und Zielerreichung, Kosten und Kontrollsystem’ (Family allowance– objectives and attainment of the objectives, costs and monitoring system, ‘the Court of Auditors’ report’), available at: https://www.rechnungshof.gv.at/rh/home/home/Familienbeihilfe.pdf (points6.1 and 6.3, pp.25 to 27).

72The Commission refers to the Court of Auditors’ report (point15.1, pp.42 to 45, point19.2, p.53, and points23 to 29, pp.59 to 69).

73Signed at Turin on 18October 1961.

74The Republic of Austria cites the Council of Europe document entitled ‘Digest of the case-law of the European Committee of Social Rights’, December 2018, p.141 (available at: https://rm.coe.int/digest-2018-parts-i-ii-iii-iv-en/1680939f80).

75The Republic of Austria refers to Articles64 and 67(4) of the Staff Regulations of Officials of the European Union and the fourth recital of Council Regulation (EC, ECSC, Euratom) No2594/98 of 27November 1998 amending Regulation (EEC, Euratom, ECSC) No259/68 laying down the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the Communities (OJ 1998 L325, p.1). In that regard it refers to the Kingdom of Denmark’s argument that the Court emphasised in the judgment of 8May 2014, Wiering (C‑347/12, EU:C:2014:300), which also concerned Regulation No1408/71, that it is the child who is the recipient of family allowances. The adjustment of such allowances is therefore consistent with the interpretation which has already been given in respect of the principle of equal treatment.

76The Republic of Austria refers to the Commission document entitled ‘Erasmus+ Programme Guide’, Version 2 (2020) of 26February 2020, p.45 (available at: https://erasmus-plus.ec.europa.eu/sites/default/files/2021-09/erasmus_programme_guide_2020_v2_en.pdf).

77Document 11721/2/20 REV2 (available at: https://data.consilium.europa.eu/doc/document/ST‑11721-2020-REV-2/en/pdf).

78OJ 1992 L245, p.46.

79The Republic of Austria provided the following illustration: ‘Purchasing power in Vienna (the federal State with the lowest rate) is about 92% of the purchasing power in Lower Austria. Moreover, the differences in purchasing power per capita in the districts of Lower Austria are greater than the differences in purchasing power between the federal States in Austria. See https://retailreport.at/sites/default/files/2019-05/GfK%20Kaufkraft%20C3%B4sterreich%202019.pdf. In contrast, purchasing power in Bulgaria in 2019 was 52% of the average purchasing power of the 27 Member States…, whereas purchasing power in Austria was 113% of that average purchasing power (see https://ec.europa.eu/eurostat/databrowser/view/tec00120/default/table?lang=en)’.

80The Republic of Austria cites the judgment of 24February 2015, Sopora (C‑512/13, EU:C:2015:108, paragraph34).

81The Republic of Austria cites the judgments of 17July 1963, Italy v Commission (13/63, EU:C:1963:20, Heading 4), and of 18September 2014, Bundesdruckerei (C‑549/13, EU:C:2014:2235, paragraph34).

82Case C‑286/03, EU:C:2005:621, point109. This is Advocate General Kokott’s response to the argument, put forward in that case, against the export of a benefit, according to which the amount of the benefit is correlated to costs of living and of care in the State in which the competent institution is based.

83Commission Implementing Decision 2014/99/EU of 18February 2014 setting out the list of regions eligible for funding from the European Regional Development Fund and the European Social Fund and of Member States eligible for funding from the Cohesion Fund for the period 2014‑2020 (OJ 2014 L50, p.22).

84These are the draft laws which gave rise to the federal laws cited in footnotes7 and 8 of this Opinion and the government’s explanations of those drafts contained in the documents referenced under No111 and No190 of the annexes to the minutes of the sittings of the Nationalrat (National Council, Austria) concerning the XXVIth parliamentary term (available at: https://www.parlament.gv.at/PAKT/VHG/XXVI/I/I_00111/fname_692212.pdf and https://www.parlament.gv.at/PAKT/VHG/XXVI/I/I_00190/fname_698479.pdf).

85The Republic of Austria refers to the documents referenced under No111 and No190 of the annexes to the minutes of the sittings of the National Council concerning the XXVIth parliamentary term, p.3 and p.8 et seq., respectively.

86The Republic of Austria refers to the judgments of 28June 2018, Crespo Rey (C‑2/17, EU:C:2018:511, paragraphs45 et seq. and the case-law cited), and in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph68).

87In that regard, the Republic of Austria refers to the explanations in the document referenced under No111 of the annexes to the minutes of the sittings of the National Council concerning the XXVIth parliamentary term, p.1 et seq. (see footnote84 of this Opinion).

88See point46 of this Opinion.

89Case C‑240/10, EU:C:2011:591, paragraph37.

90See point95 of this Opinion.

91Done at Vienna on 18April 1961 and entered into force on 24April 1964.

92Done at Vienna on 24April 1963 and entered into force on 19March 1967.

93The Republic of Austria states that, although a migrant worker is affiliated to the Austrian social security scheme by virtue of Article11(3)(a) of Regulation No883/2004, an Austrian civil servant who is seconded to another Member State remains affiliated to the Austrian social security scheme by virtue of Article11(3)(b) of Regulation No883/2004. The same applies to civil servants who have secondary employment as an employed person or who pursue an economic activity as a self-employed person by virtue of Article13(4) of Regulation No883/2004.

94The Republic of Austria refers to the judgment of 17June 2010, Commission v Portugal (C‑105/08, EU:C:2010:345, paragraph26 et seq.).

95The Republic of Austria cites the judgments of 28May 1980, Kuhner v Commission (33/79 and 75/79, EU:C:1980:139, paragraph22), and of 13July 2018, SQ v EIB (T‑377/17, EU:T:2018:478, paragraph146), in addition to the judgments of 22June 2017, Bechtel (C‑20/16, EU:C:2017:488, paragraph35 and the case-law cited), and of 12November 2020, Fleig v EEAS (C‑446/19P, not published, EU:C:2020:918, paragraph67).

96The Republic of Austria refers to the judgment of 18December 2007, Commission v Spain (C‑186/06, EU:C:2007:813, paragraph18 and the case-law cited).

97The Republic of Austria refers to the judgment of 19May 2009, Commission v Italy (C‑531/06, EU:C:2009:315, paragraphs69 and 73).

98See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraphs24 and 25 and the case-law cited).

99See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraphs44 and 46 and the case-law cited).

100See, also, as a particular expression of the general principle of non-discrimination, Article5(b) of that regulation, which enshrines the principle of equal treatment of facts, as the Court pointed out in the judgment of 12March 2020, Caisse d’assurance retraite et de la santé au travail d’Alsace-Moselle (C‑769/18, EU:C:2020:203, paragraph44).

101See, by analogy, judgment of 22June 2011, Landtová (C‑399/09, EU:C:2011:415, paragraphs42 and 44 and the case-law cited), relating to Article3(1) of Regulation No1408/71, giving effect to the principle set out in Article39 EC, now Article45 TFEU, which was drafted, in essence, using the same wording as Article4 of Regulation No883/2004. However, the scope ratione personae of the latter regulation differs from the former in that it is not limited to workers and their family members. In that regard, very recently, in the judgment of 15July 2021, A (Public health care) (C‑535/19, EU:C:2021:595, paragraph40), the Court noted that the principle of non-discrimination on grounds of nationality, set out in the first paragraph of Article18 TFEU, is specified in Article4 of Regulation No883/2004 with regard to Union citizens who rely on the benefits referred to in Article3(1) of that regulation. It also recalled its settled case-law according to which the first paragraph of Article18 TFEU is intended to apply independently only to situations governed by EU law in respect of which the FEU Treaty lays down no specific prohibition of discrimination. That is not the case in the area of the free movement of workers. See, in that regard, inter alia, judgment of 25November 2021, Finanzamt Österreich (Family allowances for development aid workers) (C‑372/20, EU:C:2021:962, paragraph68).

102See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph54 and the case-law cited).

103See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraphs24 and 70 and the case-law cited).

104See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph70 and the case-law cited).

105See, by analogy, judgment of 15July 2021, A (Public health care) (C‑535/19, EU:C:2021:595, paragraph61).

106See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph44 and the case-law cited).

107OJ 1968 L257, p.2. Regulation No1612/68 was repealed by Regulation No492/2011. The Court referred inter alia to the judgment of 5May 2011, Commission v Germany (C‑206/10, EU:C:2011:283, paragraph39). See, also, paragraphs36 and 37 of that judgment.

108See, by analogy, judgment of 11September 2007, Hendrix (C‑287/05, EU:C:2007:494, paragraphs51 and 52). See, also, judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraphs65 and 69 to 71).

109See judgments of 18January 2007, Celozzi (C‑332/05, EU:C:2007:35, paragraph24), and of 5December 2019, Bocero Torrico and Bode (C‑398/18 and C‑428/18, EU:C:2019:1050, paragraph41).

110See judgments of 20June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph44), and in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph56).

111See footnote9 of this Opinion.

112See point15.1, illustration6, p.45, of the Court of Auditors’ report.

113See the document referenced under No190 of the annexes to the minutes of the sittings of the National Council concerning the XXVIth parliamentary term, p.2 (see footnote84 of this Opinion).

114See point15.1, illustration 5, p.44, and point15.2, p.45, of the Court of Auditors’ report. In that regard, it is stated in footnote34 of that report that, on 1May 2004, the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic joined the European Union, followed by the Republic of Bulgaria and Romania on 1January 2007. In the area of the free movement of workers, the Republic of Austria benefited from transitional periods of seven years, with the result that the Austrian labour market was opened up in 2011 to the States which acceded in 2004 and in 2014 to the States which acceded in 2007. The Republic of Croatia joined the European Union on 1July 2013 and the Austrian labour market was opened up in 2020.

115See judgment in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph56).

116See judgment of 22June 2011, Landtová (C‑399/09, EU:C:2011:415, paragraphs46 to 48).

117See points66 and 67 of this Opinion and, by analogy, judgment of 7November 2002, Maaheimo (C‑333/00, EU:C:2002:641, paragraph34).

118See, in that regard, point127 of this Opinion.

119See, inter alia, judgments of 14December 2016, Bragança Linares Verruga and Others (C‑238/15, EU:C:2016:949, paragraph44), and in Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) (paragraph58 and the case-law cited).

120It should be noted that the Republic of Austria contests the Commission’s claim that its objective was to make budgetary savings. The documents produced by it show an assessment of the reduction in expenditure without, however, confirming such an intention.

121See points77 to 79 of this Opinion.

122In paragraph44 of its application, the Commission refers to the table ranking the Austrian federal States in 2019, available at: https://cdn2.hubspot.net/hubfs/2405078/cms-pdfs/fileadmin/user_upload/dyna_content/de/documents/news/20190508_news_kaufkraft_dach_dfin.pdf, p.3.

123The Commission explains that, for example, purchasing power in Lower Austria is 104.7% of the Austrian average, compared with only 97.6% in Carinthia. Thus, under the Austrian rules on social and tax advantages in Austria, a worker receives, for a child residing, for example, in the municipality of Arnoldstein in Carinthia, a contribution towards the maintenance costs of his or her child in the amount of 100% of the flat-rate amount which is 7.1% higher than that received by a worker whose child resides in Lower Austria.

124Further to the previous example, the Commission illustrates the effects of the Austrian adjustment mechanism by stating that persons who work in Austria but whose children reside in Arnoldstein in Carinthia, Tarvisio (Italy) or Kranjska Gora (Slovenia), each receive three different flat-rate amounts, thus, respectively, 100%, 94.8% and 79% of the amount of the benefit. The flat-rate amount is higher than the average cost of living in Austria and it must be considered that, in those three adjacent municipalities, even though they are located in three different Member States, the cost of living for everyday needs is objectively comparable precisely because of the free movement of goods and services guaranteed by the European Union.

125For example, according to the Slovak Republic, the cost of living varies between the east of the country and the Bratislava city region, where it is even much higher than in the Vienna city region.

126The Republic of Austria states that, in 2019, purchasing power in Bulgaria represented 52% of the average purchasing power of the 27 EU Member States, whereas purchasing power in Austria represented 113% of that average purchasing power (see footnote79 of this Opinion). See, also, point53 of this Opinion.

127See point18.2, p.51, of the Court of Auditors’ report.

128See point23.2, pp.60 and 61, point23.4, p.62, and point25, pp.62 to 65, of the Court of Auditors’ report.

129See point15.1, Table8, of the Court of Auditors’ report.

130See point97 of this Opinion.

131See Article28(2) of the EEA Agreement, which prohibits any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, like Article45(2) TFEU.

132See recital17 of Regulation No883/2004.

133See judgment of 14December 2016, Bragança Linares Verruga and Others (C‑238/15, EU:C:2016:949, paragraphs49 and 50).

134The EFTA Surveillance Authority summarised the principle as follows: ‘With regard to the attainment of freedom of movement for workers, the EEA internal market requires equal benefits for equal work’.