73
DOI: 10.17573/cepar.2020.2.04	 1.01	Original	scientific	article
The Current Discussion on Austrian 
Family Benefits – Indicating a Major 
Dissensus on the Interpretation of  
EU Law
Alexander Balthasar
Andrássy University Budapest, Hungary
alexander.balthasar@andrassyuni.hu
Received: 18. 5. 2020 
Accepted: 30. 10. 2020
ABSTRACT
In early 2018, Austria amended its family benefits law by introducing ‘in-
dexation’ according to the average living costs of the country where the 
child actually resides. What seems to be, at first sight, a flagrant breach 
of EU law (in particular of Article 7 of Regulation [EC] 883/2004) is, when 
looking deeper, much more complicated and might very well be only a 
symptom of deeply rooted differences in the interpretation of current, 
post-Lisbon Union law,
(i) in particular with regard to the relationship between the traditional 
prohibition of “discrimination on grounds of nationality” (Article 18 
TFEU, Article 21(2) CFR; the  ‘Leitmotiv’ of the Treaties) and the “citi-
zenship of the Union” (Article 9 second sentence TEU, Article 20(1), 
first and second sentence) on the one hand and the further role of the 
“nationality of a Member State” on the other, which shall, pursuant to 
Article 9 TEU, third sentence, as well as Article 20(1) TFEU, third sen-
tence, not be replaced by the “citizenship of the Union”,
(ii) but also with regard to Article 352 TFEU, the scope of which is, most 
probably, much smaller than that of its predecessor, Article 308 TEC,
(iii) and last but not least, with regard to a proper understanding of the 
principle of equal treatment, requiring not to treat alike factually dif-
ferent situations.
Giving a full picture not only in abstract terms but demonstrating the rele-
vance of the said differences on the concrete example of the interpretation 
of the above mentioned secondary legislation, the author aims at contribut-
ing to bridging gaps and, thus, fostering a better mutual understanding as a 
vital precondition for the future legal cohesion of the EU.
Keywords:	 family	benefits,	citizenship	of	the	Union,	nationality,	principles	of	equal	
treatment/non-discrimination,	rights	of	the	child,	principle	of	conferral,	
Treaties	amendment	clauses,	assessment	of	validity	of	EU	law
JEL:	K	30,	K	33,	K	36
Balthasar, A. (2020). The current Discussion on Austrian Family Benefits – Indicating a 
Major Dissensus on the Interpretation of EU Law. 
Central	European	Public	Administration	Review, 18(2), pp. 73–100
CEPAR 2020-02.indd   73 30. 11. 2020   12:16:53
Central European Public Administration Review, Vol. 18, No. 2/202074
Alexander Balthasar
1 Starting point: Facts, bewilderment, items to be 
discussed
1.1 The facts
As it is quite well known, the Austrian government formed in December 2017 
on the basis of the result of the general elections held on 15 October 2017 
– the so called „turquoise-blue“ coalition (of reformed Christian Democrats 
with chairman – and Austrian federal chancellor Sebastian Kurz and right wing 
populists, then with chairman – and then Austrian federal vice-chancellor 
Heinz-Christian Strache) – had aimed right from the beginning at an „assess-
ment of“ the possibility of an „indexation of family benefits“ – i.e. of specific 
State allowances destined to support the maintenance of children1 , consist-
ing in an adjustment to the real costs of life of the respective child in the respec-
tive EU Member States, „in conformity with EU law“.2
Fairly one year later, on 4 December 2018, an amendment of the Family 
Benefits Act, via insertion of a new paragraph 8a, was published in the Federal 
Law Gazette (Art 1, point 1 of the Federal Act BGBl I 2018/83) and came into 
force the day after. In essence it was provided that since 1 January 2019 for 
all those children 
– living abroad (i.e. in another EU Member State or in a State of the EEA or in 
Switzerland 
– the carers of whom nevertheless were entitled to receive the Austrian 
Family Benefit 
the actual amount of this benefit had to be fixed on the basis of the 
„comparative price levels“ issued by EUROSTAT. By this means of an 
indexation, „effects of distortion“ occuring when the said benefits were 
„exported without proper distinction“ were to be avoided.3
From the „specific information“ and the related, very detailed and elaborated 
argumentation given on (all the) five pages of the the Explanatory Memo-
randum4, we learn that the government when proposing this amendment to 
Parliament was fully aware that, at least at that point in time, more EU lawyers 
than not held firmly that such an indexation was against EU law, but did not 
share this mainstream opinion.5 How sensitive the issue was may be inferred 
from the fact that already six weeks after publication the European Commis-
sion started the first step of an infringement procedure, Marianne Thyssen, 
then Commissioner for Employment, Social Affairs, Skills and Labour, saying:
1 In fact this benefit has never been based on a specific federal competence allowing or even 
mandating State measures in the favour of families as such, but on Article 10 (1) (17) of the 
Austrian Constitution („Bevölkerungspolitik“ = demographic measures“). This difference is 
now relevant, see infra fn 102.
2 See the Coalition Programme (2017), 116.
3 Cf the Explanatory Memorandum (RV 111 Blg NR XXVI. GP), 1: „main considerations “.
4 See previous fn.
5 Or, to put it differently: the aim of the government was not to disregard EU law but to strive for 
a different interpretation.
CEPAR 2020-02.indd   74 30. 11. 2020   12:19:26
Central European Public Administration Review, Vol. 18, No. 2/2020 75
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
„Our single market is based on fairness and equal treatment. There are no 
second-class workers in the EU. When mobile workers contribute in the same 
way to a social security system as local workers, they should receive the same 
benefits, also when their children live abroad. There are no second-class children 
in the EU.“6
Austria replied in March 2019; after „[h]aving thoroughly analysed the 
arguments put forward by Austria, the Commission … concluded that the 
concerns ha[d] not been addressed. Therefore, the Commission … moved to 
the second step in the infringement procedure with a reasoned opinion” in 
late July 2019.7
End of October, the Commission had received the Austrian answer to this 
“reasoned opinion”8 – this time no longer of the “turquoise-blue” coalition, 
but by the post Ibiza transitory government which, nevertheless, maintained 
the position of the former government (as does, up to now, the in early 
January 2020 newly formated current “turquoise-green” coalition). From that 
point in time on it took more than half a year until the Commission decided, 
on 14 May 2020, to refer the matter to CJEU under Article 258 TFEU.9 
1.2 Questions
This is striking in particular because also when taking other, contingent fac-
tors into account10 we should not have thought bringing this matter to the 
Court of Justice would raise any difficulty; right to the contrary, it could have 
been lodged quite easily still in the very last “infringement package” of the 
Juncker Commission end of November.11 Moreover, it would have sufficed to 
refer bluntly to Article 7 of Regulation (EC) 883/200412, stating: „Waiving of 
residence rules. Unless otherwise provided for by this Regulation, cash bene-
fits payable under the legislation of one or more Member States or under this 
Regulation shall not be subject to any reduction, amendment, suspension, 
withdrawal or confiscation on account of the fact that the beneficiary or the 
members of his/her family reside in a Member State other than that in which 
the institution responsible for providing benefits is situated.“13, the more so, 
6 See EC Press Release of 24 January 2019; emphasis added.
7 Cit EC Press Release of 25 July 2019; the personal statement of Commissioner Thyssen for-
ming part of this release sounded quite the same as her statement of January („Equal treat-
ment is a fundamental principle of the EU. EU citizens, who work in another Member State 
than their own and pay taxes and social security contributions, have a right to the same family 
benefits. “
8 Cf ORF (29 October 2019).
9 The No of this infringement decision is 20182372.
10 Mainly, we may consider two events:
 (i) On 30 November 2019 the term of office of the Commission Thyssen formed part of ended
 (ii) Since February 2020, whole Europe has suffered from the Corona crisis.
11 Cf EC Presse Release of 27 November 2019.
12 OJ L 166, of 30 April 2004, 1.
13 This item is addressed in the EC’s Press Release of 14 May 2020, in the following paragraph:
 „Member States may not reduce the amount of any cash benefit granted to persons insured 
under their legislation for the sole reason that these persons or their family members are 
residing outside their territory. The Austrian indexation mechanism reduces the amount of 
family benefits and child tax credit granted for children residing in an EU Member State where 
the cost of living is considered to be lower.“
CEPAR 2020-02.indd   75 30. 11. 2020   12:05:35
Central European Public Administration Review, Vol. 18, No. 2/202076
Alexander Balthasar
because the Austrian „family benefits“ do not form part of Annex X (referred 
to in Article 70 (2) (c) and having the effect of exempting the benefits listed 
there from the scope of Article 7).14
In contrast, there was no need at all to address fundamental or primary law 
considerations as mentioned by Commissioner Thyssen15 or by the Austrian 
government in the said Explanatory Memorandum, or to add now a 
consideration like the following:
„The fact that another Member State is considered to have lower cost of living 
than Austria is of no relevance for a benefit, which is paid out as a lump sum and 
is not linked to the actual cost of maintaining a child. In addition, Austria does 
not apply the indexation mechanism to persons working abroad for an Austrian 
public authority, whose children also reside in another EU Member State.“16
Nor was it necessary to refer – as it was done now in the referral to CJ – in 
addition also to Regulation (EU) No 492/201117, in particular to Article 7 (2), 
stating that „[a worker who is a national of a Member State]“ posted „[in the 
territory of another Member State] … shall enjoy the same social and tax 
advantages as national workers.“
So we face at least three questions:
– Why did the Commission having been so sure already in January 2019 that 
the Austrian amendment would infringe even fundamental principles of 
EU law need so much time to refer the question to CJ, although at least 
infringement of Article 7 of of Regulation (EC) 883/2004 had always been 
evident?
– Why did Commissioner Thyssen not confine herself to state the obvious – 
the infringement of EU secondary law – but find it necessary to reach out to 
fundamental considerations?
– Why did the Austrian government(s) – aiming explicitly to act in conformity 
with EU law – nevertheless dare to neglect the obvious infringement of EU 
secondary law?
1.3	 The	specific	context	of	„Brexit	“
Of course, we should not overlook the short-term political context: Still in 
early 2016 the very same Commission Thyssen formed part of had committed 
itself, in the very specific political context of „Brexit“18, to „make a proposal to 
14 See, however, infra section IV/C/(ii).
15 Cf now also the following paragraph in EC’s Press Release of 14 Ma 2020: „Further, the prin-
ciple of equal treatment in social security coordination matters means that persons must be 
treated equally without distinction of nationality, by abolishing discriminatory measures in 
national legislation.“
16 Cit EC Press Release of 14 May 2020.
17 OJ L 141, 1. 
18 The elaboration of this proposal formed (as lit e) part of the „arrangements“ which should 
„become effective on the date the Government of the United Kingdom informs the Secre-
tary-General of the Council that the United Kingdom has decided to remain a member of 
the European Union“, EC considering these „arrangements“ constituting „an appropriate re-
sponse to the concerns of the United Kingdom.“ 
CEPAR 2020-02.indd   76 30. 11. 2020   12:20:45
Central European Public Administration Review, Vol. 18, No. 2/2020 77
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
amend Regulation (EC) No 883/2004 … on the coordination of social security 
systems in order to give Member States, with regard to the exportation of 
child benefits to a Member State other than that where the worker resides, 
an option to index such benefits to the conditions of the Member State where 
the child resides. The Commission considers that these conditions include 
the standard of living and the level of child benefits applicable in that Member 
State.“19
Although obviously envisaged as elements of bargaining and, thus, not entirely 
free from ad hoc tactics,
(i) not all of these „arrangements“20 were meant as mere exceptions for the 
UK, in particular, not the amendment of Regulation (EC) No 883/2004 
which was intended to apply to all Member States
(ii) no „arrangement“ was considered to need a modification of Primary Law; 
right to the contrary, European Council itself had assessed all elements of 
the project being „fully compatible with the Treaties.“21
1.4	 Items	of	discussion
Exactly this assessment of both the European Council and the European Com-
mission, however, indeed conversely raises severe doubts with regard to the 
specific relationship of the regulation at issue as it stands now with current (post-
Amsterdam, in particular post Lisbon) EU primary law. These doubts which 
shall be discussed here in more detail (section II) – may have indeed prevented 
the European Commission from referring the matter to CJ – until a reference 
by an Austrian court (the Federal Tax Court – „Bundefinanzgericht“)22 carried 
the risk of a full assessment of the regulation at issue with current primary 
law by CJEU23, thus making it advisable, from the Commission’s perspective, 
to balance this reference by a reference of its own.24 Besides, the Commission 
might have realized
 Clearly enough, the Commission could not be amused when, still before the „Brexit“ had ma-
terialized, another Member State tried to realize on its own initiative one of these „arrange-
ments“, thus devaluing the bargaining package. On the other hand, now, after the Brexit, at 
least this specific interest is obsolete.
19 Cit Annex V („Declaration of the European Commission on the indexation of child benefits ex-
ported to a Member State other than that where the worker resides“) to the EC‘s Conclusions 
(18/19 February 2016).
20 See supra previous fn but one.
21 Cit section I/2 of the Conclusions (18/19 February 2016). 
22 Decision of 16 April 2020, RE/7100001/2020. On pages 14 et seq (under the heading „Richtige 
Anwendung des Unionsrechts nicht offenkundig“) not only a chronology of the political de-
liberation process, but also a survey of the Austrian doctrine assessing (mainly sceptically) the 
conformity of the Austrian legislation with Union law is given.
23 While being perfectly true that the Austrian court‘s reference did not yet explicitly address 
the questions raised here (so that CJ which lacks, in contrast to Austria‘s Constitutional Court, 
the competence to start the assessment of Article 267 (1) (b) TFEU on its own motion, is still 
not entitled to go in medias istas res), it is quite probable that this issue would be discussed in 
the further course of the proceedings, in particular during an oral hearing, and thus, eventual-
ly, provoke an explicit reference in that regard, too.
24 As it is well-known there is a remarkable difference between an infringement procedure (Ar-
ticle 258 f TFEU) and a reference procedure (Article 267 TFEU): while in the former it suffices 
to establish a breach of EU secondary law, in a reference procedure (Article 267 TFEU) CJ also 
the conformity of secondary law with primary law is an issue; it is here where CJ might have to 
CEPAR 2020-02.indd   77 30. 11. 2020   12:20:46
Central European Public Administration Review, Vol. 18, No. 2/202078
Alexander Balthasar
– the specific construction of the Austrian family benefits system against the 
backdrop of the EU Regulation system and, consequently
– the fact that the Austrian model is still a quite moderate one, compared 
with the opportunities provided by the Regulation itself.
These considerations – backed by the insight that the current Austrian posi-
tion, although only quite recently adopted, is not at all an idiosyncratic pecu-
liarity negating European values, but had, right to the contrary, even in the 
pre-Amsterdam era been European mainstream for decades (section III) will 
be developed here in more detail (section IV).
When scrutinizing this topic my intention is a double one (both elements 
enshrined likewise in Article 2 TEU):
– On the one hand it is already in general – under the paradigm of the princi-
ple of the rule of law requiring a homogenious „hierarchy of norms“ – really 
vexing that lower ranking norms should not fully comply with higher ran-
king law
– On the other hand, however, the democratic principle in particular seems to 
require scrupulous endeavour that EU secondary law continues to comply 
with primary law, given the fact that EU primary law has been produced by 
the consent of all Member States and is, thus, democratically best qualified.
2	 The	specific	relationship	of	Regulation	(EC)	883/2004	
with	current	EU	primary	law
2.1	 Competence	of	the	EU?
2.1.1 The primary law framework
The Regulation is based „in particular“ on „Articles 42 and 308“ of the EC Trea-
ty25, admitting – of central interest with regard to our topic26 – „The Treaty 
does not provide powers other than those of Article 308 to take appropriate 
measures within the field of social security for persons other than employed 
declare the respective secondary law norm invalid (under paragraph 1 [b]; cf CJ Judgment of 6 
October 2015, C-362/14, Schrems, points 60 et seq, 106). This declaration, however, would, at 
least de facto, amount to an annulment, see not only Edward/Lane (2013), point 5.142, but al-
ready the Opinion delivered in Case 359/87, Pinna II, points 13 et seq, 41 (by analogy “). Hence, 
a parallel referral by the Commission offers at least a practical chance that both procedures (in 
particular when combined to a common procedure) focus more on the surface, i.e. the question 
of conformity with secondary law, leaving the validity issue in the shadow.
 It may be added that Member States do not dispose of a direct opportunity to refer to CJEU 
when, as it has been the case with Austria in the situation at issue, they come to doubt wheth-
er a piece of secondary law is (still) fully in line with primary law. From this perspective, the 
strict time limit barring any complaint under Article 263 TFEU later than two months after 
publication really runs short of the principle of the rule of law, forcing Member States to 
adopt first national legislation which might infringe EU secondary law, but be fully in line with 
primary law, instead of being able to initiate a clarification of the legal situation beforehand 
by the competent court, the CJEU.
25 Cit recital 1 of the regulation.
26 As outlined supra we deal here only with allowances made for the sake of children of em-
ployed persons, not for the employees‘own sake. This fact is of crucial importance also from a 
second perspective, see in more detail infra section 2.2.
CEPAR 2020-02.indd   78 30. 11. 2020   12:20:46
Central European Public Administration Review, Vol. 18, No. 2/2020 79
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
persons.“ While making use of this clause – although softening and, thus, be-
ing in a „fundamental tension“27 with the „principle of conferral“ enshrined 
in Article 5 (1) TEU – was perfectly legal in the pre-Lisbon world28, the post-
Lisbon assessment is, most probably, different with regard to the insertion 
of Article 48 (6) (3) TEU, running: „The decision referred to in the second sub-
paragraph shall not increase the competences conferred on the Union in the 
Treaties.“ Is it really conceivable that EU might increase its competences by a 
decision based on Article 352 TFEU whereas to achieve exactly this effect via 
the more complicated procedure29 under Article 48 (6) TEU has been explicitly 
prohibited?30 In CJ’s Judgment of 26 September 2013, C-431/11, UK/Council, 
point 17, we read: „On 10 March 2011, the Commission submitted an amend-
ed proposal in order to change the legal basis cited. According to the explana-
tory memorandum to that proposal, as the Lisbon Treaty had extended the 
competence set out in Article  48  TFEU to self-employed migrant workers, 
Article 352 TFEU was no longer necessary as a legal basis.“ That statement is a 
clear indication that the purpose of Article 352 TFEU is „to extend the compe-
tence“ of the EU in cases where no Treaty basis is available – thus pretty much 
the same what the term „increase“ used in Article 48 (6) TEU means.31 Now it is 
true that CJ accepted, in its Opinion No 2/94 of 28 March 1996, point 30, Arti-
cle 308 EC Treaty (or, more precisely, then still, in the pre-Amsterdam version, 
Article 302 EC Treaty), the predecessor of Article 352 TFEU, as „an integral 
part of“ the „institutional system based on the principle of conferred pow-
ers“, thus discerning it on the one hand from the use of an „implied power“ 
(point 29), on the other hand from an Treaty amendment (point 30). When 
assessing the current relevance of this Opinion properly we have, however, to 
take into account that (i) at the point in time when the Opinion was delivered 
there didn’t yet exist „simplified revision procedures“, so that the scope of 
Article 302 (308) EC Treaty was to be compared with what is now called the 
„Ordinary“ Treaty „revision procedure“ (ii) that the aforementioned prohibi-
tion of „increas[ing] the competences“ is now enshrined in Article 48 (6) TEU, 
governing the newly created category of „simplified revision procedures.“
Both elements taken together seem to indicate that the Lisbon Treaty, by 
inserting Article 48 (6) (3) TEU, has exactly prohibited what before had been 
the very purpose of Article 308 EC Treaty. If, however, this finding is correct 
there are very good reasons to assume that Article 352 TFEU, although itself 
amended (by adding limitations in the newly created paragraphs 2 – 432) has 
27 Cit Irmscher (2019), point 1718.
28 For the limits cf CJ’s Opinion of 28 March 1996, No 2/94 (referred to in more detail infra in the 
main text).
29 Whereas the procedure under Article 352 requires in essence only a unanimous decision of 
the Council of the EU, Article 48 (6) TEU needs not only a unanimous decision of the European 
Council, but also an adoption „by the Member States in accordance with their respective consti-
tutional requirements“.
30 Cf for the opposite view already Balthasar-Wach (2020), 342; Balthasar (2017), 203, fn 143a. 
See also Edward/Lane (2013), points 6.52 et seq, in particular 6.54.
31 At least in the German version both documents referred to here use the very same term 
„ausgedehnt“ bzw „Ausdehnung“.
32 Cf Edward/Lane (2013), point 6.52.
CEPAR 2020-02.indd   79 30. 11. 2020   12:05:36
Central European Public Administration Review, Vol. 18, No. 2/202080
Alexander Balthasar
no scope of application at all any more, at least not in the meaning of former 
Article 308 EC Treaty.33
2.1.2 Consequences for Regulation (EC) No 883/2004
Whereas Regulation (EC) No 883/2004 was adopted and entered into force 
long before the point in time when Article 48 (6) TEU entered into force on 1 
December 2009, the Regulation nevertheless only applied from 1 May 2010 
on, when the Implementing Regulation (EC) No 987/2009 – adopted on 16 
September 200934 entered into force.35
The Implementing Regulation itself, however, is based, in the same way as 
the Founding Regulation, i.e. Regulation (EC) No 883/2004, on Article 308 EC 
Treaty. If the reasoning presented supra is correct, then those parts of the 
Founding as well as of the Implementing Regulation based on Article 308 EC 
Treaty lacked a sufficient Primary law basis already from the very beginning 
of their actual operability.
Now it is settled case-law that „[t]e (appropriate) legal base of a measure 
must be in force at the moment of its adoption“36 But apparently when using 
this term, CJ did not have in mind to favour the moment of mere „adoption“ to 
that one of the actual „entry into force“ or even an even longer postponed start 
of „application“; right to the contrary, it held in its Judgment of 4 April 2000, 
C-269/97, Commission/Council, point 45:
„Community measures must be adopted in accordance with the Treaty rules in 
force at the time of their adoption. It would be contrary to the principle of legal 
certainty if, in determining the legal basis of such a measure, account were to be 
taken of an alleged development in relations between institutions which does 
not yet find confirmation in any provisions of the Treaties currently in force or in 
the provisions of a treaty which has not yet entered into force.“
This language fosters the assuption that in case of a discrepancy betwen the 
mentioned three points in time („adoption“, „entry into force“ and „applica-
tion“) as it is the very essence of any „legisative vacancy“ the moment of the 
33 The main counter-argument against the most radical assumption (that no scope at all was left) 
being, of course, that this result would counteract the intention of the „Masters of the Trea-
ties“ to keep this provision, I see a perfectly viable way out: why not accept Article 352 TFEU 
as an explicit Treaty basis for the former doctrine of „implied powers“ (still referred to in 
CJ‘s Opinion No 2/94, point 29) or of applying „analogy“ in order „to fill the gap“ (cit Opinion 
no 2/94, point 29) in case of, in Austrian legal positivism, so-called „purely technical“ „lacunas“ 
(cf Walter [1972], 95 et seq)?!
34 OJ L 286, of 30 October 2009, 1. Is it really pure coincidence that this Implementing Regula-
tion was, after five years of preparation, still adopted only less than three months before the 
entry into force of the Lisbon Treaty – or is this already an implicit admission (at least: worry) 
that adoption under post-Lisbon rules would no longer be possible?
35 Article 91 (2) of Regulation (EC) No 883/2004 read in conjunction with Article 97 of Regulation 
(EC) No 987/2009.
36 Cit Edward/Lane (2013), point 6.49, with references in fn 303; see also CJ‘s Judgments of 28 
July 2011, C-309/10, Agrana, with references in point 31, of 3 September 2015, C398/13 P, 
Inuit, with references in point 22, and of 10 September 2019, C123/18 P, HTTS, with refer-
ences in points 37, 39; Opinion of 18 January 2018 delivered in case C-528/16, Confédération 
paysanne, point 132, with references in fn 40.
CEPAR 2020-02.indd   80 30. 11. 2020   12:05:36
Central European Public Administration Review, Vol. 18, No. 2/2020 81
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
beginning of the actual operability (i.e. when the status of being „currently in 
force“ has been reached) would prevail.37
If that is true, however, the necessary implication would be that (i) the Im-
plementing Regulation had to be declared „invalid“ under the procedu-re of 
Article 267 TFEU38 with regard to those parts based on Article 308 EC Treaty, 
(ii) already by this invalidation all parts of the Founding Regulation based on 
the same legal ground – among those, as said, in particular also the provisions 
concerning family benefits would become inoparable; (iii) what is more, the 
same reasons sufficient for invalidating parts of the Implementing Regulation 
would likewise apply also with regard to the respective parts of the Founding 
Regulation.39
2.1.3 Consequence for Regulation (EU) No 492/2011
In contrast to Regulation (EC) No 883/2004, Regulation (EU) No 492/2011 is 
not based on Article 352 TFEU.40 This fact has to be taken into account when 
interpreting Article 7 (2) reg cit referred to by the Commission41: „Social and 
tax advantages“ must, therefore, not include benefits the prescription of 
which would require to be based on Article 352 TFEU, as it is in particular 
the case with „family benefits“ regarding a posted worker’s family members 
residing in another Member State.
This finding (that „family benefits“are not covered at all by Article 7 [2] of 
Regulation [EU] No 492/2011) is, by the way, backed by „Section 10“, where, 
under the heading „workers‘ families“, we read: „Article 10.
The children of a national of a Member State shall be admitted to that State’s 
general educational, apprenticeship and vocational training courses under 
the same conditions as the nationals of that State, if such children are resid-
ing in its territory. …“
Because
– on the one hand, we find no allusion whatsoever to „family benefits“ in this 
section (which is, compared with the general Article 7, lex specialis)
– on the other hand, exactly the condition that a Member State is responsi-
ble for children of a posted worker only insofar as they reside on its territo-
ry, is explicitly stated here.
37 At this stage of deliberation I fully neglect the consequences which might arise when the new-
ly emerged discrepancy between the „settled case-law“ discussed here and the oppsite view 
adopted with regard to the applicability of the EU Charter of fundamental rights (see infra lit 
B/2) is realized.
38 See supra fn 24. 
39 The only, slight difference between the two regulations is that the Implementing Regulation 
entered into force after 1 December 2009, whereas the founding Regulation, although having 
entered into force prior to this date was only applicable after this date. 
40 The preamble mentions only, although mitigated by an „in particular“, „Article 46“ TFEU.
41 See supra section I/B.
CEPAR 2020-02.indd   81 30. 11. 2020   12:05:36
Central European Public Administration Review, Vol. 18, No. 2/202082
Alexander Balthasar
2.1.4 Conclusion
There are at least very good reasons to assume that not only Regulation (EU) 
No 492/2011 is not at all to be applied to the family benefits here at issue 
(i.e. regarding children not residing in the territory of the Member State called 
on), but that to the very same extent also the application of the Founding 
Regulation (EC) 883/2004 as well as of the Implementing Regulation 
(987/2009) runs counter the post-Lisbon primary law and, thus, had to be 
declared invalid in a reference procedure under Article 267 (1) (b) TFEU.
2.2 Compatibility with Article 24 of the EU Charter of 
Fundamental Rights?
2.2.1 Obtaining family benefits: right of the child or right of the carer?
If, however, contrary to what was suggested in section 2.1, the regulations 
at issue disposed in fact of a sufficient legal basis in the Treaties, , they had 
still to comply with EU fundamental rights, now in particular enshrined in the 
Fundamental Rights Charter (CFR), too.42
With regard to our topic: family benefits, meant to facilitate the maintenance 
of children – is of crucial interest Article 24 CFR, its first sentence (of paragraph 
1) starting with:
„Children shall have the right to such protection and care as is necessary for their 
well-being.“
The main added value of this provision is to underline the position of „children 
as independent rights holders … rather than mere „objects of … law.“43
Already this perspective is not met by the EU regulations at issue44, because 
the right to obtain the „family benefit“ is not perceived at all as a right of the 
respective child him-/herself, but only as one of – roughly speaking – his/her 
carer.45 Or, to be more precise: what is really lacking is to make a difference 
between those kinds of „family benfits“ which 
(i) form, in one way or the other, part of the salary of a carer or are at least, in 
particular via an insurance system, dependent of the status of an economically 
active person and those which 
42 Although the Founding Regulation refers several times to the „[principle of] equal[ity of] 
treatment“ (see recitals 8, 17, 43), its preamble does not yet contain a fully-fledged fundamen-
tal rights compatibility clause (since the relevant policy of the Commission, although having 
already started in 2001, commenced only in 2005, see Benoît-Rhomer [2011], 30; cf also De 
Schutter [2011], 124 et seq), nor does the Implementing Regulation (!).
43 Cit Lamont (2014), points 24.39 (emphasis added), see also Fuchs (2019), points 18, 22, and 
Hölscheidt (2019b), point 18.
44 Also the Austrian law falls still short of this requirement, although only slightly (see infra text 
by fn 107).
45 Cf Article 67 reg cit. This is still a major flaw also in other related fields, e.g. in the „Brussels 
IIa Regulation“ (Regulation [EC] 2201/2003, as amended by Regulation [EU] 2019/1111), cf 
Balthasar-Wach (2020), 63 et seq, 278 et seq, 409). 
CEPAR 2020-02.indd   82 30. 11. 2020   12:05:36
Central European Public Administration Review, Vol. 18, No. 2/2020 83
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
(ii) are handed over by the State (either directly to the child or, still more 
frequently, to the carer with a clear obligation to use this allowance for the 
benefit of the child only).
While within the first category it is perfectly correct to construe the obtaining 
of the „family benefit“ as a right of the recipient of the salary (within the 
horizontal relationship of the employer and the employee46, governed, at least 
to a large extent, by the principle of private [individual or collective] autonomy47) 
or of the insured person (in his/her relationship to the insurance, which is, 
dependent on the status of the owner of the insurance, of a horizontal or of 
a vertical kind), it is totally different within the second category: Even if here 
the direct recipient of the family benefit should still be the carer, it is clear 
that, from a fundamental rights perspective, in this paradigm the carer can 
only serve as a trustee while the real addressee of the social policy measure 
being always and only the child.
2.2.2 Assurance: applicability of the Charter?
But: given the entry into force of the CFR only, as part of the Lisbon Treaty, on 
1 December 2009: which relevance can have a Charter provision with regard 
to the regulations at issue? At first sight we face the very same problem just 
discussed in the previous section: only if the decisive date were the 1 May 
2010 (rather than the previous dates of adoption) reference to the CFR would 
be in conformity with the „settled case-law“ mentioned supra.
Most strikingly, however, this view has not been adopted by CJ: right to 
the contrary, in its famous Judgment of 8 April 2014, joint Cases C-293/12 
and C-594/12, Digital Rights Ireland/Kärtner Landesregierung (and likewise 
in its Judgment of 6 October 2015, C-362/14, Schrems) the Court explicitly 
measured a Directive adopted on 15 March 2006 and a Decision taken by the 
Commission already in 2000 respectively not only against the Data Protection 
46 That this relationship is – at least apart from public service governed by public law – only a 
horizontal one, the employer thus lacking completely the former vertical responsibility of a 
feudal landlord with regard to his subjects, should also be inferred from Article 3 (3) TEU 
where we read that „[t]he Union shall establish … a highly competitive social market econo-
my“; cf for the prevailing of the market paradigm in EU labour market law implying right from 
the beginning that employees are best served by their ability to move themselves, i.e. to make 
best use of the competition among employers on the labour market, Barnard (2011), 642 et seq. 
It may, however, very well be that just the subsequent aim „at creating“ straitforwardly „an 
integrated European labour market … rather than correcting its outcomes in line with“ „more 
traditional“ „political standards of social justice“ (cit Barnard, ib, 645; emphasis added) worked 
in the opposite direction (as it is nowadays the case in particular with Article 3 [1a] of Directive 
96/71/EC as amended by Directive [EU] 2018/957 [OJ L 173, 16]), thus blurring the border and 
charging enterprises again directly with the implementation of social policy goals even without 
any underlying collective agreement (see next fn), at least not with one in the bargaining of 
which the respective enterprise had been represented.
47 Private autonomy implies that – at least within reasonable limits and provided an equal foot-
ing – the contracting parties are free to agree on the elements of their contract. Hence, apart 
from purely synallagmatic elements, also other considerations may gain ground, in particular 
as a result of collective bargaining between the social partners (see, e.g., infra fn 65). 
 That is also why it is – in both directions – inappropriate a limine to compare régimes applied in 
the public service (of EU or in Austria) regarding „family benefits“ or allowances of living costs 
with measures of general social policy.
CEPAR 2020-02.indd   83 30. 11. 2020   12:05:36
Central European Public Administration Review, Vol. 18, No. 2/202084
Alexander Balthasar
Directive, but also against fundamental rights enshrined in the CFR48 (at least, 
as it was the case in the second Judgment, by reading secondary law „in the 
light of Articles 7, 8 and 47 of the Charter …“49). While being perfectly true 
that neither the Judgments nor the Opinions pondered on this problem of 
the applicability of the CFR ratione temporis50, it may, in this context, suffice 
to have established that, apparently, Article 24 CFR would at any rate bear 
relevance for the CJ also with regard to regulations here at issue.51
2.2.3 Conclusion
Also from a fundamental rights perspective the current regime of family 
benefits (relating them in first line to the migrant worker instead of directly 
to the child) is, most probably, outdated in the post-Lisbon world. 
2.3 Compatibility with Article 9 TEU/Article 20 (1) TFEU?
2.3.1 The former „core principle“ and its subsequent counterweight
As already put forward at length about ten years ago52, the former „core 
principle“ („Leitmotiv“) of the EC Treaty, the prohibition of „any discrimination 
on grounds of nationality“, although still forming part even of post-Lisbon 
EU primary law53, has been counterweighted54 already by Article 2 point 9 of 
Part One of the Treaty of Amsterdam inserting a clarification55 added to the 
48 Cf Digital Rights Ireland/Kärtner Landesregierung, points 32 et seq (the heading right before 
point 32 runs: „Interference with the rights laid down in Articles 7 and 8 of the Charter“).
49 Cit Schrems, ruling No 1; cf also points 67, 73, 78, 99.
50 One argument in favour of the Court‘s implicit position could be found in the fourth para-
graph of the preamble to the CFR where we read that the purpose of the Charter was not to 
create new law but only to make already existing one „more visible“.
51 Cf, however, in the same vein ECJ’ s Judgment of 11 July 2002, C-224/98, D‘Hoop, point 25 
(„The provisions on citizenship of the Union are applicable as soon as they enter into force. 
Therefore they must be applied to the present effects of situations arising previously “), still 
reproduced in CJ’ s Judgment of 21 December 2011, Joined Cases C424/10 and C425/10, 
Ziolkowski/ Szeja, point 58).
52 See Balthasar (2011), 44, 51 – 75.
53 Cf not only Article 18 TFEU, but also Article 21 (2) CFR.
54 The formal link enabling the coexistence of these two opposite principles – which fact, by the 
way, excludes now a limine an „absolute“ understanding of the former „Leitmotiv“, as had 
indeed been argued before (cf Balthasar [1998], 160 et seq, referring to v. Bogdandy’s then 
given overview in fn 58, and to ECJ’s Judgment of 12 February 1985, C-293/83, Gravier, points 
12 et seq; see in more detail infra section III/C) and, apparently, is still maintained by Obwexer 
(2019), 969 – is provided by the clause „without prejudice to any special provisions contained [in 
the Treaty/-ies]” forming part of Article 21 (2) TFEU and all its predecessors, back to Article 7 
(1) EC Treaty (original version). What is more, “without prejudice” stipulating the prevalence 
of “any special provision”, the former “Leitmotiv” itself now admits its subordinate role with 
regard to the role of the “national citizenship”. When stating this we do not ignore that CJ 
still long after Amsterdam (in fact, this case-law – which might have been an appropriate inter-
pretation of Article 8 of the EC Treaty [Maastricht version] did only start after Amsterdam [!], 
see Judgment of 20 September 2001, C-184/99, Grzelczyk, point 31; neither Shaw [2011], 576, 
nor Obwexer, ib, 958, 964, do cite a more ancient judgement) failed to give credit to this clear 
change of primary law when ruling that “the status of citizen of the Union is destined to be the 
fundamental status of nationals of the Member States” (cit Judgment of 26 February 2015, 
C-359/13, Martens, point 21; Judgment of 2 June 2016, C-233/14, Commission/Netherlands, 
point 75; Opinion of 10 May 2016, delivered in case C-182/15, point 36). Having, however, not 
found more recent examples, this negative fact could indeed indicate recently increased caution 
of the CJ triggered perhaps by the step back carried out by the Judgement of 11 November 2014, 
C-333/13, Dano, points 61 et seq (cf Obwexer, ib, 966 et seq).
55 When reading in particular point 63 of the Opinion given by GA Léger in C-214/94, Boukhalfa 
(„If all the conclusions inherent in that concept are drawn, every citizen of the Union must, what-
CEPAR 2020-02.indd   84 30. 11. 2020   12:05:36
Central European Public Administration Review, Vol. 18, No. 2/2020 85
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
definition of the „Citizenship of the Union“ stating that this „shall be addi-
tional to and not replace national citizenship.“56
2.3.2 Synthesis
When applying this insight to the assessment of the regulations here at is-
sue it seems that a fair balance between these two opposite principles57 would 
require – quite alongside what CJ had said (though not motivated properly) in 
Dano58 – to differentiate59 between (i)the function of citizenship of the Union 
to „open doors“, i.e. to entitle a national of one Member State to make best 
use of the freedoms of the single market, or to take residence even without 
such a purpose in another Member State60, (ii) the function of domestic na-
tionality to provide the necessary support, in particular when it comes to the 
allocation of financial ressources of a Member State61 which, belonging to this 
ever his nationality, enjoy exactly the same rights and be subject to the same obligations“; 
emphasis added) we might be inclined to conclude that the Masters of the Treaties had ex-
actly in mind to negate Léger’s far reaching consequences; most remarkably, Obwexer (2019), 
958, although referring to this Opinion, apparently fails to see this correlation. Cf, however, 
also infra section III/D.
56 Cit Article 9 third sentence TEU and Article 20 (1) third sentence TFEU: Article 17 second sen-
tence of the EC Treaty (Amsterdam version) had, only slightly different: „Citizenship of the 
Union shall complement and not replace national citizenship.“
 Most strikingly, CJ did not even make use of this amendment when restricting its original for-
mula in Dano (see previous fn but one); hence the (most reasonable) reasoning there lacks any 
primary law argument. But also doctrine has up to now shown remarkable reluctance to take 
notice of this primary law change: so we find no reference at all to the sentence cited in the 
main text (enshrined twice in the Treaties!) in the comments of Kilpatrick (2014), Hölscheidt 
(2019a) or Köchle (2019) to Article 21 (2) CFR; Obwexer (2019). Not even Edward/Lane (2013) 
who stress the “derived”, even “parasitic” (!) nature of the status of a Union citizen (point 8.06) 
reconcile this insight with the traditional non-discrimination doctrine reproduced some pages 
before (cf points 8.02 – 8.04), whereas Shaw while indeed addressing the wording explicitly 
(ib, 598 et seq; emphasis added) remains dogmatically remarkably vague, although referring 
„that“ it was meant by the Masters of the Treaties to „reinforce … that EU citizenship… can-
not detract from national citizenship“ (which finding can be easily understood in the sense 
that Member States’ responsibilities with regard to their own citizens may not be diminished by 
the additional status of a Union citizen).
57 See Balthasar (2011), 64 et seq, in particular 67 et seq.
58 See supra fns 54, 56. 
59 In contrast to the ECHR Article 1 of which clearly defines (alongside the criterion of „jurisdic-
tion “) which State is the addressee of a human rights obligation, Article 51 CFR lacks such a 
provision. This lacuna can, however, be filled exactly by referring to the sentence just cited 
in the main text. Consequently, the main addressee also with regard to fundamental rights 
enshrined in the Charter is always the citizen ‘s own Member State (with in principle unlimited 
competence), whereas obligations of another Member State need a specific reason (either, in 
particular with regard to rights covered by Article 52 (3) CFR, Article 1 ECHR or a specific link 
to the Treaties) and are are always limited in scope.
60 This function is perfectly met by Articles 7 and 10 of Regulation (EU) No 492/2011.
61 This crucial question (why it should be solely the host Member State’s task, not primarily the 
home Member State’s to facilitate the position of a Union citizen aiming at taking advantage 
of the freedoms of the single market) was still left open in ECJ’s reasoning in its Judgments of 
22 February 1990, C-228/88 , Bronzino (point 12) as well as of 6 October 1995, C-321/93 , Mar-
tinez (point 21), apparently, answered – in the direction contrary to Pinna I (see infra section 
3.1 and 3.2)– by the Masters of the Treaties in Amsterdam and Lisbon (and, finally, accepted, 
although in a dogmatically still deficient way, by CJ in Dano [fn 54]).
CEPAR 2020-02.indd   85 30. 11. 2020   12:05:36
Central European Public Administration Review, Vol. 18, No. 2/202086
Alexander Balthasar
State‘s property, are, at least predominantly, destined to be used to the ben-
efit of the respective State’s members, i.e. its nationals.62
2.3.3 Conclusion
From that perspective, however, it would be hard to see why a Member State 
where a carer of a child resides should be responsible for this child at all even 
in case where neither the carer nor the child are nationals of that Member 
State and, furthermore, the child does not even reside in that Member State. 
Most interestingly, however, despite the understanding of this regulation by 
the Commission, we will see (infra in section 4.2) that this regulation indeed 
contains elements fully compatible with the perspective presented here.
2.4 Compatibility with the „principle of equal treatment “
2.4.1 The general principle
According to settled case-law of CJ, the principle of equal treatment (since 
Lisbon also enshrined in Article 20 CFR) „requires that comparable situations 
must not be treated differently and that different situations must not be 
treated in the same way unless such treatment is objectively justified.“63 
2.4.2 The application to the specific case at issue
In my view, Article 7 of the Founding Regulation cited supra infringes exactly 
this duty to differentiate64 not only with regard to the examples already men-
tioned supra (2.2.1 and 2.3.3), but also when compulsorily prohibiting any re-
duction of benefits, according to the actual residence of family members the 
support of whose living situation is the very aim of the „benefit“ at issue: 
In sharp contrast to synallagmatic parts65 of a salary (wage/remuneration) or 
even of an insurance system (with regard to unemployment, illness or old-
age pension) predominantly based on individual contributions66, the granting 
of „benefits“ is not at all dependent on the individual performance (output, 
62 To this reasoning two primary law based arguments may be added:
(i) That financial solidarity among Member States (as well as betwen the Union as a whole 
and Member States) is limited has been explicitly enshrined in Article 125 TFEU (afterwards 
only narrowly extended by Article 136 (3) TFEU); also separate action of Member States is 
limited, cf CJ‘s Judgment of 27 november 2012, C-370/12, Pringle, points 135 et seq).
(ii) Provisions as Article 43 TEU or Article 126 (1) TFEU or Decisions as those based on Article 
311 TFEU (cf in particular Article 2 (b) of Council Decision 2007/436/EC, EURATOM) would 
be distorted if substantive secondary legislation were free to charge Member States with 
additional financial burdens.
63 Cit Judgment of 28 November 2019, C593/18 P, ABB, point 83 read in conjunction with point 84.
64 It may well be that this duty sometimes is neglected; cf, parte pro toto, Obwexer (2019), who, 
after having correctly reproduced the full formula (957) concludes: „Daraus resultiert ganz 
allgemein ein Verbot unsachgemäßer Differenzierung“, thus omitting completely the comple-
mentary half (the prohibition given emphasis in the main text).
65 These parts are governed by the principle of „iustitia commutativa“.
66 Obviously in every insurance system an aleatory moment (whether the payer of contributions 
will ever receive any equivalent in return) is inherent; but if the conditions for claiming are met 
the provision of the equivalent follows the paradigm of synallagma.
CEPAR 2020-02.indd   86 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/2020 87
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
outcome) of the recipient, but of his/her specific need.67 So Commissioner 
Thyssen was simply wrong when invoking the principles of „fairness and equal 
treatment“ as an argument against „indexation“, while exactly the opposite 
is true: 
When the essential yardstick is the actual need, then we have to assess 
(measure) this need and to grant the help („benefit “) according to the 
actual amount of this need. Put it that way, it would run directly counter this 
principle of equal treatment to treat different living costs „in the same way“.68 
Apparently exactly this view was also taken by the European Council (and the 
European Commission!) when assessing in February 2016 that indexation 
according to the „Member State where the child resides“ is „fully compatible 
with the Treaties.“
2.4.3 Further arguments
In this respect it is really telling that the Commission now argues69 that „The 
fact that another Member State is considered to have lower cost of living than 
Austria is of no relevance for a benefit, which is paid out as a lump sum and is 
not linked to the actual cost of maintaining a child.“
Because on the one hand the Commission seems to admit that if the benefit 
were actually „linked to the actual cost of maintaining a child“ the Austrian 
position were correct also from an EU perspective; on the other hand the 
Commission seems to underestimate the needs of legislation, in particular 
in a democratic state, being not only under technocratic pressure of standar-
dizing, but also of applying rather an egalitarian yardstick, in particular when it 
comes to benefits which are addressed to hugh parts of the population.
So the pure fact that the Austrian family benefit is not shaped individually in 
each particular case is not enough to show that there is no link whatever to 
the specific needs of families living in Austria. 
Even if, however, the Commission’s finding were true70, exactly the opposite 
conclusion had to be drawn, the principle of equal treatment (forming part of 
Austrian national law as well as of EU law) requiring the proper adjustment 
of the benefit (as stipulated by the Commission itself in early 201671), not to 
aggravate the discrepancy between the „lump sum“ and the factual situation.
67 These parts are governed by the principle of „iustitia distributiva“. A well-known example is the 
„individual right to parental leave“ enshrined in Clause 2 (1) of the „Framework Agreement“ of 
18 June 2009 put into effect by Article 1 of Council Directive 2010/18/EU of 8 March 2010, OJ 
L 68, 13, which entitles everybody „on the grounds of the birth or adoption of a child to take 
care of that child …“: On the one hand, nobody can make use of this right who is not in the 
specific position mentioned; on the other hand, in the whole Agreement synallagmatic parts 
play only a minor role (cf in this regard mainly Clause 3 [b]).
68 From this perspective it does not help either that – as Commissioner Thyssen put forward – all 
recipients payed taxes and contributed to the social insurance system: this is also the case 
with employees (self-employed persons) who have no family at all to take care of and, thus, 
have no right at all to any „family benefit“.
69 See supra section 1.2, but also, for the source of this idea, infra section 3.2.
70 See, however, in more detail infra section 4.1.
71 See supra section 1.3.
CEPAR 2020-02.indd   87 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/202088
Alexander Balthasar
2.4.4 Conclusion
It is not the Austrian position, but, in contrast, the one taken by the Com-
mission, which infringes the principle of equal treatment – if, correctly, this 
principle is not understood in the way Procrustes did (i.e. treating different 
situations alike) but, right to the contrary, as a binding commandment to dif-
ferentiate properly between different situations: i.e. treating synallagmata 
(salaries/insurance claims, following the paradigm of iustitia commutativa) 
and benefits meant to cover actual need (following the paradigm of iustitia 
distributiva) not alike, but differently.
3 The flash back
3.1 Article 40 Regulation (EEC) No 3, Article 73 Regulation (EEC) 
No 1408/71 and ECJ’s Judgment of 15 January 1986, Case 
41/86, Pinna I
Already in the very first chapter of our story, we find a model quite similar to 
the currrent Austrian indexation model72, „Article 40 of Regulation No 3 of 
the Council of the EEC of 25 September 1958 concerning social security for 
migrant workers …“73 having „provided that: ‘A wage-earner or assimilated 
worker who is employed in the territory of one Member State, and has children 
who are permanently resident or are being brought up in the territory of another 
Member State, shall be entitled, in respect of such children, to family allowances 
according to the provisions of the legislation of the former State, up to the 
amount of the allowances granted under the legislation of the latter State’.“74
Although „13 years later Regulation 1408/7175 recast that provision“76, this re-
cast was not a general one: Instead, „Article 73 (1) of Regulation No 1408/71 
provide[d] that: ‘A worker subject to the legislation of a Member State other 
than France shall be entitled to the family benefits provided for by the legisla-
tion of the first Member State for members of his family residing in the terri-
tory of another Member State, as though they were residing in the territory 
of the first State’“, whilst for workers subject to French legislation“ – and thus, 
as we may fairly safely assume, for a quite considerable subset of workers 
posted in the then European Economic Community the former regime was 
kept.77
72 Although it is true, from a mere technical point of view, that the Austrian indexation depends 
on a decision of Austrian legislation only, whereas the former model of Regulation No 3 com-
bined the legislation of two Member States, the underlying ratio: to meet the actual need – is 
the same (under the premiss that national legislation is in the best position to assess the real 
amount of need on its own teritory).
73 OJ of 16 December 1958, 561.
74 Cit Opinion delivered in Pinna I, point 3 (we make here use of this quasi-official translation the 
original text having not been published in English; emphasis added).
75 OJ L 149 of 5 July 1971, 2.
76 Cit Opinion delivered in Pinna I, point 3.
77 Article 73 (2) reg cit ran: „A worker subject to French legislation shall be entitled, in respect 
of members of his family residing in the territory of a Member State other than France, to 
the family allowances provided for by the legislation of such Member State; the worker must 
CEPAR 2020-02.indd   88 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/2020 89
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
This „dual system“78 – and, thus, the original régime with regard to workers 
posted79 in France80 lasted unaffected (though not fully undisputed81) until ECJ’s 
Judgment of 15 January 1986, Case 41/84, Pinna I, by which Article 73 (2) reg 
cit was declared „invalid in so far as it preclude[d] the award to employed 
persons subject to French legislation of French family benefits for members 
of their family residing in the territory of another Member State.“ Still in the 
proceedings before the Court, however, not only the French government, 
but also the Commission and the Council firmly defended the conformity of the 
contested provisions with EEC primary law, while it was only the Advocate 
General (of Italian nationality) who, fully in line with the Italian claimant82 of 
the main proceedings and the Italian (and Greek) government, considered the 
principle enshrined in Article 73 (2) reg cit as such as well as discriminatory and 
as lacking sufficient justification.
The Court, however, shared this view of the Advocate General, finding not 
only that the difference made in this provision between France and the other 
Member States (i.e. the „dual system“) was contrary to the Treaty’s aim83 , but 
also that it amounted to a „covert discrimination.“84
But even then the story had not yet come to an end: it needed a second 
judgement (of 2 March 1989, Case 359/87) to secure compliance of French 
administration with the régime of Article 73 (1) reg cit.85
satisfy the conditions regarding employment on which French legislation bases entitlement 
to such benefits.“
78 Cit Opinion delivered in Pinna I, point 3.
79 For the formal applicability of this provision also with regard to French nationals see infra text 
by fn 85.
80 For the close vicinity of the current Austrian with the former French approach cf also supra fn 1.
81 Cf Opinion delivered in Pinna I, point 3: „Member States themselves considered that the re-
sultant dual system should be superseded, and in Article 98 (now Article 99) of Regulation No 
1408/71 they determined that within two years the Council should, on a proposal from the 
Commission, take steps to amend it. In the result, the Commission played its part: it submit-
ted an initial proposal on 10 April 1975 (Official Journal C 96, p. 4), which was followed on 15 
January 1976 by the submission to the Council of a second proposal taking into account the 
amendments suggested by the Economic and Social Committee (Official Journal C 286 of 24 
September 1975, p. 19) and by the European Parliament (Official Journal C 257 of 14 October 
1975, p. 10). The proposal recommended that there should be a single system for the grant 
of family benefits and that the general criterion for coordination to be adopted to that end 
should be the law of the State in which the worker was employed. That proposal remained 
on the agenda for several Council meetings and was most recently considered at the informal 
Council meetings held in September and November 1983. Yet again, however, it was not pos-
sible to come to a unanimous decision in accordance with Article 51 of the Treaty. 5“.
82 This appearance of bias would better have been avoided, „in accordance with the adage ‘jus-
tice must not only be done, it must also be seen to be done’“ (cit – in another context Opin-
ion delivered in Atanas, point 78; apparently, the adage dates back to High Court England & 
Wales‘ Judgement of 9 November 1923, Rex v Sussex Justices, Ex parte McCarthy: „… a long 
line of cases shows that it is not merely of some importance but is of fundamental importance 
that justice should not only be done, but should manifestly and undoubtedly be seen to be 
done“)).
83 Cf points 21 et seq. 
84 Cf point 23.
85 The subsequent cases Bronzino and Martinez, both with regard to Germany (and in favour of 
again an Italian [C-228/88] and a Spain [C-321/93] worker respectively posted abroad), how-
ever, indicate that it was not only the French administration which opposed the strict line of 
Pinna I.
CEPAR 2020-02.indd   89 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/202090
Alexander Balthasar
3.2 The Advocate General’s arguments in Pinna I
By contending itself to state the obvious (that the provision at issue, although 
formally applicable also with regard to French nationals, was „by no means 
equally important for that category“86), the Court only proved the element 
of „covert“, but failed to provide any argument why the contested régime 
discriminated against workers whose children reside abroad or, to put it dif-
ferently, why it was not even permitted, not to speak of beeing mandatory, to 
apply the legislation of the state of residence of the family members for the 
shaping of the appropriate amount of family benefits. When, therefore, con-
sulting the Opinion for guidance, we find indeed a couple of arguments, the 
quality of which shall be discussed here in detail:
– Quite convincing (at least in the pre-Lisbon era) is, in my view, only the hint 
that by virtue of other provisions French law family members of a French 
national staying abroad could still benefit from the full amount of the 
allowance paid in France.87
– Already much less convincing are, however, the arguments completing the 
assessment of „covert discrimination“:
– „[i]n reality“ family benefits „in particular“ were not tailored „specifically 
and directly to the cost of maintaining a family“, but „an element supple-
mentary to basic pay“
– as also „tax deductions for maintenance of dependants“had to be taken 
into account, „[i]f the criterion of the country of residence were applied 
the worker would run the risk of paying tax in full while … receiving 
lower levels of benefit.“88
Even if we refrain from leaving aside a limine the first argument due to the 
fact that, if taken seriously, it would deprive the term „family benefit“ of 
any reasonable meaning89, this first argument would devaluate the second 
one: because, even when „family benefits“ paid by a specific State are meant 
to compensate in a broader sense not only for a level of wages felt to be 
inappropriately low, but also for deficiency of specific tax reductions, this 
State will, when assessing the situation, most probably take into account the 
„cost-of-living situation“ in its own territory, thus not targeting the situation 
of a posted worker whose family lives abroad.
86 Cit Pinna I, point 24. 
87 Cf point 6 B. If that were true French law would indeed favour its own nationals, treating them 
better than foreigners exactly in the situation that family members reside abroad. While such 
additional care for the nationals of a Member State may now be founded in Article 9 third 
sentence TEU/Article 20 (1) third sentence TFEU (see supra section 2.3), the assessment was, 
most probably, different before the creation of these provisions.
88 Cf point 7.
89 Even if the reference made in the Opinion to political practice (that, „as actually happened in 
Italy“, „a given State offsets the low level of wages … by sharply increasing family benefits“ 
[cit point 7]) were true that specific political practice could only be categorized as an abuse, 
for that reason alone not appropriate to serve as a premise for further legal reasoning. So 
the fact that the European Commission when referring the most recent Austrian case to CJ 
explicitly takes up this argument (see supra section 1.2) indicates the lack of better arguments 
and, thus, the inner wekness of the Commission’s position.
CEPAR 2020-02.indd   90 30. 11. 2020   12:22:46
Central European Public Administration Review, Vol. 18, No. 2/2020 91
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
Although we may understand the then preference for the State of „locus la-
boris“ as the relevant reference90, it seems to be outdated today in several 
respects:
– On the one hand, increase of double income parents (due to several reasons, 
among them female emancipation) increases the risk that there is, with 
regard to family benefits, not only one, but (at least) two loci laboris in two 
different Member States, while permanent residence of children is much 
more likely to be located only in one Member State
– On the other hand, free movement within EU territories is, already since Ma-
astricht, no longer restricted to „workers “or any other form of professional 
activity, but open to all citizens of the Union as such, irrespective of any other 
element. Economically inactive citizens, however, lacking a „locus laboris“, 
there is, with regard to them, no other „choice“91 than to refer to the State 
of residence (or, horribile dictu, of nationality). In this case, however, it is not 
only hard to see why, with regard to family benefits, the primordial referen-
ce should not be the State of reference where the family members reside 
(the nationality of which they have), but that of a pater (or mater) familias 
living in splendid isolation apart from his/her family; what is more, keeping 
for posted workers the responsibility of the „locus laboris“would mean to 
reintroduce exactly that sort of a „dual system“ then rejected in Pinna I.
So, even if one could understand the reasoning of the time when Pinna I was 
delivered, subsequent change of the factual as well as of the primary law situ-
ation seem to require nowadays the opposite assessment.
Finally, even if still in 1986 a court (or, in our case, an advocate general) were 
in the position to downsize, quite relaxedly, the financial implications of a 
specific interpretation of EU law for a specific Member State92, the language 
of Dano93 is now a different one.94
3.3 ECJ’ s Judgment of 12 February 1985, C-293/83, Gravier, and 
its offspring
Pinna I is by no means the only judgement where ECJ tempted to establish 
a rigid régime of disregard of factual cross-border differences, piling up all 
responsibility of facilitating the mobile citizen’s situation solely on the host 
Member State: A quite famous example of this species being Gravier95, we see, 
however, also the inherent limits of such an approach:
90 Cf Opinion in Pinna I, point 5.
91 Cf Opinion in Pinna I, point 6 A.
92 Cf Opinion, point 7: „… the finances of the French Republic do not seem to be threatened to 
such an extent as to warrant a special rule …“
93 See supra fn 54.
94 Cf points 71 („to prevent such persons from becoming an unreasonable burden on the social 
assistance system of the host Member State“), 74.
95 Despite the factual differences between the situation of home and guest students pointed 
out by the Belgian (federal and self-government) authorities (point 12) and disregarding also 
the „concerns“ expressed by the Danish and the UK government (point 16) ECJ reduced the 
problem of providing State infrastructure (having to be financed either by taxes or by indebt-
CEPAR 2020-02.indd   91 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/202092
Alexander Balthasar
Still 25 years later, the very same question (in essence, with only superficial 
modifications) was again referred to the Court, by the same country and by 
another one, and CJ had this time at least to modify somewhat its former, fully 
intransigent position.96
3.4 Conclusion
When suming up we realize that even in the merry old days of formally 
undisputed reign of the „Leitmotiv“ it was more often than not mitigated 
(Article 40 of the Regulation [EEC] No 3 or circumvented (Article 73 of the 
Regulation [EEC] No 1408/71), whereas a rigid execution of the principle 
of non-discrimination on grounds of nationality had to be either based on 
a rather doubtful97 or at least now outdated98 reasoning (Pinna I) or raised 
problems not to be overcome for decades (Gravier).99
So when assessing this background – the poor quality of the core arguments 
of what is still nowadays the Commission’s position even under the pre-Am-
sterdam paradigm – we understand perhaps better why the Masters of the 
Treaties felt motivated (and legitimated) to downgrade the bearing of the 
„Leitmotiv“ in the Treaty of Amsterdam – only a decade after Gravier and Pin-
na by adding explicit limitations.100 
A fortiori101 there is no legitimation whatsoever any more to rely on this case-
law still in the post-Lisbon world.
4 The Austrian law on „family benefits“ measured against 
the yardstick of the Founding Regulation
4.1 The Act of 24 October 1967 (current version) itself
As already mentioned, this Act is based on the federal competence for de-
mographic policy, enshrined in Article 10 (1) (17) of the Federal constitution 
(Bundes-Verfassungsgesetz; B-VG). Clearly enough, this policy aim was meant 
ment, the liability for both instruments being much more likely borne by nationals and perma-
nent residents than by mere hosts of the respective country) to the – very naïve – difference 
„that the cost of higher art education is not borne by students of Belgian nationality, whereas 
foreign students must bear part of that cost“ (cit point 14).
96 See in more detail Balthasar (2011) with regard to Belgium [Bressol [C-73/08]) and to the par-
allel situation in Austria.
97 See supra text after fn 88.
98 See supra text after fn 91.
99 Also Dano (see supra fn 54) might be mentioned in this context because CJ declined, as stated, 
to enforce the „Leitmotiv“ without any valid legal argument, just giving in to common sense 
(arg „unreasonable“, cf fn 92).
100 While it may very well be that the immediate cause of reaction had been the Opinion of GA 
Léger referred to supra in fn 55, we see now the whole background.
101 Cf the additional arguments rooted solely in the Treaty of Lisbon and mentioned already 
supra section 2.1 and 2.2.
CEPAR 2020-02.indd   92 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/2020 93
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
to foster the reproduction of the Austrian population (not that of the EU in 
general)102, understood in a double sense:
– All people residing permanently and lawfully in Austria (carer as well as 
children)103
– Austrian citizens with regard to their children if their link to Austria is still 
closer than to any other State.104
Entitled are not only economically active persons, but everyone, by the sole 
virtue of either being a carer of a (minor) child105 or being an orphan.106
That in essence it is the child itself who is the entitled person is shown by 
paragraph 14 (1), whereby a child after having come of age may claim to obtain 
the benefit him/herself. However, this modern idea has still not yet been 
realized perfectly insofar as subparagraph 2 requires the consent of the 
(former) carer.107
The actual amount of the benefit differs also apart from the „indexation“ 
here at issue108 in various dimensions (is, therefore, not simply a „lump sum“ 
as the Commission has put it109):
– pursuant to paragraph 5, separate income of a child (maintenance by a 
spouse included) may bar the access completely
– pursuant to paragraph 8 (1), the benefit depends of the number of children 
in a family and of their respective age110
– pursuant to paragraph 8 (4), the amount of benefit is increased in case of a 
disabled child
102 Although ECJ had already ruled on 10 October 1978 in Case 237/78, Caisse … Lille, point 
15, that „Regulation No 1408/71 does not make any distinction between the social security 
schemes to which it applies according to whether those schemes do or do not pursue objec-
tives of demographic policy“ (a fact hinted to also in the Opinion delivered in Pinna I, point 7) 
this specific aspect is now again relevant under the current Regulation (EC) No 883/2004, in 
particular its Article 70, see infra sections 4.2 and 4.3.
103 Cf paragraphs 2 (1), 3 (1), (2), 5 (3).
104 Cf paragraph 2 (8), 5 (3).
105 Cf paragraph 2 (1).
106 Cf paragraph 6.
107 In principle, however, this consent might be enforced by a civil law court.
108 See supra section 1.1.
109 See supra section 1.2.
110 Cf, however, also paragraphs 2s (2) et seq and 6 respectively, with regard to the conditions 
required for extending the payment after the child having come of age (until having reached 
the age of 21 or of 24 at the latest), as well as paragraph 32 et seq, concening a specific aid 
for babies (dependent on the income of the carer) and paragraph 38d et seq, concerning a 
„bonus“, dependent on the one hand oft he income oft he carer, on the other hand whether 
the child had been proprerly presented to medical examination.
CEPAR 2020-02.indd   93 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/202094
Alexander Balthasar
– The general benefit is completed111 by quite detailed allowances on public 
transport (only partly full free ride is granted)112, free access to school 
books113, special grants in case of individual need.114
Contributions for these benefits flow, in a rather complicated way, from several 
sources; in essence, however, it is partly a specific levy imposed on (industrial 
and agricultural) enterprises (not, however, directly on employees!), partly a 
share of general tax revenues.115
4.2 The Regulation (EC) No 883/2004
While it is true that we start reading in the 16th recital of Regulation (EC) No 
883/2004:
„Within the Community there is in principle no justification for making social 
security rights dependent on the place of residence of the person concerned;“ 
the second part of this recital runs as follows:
„nevertheless, in specific cases, in particular as regards special benefits linked 
to the economic and social context of the person involved, the place of 
residence could be taken into account. “
This ambiguity (apparently paying already some tribute to the shift of primary 
law demonstrated supra in section 2.3) is also present in the operative part of 
this regulation:
– whereas Article 4 and in particular the abovementined Article 7 as well as 
Article 11 (3) (a)116 and 67117 speak the language of the first half of recital No 
16,
– the priority rules enshrined in Article 68 seem to be much more inspired 
already by the post-Amsterdam/post-Lisbon logic:
– Paragraph 1 lit a of this Article states that „the order of priority shall be 
as follows: 
– firstly, rights available on the basis of an activity as an employed or 
self-employed person, 
– secondly, rights available on the basis of a pension and
– finally, rights obtained on the basis of residence; “
111 Clearly enough, by its very nature at least the allowances on ride and school books are con-
fined to children atttending a school (or an apprenticeship) in Austria.
112 Cf paragraphs 30a et seq.
113 Cf paragraphs 31 et seq.
114 Cf paragraphs 38a et seq.
115 Cf in detail paragraphs 39 et seq.
116 Article 11 (2) continues to favour the principle of the prevalence of (as GA Mancini put it in 
Pinna I) the „locus laboris“ (see supra fn 91; for objections based on the current state of Union 
law see supra section III/B after the mentioned fn).
117 Pursuant to this provision „a person pursuing an activity as an employed or self-emploey per-
son in a Member State shall be subject to the legislation of hat Member State; …“
CEPAR 2020-02.indd   94 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/2020 95
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
–	 lit	b	(iii)	of	this	Paragraph	adds	that	„in	the	case	of	benefits	payable	by	
more than one Member State on the basis of residence“ it is „the place 
of residence of the children“ which matters.
–	 Paragraph	 2	 excludes	 explicitly	 any	 obligation	 of	 even	 only	 paying	 a	
„differential	supplement“„for	children	residing	in	another	Member	State	
when	entitelment	to	the	benefit	in	question	is	based	on	residence	only“.
In addition, pursuant to Article 70 (1) - (3) reg cit its Article 7 and all „special 
provisions	concerning	the	various	categories	of	benefits“	of	Titel	III	shall	not 
apply to „special non-contributory cash benefits which	are	provided	under	leg-
islation	which,	because	of	its	personal	scope,	objectives	and/or	conditions	for	
entitlement,	has	characteristics	both	of	the	social	security	legislation	…	and	
of	social	assistance“,	are	intended	to	provide“	inter	alia	„supplementary,	sub-
stitute	or	ancillary	cover	against	the	risks	covered	by	the	branches	of	social	se-
curity	referred	to	in	Article	3	(1),	and	which	guarantee	the	persons	concerned	
a	minimum	subsistence	income	having	regard	to	the	economic	and	social	situ-
ation	in	the	Member	State	concerned“	and	„where	the	financing	exclusively	
derives	from	compulsory	taxation	intended	to	cover	general	public	expendi-
ture	and	the	conditions	for	providing	and	for	calculating	the	benefits	are	not	
dependent	on	any	contribution	in	respect	of	the	beneficiary	…“	provided	that	
the	respective	benefit	is	„listed	in	Annex	X“.
4.3 The Austrian Act measured against the yardstick of 
Regulation (EC) No 883/2004
When	carefully118 assessing the Austrian legislation (section 4.1) against the 
yardstick	of	the	Regulation	(section	4.2),	one	could	be	tempted	to	qualify	the	
Commission’s	referral	as	not	much	more	than	a	veritable	„tempête	dans	un	
verre	d’eau”:
–	 The	Austrian	benefits	–	at	 least	 in	 the	category	at	 issue	 (claim	of	a	non-
-Austrian	citizen	of	the	Union	living	in	Austria	for	obtaining	Austrian	family	
benefits	for	children residing in another Member State)	depending	solely	on	
the	criterion	of	residence	(on	Austrian	territory),	 it	 is,	on	the	basis	of	the	
priority	rules	enshrined	in	Article	68	(paragraph	1	lit	a	in	conjunction	with	lit	
b	[iii])	de	facto	impossible	that	Austria	should	ever	be	the	competent	State	
for	paying	family	benefits	at	all119, the more so, when also paragraph 2 is 
applied.
118 As	far	can	be	inferred	from	the	reasons	given	in	the	abovementioned	(fn	22)	referring	Deci-
sion	of	the	Austrian	Federal	Tax	Court	(cf	p.	16	et	seq),	Austrian	practice	
(i) fails,	up	to	now,	to	apply	Article	68	(2)	reg	cit
(ii) ignores	the	specific	relationship	between	Article	53	(1)	of	the	national	Act	and	Article	68	
reg cit (see next fn).
119 Even	Article	53	(1)	of	the	national	Act,	providing	that	
(i) nationals	of	Constracting	Parties	of	the	European	Economic	Area	(EEA)	have	to	be	treated	
equally	with	Austrian	citizens
(ii) the	permanent	residence	of	a	child	in	the	territory	of	one	of	the	EEA	has	to	be	considered	
as	 if	 the	 child	were	permanently	 resident	 in	Austria,	 does	not	 alter	 the	 result,	 because	
provision	(ii)	is	bound	back	to	the	„accordance	with	the	provisions	of	EU	law“,	thus	yielding	
to	Art	68	of	the	Regulation.
CEPAR 2020-02.indd   95 30. 11. 2020   12:24:37
Central European Public Administration Review, Vol. 18, No. 2/202096
Alexander Balthasar
Moreover, the Austrian family benefits fullfilling all substantive requirements 
of Article 70 reg cit, only the formal step of inclusion in the Annex X is needed 
to make the result presented in (i) fully transparent.
Hence, it doesn’t matter really whether the „indexation“now at issue is in 
conformity with EU law or not, because Austria’s reaction could always be to 
cancel the „export“ of family benefits almost (i.e. with regard to non national 
children residing abroad) entirely.
5 Conclusion
In my view, there are several serious flaws of the Regulation (EC) 883/2004, 
in particular when applied under the regime of the Treaty of Lisbon, due to 
mainly three reasons:
– inappropriate (over-simplified) application of the „principle of equal treat-
ment “, by one-sided emphasis on the first element (prohibiton of treating 
comparable situations differently) and, correspondingly, neglecting the se-
cond element (prohibiton of treating different situations „in the same way“)
– neglection of the reestablished importance of the „nationality“of a Member 
State
– discrepancy to Article 352 TFEU and to Article 24 EUCFR.
These elements taken together suffice to recommend that the European 
Commission, as already proposed in February 2016, although then only in 
the context of avoiding „Brexit“, fulfills its promise to come forward with 
a proposal to amend the Regulation, in order to bring it in conformity with 
the principle of equal treatment as well as with other restrictions of current 
primary law just mentioned.120
On the other hand, already the current Regulation is much more in line with 
current primary law than one would have guessed at first sight; consequently, 
it is not so much the Regulation itself, but an inappropriate domestic interpre-
tation (most probably triggered by the Commission’s approach) which hinders 
Austria to minimize her obligations with regard to children of other than Aus-
trian nationality living abroad.
This final finding is even more strange, showing the hugh gap between EU 
law as it is presumed to be in many parts even of Austrian academia121 and in 
EU central institutions (in particular the European Commission) and as it really 
has been made quite recently by the Masters of the Treaties as well as by the 
ordinary legislator. This gap needs to be bridged very soon; otherwise we risk 
120 As pointed out supra (fn 24) Member States do not dispose of direct legal remedies for hav-
ing clarified the situation by CJEU. As to individuals: exactly if the view developed here were 
correct a claim for family benefit had to be lodged before an Austrian court but would, after 
this court having referred to CJEU, not be successful in substance. To rely on such a personal 
sacrifice (for the higher sake of the EU legal system) does not seem to be fair.
121 See supra text by fns 4 f and fn 22.
CEPAR 2020-02.indd   96 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/2020 97
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
such a bulk of subsequent misunderstandings or of talking so often at cross 
purposes that in the end the Union itself could be on the ropes.122
122 Apparently the lessons told by „Brexit“: that too rigid a centralization on EU level/too strong-
ly erasing the importance of nationalities of the respective Member States/too heavily shap-
ing the financial burdens of the „netto payers“ may provoke the full exit of Member States 
were not yet learnt (or, even, the wrong conclusions are drawn by EU central institutions: that 
now, after Brexit, none of the concessions made by the European Council and the European 
Commission [see supra section 1.3] are necessary any longer with regard to other Member 
States).
 Hence, the sad story is going on: a most recent telling writing on the wall is in this regard the 
judgement of Germany’s Federal Constitutional Court of 5 May 2020, 2 BvR 859/15 inter alia, 
assessing a CJ’s judgement being null and void due to 
(i) excession of competences („ultra vires“), combined with 
(ii) arbitrariness and 
(iii) most serious methodic flaws. 
 This assessment is nothing less than a nuclear bomb in the sphere of intra-EU relations as laid 
down in Article 4 (3) TEU, putting the character of EU as a „community based on the rule of 
law“ (cit ECJ, Les Verts, point 23) as now explicitly enshrined in Article 2 TEU at stake. 
CEPAR 2020-02.indd   97 30. 11. 2020   12:05:37
Central European Public Administration Review, Vol. 18, No. 2/202098
Alexander Balthasar
6 References
A New Settlement for the United Kingdom within the Euroepan Union. (2016). 
Extract of the conclusions of the European Council of 18-19 February 2016, 1, 
2016/C 69 I/01, OJ C 69 I, 1.
AG Bobek (2018). Opinion of 18 January 2018 delivered in case C-528/16, 
Confédération Paysanne.
AG Bot (2016). Opinion of 10 May 2016, delivered in case C-182/15, Petruhhin. 
AG Bot (2016). Opinion of 23 February 2016, delivered in case C-614/14, Atanas.
AG Léger (1995). Opinion of 14 November 1995, C-214/94, Boukhalfa.
AG Lenz (1988). Opinion of 1 December 1988, delivered in Case 359/87, Pinna II.
AG Mancini (1985). Opinion of 21 May 1985, delivered in Case 41/84, Pinna I.
Austrian Broadcast (ORF). (2019). At <https://orf.at/stories/3142459/>, accessed 
3 November 2020.
Austrian Federal Government. Explanatory Memorandum, RV 111 Blg NR 
XXVI. GP. At<https://www.parlament.gv.at/PAKT/VHG/XXVI/I/I_00111/
fname_692212.pdf, accessed 3 November 2020.
Austrian Federal Tax Court. (2020). Decision of 16 April 2020, RE/7100001/2020.
Balthasar, A. (2017). Die Übertragung von Hoheitsrechten nach der 
österreichischen Bundesverfassung – Zulässigkeit, Grenzen und Kontrolle. 
Jahrbuch für Vergleichende Staats- und Rechtswissenschaften, 2016/2017. 
Baden-Baden: Nomos, pp. 167–211.
Balthasar, A. (2011). „Nichtdiskriminierung und Unionsbürgerschaft“ in einem 
„Staatenverbund“. Zugleich eine Auseinandersetzung mit (vornehmlich) dem 
Urteil des EuGH vom 13. 04. 2010, C-73/08 (Bressol). ZÖR, 66(1), pp. 41–75.
Balthasar, A. (1998). „Inländerdiskriminierung“ in der EU nach dem EG-Vertrag 
und aus österreichischer Sicht. ZÖR, 53(2), pp. 143–216.
Balthasar-Wach, A. (2020). Die Justizielle Zusammenarbeit in Zivilsachen am 
Beispiel von Kindesentführungsfällen innerhalb der Europäischen Union. 
Wien: Sramek.
Barnard, C. (2011). EU „Social“ Policy: From Employment Law to Labour Market 
Reform. In P. Craig and G. De Búrca, eds., The Evolution of EU Law. Oxford: 
Oxford University Press, pp. 541–686.
Benoît-Rohmer, F. (2011). La charte des droits fondamenteaux de l’Union 
europeénne dix ans après sa proclamation. In W. Benedek et al., eds, 
European Yearbook on Human Rights. Antwerp et al.: European Academic 
Press, pp. 25–39.
CJEU. (2019). Judgment of 28 November 2019, C593/18 P, ABB.
CJEU. (2019). Judgment of 10 September 2019, C123/18 P, HTTS.
CJEU. (2016). Judgment of 2 June 2016, C-233/14, Commission/Netherlands.
CJEU. (2015). Judgment of 6 October 2015, C-362/14, Schrems.
CJEU. (2015). Judgment of 3 September 2015, C-398/13 P, Inuit.
CJEU. (2015). Judgment of 26 February 2015, C-359/13, Martens.
CJEU. (2014). Judgment of 8 April 2014, joint Cases C-293/12 and C-594/12, 
Digital Rights Ireland and Kärtner Landesregierung.
CJEU. (2014). Judgement of 11 November 2014, C-333/13, Dano.
CJEU. (2013). Judgment of 26 September 2013, C-431-11, UK/Council.
CEPAR 2020-02.indd   98 30. 11. 2020   12:05:38
Central European Public Administration Review, Vol. 18, No. 2/2020 99
The Current Discussion on Austrian Family Benefits – 
Indicating a Major Dissensus on the Interpretation of EU Law
CJEU. (2012). Judgment of 21 December 2012, Joined Cases C-424/10 and 
C-425/10, Ziolkowski/ Szeja.
CJEU. (2011). Judgment of 28 July 2011, C-309/10, Agrana.
De Schutter, O. (2011). The New Architecture of Fundamental Rights Policy in 
the EU. In W. Benedek et al., eds., European Yearbook on Human Rights. 
Antwerp et al.: European Academic Press, pp. 107–141.
ECJ. (2002). Judgment of 11 July 2002, C-224/98, D‘Hoop.
ECJ. (2001). Judgment of 20 September 2001, C-184/99, Grzelczyk.
ECJ. (2000). Judgment of 4 April 2000, C-269/97, Commission/Council.
ECJ. (1996). Opinion of 28 March 1996, No 2/94.
ECJ. (1995). Judgment of 5 October 1995, C-321/93, Martinez.
ECJ. (1990). Judgment of 22 February 1990, C-228/88, Bronzino.
ECJ. (1989). Judgment of 2 March 1989, Case 359/87, Pinna II.
ECJ. (1986). Judgment of 23 April 1986, Case 294/83, Les Verts.
ECJ. (1986). Judgment of 15 January 1986, Case 41/84, Pinna I.
ECJ. (1985). Judgment of 12 February 1985, C-293/83, Gravier.
ECJ. (1978). 10 October 1978, Case 237/78, Caisse régionale d’assurance maladie 
Lille.
Edward, D. and Lane, R. (2013). Edward and Lane on European Union Law. 
Cheltenham, UK, Northhampton, MA, USA: Edward Elgar.
European Council. (2016). Conclusions of the meeting 18/19 February 2016, 
EUCO 1/16. At <https://www.consilium.europa.eu/media/21787/0216-euco-
conclusions.pdf>, accessed 3 November 2020.
European Commission. (2020). Press Release of 14 May 2020. At <file:///C:/
Users/alexa/Google%20Drive/fambh/Indexation_of_family_benefits__child_
tax_credit_and_family_tax_credits__Commission_takes_Austria_to_Court_
for_discrimination.pdf>, accessed 3 November 2020.
European Commission. (2019). Press Release of 27 November 2019. At <https://
ec.europa.eu/commission/presscorner/detail/en/INF_19_6304>, accessed 3 
November 2020.
European Commission. (2019). Press Release of 25 July 2019. At<https://
ec.europa.eu/commission/presscorner/detail/en/IP_19_4253>, accessed 3 
November 2020.
European Commission. (2019). Press Release of 24 January 2019. At <https://
ec.europa.eu/commission/presscorner/detail/EN/IP_19_463>, accessed 3 
November 2020
Fuchs, C. (2019). Commentary on Article 24 CFR. In M. Holoubek and G. 
Lienbacher, eds., Charta der Grundrechte der europäischen Union.: Wien, 
Manz: GRC -Kommentar, pp. 495–509.
Germany’s Federal Constitutional Court. (2020). Judgement of 5 May 2020, 2 
BvR 859/15 inter alia.
Hölscheidt, S. (2019a and b respectively). Commentaries on Articles 21 and 
24 CFR. In J. Meyer, ed., Charta der Grundrechte der Europäischen Union5. 
Baden-Baden: Nomos, pp. 439–461 and pp. 483–494 respectively.
Irmscher, T. (2019). Grundsatz der begrenzten Einzelermächtigung. In B. 
Schöbener, ed., Europarecht. Lexikon zentraler Begriffe und Themen. 
Heidelberg: C.F. Müller, pp. 449–455.
CEPAR 2020-02.indd   99 30. 11. 2020   12:05:38
Central European Public Administration Review, Vol. 18, No. 2/2020100
Alexander Balthasar
Kilpatrick, C. (2014). Commentary on Article 21 CFR. In S. Peers et al., eds, The EU 
Charter of Fundamental Rights. Oxford/Portland, Oregon: Hart, pp. 579–603.
Köchle, C. (2019). Commentary on Article 21 CFR. In M. Holoubek and G. 
Lienbacher, eds., Charta der Grundrechte der Europäischen Union. GRC-
Kommentar2. Wien, Manz, pp. 440–470.
Lamont, R. (2014). Commentary on Article 24 CFR. In S. Peers et al., eds, The EU 
Charter of Fundamental Rights. Oxford/Portland, Oregon: Hart, pp. 661–691.
Neue Volkspartei/ Freiheitliche Partei Österreichs. (2020). Austrian Coalition 
Programme „Together for our Austria“. At <https://www.oeh.ac.at/sites/
default/files/files/pages/regierungsprogramm_2017-2022.pdf>, accessed 3 
November 2020.
Obwexer, W. (2019). Die Unionsbürgerschaft als revolutionäres Konzept. ZÖR, 
74(4), pp. 955–992.
Shaw, J. (2011). Citizenship: Contrasting Dynamics at the Interface of Integration 
and Constitutionalism. In P. Craig and G. De Búrca, eds, The Evolution of EU 
Law2. Oxford: Oxford University Press, pp. 575–609.
UK England and WalesHigh Court of Justice. (1923). Judgment of 9 November 
1923, Rex v Sussex Justices, Ex parte McCarth. At <https://www.bailii.org/cgi-
bin/format.cgi?doc=/ew/cases/EWHC/KB/1923/1.html, accessed 3 November 
2020.
Walter, R. (1972). Österreichisches Bundesverfassungsrecht. Wien, Manz: 
System.
CEPAR 2020-02.indd   100 30. 11. 2020   12:05:38