A-Z on social security coordination (FAQs) - Family benefits, Free movement of workers, Frontier worker

Family benefits are all benefits in kind or in cash intended to meet family expenses under the social security legislation of a Member State.

The concept of family benefits is a broad one. Family benefits means all benefits in kind or in cash intended to meet family expenses, excluding advance of maintenance payments and special childbirth and adoption allowances which are listed in Annex I of Regulation 883/2004. The concept covers also special allowances for single parents and for disabled children.

Family benefits further encompass child-raising allowances or parental benefits, intended to enable one of the parents to devote him- or herself to the raising of a young child, and designed to remunerate the service of bringing up a child, to meet the other costs of caring for and raising a child and, as the case may be, to mitigate the financial disadvantages entailed in giving up income from an occupational activity.

Child care allowances, benefits paid to working parents for the care of their child(ren), are also family benefits.

Please note that advances on maintenance payments and special childbirth and adoption allowances which are listed in Annex I of Regulation 883/2004 are excluded from the scope of the regulation (see the keywords material scope, advances on maintenance payments, childbirth allowances, adoption allowances).

You are entitled, in respect of your family members, to the family benefits provided for by the legislation of the State to which you are subject according to the rules determining the applicable legislation (see the keyword applicable legislation). As a rule, this will be the legislation of the State in which you work. For pensioners, however, a different rule applies (please refer to question 29.4).

This is so even if you and your family reside in another Member State. In essence, the members of your family are treated as if they resided in the State of (self-)employment (or the State to whose legislation you are subject). This is an application of the principle of assimilation of facts (see the relevant keyword). The coordination regulation effectively overrules any residency requirement in national legislation regarding family benefits.

The family benefits will be provided by the competent institution of the State of employment (or the State to whose legislation you are subject), in accordance with the legal provisions administered by that institution (age limits, number and/or ranking of children, etc.).

Please note that, if there is also an entitlement to family benefits under the legislation of the State where your family members reside, or in another State (e.g. where your spouse works), then the regulation’s priority rules in case of overlapping entitlements come into play and a supplement may be payable. Please refer to questions 29.6 to 29.13.

You are entitled to family benefits provided for by the legislation of the Member State to which you are subject according to the rules determining the applicable legislation.

This means that, if you are a wholly unemployed frontier worker, you will receive benefits in accordance with the legislation of the State where you reside (see question 69.8). On the other hand, if you are a wholly unemployed worker other than a frontier worker, family benefits will be provided in accordance with the legislation of the former State of employment.

It should be noted that, if there is also an entitlement to family benefits under the legislation of another State, the regulation’s priority rules in cases of overlapping entitlements come into play and a supplement may be payable. Please refer to questions 29.6 to 29.13.

Example: Mr. Y is a pensioner who lives in Greece with his dependent children. He draws an invalidity pension from Denmark.

If you are drawing (a) pension(s) for old-age, invalidity, an accident at work or an occupational disease, and you have dependent children, you are entitled to family benefits in accordance with the legislation of the Member State paying your pension. This is so even if you and your family reside in another Member State. In essence, the members of your family are treated as if they resided in the State paying your pension. This is an application of the principle of assimilation of facts (see the relevant keyword). The coordination regulation effectively overrules any residency requirement in national legislation regarding family benefits. The family benefits will be provided by the competent institution of the State competent for your pension, in accordance with the legal provisions administered by that institution (age limits, number and/or ranking of children, etc.). Thus, Mr. Y in example 1, who resides in Greece with his children and draws an invalidity pension from Denmark, will receive family allowances in accordance with the Danish legislation.

Please note that, if there is also an entitlement to family benefits under the legislation of the State where your family members reside, or in another State (e.g. where your spouse works), or if you draw pensions from more than one Member State, then the regulation’s priority rules in case of overlapping entitlements come into play and a supplement may be payable. Please refer to 29.6 to 29.13.

It is important to point out that the abovementioned rule does not apply to benefits paid in the form of pensions or supplements to pensions. They are provided and calculated in accordance with the rules governing old-age pensions (see the relevant keyword).

The regulation provides for the possibility of family benefits, if these are not used by the person to whom they are provided for the maintenance of the family members, to be paid directly, by the institution responsible for providing them, to the person who is actually maintaining the family. Therefore, if, in accordance with the legislation of State B, benefits are paid out to your ex-husband, and he does not actually maintain the children and he does not provide those benefits to you (keeping them to himself), you can request that the benefits are paid directly to you. To do so, you have to approach the institution of the place where you reside – or the body designated by the competent authority of that State – which shall then contact the institution responsible for providing the benefits.

It may also be noted that, if the benefits were paid to you while you were still living in State B, you can maintain entitlement and thus continue to receive them in State A, provided your children are recognised as family members by the legislation of State B. In that case, the institution of State B cannot cease to provide them on the grounds that you left State B and settled with your child in State A. If you are also entitled to family benefits under the legislation of State A, the priority rules in cases of overlapping entitlements come into play. Please refer to questions 29.6 to 29.13.

Situations of overlapping entitlements to family benefits are very common when persons live and work in different Member States.

Indeed, in many cases in which insured persons with children live and work in different Member States, overlapping entitlements to family benefits may exist. This can be explained by the fact that there are often two parents involved, who each may hold an individual right to family benefits, combined with the fact that the bulk of the Member States make entitlement to family benefits conditional upon residence only. Only four countries (Greece, Italy and Switzerland) operate a family benefits system under which entitlement is work-based, i.e. subject to conditions of (self-)employment and paying contributions. Apart from that, entitlement to family benefits can also be based on the receipt of a pension.

As a matter of principle, you cannot receive family benefits twice over the same period and for the same family member. Cumulating benefits is not allowed. The regulation provides for priority rules in cases of overlapping entitlements. According to these priority rules, entitlement to family benefits under the legislation of one of the States will be suspended. However, this suspension is not total. Rather, benefits due under the legislation of one State will be suspended up to the amount of the benefits due under the legislation of the State that takes priority. Thus, if the amount of family benefit provided for by the legislation of the former State is higher than that provided in accordance with the legislation of the other State, the former State will pay a supplement corresponding to the difference between the two benefits.

The gist of these priority rules is the following: if there are overlapping entitlements (i.e. entitlements under two or more legislations in respect of the same family member and for the same period) on different bases, the order of priority is 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 receipt of a pension and finally, rights obtained on the basis of residence. In the case of rights available on the same basis, the Member State where the children reside shall be competent by priority right, if work is carried out there (in case of overlapping entitlements on the basis of an activity as an employed or self-employed person) or if a pension is payable under that legislation (in case of overlapping entitlements on the basis of receipt of a pension). Otherwise, priority will be given to the right available under the legislation providing for the highest amount of benefits (in case of overlapping entitlements on the basis of an activity as an employed or self-employed person) or to the legislation under which the longest period of insurance or residence is completed. The operation of the priority rules will be explained further in the following questions.

Example 1: The mother works in the Czech Republic. The father resides with the children in Slovenia. He does not work. 

Example 2: The mother works in France. The father resides with the children in Belgium. He does not work. 

In this case, where one of the parents works in one Member State and the other parent lives with the children in another State, there is a situation of overlapping entitlements on different bases, provided the legislation of the latter State provides for entitlement by virtue of residence only. In this case, priority is given to the right available under the legislation where the one parent works. Entitlement to family benefits in the State of residence of your family members is suspended up to the amount of benefits provided for in the legislation of the State where you work. If the amount of benefits is lower in the State where you work than in the State where your family members reside, a differential supplement is paid by the institution of the State of residence of the family members.
In example 1, entitlement under Czech legislation takes precedence over the entitlement under Slovenian legislation, based on residence. Let us suppose that the Czech benefit amounts to EUR 40 and the Slovenian benefit to EUR 75, then the Slovenian institution has to pay a differential supplement of EUR 35. (However, if the father would become employed or self-employed in Slovenia, then entitlement under Slovenian legislation would take precedence over the Czech entitlement. Indeed, in that case there would be a situation of overlapping entitlements on the same basis, in which case priority is given to the right available under the legislation of the State of residence of the children. Payment of Czech benefits would then be suspended. In that case, no supplement would be payable, as Slovenian benefits are more generous then Czech benefits. Nevertheless, in total, the family would receive the same amount of benefits).

When the legislation of the State where your spouse resides with the children provides for a work-based entitlement to benefits, as is the case in example 2, and no work is carried out in that State, there is no situation of overlapping entitlements, for lack of entitlement under the said legislation. In the second example, family benefits will be payable by the French institution, provided the relevant conditions are met.

In this case, there is a situation of overlapping entitlements on different bases, i.e. on the basis of residence (provided the legislation of Member State A provides for entitlement by virtue of residence only), on the basis of the receipt of a pension and on the basis of the activity as an employed or self-employed person respectively. Priority is given to rights available on the basis of the activity as an employed or self-employed person, i.e. to the entitlement under the legislation of Member State C.

Entitlement to family benefits in the State from which you receive a pension – the second in the order of priority – is suspended up to the amount of benefits provided for in the legislation of Member State C, where your spouse works. If the amount of benefits is lower in State C than in State B, the difference between the two amounts is payable by the institution of the latter State in the form of a supplement. In case State A operates a residence-based family benefits scheme, and the amount of benefits provided under that State’s legislation is higher than under the legislation which it follows in the order of priority (i.e. State B), the institution of that State is obliged to pay a differential supplement.

Concretely, if the benefit amounts of State A, B and C are EUR 70, EUR 60 and EUR 50 respectively, a differential supplement of EUR 10 will be payable by the institution of State A and B each.

Example: The father works in Austria. The mother works in Germany and lives there with the children. 

In this case, where the parents work in different States and the children reside in one of these States, there is a situation of overlapping entitlements on the same basis, i.e. on the basis of an activity as an employed or self-employed person. Priority is given to the right available under the legislation of the State of residence of the children. Whether the Member States in question operate residence- or work-related schemes of family benefits has no bearing on this solution. Entitlement to family benefits in the State where you work – and where the children do not reside – is suspended up to the amount of benefits provided for in the legislation of the State of residence of the children, where the other parent works. If the amount of benefits is lower in the State of residence than in the State where you work, the difference between the two amounts is payable by the institution of the latter State in the form of a supplement.

It is important to note that your spouse does not necessarily have to actually “work” in the State where s/he resides with the children. Indeed, the concept of work is broader in this context; it also encompasses the temporary suspension of employed or self-employed activities as a result of contingencies (sickness, maternity, accidents at work, occupational disease, unemployment) in respect of which wages or benefits (excluding pensions) are payable. The concept of work also covers periods of temporary suspension of professional activities during paid leave, strike or lock-out and, lastly, during unpaid leave for the purpose of child-raising, provided the relevant legislation considers this leave as equivalent to work.

In our example, the entitlement under German legislation will take precedence and entitlement in Austria will be suspended. If the amount of Austrian benefit is higher, the Austrian institution will pay a differential supplement. This situation would remain unaltered if the mother were to fall ill for a period of 4 months and continue to receive a wage, and then sickness cash benefits under German legislation.

Example: The father works in Member State A whilst the mother works in Member State B. Both parents live in Member State C with their children. The amount of benefits provided by the legislation of Member State A is EUR 85, whereas it is EUR 40 for Member State B and EUR 65 for Member State C.

In this case, there is a situation of overlapping entitlements on the same basis, i.e. on the basis of an activity as an employed or self-employed person. As no work is carried out in the State of residence of the children (State C in the example), priority is given to the right available under the legislation providing for the highest amount of benefit and the cost of the benefits shall be shared between the institutions of the two States where work is carried out, subject to the proviso that the institution of the State which is not competent by priority right cannot be obliged to reimburse more than the amount provided for in the legislation it applies (this cost sharing procedure is internal to the institutions involved; you will not notice it). Each Member State must calculate the amounts provided for by their legislation including the children not resident within its territory.

In the example, the institution of Member State A shall pay the full amount of this benefit (EUR 85). As the institution of Member State B cannot be obliged to refund more than it would provide if it were competent for payment, that institution will only reimburse EUR 40 (instead of EUR 42.5) to the institution of State A. A supplement by State C is excluded because the amount its legislation provides for is only EUR 65.

In this case, there is a situation of overlapping entitlements on the same basis, i.e. on the basis of the receipt of a pension. The answer to the question as to which entitlement will be given priority depends on whether or not your family resides in a Member State paying a pension.

If your children reside in one of the States paying your pension, priority will be given to the right available under the legislation of that State. Entitlement to family benefits under the legislation of the other State where you worked and from which you receive also a pension will be suspended up to the amount of benefits provided for in the legislation of the State of residence of the children. If the amount of benefits is lower in the State of residence than in the other State where you used to work, the difference between the two amounts is payable by the institution of the latter State in the form of a supplement.

On the other hand, if your children reside in a third Member State, priority will be given to the right available under the legislation of the State where you completed the longest period of insurance of residence. The institution of the other State where you worked will pay a differential supplement insofar as its legislation provides for a higher amount of benefits. Each Member State must calculate the amounts provided for by their legislation including the children not resident within its territory. If under the legislation of the Member State of residence family benefits are higher than the relevant benefits granted under the legislation of the two States paying a pension, the former State has to pay a differential supplement.

In this case, there is a situation of overlapping entitlements and priority is given to the right available under the legislation of the State of residence of the children, i.e. Member State B. If the amount of benefits is lower in the State of residence than in the State where you work, the difference between the two amounts is payable by the institution of the latter State in the form of a supplement.

In order to receive family benefits, you must submit a claim to the competent institution in Member State B, accompanied by all relevant information regarding the factual and legal situation of your family. If it appears to that institution that there may be an entitlement to a differential supplement by virtue of another legislation, as is the case in your situation as regards the legislation of State A, it shall forward the application immediately to the institution of that State, and inform you of it. If the institution of State B, having examined the information supplied by you, concludes that the legislation it applies is indeed applicable by priority right, it shall provide the family benefits in accordance with the said legislation. It shall also inform the institution of State A of its decision to grant benefits and of their amount.

It should be noted that, if you made your application to the institution of State A instead of State B, it is not invalid. The regulation provides that if an application is made to the institution of a State whose legislation is applicable but not by priority right, that institution must immediately forward to application to the institution of the State whose legislation is applicable by priority right. That institution must also inform you and, where applicable, provide already the differential supplement. The institution to which the application is forwarded, and whose legislation is competent by priority right, must deal with the application as if it were submitted directly to itself, and it must consider the date of submission to the institution whose legislation is not competent by priority right as the date of the claim to the institution with priority.

Please note that insured persons have a duty to inform the competent State and the Member State of residence as soon as possible of any change in their personal and family situation which affects their right to benefits under the regulation (see also the keyword information to and from citizens).

When the institution to which the claim is submitted concludes that its legislation is applicable but that it does not apply by priority right, it must take a provisional decision on the priority rules to be applied and forward the application immediately to the institution of the other State concerned. It must also inform you thereof and, where applicable, provide already the differential supplement. The institution of the other State must take a position on the provisional decision within two months, failing which the provisional decision will apply and that institution will pay the benefits which its legislation provides for.

In case there is a difference of views between the institutions as to which legislation is applicable by priority right, you will be entitled, on a provisional basis, to benefits provided under the legislation of the State of residence of the children. The institutions must seek agreement, by entering into a dialogue and submitting the issue to the Administrative Commission if they cannot resolve the issue themselves.

The term “orphan” for the purposes of the regulation covers not only children who have lost both parents, but also children who have lost only one parent, irrespective of the definition of orphan for the purposes of national legislation.

The rules concerning entitlement to family benefits for orphans are the same as those for other insured persons as explained in the previous questions under this keyword. If such orphans receive an orphans’ pension they are treated as pensioners. These rules also govern entitlement to additional or special family benefits for orphans. The regulation contains a specific provision stating that, if under the legislation designated in accordance with the abovementioned rules, no right is acquired to additional or special orphans’ family benefits, such benefits shall be paid in accordance with the legislation of the Member State to which the deceased worker was subject for the longest period of time, insofar as the right was acquired under that legislation. If no right was acquired under that legislation, it shall be assessed whether the entitlement conditions under the other legislations to which the deceased worker has been subject are satisfied, in decreasing order of length of insurance or residence completed under the legislation of those States. The Administrative Commission on the Coordination of Social Security Schemes has drawn up a list of the benefits covered by this provision.

The free movement of workers is one of the four fundamental freedoms guaranteed by the Treaty on the Functioning of the European Union (Article 45 TFEU). It is intended to facilitate the pursuit by Union nationals of occupational activities of all kinds throughout the Union, and it precludes measures which might place Union nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State.

Free movement of workers implies the abolition of any discrimination based on nationality between workers of Member States as regards employment, remuneration and other conditions of work. Furthermore, national provisions which preclude or deter a national of a Member State from leaving his/her country of origin to exercise his/her right to freedom of movement constitute an obstacle to that freedom, even if they apply without distinction to national workers and workers from other Member States.

Regulation 492/2011 implements the principle of equal treatment in the context of the free movement of workers. Regulation 492/2011 guarantees migrant workers, among other things, equal treatment with national workers as regards all social advantages.

The overall aim of the coordination regulation is to promote the effective exercise of the right to freedom of movement of persons. This freedom would indeed be hampered if persons, as a result of their migration, would lose social security rights.

Even though social security rights for migrant persons are primarily safeguarded by the coordination regulation, there are still cases left uncovered by the coordination regulation. These cases could come within the scope of Article 45 TFEU and Regulation 492/2011, which, in some aspects, is broader than that of the coordination regulation.

On the basis of these provisions, you could, for instance, challenge residence requirements relating to social benefits in the legislation of the State of employment, both when imposed on incoming workers (time-conditioned residency requirements for entitlement to a benefit) and on frontier workers (residence requirement as a condition for retention of a benefit).

Although Regulation 492/2011 refers only to employed persons, the Court of Justice has expanded the principle of equal treatment as enshrined in Article 7(2) of this regulation to self-employed persons.

Please be aware that, unlike under the express provisions of Regulation 883/2004, successful challenge of restrictive national requirements in relation to social benefits under Article 45 TFEU and Regulation 492/2011 is conditional upon the Member State not being able to justify such requirements, i.e. demonstrate that they pursue a legitimate aim (for instance, in relation to a social security allowance paid to jobseekers, the need to ensure that a genuine link exists between the person seeking work and the labour market in the State concerned) and that they do not go beyond what is necessary to achieve that aim.

See also the keywords material scope and personal scope.