Entitlement: Tax credits and European Law: priority rules in the event of overlapping entitlement to family benefits - Article 68 of Regulation 883/2004 and Article 58 of Regulation 987/2009
Article 68(1)(b)(i) of Regulation (EC) 883/2004 and Article 58 of implementing Regulation (EC) 987/2009
Where family benefits are available for the same family member from more than one Member State (MS) on the basis of employment, and where the place of residence of the children does not help us to determine which MS is competent to pay family benefits, Article 58 of Regulation (EC) 987/2009 provides the answer:
- each MS concerned is required to calculate the amount of family benefits due for the family, including the children resident in the other MS or States.
- the MS that provides the highest amount of family benefits is required to pay in full and be reimbursed up to half that sum by the other MS, up to the limit of the amount provided for in the legislation of that MS.
Mr and Mrs Kowalski are a Polish couple with two children. Mr Kowalski has come to the UK to work and his son lives in the UK with him. Mrs Kowalski lives and works in Poland, and her daughter lives with her.
In this example, there is entitlement to family benefits from the UK and Poland on the basis of employment. However, as the couple has one child living in the UK and another child living in Poland, the place of residence of the children does not help us to establish which MS is primarily competent. Applying Article 58 to this situation, the UK, with the higher rate of benefit is competent to pay its family benefits in full and Poland should reimburse the UK up to half that amount subject to the maximum rate available under its legislation. For example, if the UK rate of family benefit is £100.00 and the amount available from Poland is £40.00, the UK should pay in full £100.00 and Poland are required to reimburse the UK £40.00.