Right to family allowances: “Cross-border workers can regain confidence”

While legal appeals have multiplied without success in Luxembourg to recognize the right to family allowances for the non-biological children of cross-border workers, the Court of Justice of the EU will ultimately have to decide the question. “Very good news” for the plaintiffs.

“This is very, very good news”, rejoices Maître Pascal Peuvrel, lawyer within the Jurislux law firm, regarding a recent decision of the Luxembourg Court of Cassation relating to the right to family allowances for the non-biological children of cross-border workers. On Thursday April 25, the latter in fact sent a preliminary ruling to the Court of Justice of the EU (CJEU), referring to the European jurisdiction the task of deciding this very controversial question.

As a reminder, the affair began in 2016 with the adoption of a law by the Chamber of Deputies removing the right to family allowances for the non-biological children of cross-border workers. In practice, this development concerns blended families: for example, a man, a cross-border worker, marries a woman who has children from a previous union. In such a scheme, before 2016, children were automatically entitled to family allowances. But, since the 2016 law, the Fund for the Future of Children (CAE), responsible for granting family allowances, has refused to grant them.

“A public outcry”

“It was a public outcry at the time”recalls Pascal Peuvrel, who supports the procedures launched by the border workers concerned. “It was not, moreover, the first attack that had been made against cross-border workers, who had already been mistreated before with issues relating to scholarships.” In fact, at the same time, the right to family allowances for Luxembourg residents is not contested. Gold “cross-border workers contribute as much as residents to the Luxembourg system”recalls the lawyer.

Judicial procedures and appeals then multiplied against the decisions of the EAC, until a ruling from the CJEU of April 2, 2020: the European judge then considered that the Luxembourg law is discriminatory, in particular because it constitutes an attack on freedom movement of workers.

A question of interpretation

While the case seems closed, the CAE nevertheless continues to refuse the right to family allowances to the non-biological children of cross-border workers, this time relying on a very strict interpretation of the CJEU judgment. The European judge in fact makes the granting of family allowances conditional on the fact that the cross-border worker actually provides for the maintenance of the children. However, this notion can be interpreted in different ways. “Providing for the maintenance of the child can be partial or total”explains Pascal Peuvrel.

The question is therefore: at what level of financial contribution from the non-biological parent is the right to family allowances triggered? Is it enough to contribute to financing your studies? To partly pay for the accommodation where the child lives? “That would be a broad interpretation,” believes Pascal Peuvrel. The strict interpretation being that the cross-border worker must prove that he covers all the needs of the child. “This in itself is quite ridiculous: how can we circumscribe all of the child’s needs?” asks the lawyer. “This could mean that if the biological parent – ​​the one who does not have custody of the children – pays child support, then the child’s needs are covered.”

Appeal to the Court of Cassation then preliminary reference

Following the 2020 European judgment, the CAE therefore chooses a strict interpretation. Legal recourse is once again increasing. This time, however, the judge of first instance, in this case the Social Security Board of Referees, ruled in favor of the complainants and contradicted the CAE. But not the Superior Council of Social Insurance, which, on appeal, rejects them in all cases. “It’s systematic: we win at first instance and we lose on appeal, to the point that it becomes embarrassing,” remarks Pascal Peuvrel.

Despite everything, he did not give up: “Through attrition, many people abandoned the procedures, but, for our part, around fifteen people decided to appeal to the Court of Cassation.” Until this decision of April 25 by the Court of Cassation to ask a preliminary question to the CJEU on the interpretation of the notion of “provide for the maintenance of children”.

Hope for a favorable outcome

We will now have to wait at least a year for the CJEU to rule, which will put an end, in one direction or the other, to the controversy, with the decision of the European judge being binding on the national judge. But, in any case, “it soothes the heart and allows us to see the light at the end of the tunnel again”, rejoices Pascal Peuvrel. “The appeals judges were suppressing the case at the national level. The cassation judge finally had the intelligence and impartiality to request an additional opinion from the European judge.”

Pending the European decision, the current procedures are on hold. But, from now on, “cross-border workers can regain confidence and hope for a favorable outcome”, believes the lawyer, also president of the association of cross-border workers in Luxembourg, Les Flux. “Border workers, don’t give up, continue your procedures if you have started them”, he advises. “And if you have ever lost or suffered a refusal against which you did nothing, refile.”

Pierre Pailler