Austrian Supreme Court of Justice (Oberstergerichtshof) 10Ob67/14x
The case concerned is about a minor who lives in Austria and is under the care of his mother. The father lives in Switzerland. Both parents are Swiss nationals. The child’s request for advances on maintenance payments in Austria was rejected, because neither parent had social security in Austria and the minor was privately insured in Austria.
In this context, the Austrian Supreme Court of Justice (Oberster Gerichtshof, OGH) dealt with the interpretation of the provisions of Regulations (EC) 883/2004, (EC) 987/2009 and of Art. 18 TFEU, as well as the free movement agreement between EU/the Member States and Switzerland (FZA) and the Law on Advance Maintenance Payments (UVG). The Supreme Court of Justice took the view that the prohibition of discrimination on grounds of nationality is a special provision of the Union law, on which also Swiss nationals may rely in an EU Member State. Even non-working Swiss nationals legally residing in an EU Member State may rely on the provisions (Article 2) of the FZA, because it falls within the scope of the Agreement.
The Supreme Court of Justice ruled in accordance with national case-law (10 Ob 1/13i) that a minor cannot rely on Article 18 sentence 1 TFEU because this provision is – as well as the specific prohibition of discrimination of the fundamental freedoms – a constitutive rule for members of the Union that does not involve nationals of third countries. Only where EU law contains contractual provisions or secondary legal provisions which confer to third-country nationals an established legal position under the Union law, which also includes the protection of the general prohibition of discrimination under Article 18 TFEU, third country nationals may rely on this provision.
The Supreme Court of Justice also held that the minor – derived from the mother – legally resides in Austria. Due to Art. 2 FZA he is not excluded from the award of maintenance payments. If the mother is employed or self-employed in Austria, the principle of equal treatment leads according to the provisions of FZA to the result that the child is not excluded from the Austrian advances on maintenance payments.
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