INCOME-BASED CHILD CARE BENEFITS The N. family, who are currently living in another EU country, wish to move back to Austria because they are expecting a baby, and intend to apply for income-based child care benefits here. However, the prerequisite for this is that the earning parent needs to have had "gainful employment subject to social insurance contributions in Austria" six months in the period up to the child's birth. Since the N. family does not fulfill this prerequisite and doubts whether the prerequisite is in accordance with EU law, it contacted the AOB. Doubts as to whether this provision is in accordance with EU law were raised when the draft law was tabled. The Legal and Constitutional Service of the Federal Chancellery stated that the provision "clearly contradicts EU law in that it invokes gainful employment ‘within Austria’”. The Ministry of Labour, Social Affairs and Consumer Protection and the Association of Social Security Institutions made similar criticisms. Slight changes were then made to the wording, but the provision nonetheless continued to contradict EU law. Draft legislation contradicts EU law In her statement to the AOB, the Families State Secretary pointed out that in actual concrete cases, periods of gainful employment in another EU country are in fact taken into account along with periods of gainful employment in Austria, and that this therefore fulfills the EU’s equal treatment regulations. Thus for example if a person first works for two months in France, and then for four months in Austria in the period up to the child’s birth, this is deemed to fulfill the statutory prerequisite, and the person is entitled to income-based child care benefits in Austria. How the issue is handled in practise To date, there have been no court rulings regarding whether Community-law equal treatment provisions are being adequately implemented. Nonetheless, per the current status of the academic debate and court rulings, it does seem that they are. Article 6 of EU Regulation 883/2004 sets forth a totalling rule and stipulates that insurance periods and gainful employment periods in another country should be taken into account along with periods in Austria. However, this probably does not mean that only the periods of gainful employment abroad are to be taken into account when assessing a claim for income-based child care benefits (per the current status of legal scholarship and court rulings at any rate). 37