Investigating human rights
cases, there are multiple factors that prolong the duration of the procedure.
Communication with foreign authorities is often very difficult, and, at times,
parents are overwhelmed – or unsure of which documents to submit. The
provisions of EU law are to ensure that affected families do not remain without
family benefits for more than two months even if the evaluation proceedings
in cross-border cases are lengthy: the country in which the parent caring for
the child lives must provide temporary family benefits until responsibility is
finally clarified (Article 6 (2) of EU Regulation 987/2009).
The existing structural problems in Austrian administrative practice could not
be definitively resolved despite the AOB’s efforts in contacting the competent
Federal Ministry multiple times and obtaining a statement from the European
Commission in 2011. Therefore, in the current reporting year the AOB again
approached the Commission (Directorate-General for Employment, Social
Affairs and Integration).
AOB again appeals to
European Commission
In its statement to the AOB, the European Commission adhered to one
general principle: the term “difference of views” among potential competent
institutions (Article 6 (2) of EU Regulation 987/2009), which is the prerequisite
for applying the temporary obligation of the country of residence to provide
benefits, is to be interpreted broadly. It encompasses everything that does not
constitute express consent. Thus, the temporary obligation of the country
of residence to provide benefits two months after an application was filed,
also applies if the other institution to which the application was forwarded
by the Austrian authority does not reply or does so belatedly or if the facts
are unclear, e.g. if there is a pending paternity proceeding. Austria, as the
country of residence – even if it allegedly has secondary responsibility – has a
temporary obligation to provide benefits two months after submission of an
application if the country with alleged primary responsibility has not provided
family benefits by then.
European Commission
affirms Austria‘s t
emporary obligation to
provide benefits
The following additional determinations are related to the principle of
coordination of family benefits within the EU:
(1)
No further application is necessary in the foreign country
It is contrary to EU law to require a parent or parents living in Austria, who
have filed an application in Austria, to additionally file an application in a
foreign country and await a decision on this application before temporary
family benefits are paid.
No need to file further
application in foreign
country
It is also contrary to EU law to require the second parent to file an application
in a foreign country or an appeal against the foreign decision and not grant
family benefits until a decision is made.
By contrast, in the opinion of the Federal Ministry of Families and Youth, the
EU coordination rules make the filing of an application in the foreign country
unavoidable. According to that opinion, applicants must fill out the national
Differing administrative
practices
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