Joan Burton (Dublin West, Labour) | Oireachtas source

I shall give a little background on the issue. The EU regulations that deal with family benefits do not specifically deal with child benefit. They encompass a range of benefits designed to support families in one way or another. In the case of Ireland, the benefits designated as family benefits include: child benefit, family income supplement, one-parent family payment, guardians payment which was formerly the orphan's pension, and the domiciliary care allowance. Accordingly, anyone who is employed here and is in receipt of the above benefits is entitled to payments in respect of their family resident in another EU country. That entitlement ends once they leave the State. Article 67 of the regulations states that a "person shall be entitled to family benefits in accordance with the legislation of the competent Member State."

I shall outline some more interesting background information. Until the mid-1980s there were special provisions in the regulations for the payment of benefits by France. That allowed for benefits to be paid at the rate applying in the country where the children reside, the precise point that Senator Mooney has made. The provision stated:

A worker subject to French legislation shall be entitled, in respect of members of the family residing in the territory of a Member State other than France, to the family allowances provided for by the legislation of such Member State; the worker must satisfy the conditions regarding employment on which French legislation bases entitlement to such benefit.

In other words, they had a specifically French regulation and payments were made at the local rate.

The provision was the subject of a judgment by the European Court of Justice on a case brought by Mr. Pietro Pinna in 1989. The court states:

The criterion set out in that provision was not of such a nature as to secure the equal treatment laid down by Article 48 of the Treaty and therefore could not be employed within the context of the coordination of national legislation prescribed by Article 51 of the Treaty with a view to promoting [and the following is key] the free movement of workers within the Community in accordance with Article 48 of the Treaty.

The regulations were changed as a result of the 1989 judgment.

In response to another point that was made, there are currently no derogations available regarding the payment of the benefits. The provisions on family benefits derive from the equality provisions of EU regulations which provide that "persons to whom the regulations shall apply shall enjoy the same benefits and be subject to the same obligations of any Member State as the nationals thereof." At EU level these provisions are viewed as being extremely important in facilitating the free movement of labour. The EU Commission is the body charged with putting forward EU legislation for consideration.

Given the importance attaching to the provision concerned and the legal precedent outlined above, it would be very difficult to persuade it to adopt any proposal that would restrict export of family benefits. That is the legal position.

I have raised this issue several times in discussion with the Commissioner, who is aware of the Government's concerns because this is important, even if the amounts are relatively small and it is now down to approximately €13 million out of a significantly larger spend. Nonetheless, the principle is important and this is a concern shared by a number of countries, which by and large have contributory social welfare systems. People contribute here and if people from other countries are here, there should not be an apparent advantage over Irish workers. As I stated, the original French arrangement was in line with the Senator's amendment, which was to pay at the rate that applied in that country. However, this arrangement was struck down by the European Court of Justice. There have been a number of discussions at European Council level in the Council of Ministers. Obviously, countries that are beneficiaries are in favour of the current arrangements continuing, whereas a number of counties that, like Ireland, have contribution-based systems, generally are concerned that people would not appear to be gaining an unfair advantage by virtue of not having been obliged to contribute significantly to the system but then gaining significantly from it. I expect it will remain as an item of discussion on the agenda of the Council of Ministers but the Commission is adamant with regard to its position and it is the entity that proposes European Union legislation.