engleski

Requirement of “Member States’ legislation” for dependent child allowance in EU Staff Regulation: Discriminationproof or Not?

From the points of view of private international law and anti-discrimination law, a captivating question related to Article 2(2) of the Staff Regulations is whether the criterion of a “judgment based on Member States’ legislation” is capable of causing discriminatory effect by excluding in general allowance for children born in non-Member States. Despite the sophisticated anti- discrimination European Union legal framework and the abundant case-law, determining whether an apparently neutral criterion is translatable into one of the protective grounds, whether it may have an adverse effect over the group defined by that protective ground, or whether it is justified by a legitimate and proportionate objective is not at all uncomplicated. In a view of the need for some sort of control of the judgments based on which dependent child allowance is approved is necessary, the criterion of the “Member States’ legislation” is understandable as it is misconceived. As an instrument aimed at mitigating adverse consequences of otherwise broad eligibility for dependent child allowance, the Staff Regulation appears to be intended towards discouraging the courts and legislators in non-Member States from engaging in the race to the bottom with regard to establishing the responsibility of the official to maintain a child. Some of these issues necessitate further research, however, it is already apparent that the provision of the third paragraph of Article 2(2) calls for its reconstruction.

EU law, staff regulation, private international law, child allowance

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