A Union citizen whose spouse commutes back to work in the neighbouring state cannot derive worker status from him
Bundesfinanzhof, and housing benefit is not her own means — but the child supplement isBundesfinanzhof. In III R 5/25Bundesfinanzhof of 9 July 2026Bundesfinanzhof the III Senate of the BundesfinanzhofBundesfinanzhof set aside the Finanzgericht Münster judgmentBundesfinanzhof of 23 January 2025Bundesfinanzhof (13 K 2949/22 Kg)Bundesfinanzhof and remanded the caseBundesfinanzhof of a Dutch mother of eight in a German border town since 2019, whose husband kept working in the NetherlandsBundesfinanzhof. She claimed Kindergeld for child ABundesfinanzhof, born December 2021, for December 2021 to December 2022Bundesfinanzhof; the Familienkasse refused on 25 January 2022Bundesfinanzhof and the court below dismissed both the full and the differential claimBundesfinanzhof.
Worker status needs work in Germany. A claim via an employed spouse (§ 62 Abs. 1a Satz 3 Einkommensteuergesetz with § 2 Abs. 2 Nr. 6, § 3 and § 2 Abs. 2 Nr. 1 Freizügigkeitsgesetz/EU) requires the spouse to work in Germany.Bundesfinanzhof The husband worked solely in the NetherlandsBundesfinanzhof and stayed in Germany only for housingBundesfinanzhof, so he was not "als Arbeitnehmer" thereBundesfinanzhof. Article 7(1)(a) of Directive 2004/38/EC likewise grants residence to a worker "in the host Member State" and gives no basis for German status through Dutch employmentBundesfinanzhof.
Wohngeld is need-based aid, not means. Housing benefit is materially a Sozialhilfeleistung for § 4 FreizügG/EU and Article 7(1)(b) of the DirectiveBundesfinanzhof despite sitting outside Book Two of the Social Code: it turns on individual rent, income and household circumstances, partly covers subsistence, rivals basic-security benefits, and is absent from Article 9 notifications under Regulation (EC) No 883/2004Bundesfinanzhof. Stronger standardisation does not change this, because it is still granted for need.
The Kinderzuschlag is means. The child supplement under § 6a Bundeskindergeldgesetz is a notified family benefit under Article 3(1)(j) with Article 1(z) of Regulation (EC) No 883/2004 by virtue of the Article 9 notificationBundesfinanzhof, hence existenzsichernde Mittel under § 4 FreizügG/EUBundesfinanzhof, as the Bundessozialgericht held on 9 March 2022Bundesfinanzhof. Family benefits on objective criteria without discretionary need assessment count generallyBundesfinanzhof: the Dutch kinderbijslag of 2,315 Euro quarterly and the kindgebonden budget of 8,296 Euro for 2022, alongside the husband's net wage.
Means are assessed for the family, minus German children's needs. Article 7(1)(b) requires resources for the citizen and family membersBundesfinanzhof, so larger families may need more. But German children's existential needs are excludedBundesfinanzhof: under Article 11(1) Grundgesetz they move freely throughout Germany, and under Article 7(2) of the Directive members with their own residence right need no derived-right test — unexamined below for want of nationality findings.
The remand follows from gaps: § 62 Abs. 1a Satz 3 Alternative 1 standsBundesfinanzhof and may not be read more strictly for Kindergeld than for free-movement purposesBundesfinanzhof. The court made no monthly findingsBundesfinanzhof as § 66 Abs. 2 EStG requires — the kindgebonden budget only as a 2022 annual total, nothing for December 2021Bundesfinanzhof — left December 2021 to March 2022 Wohngeld receipt openBundesfinanzhof, gave no unreasonableness assessment where probably only Wohngeld was drawnBundesfinanzhof, and must clarify whether only differential Kindergeld was applied forBundesfinanzhof.
Advisers with cross-border files should plead worker derivation only for Germany-based employmentBundesfinanzhof, count Kinderzuschlag and foreign family benefits as meansBundesfinanzhof, strip Wohngeld and German children's needsBundesfinanzhof, and evidence each month separatelyBundesfinanzhof.
The result follows from § 62 Abs. 1a EStG with §§ 2, 3, 4 and 11 FreizügG/EU, § 6a BKGG and §§ 1 ff. WoGG, read against Arts. 7, 8, 14 and 24 of Directive 2004/38/EC, Arts. 3, 4 and 9 of Regulation (EC) No 883/2004 and Arts. 3 Abs. 1, 11 Abs. 1 GG.
In cross-border Kindergeld files plead worker derivation only for Germany-based employment; count Kinderzuschlag and foreign family benefits as means, exclude Wohngeld and German children's needs, and evidence each month separately.
