61976J0032

1 . QUESTIONS REFERRED TO THE COURT FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY , ARTICLE 177 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - DEATH OF A WORKER - ACCIDENT AT WORK - PENSION - FAMILY ALLOWANCES - LEGISLATION APPLICABLE - RIGHT NOT LINKED TO AN ORPHAN ' S PENSION

( REGULATION NO 3 OF THE COUNCIL , ARTICLE 42 ( 5 ))

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - RIGHTS ACQUIRED BY AN INSURED PERSON BEFORE THE ENTRY INTO FORCE OF REGULATION NO 1408/71 - REVIEW - COMPETENT INSTITUTION OF A MEMBER STATE - SUBSTITUTION FOR THE PERSON ENTITLED - PROHIBITION

( REGULATION NO 1408/71 OF THE COUNCIL , ARTICLE 94 ( 5 ))

1 . THE COURT IS NOT REQUIRED TO RULE , WITHIN THE CONTEXT OF A REQUEST FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY , ON THE MEANING AND SCOPE OF NATIONAL LEGISLATIVE PROVISIONS BUT MUST RESTRICT ITSELF TO THE INTERPRETATION OF THE PROVISIONS OF COMMUNITY LAW IN QUESTION .

2 . ARTICLE 42 ( 5 ) OF REGULATION NO 3 MUST BE INTERPRETED AS DETERMINING THE LEGISLATION APPLICABLE TO THE PAYMENT OF FAMILY ALLOWANCES TO THE CHILDREN OF A WORKER WHO HAS DIED AS A RESULT OF AN ACCIDENT AT WORK AND AS MEANING THAT THE RIGHT OF THE CHILDREN OF THE DECEASED TO FAMILY ALLOWANCES IS NOT LINKED TO THE AWARD OF AN ORPHAN ' S PENSION .

3 . SINCE THE AIM OF ARTICLE 94 ( 5 ) OF REGULATION NO 1408/71 IS TO GIVE TO A PERSON TO WHOM BENEFITS WERE AWARDED UNDER THE OLD REGULATION THE RIGHT TO REQUEST THE REVIEW , IN HIS FAVOUR , OF SUCH BENEFITS , IT MUST BE INTERPRETED AS MEANING THAT THE COMPETENT INSTITUTION OF A MEMBER STATE IS NOT ENTITLED TO SUBSTITUTE ITSELF FOR AN INSURED PERSON WITH REGARD TO THE REVIEW OF THE RIGHTS WHICH THAT PERSON ACQUIRED BEFORE THE REGULATION CAME INTO FORCE .

IN CASE 32/76 ,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ) OF CHARLEROI , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

ALFONSA REALE , NEE SAIEVA , RESIDING AT MONTAPERTO , ITALY ,

AND

LA CAISSE DE COMPENSATION DES ALLOCATIONS FAMILIALES FOR THE MINING INDUSTRY OF THE CHARLEROI AND BASSE-SAMBRE COALFIELDS , CHARLEROI , BELGIUM ,

ON THE INTERPRETATION OF ARTICLE 42 ( 5 ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS OJ NO 30 OF 16 DECEMBER 1958 , P . 561 ), AS AMENDED BY REGULATION NO 1/64/EEC OF THE COUNCIL OF 18 DECEMBER 1963 ( OJ NO 1 OF 8 JANUARY 1964 , P . 1 ), AND ARTICLE 94 ( 5 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1 BY JUDGMENT OF 25 MARCH 1976 , RECEIVED AT THE COURT REGISTRY ON THE FOLLOWING 29 MARCH , THE TRIBUNAL DU TRAVAIL , CHARLEROI , REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS CONCERNING THE INTERPRETATION OF , FIRST , ARTICLE 42 ( 5 ) OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ NO 30 OF 16 DECEMBER 1958 , P . 561 ) AND , SECONDLY , OF ARTICLE 94 ( 5 ) OF REGULATION NO 1408/71 OF THE COUNCIL ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THESE QUESTIONS AROSE WITHIN THE CONTEXT OF AN ACTION BROUGHT BY THE WIDOW OF AN ITALIAN WORKER WHO DIED IN 1956 IN AN ACCIDENT AT HIS PLACE OF WORK IN BELGIUM . SHE HAS SINCE RETURNED TO ITALY WITH HER THREE CHILDREN AND IS SEEKING ON THEIR BEHALF THE RIGHT TO RECEIVE FAMILY ALLOWANCES AFTER THE AGE OF 18 YEARS AND , AS REGARDS HER YOUNGEST CHILD IN PARTICULAR , AFTER 1 OCTOBER 1972 , THE DATE ON WHICH REGULATION NO 1408/71 CAME INTO FORCE .

3 THE FILE SHOWS THAT THE CAISSE DE COMPENSATION DES ALLOCATIONS FAMILIALES FOR THE MINING INDUSTRY OF THE CHARLEROI AND BASSE-SAMBRE COALFIELDS , THE DEFENDANT IN THE MAIN ACTION , AUTOMATICALLY STOPPED PAYING THE WIDOW FAMILY ALLOWANCES FOR HER TWO ELDEST CHILDREN WHEN THEY REACHED THE AGE OF 18 YEARS AND FOR HER THIRD CHILD ON 30 SEPTEMBER 1972 ALTHOUGH AT THAT TIME SHE HAD NOT REACHED THE AGE OF 18 YEARS .

4 THE FIRST QUESTION ASKS WHETHER ARTICLE 42 ( 5 ) OF REGULATION NO 3 MUST BE INTERPRETED AS MEANING THAT FAMILY ALLOWANCES CEASE TO BE PAYABLE WHEN THE ORPHANS ' RIGHT TO THE TEMPORARY PENSION FOR ACCIDENT AT WORK EXPIRES UNDER THE LEGISLATION OF THE STATE LIABLE TO PAY THE BENEFITS , THAT IS , IN THIS INSTANCE , AT THE AGE OF 18 YEARS .

5 DURING THE COURSE OF THE PROCEEDINGS BEFORE THE COURT IT HAS BEEN SUGGESTED THAT THE MAIN ACTION AROSE OUT OF A QUESTIONABLE APPLICATION OF THE BELGIAN LEGISLATION BY THE CAISSE .

6 IT HAS BEEN POINTED OUT THAT , CONTRARY TO THE VIEW APPARENTLY PUT FORWARD BY THE CAISSE , THE BELGIAN LEGISLATION DOES NOT LINK THE AWARD OF FAMILY ALLOWANCES TO THE RIGHT TO A PENSION FOR ACCIDENT AT WORK BUT RATHER THE AWARD OF THE PENSION IS LINKED TO THE RIGHTS TO FAMILY ALLOWANCES .

7 HOWEVER , THE COURT IS NOT REQUIRED TO RULE WITHIN THE CONTEXT OF A REQUEST FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY ON THE MEANING AND SCOPE OF NATIONAL LEGISLATIVE PROVISIONS BUT MUST RESTRICT ITSELF TO THE INTERPRETATION OF THE PROVISIONS OF COMMUNITY LAW IN QUESTION .

8 ARTICLE 42 ( 5 ) OF REGULATION NO 3 PROVIDES THAT :

' WHERE THE DEATH OF A WAGE-EARNER OR ASSIMILATED WORKER OPENS ENTITLEMENT TO A PENSION IN RESPECT OF INDUSTRIAL ACCIDENTS OR OCCUPATIONAL DISEASE PURSUANT TO THE LEGISLATION OF THE MEMBER STATE , FAMILY ALLOWANCES IN RIGHT OF HIS CHILDREN WHO PERMANENTLY RESIDE OR WERE BROUGHT UP IN THE TERRITORY OF ANOTHER MEMBER STATE SHALL BE GRANTED IN ACCORDANCE WITH THE LEGISLATION OF THE COUNTRY FROM WHICH THE PENSION IS DUE AS THOUGH THE CHILDREN WERE PERMANENTLY RESIDENT OR WERE BROUGHT UP IN THE TERRITORY OF THAT STATE . '

9 THE WORDING OF THIS PARAGRAPH SHOWS THAT ITS AIM IS TO DETERMINE THE LEGISLATION OF THE STATE WHICH IS LIABLE TO PAY THE PENSION FOR ACCIDENTS AT WORK AS THE SOLE LEGISLATION APPLICABLE WITH REGARDS TO THE PAYMENT OF FAMILY ALLOWANCES IN THE CASES TO WHICH IT REFERS .

10 THE FACT THAT THE CHILDREN ARE RESIDING IN ANOTHER MEMBER STATE DOES NOT RULE OUT THE APPLICABILITY OF SUCH LEGISLATION , SINCE THE FAMILY ALLOWANCES MUST BE GRANTED AS IF THE CHILDREN WERE PERMANENTLY RESIDENT OR WERE BROUGHT UP IN THE TERRITORY OF THE STATE FROM WHICH THE PENSION IS DUE .

11 THE FAMILY ALLOWANCES PAYABLE TO THE CHILDREN OF A DECEASED WORKER UNDER THIS PARAGRAPH ARE NOT MERELY THOSE AWARDED IN THE CASE OF ENTITLEMENT TO AN ORPHANS ' PENSION BUT INCLUDE THOSE AWARDED IN THE CASE OF ENTITLEMENT TO ANY PENSION PAYABLE AS A RESULT OF THE DEATH , IN PARTICULAR , THE PENSION AWARDED TO THE WIDOW .

12 THE REPLY TO BE GIVEN TO THE QUESTION REFERRED MUST THEREFORE BE THAT ARTICLE 42 ( 5 ) IS TO BE INTERPRETED AS DETERMINING THE LEGISLATION APPLICABLE TO THE PAYMENT OF FAMILY ALLOWANCES TO THE CHILDREN OF A WORKER WHO HAS DIED AS A RESULT OF AN ACCIDENT AT WORK AND AS MEANING THAT THE RIGHT OF THE CHILDREN OF THE DECEASED TO FAMILY ALLOWANCES IS NOT LINKED TO THE AWARD OF AN ORPHANS ' PENSION .

13 THE SECOND QUESTION ASKS WHETHER ARTICLE 94 ( 5 ) OF REGULATION NO 1408/71 ENTITLES THE COMPETENT INSTITUTION OF A MEMBER STATE TO SUBSTITUTE ITSELF FOR AN INSURED PERSON WITH REGARD TO THE REVIEW OF THE RIGHTS WHICH THAT PERSON ACQUIRED BEFORE THE ENTRY INTO FORCE OF THE REGULATION .

14 ARTICLE 94 ( 5 ) PROVIDES THAT :

' THE RIGHTS OF A PERSON TO WHOM A PENSION WAS AWARDED PRIOR TO THE ENTRY INTO FORCE OF THIS REGULATION MAY , ON THE APPLICATION OF THE PERSON CONCERNED , BE REVIEWED , TAKING INTO ACCOUNT THE PROVISIONS OF THIS REGULATION . THIS PROVISION SHALL ALSO APPLY TO THE OTHER BENEFITS REFERRED TO IN ARTICLE 78 . '

15 THE TRANSITIONAL PROVISIONS OF THE REGULATION , INCLUDING THE ABOVEMENTIONED PARAGRAPH , ARE BASED ON THE PRINCIPLE THAT BENEFITS AWARDED UNDER REGULATION NO 3 WHICH ARE MORE FAVOURABLE THAN THOSE PAYABLE UNDER THE NEW REGULATION SHALL NOT BE REDUCED .

16 THE AIM OF THE PROVISION IS TO GIVE TO A PERSON TO WHOM BENEFITS WERE AWARDED UNDER THE OLD REGULATION THE RIGHT TO REQUEST THE REVIEW , IN HIS FAVOUR , OF SUCH BENEFITS .

17 IT WOULD BE CONTRARY TO THIS AIM TO ACKNOWLEDGE THAT THE COMPETENT INSTITUTION HAS THE POWER TO REVIEW SUCH BENEFITS OF ITS OWN MOTION AND TO THE DETRIMENT OF THE PERSON CONCERNED .

18 THE REPLY TO BE GIVEN TO THE SECOND QUESTION REFERRED IS , THEREFORE , THAT ARTICLE 94 ( 5 ) MUST BE INTERPRETED AS MEANING THAT THE COMPETENT INSTITUTION OF A MEMBER STATE IS NOT ENTITLED TO SUBSTITUTE ITSELF FOR AN INSURED PERSON WITH REGARD TO THE REVIEW OF THE RIGHTS WHICH THAT PERSON ACQUIRED BEFORE THE REGULATION CAME INTO FORCE .

COSTS

19 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

20 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , BY JUDGMENT DATED 25 MARCH 1976 , HEREBY RULES :

1 . ARTICLE 42 ( 5 ) OF REGULATION NO 2 MUST BE INTERPRETED AS DETERMINING THE LEGISLATION APPLICABLE TO THE PAYMENT OF FAMILY ALLOWANCES TO THE CHILDREN OF A WORKER WHO DIED AS A RESULT OF AN ACCIDENT AT WORK AND AS MEANING THAT THE RIGHT OF THE CHILDREN OF THE DECEASED TO FAMILY ALLOWANCES IS NOT LINKED TO THE AWARD OF AN ORPHAN ' S PENSION ;

2 . ARTICLE 94 ( 5 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT THE COMPETENT INSTITUTION OF A MEMBER STATE IS NOT ENTITLED TO SUBSTITUTE ITSELF FOR AN INSURED PERSON WITH REGARD TO THE REVIEW OF THE RIGHTS WHICH THAT PERSON ACQUIRED BEFORE THE REGULATION CAME INTO FORCE .