61982J0320

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - BENEFITS GRANTED TO A MIGRANT WORKER OR HIS DEPENDANTS UNDER THE LEGISLATION OF A SINGLE MEMBER STATE - APPLICATION OF THE COMMUNITY RULES IN SUCH A WAY AS TO DEPRIVE THE PARTIES CONCERNED OF THE BENEFITS IN QUESTION - NOT PERMISSIBLE

( EEC TREATY , ART . 51 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - ORPHANS ' BENEFITS - BENEFITS PAID BY THE STATE OF RESIDENCE - BENEFITS LOWER THAN THOSE PAYABLE UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ALONE - ENTITLEMENT TO THE HIGHER AMOUNT - ENTITLEMENT TO A SUPPLEMENT TO THE BENEFIT

( REGULATION NO 1408/71 OF THE COUNCIL , ARTS 77 AND 78 )

1 . THE AIM OF ARTICLE 51 OF THE TREATY WOULD NOT BE ACHIEVED IF , AS A RESULT OF THE EXERCISE OF THEIR RIGHT TO FREEDOM OF MOVEMENT , WORKERS WERE TO LOSE THE SOCIAL SECURITY ADVANTAGES GUARANTEED TO THEM , IN ANY EVENT , BY THE LEGISLATION OF A SINGLE MEMBER STATE . CONSEQUENTLY THE COMMUNITY RULES ON SOCIAL SECURITY CANNOT , IN THE ABSENCE OF AN EXPRESS EXCEPTION CONSISTENT WITH THE AIMS OF THE TREATY , BE APPLIED IN SUCH A WAY AS TO DEPRIVE A MIGRANT WORKER OR HIS DEPENDANTS OF BENEFITS GRANTED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE .

2.ARTICLES 77 AND 78 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT , WHERE A DECEASED FATHER HAS BEEN SUBJECT TO THE LEGISLATION OF MORE THAN ONE MEMBER STATE , ENTITLEMENT TO AN ORPHAN ' S PENSION ACQUIRED UNDER THE LEGISLATION OF THE MEMBER STATE WHICH IS COMPETENT ACCORDING TO THOSE PROVISIONS DOES NOT EXTINGUISH ENTITLEMENT TO HIGHER ORPHANS ' BENEFITS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ALONE . WHERE THE AMOUNT OF THE BENEFITS ACTUALLY RECEIVED IN THE FIRST MEMBER STATE IS LESS THAN THAT OF THE BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE OTHER MEMBER STATE ALONE , THE ORPHAN IS ENTITLED TO A SUPPLEMENT FROM THE COMPETENT INSTITUTION OF THE LATTER STATE EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS .

IN CASE 320/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

BENITO D ' AMARIO

AND

LANDESVERSICHERUNGSANSTALT SCHWABEN ( REGIONAL INSURANCE OFFICE , SWABIA )

ON THE INTERPRETATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1 BY ORDER OF 6 OCTOBER 1982 , RECEIVED AT THE COURT ON 16 DECEMBER 1982 , THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , A QUESTION ON THE INTERPRETATION OF ARTICLES 77 AND 78 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THAT QUESTION IS WORDED AS FOLLOWS :

' ' MUST THE GERMAN PENSION INSTITUTION PAY TO AN ORPHAN WHO IS AN ITALIAN NATIONAL AND HAS ALWAYS LIVED IN ITALY A SUPPLEMENT TO THE ORPHAN ' S PENSION GRANTED TO HIM BY THE ITALIAN PENSION INSTITUTION IF , ALTHOUGH HIS LATE FATHER PAID CONTRIBUTIONS TO BOTH THE GERMAN AND THE ITALIAN PENSION INSTITUTIONS , ENTITLEMENT TO THE GRANT OF AN ORPHAN ' S PENSION WAS ACQUIRED UNDER GERMAN LEGISLATION BY VIRTUE OF THE GERMAN CONTRIBUTIONS ALONE?

' '

3 BY THAT QUESTION , THE NATIONAL COURT SEEKS TO ESTABLISH WHETHER , WHEN THE DECEASED FATHER HAS BEEN SUBJECT TO THE LEGISLATION OF SEVERAL MEMBER STATES , ENTITLEMENT TO AN ORPHAN ' S PENSION IS EXCLUSIVELY DETERMINED BY THE LEGISLATION OF THE MEMBER STATE WHICH IS COMPETENT TO GRANT THAT BENEFIT IN ACCORDANCE WITH ARTICLES 77 AND 78 OF REGULATION NO 1408/71 ( IN THIS INSTANCE ITALY ), OR WHETHER , ON THE OTHER HAND , THE INSTITUTION OF ANOTHER MEMBER STATE , WHOSE LEGISLATION ALONE PROVIDES FOR AN ENTITLEMENT TO A HIGHER PENSION ( IN THIS CASE THE FEDERAL REPUBLIC OF GERMANY ) IS REQUIRED TO GRANT A SUPPLEMENT CORRESPONDING TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS .

4 IN ITS JUDGMENT OF 9 JUNE 1980 ( CASE 807/79 GRAVINA ( 1980 ) ECR 2205 ), THE COURT NOTED THAT THE AIM OF ARTICLE 51 OF THE TREATY WOULD NOT BE ACHIEVED IF , AS A RESULT OF THE EXERCISE OF THEIR RIGHT TO FREEDOM OF MOVEMENT , WORKERS WERE TO LOSE THE SOCIAL SECURITY ADVANTAGES GUARANTEED TO THEM , IN ANY EVENT , BY THE LEGISLATION OF A SINGLE MEMBER STATE . CONSEQUENTLY THE COMMUNITY RULES ON SOCIAL SECURITY CANNOT , IN THE ABSENCE OF AN EXPRESS EXCEPTION CONSISTENT WITH THE AIMS OF THE TREATY , BE APPLIED IN SUCH A WAY AS TO DEPRIVE A MIGRANT WORKER OR HIS DEPENDANTS OF BENEFITS GRANTED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE .

5 IT FOLLOWS FROM THE ABOVE-MENTIONED JUDGMENT THAT ARTICLE 78 OF REGULATION NO 1408/71 MAY NOT BE INTERPRETED IN SUCH A WAY AS TO DEPRIVE THE ORPHANS OF A DECEASED WORKER WHO HAS BEEN SUBJECT TO THE LEGISLATION OF MORE THAN ONE MEMBER STATE OF THE BENEFITS ACQUIRED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE IF THEY ARE HIGHER THAN THE BENEFITS GRANTED BY THE MEMBER STATE TO WHOSE TERRITORY THE ORPHANS ' RESIDENCE HAS BEEN TRANSFERRED .

6 THE BUNDESSOZIALGERICHT HESITATES TO APPLY THAT INTERPRETATION TO THE CASE BROUGHT BEFORE IT . IT STATES THAT THIS CASE DOES NOT CONCERN AN ORPHAN WHOSE RESIDENCE HAS BEEN TRANSFERRED INASMUCH AS THE PLAINTIFF IN THE MAIN ACTION HAS ALWAYS RESIDED IN ITALY WHERE HIS FATHER WAS SUBJECT TO THE SOCIAL SECURITY SCHEME BEFORE GOING TO WORK IN THE FEDERAL REPUBLIC OF GERMANY AND WHERE THE FAMILY ALLOWANCES WERE GRANTED BY THE ITALIAN INSTITUTION IN ACCORDANCE WITH ARTICLE 77 OF REGULATION NO 1408/71 . IN ADDITION THE BUNDESSOZIALGERICHT POINTS OUT THAT THE APPLICATION OF THE ITALIAN SCHEME ALONE TO THE EXCLUSION OF ANY BENEFIT GRANTED UNDER THE GERMAN LEGISLATION , SEEMS , IN ITS VIEW , TO CONFORM TO THE DECLARED AIM OF THE COMMUNITY LEGISLATURE , WHICH IS TO ACHIEVE A QUICK AND SIMPLE ADMINISTRATIVE PROCEDURE .

7 IN THE FIRST PLACE IT SHOULD BE NOTED THAT THE QUESTION WHETHER THE RESIDENCE OF AN ORPHAN HAS ALWAYS BEEN ESTABLISHED IN A MEMBER STATE OR WHETHER IT HAS BEEN TRANSFERRED THERE IS OF NO RELEVANCE FOR THE APPLICATION OF ARTICLES 77 AND 78 OF REGULATION NO 1408/71 . INDEED , AS THE COURT HAS ALREADY OBSERVED , IN RELATION TO FAMILY ALLOWANCES , IN ITS JUDGMENT OF 12 JUNE 1980 ( CASE 733/79 LATERZA ( 1980 ) ECR 1915 ), THE GUIDING PRINCIPLES OF THAT REGULATION REQUIRE THAT , IF THE AMOUNT OF THE BENEFITS PROVIDED BY THE STATE OF RESIDENCE IS LESS THAN THAT OF THE BENEFITS AWARDED BY THE OTHER STATE RESPONSIBLE FOR PAYING THEM THE WORKER OR HIS DEPENDANT SHALL CONTINUE TO BE ENTITLED TO THE GREATER AMOUNT AND SHALL RECEIVE FROM THE COMPETENT INSTITUTION OF THAT LATTER STATE A SUPPLEMENT TO THE BENEFIT EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS .

8 THOUGH IT IS TRUE THAT THE CONCURRENT GRANT OF BENEFITS FROM DIFFERENT MEMBER STATES MAY , IN THE CASE OF ORPHANS ' BENEFITS , GIVE RISE TO DIFFICULTIES OF A PRACTICAL NATURE WHICH , AS YET , HAVE NOT BEEN ENVISAGED BY THE COMMUNITY PROVISIONS CONCERNING THE APPLICATION OF REGULATION NO 1408/71 , THAT FACT CANNOT , IN ITSELF , JUSTIFY AN INTERPRETATION OF THAT REGULATION ACCORDING TO WHICH THE APPLICATION OF THE LEGISLATION OF A MEMBER STATE PREVENTS THE PAYMENT OF MORE FAVOURABLE BENEFITS DUE UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ALONE .

9 IT FOLLOWS THAT THE CIRCUMSTANCES AND CONSIDERATIONS REFERRED TO BY THE NATIONAL COURT ARE NOT SUCH AS TO JUSTIFY A DEPARTURE FROM THE CASE-LAW CONCERNING THE INTERPRETATION OF ARTICLE 51 OF THE TREATY AND REGULATION NO 1408/71 .

10 IN THOSE CIRCUMSTANCES , IN REPLY TO THE QUESTION SUBMITTED IT SHOULD BE STATED THAT ARTICLES 77 AND 78 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT , WHERE A DECEASED FATHER HAS BEEN SUBJECT TO THE LEGISLATION OF MORE THAN ONE MEMBER STATE , ENTITLEMENT TO AN ORPHAN ' S PENSION ACQUIRED UNDER THE LEGISLATION OF THE MEMBER STATE WHICH IS COMPETENT ACCORDING TO THOSE PROVISIONS DOES NOT EXTINGUISH ENTITLEMENT TO HIGHER ORPHANS ' BENEFITS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ALONE . WHERE THE AMOUNT OF THE BENEFITS ACTUALLY RECEIVED IN THE FIRST MEMBER STATE IS LESS THAN THAT OF THE BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE OTHER MEMBER STATE ALONE , THE ORPHAN IS ENTITLED TO A SUPPLEMENT FROM THE COMPETENT INSTITUTION OF THE LATTER STATE EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS .

COSTS

11 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESSOZIALGERICHT , BY ORDER OF 6 OCTOBER 1982 , HERERBY RULES :

ARTICLES 77 AND 78 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT , WHERE A DECEASED FATHER HAS BEEN SUBJECT TO THE LEGISLATION OF MORE THAN ONE MEMBER STATE , ENTITLEMENT TO AN ORPHAN ' S PENSION ACQUIRED UNDER THE LEGISLATION OF THE MEMBER STATE WHICH IS COMPETENT ACCORDING TO THOSE PROVISIONS DOES NOT EXTINGUISH ENTITLEMENT TO HIGHER ORPHANS ' BENEFITS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ALONE . WHERE THE AMOUNT OF THE BENEFITS ACTUALLY RECEIVED IN THE FIRST MEMBER STATE IS LESS THAN THAT OF THE BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE OTHER MEMBER STATE ALONE , THE ORPHAN IS ENTITLED TO A SUPPLEMENT FROM THE COMPETENT INSTITUTION OF THE LATTER STATE EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS .