61988J0001

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1 . Social security for migrant workers - Orphans' benefits - Orphan of a worker - Concept - Orphan of a worker' s spouse - Not included

( Regulation No 1408/71 of the Council, Arts 2 and 78(2 ) )

2 . Social security for migrant workers - Family benefits - Worker subject to the legislation of a Member State - Members of his family residing in another Member State - Entitlement to the family benefits provided for by the legislation to which the worker is subject .

( Regulation No 1408/71 of the Council, Art . 73 )

3 . Social security for migrant workers - Family benefits - Pensioners - Benefits payable by the Member State of residence of the recipient of an invalidity pension - Higher benefits previously granted by another Member State - Entitlement to a benefit supplement

( Regulation No 1408/71 of the Council, Art . 77(2)(a ) and ( b)(i ) )

1 . It is apparent from the terms of Article 78(2 ) of Regulation No 1408/71 that that provision overrides the conditions concerning residence in national territory only as regards "the orphan of a deceased worker ". Article 2 of that regulation, which defines the persons to whom the regulation applies, draws a clear distinction between workers themselves on the one hand and members of their families and their survivors on the other . The expression "orphan of a deceased worker" cannot therefore be taken to cover the case of children who have become orphans as a result of the death of a member of a worker' s family who was not himself a worker . It follows that Article 78(2 ) covers only the case of an orphan whose deceased father or mother personally had the status of worker .

2 . It follows from Article 73 of Regulation No 1408/71 that so long as a worker remains subject to the social legislation of a Member State he is entitled to the family benefits provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State, as if they were residing in the territory of the first State .

3 . Where, in the cases referred to in Article 77(2)(a ) and Article 77(2)(b)(i ) of Regulation No 1408/71, the amount of the benefits paid by the State of residence is lower than that of the benefits granted by the other State which is responsible for payment, the worker retains the right to the higher amount and is entitled to receive an additional benefit paid by the competent social security institution of that State, equal to the difference between the amount of the benefits paid by the State of residence and that of the benefits payable in the other State which is responsible for payment to persons receiving an invalidity pension, together with any supplement provided for by the legislation of the latter State in respect of the children of such pensioners .

In Case 1/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal du travail, Namur ( Belgium ), for a preliminary ruling in the proceedings pending before that court between

Adalino Baldi, a pensioner, residing in Pistoia ( Italy ),

and

Caisse de compensation pour allocations familiales de l' Union des classes moyennes, Wierde ( Belgium ),

on the interpretation of Regulation 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 ),

THE COURT ( First Chamber )

composed of : R . Joliet, President of Chamber, Sir Gordon Slynn and G . C . Rodríguez Iglesias, Judges,

Advocate General : J . Mischo

Registrar : B . Pastor, Administrator

after considering the observations submitted on behalf of

A . Baldi, the plaintiff in the main proceedings, by D . Rossini, trade-union representative, in the written procedure,

the Caisse de compensation pour allocations familiales de l' Union des classes moyennes, the defendant in the main proceedings, by A . Geubelle, of the Namur Bar, in the written procedure,

the Belgian Government, by M . Justaert, Chef de Cabinet of the Minister for Social Affairs and Institutional Reforms, acting as Agent, in the written procedure,

the French Government, by E . Belliard, acting as Agent, and C . Chavance as Assistant Agent, in the written procedure, and in the oral procedure by C . Chavance, as Assistant Agent,

the Commission of the European Communities, by K . Banks, a member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 30 November 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 24 January 1989,

gives the following

Judgment

1 By judgment of 3 December 1987 which was received at the Court on 6 January 1988, the Tribunal de Travail ( Labour Tribunal ), Namur, Belgium, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 78(2 ) of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and members of their families moving within the Community ( Official Journal, English Special Edition 1971 ( II ), p . 416 ).

2 The question was raised in proceedings brought by Adalino Baldi, an Italian national formerly subject to Belgian social security legislation, against a Belgian social security institution, the Caisse de compensation familiale de l' Union des classes moyennes ( Compensation Fund for Family Allowances of the Union of Small Firms and Traders, hereinafter referred to as "the Caisse de compensation ") concerning the grant of family allowances for a period during which Mr Baldi' s son lived in Italy .

3 Mr Baldi was employed first in Italy then, from 1952, in Belgium . His son was born on 6 June 1959 . On 10 March 1961, Mrs Baldi, who had never had the status of worker, died .

4 Following her death, the Caisse de compensation paid Mr Baldi family allowances together with the supplement provided for by Belgian legislation for orphans of whom at least one of the parents ( either the deceased parent or the surviving parent ) has or has had the status of employed person ( Article 56 bis ( 1 ) of the Royal Decree of 19 December 1939, consolidating the laws on family allowances for employed persons, Moniteur belge, 22.12.1939 ).

5 On 6 April 1977, Mr Baldi stopped working because of illness . On 1 August 1977, he and his son both left Belgium to take up residence in Italy . The Caisse de compensation nevertheless continued to pay Mr Baldi the Belgian family allowances, together with the supplement for orphans .

6 Mr Baldi was already in receipt of an Italian invalidity pension, dating back to 1972 . After his return to Italy he received the Italian family allowances associated with that pension . The amount of the Italian family allowances was, however, lower than the total of the Belgian family allowances and the supplement for orphans; he continued to receive those allowances .

7 On 6 April 1978, Mr Baldi was classified as an invalid under Belgian law . On that date, he began to receive a Belgian invalidity pension in addition to his Italian invalidity pension .

8 Several years after the return of Mr Baldi and his son to Italy, the Caisse de compensation concluded that it should have ceased payment of all the Belgian family allowances as soon as Mr Baldi' s son returned to Italy . Article 51(3 ) of the abovementioned Consolidated Law provides that "family allowances are not payable in respect of children brought up outside the Kingdom ". On 31 August 1981, the Caisse de compensation ceased payment . Moreover, it called on Mr Baldi to repay the sum of BFR 309 202 in respect of the family allowances which he had received since his son' s return to Italy .

9 Mr Baldi did not repay that sum but asked the Caisse de compensation to pay him, with retroactive effect to the date on which his payments had been stopped, the difference between the amount of the Italian family allowances and the amount of the family allowances to which he would have been entitled if his son had continued to reside in Belgium . He contended that Article 78(2 ) of Regulation No 1408/71 overrode the provisions of national law concerning residence in the national territory even where the deceased father or mother had never personally had the status of worker, provided that the surviving parent was or had been a worker .

10 Article 78(2 ) of Regulation No 1408/71 provides as follows :

"2 . Orphans' benefits shall be granted in accordance with the following rules, irrespective of the Member State in whose territory the orphan or the natural or legal person actually maintaining him is resident :

( a ) for the orphan of a deceased worker who was subject to the legislation of one Member State only in accordance with the legislation of that State;

( b ) for the orphan of a deceased worker who was subject to the legislation of several Member States :

( i ) in accordance with the legislation of the Member State in whose territory the orphan resides, provided that ... a right to one of the benefits referred to in paragraph ( 1 ) is acquired under the legislation of that State ..."

11 The Caisse de compensation contended, on the other hand, that the above provision overrode residence conditions only for orphans whose deceased father or mother personally had the status of worker, a condition not fulfilled in this case . The Caisse de compensation therefore refused to accede to his request .

12 Mr Baldi contested that decision before the tribunal du travail, Namur . The Caisse de compensation lodged a counterclaim for reimbursement of the sum which it considered to have been improperly paid to Mr Baldi after Mr Baldi' s son had ceased to reside in Belgium .

13 By judgment of 3 December 1987, the tribunal du travail, Namur, stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty :

"Is Article 78(2 ) of Regulation No 1408/71 to be interpreted as meaning that an orphan in respect of whom family allowances are payable at the rate for orphans as a result of the death of his mother who was not an employed person may, as a result of a change of residence to the territory of another Member State by which family allowances are payable at a different rate, forfeit the family allowances payable by the first Member State, or as meaning that he is entitled to receive from the competent institution of the first Member State the difference between the family allowances payable in the second Member State and the orphans' allowances previously payable?"

14 Reference is made to the Report for the Hearing for a fuller account of the facts, the applicable legislation and the written observations submitted to the Court, which are referred to or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

15 It is to be noted in the first place that, by the very terms of Article 78(2 ) of Regulation No 1408/71, that provision overrides the conditions concerning residence in national territory only as regards family allowances for "the orphan of a deceased worker ". Article 2 of Regulation No 1408/71, which defines the persons to whom that regulation applies, draws a clear distinction between workers themselves on the one hand and members of their families and their survivors on the other . The expression "orphan of a deceased worker" cannot therefore be taken to cover the case of children who have become orphans as a result of the death of a member of a worker' s family who was not himself a worker .

16 It follows that Article 78(2 ) of Regulation No 1408/71 covers only the case of an orphan whose deceased father or mother personally had the status of worker .

17 However, it is necessary to consider whether an application by a person in a situation such as that of Mr Baldi may succeed on the basis of other provisions of Regulation No 1408/71 . The facts of the case before the national court will be set out below only in so far as is necessary to outline the main features of that situation .

18 Article 73(1 ) of Regulation No 1408/71 provides that "a worker subject to the legislation of a Member State other than France shall be entitled to the family benefits provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State, as though they were residing in the territory of the first State ".

19 It follows from that provision that after his son' s return to Italy, Mr Baldi was entitled to the Belgian family allowances, including the supplement for orphans, for so long as he could claim the status of worker under Belgian legislation . Mr Baldi' s entitlement to the Italian family allowances connected with his Italian invalidity pension was suspended during that period by virtue of Article 79(3 ) of Regulation No 1408/71 . Article 79(3 ) provides that the right to benefits due under Article 77 of Regulation No 1408/71 ( benefits for dependent children of pensioners ) is to be suspended if the children become entitled to family benefits or family allowances under the legislation of a Member State by virtue of the pursuit of a professional or trade activity .

20 Mr Baldi' s rights as from the time at which he lost the status of worker under Belgian legislation must be examined in the light of Article 77 of Regulation No 1408/71 .

21 It follows from Article 77(2)(a ) of the regulation that although, for a certain period, Mr Baldi was entitled to an invalidity pension only under Italian legislation, he was entitled during that period to Italian family allowances . That provision states that where a person draws a pension under the legislation of one Member State only, he is entitled to family allowances under the legislation of that Member State . Moreover, when Mr Baldi became entitled to a Belgian invalidity pension in addition to his Italian invalidity pension, he continued to be entitled to Italian family allowances, this time pursuant to Article 77(2)(b)(i ) of Regulation No 1408/71 . The latter provision provides that where a person draws a pension under the legislation of more than one Member State he is entitled to family allowances in accordance with the legislation of whichever of those States he resides in, provided that a right to one of the benefits has been acquired there, as in this case, under the legislation of that State .

22 Both for the period governed by Article 77(2)(a ) ( pension payable under Italian legislation alone ) and for the period governed by Article 77(2)(b)(i ) ( pensions payable under Italian and Belgian legislation ) Mr Baldi is entitled to be paid by the Caisse de compensation a Belgian family allowance supplement if the Belgian allowances are of a higher amount than the Italian family allowances . The Court has consistently held that the rules contained in Regulation No 1408/71 must guarantee to workers who move within the Community all the benefits which have accrued to them in the various Member States whilst limiting them "to the greatest amount" of such benefits; in accordance with those principles, Article 77(2)(b)(i ) of Regulation No 1408/71 may not be applied in such a way as to deprive the worker, by subsituting the benefits provided by one Member State for the benefits payable by another Member State, of the most favourable benefits ( judgment of 12 June 1980 in Case 733/79 Laterza (( 1980 )) ECR 1915; judgment of 12 July 1984 in Case 242/83 Patteri (( 1984 )) ECR 3171 ). The same considerations govern the application of Article 77(2)(a ) of Regulation No 1408/71 .

23 In order to determine the family allowance supplement, payable by the Caisse de compensation, to which Mr Baldi is entitled for the period governed by Article 77 of Regulation No 1408/71, it must be borne in mind that Article 77(1 ) states that "the term 'benefits' , for the purposes of this article, shall mean family allowances for persons receiving pensions for old-age, invalidity ... and increases or supplements to such pensions in respect of the children of such pensioners ...".

24 It follows from that provision that the Belgian family allowance supplement which Mr Baldi may claim for the period governed by Article 77 of Regulation No 1408/71 is equal to the difference between the amount of the Italian family allowances and that of the Belgian family allowances available to persons receiving an invalidity pension, together with any supplement provided for by Belgian legislation in respect of the children of such persons .

25 For those reasons, it must be stated in reply to the question submitted by the tribunal du travail, Namur, that :

( i)Article 78(2 ) of Regulation No 1408/71 applies only to the case of an orphan whose deceased father or mother personally had the status of worker;

( ii ) It follows from Article 73 of Regulation No 1408/71 that so long as a worker remains subject to the social legislation of a Member State he is entitled to the family benefits provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State as though they were residing in the territory of the first State;

( iii ) Where, in the cases referred to in Article 77(2)(a ) and Article 77(2)(b)(i ) of Regulation No 1408/71, the amount of the benefits paid by the State of residence is lower than that of the benefits granted by the other State which is responsible for payment, the worker retains the right to the higher amount and is entitled to receive an additional benefit, paid by the competent social security institution of that State, equal to the difference between the amount of the benefits paid by the State of residence and that of the benefits payable in the other State which is responsible for payment to persons receiving an invalidity pension, together with any supplement provided for by the legislation of the latter State in respect of the children of such pensioners .

Costs

26 The costs incurred by the Belgian and French Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( First Chamber ),

in reply to the questions submitted to it by the tribunal du travail, Namur, by judgment of 3 December 1987, hereby rules :

( 1 ) Article 78(2 ) of Regulation No 1408/71 applies only to the case of an orphan whose deceased father or mother personally had the status of worker .

( 2 ) It follows from Article 73 of Regulation No 1408/71 that so long as a worker remains subject to the social legislation of a Member State he is entitled to the family benefits provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State as though they were residing in the territory of the first State .

( 3 ) Where, in the cases referred to in Article 77(2)(a ) and Article 77(2)(b)(i ) of Regulation No 1408/71, the amount of the benefits paid by the State of residence is lower than that of the benefits granted by the other State which is responsible for payment, the worker retains the right to the higher amount and is entitled to receive an additional benefit, paid by the competent social security institution of that State, equal to the difference between the amount of the benefits paid by the State of residence and that of the benefits payable in the other State which is responsible for payment to persons receiving an invalidity pension, together with any supplement provided for by the legislation of the latter State in respect of the children of such pensioners .