61983J0191

SOCIAL SECURITY FOR MIGRANT WORKERS - FAMILY BENEFITS - COMMUNITY RULES AGAINST OVERLAPPING BENEFITS - SUSPENSION OF ENTITLEMENT TO BENEFITS IN THE STATE OF EMPLOYMENT - BENEFITS PAYABLE UNDER THE LEGISLATION OF THE STATE IN WHICH MEMBERS OF THE FAMILY LIVE - CONDITIONS

( REGULATION NO 1408/71 OF THE COUNCIL , ARTS 73 AND 76 )

THERE IS NO SUSPENSION OF THE ENTITLE- MENT TO FAMILY ALLOWANCES PAYABLE IN PURSUANCE OF ARTICLE 73 OF REGULATION NO 1408/71 IN THE COUNTRY OF EMPLOYMENT OF ONE OF THE PARENTS WHEN THE OTHER PARENT RESIDES WITH THE CHILDREN IN ANOTHER MEMBER STATE AND PURSUES THERE A PROFESSIONAL OR TRADE ACTIVITY BUT DOES NOT RECEIVE FAMILY ALLOWANCES FOR THE CHILDREN , THE REASON BEING THAT NOT ALL THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THAT MEMBER STATE FOR THE ACTUAL RECEIPT OF SUCH ALLOWANCES ARE SATISFIED .

IN CASE 191/83

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

F . A . SALZANO , MUNICH ,

AND

BUNDESANSTALT FUR ARBEIT - KINDERGELDKASSE ( FEDERAL EMPLOYMENT OFFICE , CHILD ALLOWANCE DEPARTMENT )

ON THE INTERPRETATION OF ARTICLE 76 OF REGULATION NO 1408/71 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 22 JULY 1983 , RECEIVED AT THE COURT OF JUSTICE ON 12 SEPTEMBER 1983 , THE SOZIALGERICHT MUNCHEN ( SOCIAL COURT , MUNICH ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 76 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 MR SALZANO IS OF ITALIAN NATIONALITY . HE HAS BEEN EMPLOYED AND RESIDENT IN THE FEDERAL REPUBLIC OF GERMANY SINCE MAY 1979 . HIS WIFE RESIDES IN ITALY WITH THEIR THREE CHILDREN .

3 THE BUNDESANSTALT FUR ARBEIT ( FEDERAL EMPLOYMENT OFFICE ) REFUSED TO GRANT MR SALZANO THE FAMILY ALLOWANCES FOR HIS THREE CHILDREN FOR THE PERIOD FROM 1 MAY 1979 TO 31 DECEMBER 1979 , ON THE GROUNDS THAT MRS SALZANO HAD BEEN WORKING DURING THAT PERIOD AND THAT , BY VIRTUE OF BEING GAINFULLY EMPLOYED , SHE WAS ENTITLED TO THE FAMILY ALLOWANCES IN ACCORDANCE WITH ITALIAN STATUTORY PROVISIONS .

4 MR SALZANO BROUGHT AN ACTION BEFORE THE SOZIALGERICHT MUNCHEN AGAINST THE DECISION REJECTING HIS APPLICATION . THAT COURT , BY ORDER OF 22 JULY 1983 , REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY :

' ' IS ARTICLE 76 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 TO BE INTERPRETED AS MEANING THAT ENTITLEMENT TO FAMILY ALLOWANCES MUST BE SUSPENDED ( IF SO , TO WHAT EXTENT ), IN THE COUNTRY IN WHICH ONE OF THE PARENTS IS EMPLOYED , ALSO IN THE CASE WHERE THE OTHER PARENT RESIDES WITH THE CHILDREN IN ANOTHER MEMBER STATE ( COUNTRY OF RESIDENCE ) AND THERE PURSUES A PROFESSIONAL OR TRADE ACTIVITY , BUT DOES NOT RECEIVE ANY FAMILY ALLOWANCES FOR THE CHILDREN BECAUSE THERE IS NO APPLICATION BY ONE PARENT AND/OR WAIVER BY THE OTHER PARENT AS REQUIRED BY THE DOMESTIC LAW SO THAT IT IS NOT CLEAR WHETHER AND TO WHAT EXTENT THE PARENT IN THE COUNTRY OF RESIDENCE OF THE CHILDREN IS ENTITLED TO FAMILY ALLOWANCES?

' '

5 ARTICLE 73 ( 1 ) OF REGULATION NO 1408/71 PROVIDES THAT A WAGE-EARNER WHO IS SUBJECT TO THE LEGISLATION OF A MEMBER STATE OTHER THAN FRANCE IS , AS REGARDS THE MEMBERS OF HIS FAMILY RESIDING IN THE TERRITORY OF ANOTHER MEMBER STATE , ENTITLED TO RECEIVE THE FAMILY BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE FIRST MEMBER STATE , AS THOUGH THEY WERE RESIDING IN THE TERRITORY OF THE LATTER .

6 ARTICLE 76 PROVIDES THAT ENTITLEMENT TO FAMILY BENEFITS PAYABLE PURSUANT TO ARTICLE 73 IS TO BE SUSPENDED IF , BY REASON OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY , FAMILY BENEFITS OR FAMILY ALLOWANCES ARE ALSO PAYABLE UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE MEMBERS OF THE FAMILY ARE RESIDING .

7 THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 20 APRIL 1978 ( CASE 134/77 , RAGAZZONI , ( 1978 ) ECR 963 ) THAT THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY IN THE STATE IN WHOSE TERRITORY THE MEMBERS OF THE FAMILY ARE RESIDING IS NOT SUFFICIENT FOR THE SUSPENSION OF THE ENTITLEMENT CONFERRED BY ARTICLE 73 SINCE IT IS NECESSARY IN ADDITION THAT THE FAMILY BENEFITS SHOULD BE ' ' PAYABLE ' ' UNDER THE LEGISLATION OF THAT MEMBER STATE . FOR FAMILY ALLOWANCES TO BE REGARDED AS ' ' PAYABLE ' ' UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE MEMBERS OF THE FAMILY ARE RESIDING , THE LAW OF SUCH STATE OF RESIDENCE MUST RECOGNIZE THE RIGHT TO THE PAYMENT OF ALLOWANCES IN FAVOUR OF THE PERSON IN THAT FAMILY WHO WORKS IN SUCH STATE . THE PERSON CONCERNED MUST THUS FULFIL ALL THE CONDITIONS - BOTH OF FORM AND OF SUBSTANCE - WHICH ARE REQUIRED BY THE DOMESTIC LEGISLATION OF THAT STATE IN ORDER TO EXERCISE THAT RIGHT .

8 THE DOCUMENTS BEFORE THE COURT INDICATE THAT MRS SALZANO HAS NOT FULFILLED THE CONDITIONS REQUIRED BY THE ITALIAN LEGISLATION DEALING WITH FAMILY ALLOWANCES , SINCE SHE DID NOT SUBMIT THE APPLICATION REFERRED TO BY THE RELEVANT ITALIAN LEGISLATION .

9 ARTICLE 9 AF LAW NO 903 OF 9 DECEMBER 1977 ( GAZETTA UFFICIALE DELLA REPUBBLICA ITALIANA OF 17 . 12 . 1977 , NO 343 ) PROVIDES AS FOLLOWS : ' ' FAMILY BENEFITS , FAMILY ALLOWANCES AND PENSION INCREASES FOR DEPENDENT MEMBERS OF THE FAMILY MAY , IN THE ALTERNATIVE , BE PAID TO THE WIFE WHO IS IN PAID EMPLOYMENT OR IN RECEIPT OF A PENSION , ON THE SAME CONDITIONS AND SUBJECT TO THE SAME LIMITS AS THOSE WHICH APPLY TO A MALE WORKER WHO IS IN PAID EMPLOYMENT OR IN RECEIPT OF A PENSION . IN THE EVENT OF APPLICATION BY BOTH PARENTS THE FAMILY BENEFITS , FAMILY ALLOWANCES AND PENSION INCREASES FOR DEPENDENT MEMBERS OF THE FAMILY SHALL BE PAID TO THE PARENT WITH WHOM THE CHILD IS LIVING . ' '

10 CONSEQUENTLY , IN THIS INSTANCE , IF MRS SALZANO HAD IN FACT BEEN ENTITLED TO THEM , THE FAMILY ALLOWANCES WOULD HAVE BEEN PAID TO HER , PROVIDED ALWAYS THAT A PRIOR REQUEST HAD BEEN MADE . IN THE ABSENCE OF SUCH A REQUEST MRS SALZANO WAS NOT ENTITLED UNDER ITALIAN LEGISLATION TO PAYMENT OF THE FAMILY ALLOWANCES DURING THE PERIOD IN QUESTION . IT FOLLOWS THAT THE FAMILY ALLOWANCES WERE NOT ' ' ALSO PAYABLE ' ' FOR THE PURPOSES OF ARTICLE 76 OF THE AFORESAID REGULATION .

11 THE REPLY TO BE GIVEN TO THE QUESTION REFERRED TO THE COURT BY THE SOZIALGERICHT MUNCHEN MUST THEREFORE BE THAT THERE IS NO SUSPENSION OF ENTITLEMENT TO FAMILY ALLOWANCES PAYABLE IN PURSUANCE OF ARTICLE 73 OF REGULATION NO 1408/71 IN THE COUNTRY OF EMPLOYMENT OF ONE OF THE PARENTS WHEN THE OTHER PARENT RESIDES WITH THE CHILDREN IN ANOTHER MEMBER STATE AND PURSUES THERE A PROFESSIONAL OR TRADE ACTIVITY BUT DOES NOT RECEIVE FAMILY ALLOWANCES FOR THE CHILDREN , THE REASON BEING THAT NOT ALL THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THAT MEMBER STATE FOR THE ACTUAL RECEIPT OF SUCH ALLOWANCES HAVE BEEN SATISFIED .

COSTS

12 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , THE GOVERNMENT OF THE ITALIAN REPUBLIC AND 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 , 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 SOZIALGERICHT MUNCHEN BY AN ORDER OF 22 JULY 1983 , HEREBY RULES :

THERE IS NO SUSPENSION OF THE ENTITLEMENT TO FAMILY ALLOWANCES PAYABLE IN PURSUANCE OF ARTICLE 73 OF REGULATION NO 1408/71 IN THE COUNTRY OF EMPLOYMENT OF ONE OF THE PARENTS WHEN THE OTHER PARENT RESIDES WITH THE CHILDREN IN ANOTHER MEMBER STATE AND PURSUES THERE A PROFESSIONAL OR TRADE ACTIVITY BUT DOES NOT RECEIVE FAMILY ALLOWANCES FOR THE CHILDREN , THE REASON BEING THAT NOT ALL THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THAT MEMBER STATE FOR THE ACTUAL RECEIPT OF SUCH ALLOWANCES ARE SATISFIED .