Judgment of the Court (Third Chamber) of 21 February 2013 (request for a preliminary ruling from the Tribunal du travail de Bruxelles — Belgium) — Patricia Dumont de Chassart v Office national d’allocations familiales pour travailleurs salariés (ONAFTS)

(Case C-619/11) (1)

(Social security - Regulation (EEC) No 1408/71 - Articles 72, 78(2)(b) and 79(1)(a) - Family benefits for orphans - Aggregation of periods of insurance and employment - Periods completed by the surviving parent in another Member State - Not taken into account)

2013/C 114/22

Language of the case: French

Referring court

Tribunal du travail de Bruxelles

Parties to the main proceedings

Applicant: Patricia Dumont de Chassart

Defendant: Office national d’allocations familiales pour travailleurs salariés (ONAFTS)

Re:

Request for a preliminary ruling — Tribunal du travail de Bruxelles — Interpretation of Articles 17 EC, 39 EC and 43 EC, and of Articles 72 and 79(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416) — Allowances for orphans to be paid by the State of residence — Admissibility, as regards the principles of equality and non-discrimination, of a Community provision that makes the acquisition of entitlement to allowances conditional on the deceased parent having completed certain insurance periods but not the surviving parent — More favourable national legislation which also allows the surviving parent to benefit under rules equating periods of insurance — Less favourable treatment of workers who are surviving parents and have exercised their right to freedom of movement — Discrimination

Operative part of the judgment

Article 72, Article 78(2)(b) and point (a) of the second subparagraph of Article 79(1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1399/1999 of 29 April 1999, must be interpreted as meaning that, where the national legislation of a Member State provides that a right to benefits for orphans can be established by both the deceased parent and the surviving parent, provided that they have the status of employed persons, those provisions of European Union law require that periods of insurance and employment completed by the surviving parent in another Member State be taken into account in the aggregation of the periods necessary to acquire the right to benefits in the first of those Member States. In that regard, it is not relevant that the surviving parent cannot rely on any period of insurance or employment in that Member State during the reference period laid down by that national legislation for the acquisition of that right.

(1)  OJ C 49, 18.2.2012.