(1)

It is essential to know the scope of family benefits or family allowances payable ‘by reason of carrying on an occupation’ or ‘by virtue of the pursuit of a professional or trade activity’ found in Article 76 and Article 79(3) of Regulation (EEC) No 1408/71.

(2)

Where family benefits are payable to two different persons in the course of the same period for the same member of the family under the legislation of one State and also under the legislation of the State in the territory of which the members of the family are residing, entitlement to family benefits or family allowances under the legislation of the first State shall be suspended, up to the amount of family benefits provided by the legislation of the latter State, under Article 76 of Regulation (EEC) No 1408/71 if the family benefits are payable ‘by reason of carrying on an occupation’ under the legislation of the latter State. Article 79(3) of Regulation (EEC) No 1408/71 contains a similar provision concerning benefits for pensioners and orphans.

(3)

Article 76 and Article 79(3) of Regulation (EEC) No 1408/71 do not distinguish between benefits or allowances payable by reason of a non-salaried occupation or professional or trade activity and those payable by reason of a salaried occupation or professional or trade activity.

(4)

Furthermore, the legislations of certain Member States provide that periods of suspension or interruption of actual occupation or professional or trade activity by reason of holidays, unemployment, temporary incapacity for work, strikes or lock-outs, shall be treated either as periods of occupation or professional or trade activity for the acquisition of entitlement to family benefits or family allowances or shall be regarded as periods of inactivity giving rise, where appropriate, either per se or as the result of a preceding occupation or professional or trade activity, to the payment of family benefits or family allowances.

(5)

In order to avoid any uncertainties or differences in interpretation, it is essential to define the scope of the expressions ‘carrying on an occupation’ and ‘pursuit of a professional or trade activity’.

(6)

It is also essential to know the scope of the term ‘professional or trade activity’ as referred to in Article 10(1) of Regulation (EEC) No 574/72.

(7)

If family benefits or allowances are payable to two different persons in the course of the same period for the same member of the family under the legislation of one State and also under the legislation of another State according to which the acquisition of the right to benefits is not subject to conditions governing insurance, employment or self-employment, entitlement to family benefits under the legislation of the first State shall be suspended, up to the sum of family benefits provided for by the legislation of the latter State, under Article 10(1)(b)(i) of Regulation (EEC) No 574/72 where a professional or trade activity is carried out in the latter State. Article 10(1)(b)(ii) of Regulation (EEC) No 574/72 contains a similar provision concerning benefits for pensioners and orphans.

(8)

In the matter of overlapping of family benefits or allowances, the purpose of Article 10(1) is to impart to the pursuit of a professional or trade activity in a Member State where entitlement to family benefits or allowances does not result from the pursuit of such activity the same effect as in Member States where this entitlement does arise from the pursuit of such activity. Articles 76 and 79(3) of Regulation (EEC) No 1408/71 and Article 10(1) of Regulation (EEC) No 574/72 should be interpreted in the same way.

(9)

In a case where a worker's status of active employment was suspended due to this person's unpaid leave following the birth of a child and for the purpose of bringing up this child, the Court of Justice of the European Communities referred to Article 73 of Regulation (EEC) No 1408/71 in conjunction with Article 13(2)(a) of Regulation (EEC) No 1408/71 (3). Such unpaid leave must therefore also be qualified as carrying out an occupation or professional or trade activity for the purposes of Articles 76 and 79(3) of Regulation (EEC) No 1408/71 and as well as for the purposes of Article 10(1) of Regulation (EEC) No 574/72. In this context the Court reiterated that the above mentioned provisions can only apply for as long as the person concerned has the status of an employed or self-employed person within the meaning of Article 1(a) of Regulation (EEC) No 1408/71 which requires that the person concerned is covered in at least one branch of social security. This excludes persons on unpaid leave who are no longer covered by any social security scheme of the relevant Member State.

(10)

There can only be a non-exhaustive list of cases where during a period of leave a person is deemed to be exercising an occupation or a professional or trade activity, due to the variety of systems for unpaid leave in Member States and ongoing changes in national legislation. Therefore it is not appropriate to define all the cases in which such unpaid leave is equivalent to an occupation or professional or trade activity and those where the necessary close link to the gainful activity does not exist.

After deliberation in the light of the conditions laid down in Article 80(3) of Regulation (EEC) No 1408/71,