OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 6 OCTOBER 1976 ( 1 )

Mr President,

Members of the Court,

The plaintiff in the main action is the widow of an Italian mineworker who was employed first in Italy and then in Belgium, where he died on 8 August 1956 in the pit disaster at Bois du Cazier. She has three children who were born on 18 March 1948, 31 March 1954 and 1 March 1956.

After the death of her husband the plaintiff returned to Italy. She received in Italy a pension for accident at work on her own behalf and an orphan's pension and family allowances for her three children provided by the Belgian social security scheme. In fact, as we shall see, she did not receive the orphan's pension and family allowances in full.

The competent organization, the Caisse de compensation des allocations familiales for the mining industry of the Charleroi and Basse-Sambre coalfields, stopped paying her family allowances for her eldest child on 17 March 1966 and for her second child on 30 March 1972, that is, in each case, on the dates on which they reached their eighteenth birthdays. The payment of family allowances for the youngest child ceased on 30 September 1972, although she was then only sixteen years old.

It is difficult to be sure why the Belgian Caisse de compensation des allocations familiales considered itself justified in ceasing the payments in question since that organization did not consider it necessary to appear or be represented before the Tribunal du Travail (Labour Court), Charleroi. Furthermore, neither the Caisse nor the Belgian government has made use of the right to submit observations to this Court, and the file sent by the national court contains little information about the administrative stage of the case.

I am therefore reduced to conjecture on the basis of the observations submitted by the plaintiff in the main action and by the Commission.

However, I consider the reasoning behind the decision of the Caisse to be as follows:

1. As regards the two eldest children.

The system established by the original version of Regulation No 3 in order to determine the rights to family allowances of beneficiaries of pensions was as follows:

The beneficiary of a pension under the legislation of a Member State is entitled to the family allowances provided for by that legislation if he is permanently resident in the territory of the competent State.

If the beneficiary of a pension is permanently resident in the territory of a Member State other than the competent State, he is likewise entitled to the allowances in question but only up to the amount of the family allowances or supplements to pension in respect of dependent children payable under the legislation of the country of residence, or of the sum of those benefits if the latter legislation provides for the two types of benefits to be paid concurrently (Article 42 (2)).

After 1 February 1964, the date of the entry into force of Regulation No 1/64 of the Council of 18 December 1963, the principle laid down by the new wording of Article 42 is that the right to family allowances, to which are assimilated supplements or increases in pensions for dependent children, shall be determined in accordance with a single system of legislation: benefits in respect of dependent children shall be paid in accordance with the legislation and at the expense of the competent institution of a single Member State, as if the worker had completed his whole career under the legislation of that State. The total sum of the family allowances payable under the legislation applicable is thus transferred (Article 42 (2) (b)).

In my opinion the Italian Government is quite correct in its observation that the wording of Article 42 (5), which was in force when family allowances ceased to be paid on behalf of the two eldest children, in no way links the period during which family allowances are paid to the payment of a pension for accident at work. The payment of family allowances is regarded as taking place independently within the framework of the general social security scheme of the State which is liable to pay the pension, as if the children were permanently resident or were brought up in the territory of that State. Furthermore, the text of Article 42 (5) merely refers to entitlement to a pension for accident at work and not to its actual payment. It also refers, even though not exclusively, to the widow's pension for accident at work and makes the payment of family allowances dependent on the existence of a right to such a pension alone provided, of course, that, as regards age, the conditions for entitlement to those family allowances fixed by the legislation in question are satisfied. It will thus be for the Caisse to cooperate with the Italian authorities in enquiring whether this was in fact the case and, in particular, in discovering whether the plaintiffs children have continued their studies after the age of 18 years.

2. As regards the youngest child

Certain national systems of legislation provide for family allowances to be paid to the children of pensioners. Other systems provide for the same children to be awarded supplements to pension or orphans' pensions, while others allow the various benefits to be drawn concurrently. In order to resolve the difficulties resulting from these disparities Articles 77 and 78 of Regulation No 1408/71 establish the principle that all benefits granted to the children of pensioned or deceased workers by way of the other branches of social security, with the exception of benefits granted under insurance schemes for accidents at work and occupational diseases, are treated as family allowances.

Article 77 of Regulation No 1408/71, which corresponds to paragraphs (1) to (4) of Article 42 of Regulation No 3, now settles the question as follows: irrespective of the Member State in whose territory the children or the pensioner are residing, benefits for children shall be granted in accordance with the legislation and paid by the competent institution of one Member State only, as if the worker had completed his career under the legislation of that State. Where a pension is payable under the legislation of one Member State only, the benefits shall be granted in accordance with the legislation of that State (Article 77 (2) (a)).

Under Article 78 of Regulation No 1408/71, which corresponds to Article 42 (5) of Regulation No 3 and extends to family allowances and special allowances for orphans, benefits for children shall be granted in accordance with the legislation and paid by the competent institution of one Member State only, irrespective of the Member State in whose territory the children or the pensioner are resident, as if the worker had completed his career under the legislation of that State (Article 79).

Where a deceased worker was subject to the legislation of one Member State only, orphans' benefits shall be granted in accordance with the legislation of that State (Article 78 (2) (a)).

On the other hand, where a deceased worker was subject to the legislation of several Member States, benefits shall be granted 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 Article 78 (1) is acquired under the legislation of that State (Article 78 (2) (b) (i)).

If no benefit is payable under the legislation of the Member State in whose territory the orphan resides, benefits shall be granted in accordance with the legislation of the Member State under which the deceased worker had completed the longest insurance period, provided that a right is acquired by the orphan under the legislation of that State. If no right is acquired, the conditions for the acquisition of such right under the legislations of the other Member States shall be examined in decreasing order of the length of insurance or residence periods completed under the legislation of those Member States (Article 78 (2) (b) (ii)). This is, moreover, the interpretation which you had given to Article 42 (6) of Regulation No 3 (Judgment of 17 June 1970, Caisse de compensation pour allocations familiales des charbonnages du couchant de Mons v Francesca Beninato (née Di Bella), widow of Vincenzo Beninato, [1970] ERC 415).

The foregoing provisions of Regulation No 1408/71 have thus filled a lacuna in Regulation No 3. Articles 42 (5) and (6) of that regulation only referred to family allowances for orphans, a fact which sometimes justified the payment of reduced benefits alone or on the other hand resulted in total or partial overlapping of benefits, depending on the country of residence of the orphan, where, during his career, the deceased worker had been subject to various systems of legislation, some of which provided for the payment of pensions and some for the award of family allowances to orphans.

However, this does not seem to be the case here: under Italian legislation the plaintiff receives neither orphans' benefit nor any family allowances on behalf of her children. The fact that the plaintiff is entitled to apply to the Italian authorities for orphans' benefits or family allowances and that, if such benefits are granted, they might overlap with the Belgian benefits, contrary to the prohibition contained in Regulation No 1408/71, cannot entitle the Belgian authorities to rely on such a possibility in order to discontinue payment of the benefits which they were paying to the plaintiff when to do so results in the immediate future in a total absence of benefits.

In fact, by taking such action, the Caisse is seeking to compel the plaintiff in the main action to use her right to apply for a proportion of the Italian pension. For reasons of which she is the sole judge the plaintiff did not decide to take that course of action. It is possible that one of those reasons is that, if such a pension were granted, she would lose the right to the Belgian family allowances and that the loss would not be compensated by equivalent Italian benefits.

In a similar situation (Judgment of 13 July 1976, in Case 19/76, Pietro Triches v Caisse de compensations pour allocations familiales de la region Liègeoise) you ruled that the fact that Article 42 (2) of Regulation No 3 establishes inequality of treatment according to whether an insured person receives a pension under the legislation of a single Member State or of several States does not affect the validity of that provision. I therefore consider that if the plaintiffs position with regard to her children were to be settled directly on the basis of the provisions of Article 78 of Regulation No 1408/71, the aim of which is to avoid both the overlapping of benefits and a total absence thereof, the settlement would be in no way unlawful.

However, Article 94 of Regulation No 1408/71 has expressly limited the right to apply for the review of a pension or other benefit to those to whom a pension was awarded.

When the Community authorities have adopted a different solution they have said so expressly. Thus, for example, Article 4 (4) of Regulation No 1/64 provided as a transitional provision:

“Family allowances due in pursuance of Article 42 and supplements or increases to pensions in respect of children, which have already been the subject of determination before the entry into force of this regulation, shall be the subject of a fresh determination on the part of a competent institution in pursuance of the provisions of this regulation as from the date of its entry into force.”

That is not the case here.

I therefore consider it unnecessary to resort, in order to reinforce this interpretation, to the statement contained in the minutes of the Council meeting at which the regulation was adopted which shows that the intention of the authors of that regulation with regard to Article 94 was that it should maintain acquired rights.

I am therefore of the opinion that you should rule that:

( 1 ) Translated from the French.