C-3/70
ECLI:EU:C:1970:55
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JUDGMENT OF 17. 6. 1970 — C SE 3/70
or several Member States, whatever the 4. Where an orphan resides permanently in place of permanent residence of his the territory of a Member State in which dependants. the deceased worker has completed insufficient insurance periods to acquire 3. A deceased worker who has in fact a right to the benefits provided for by the satisfied the conditions under which he legislation of the country of permanent or his dependants may acquire the right residence, the competent institution in in question must alone be regarded as the country from which the pension is coming under the legislation under the due is required to pay the family terms of Article 42 (6) (a) of Regulation allowances to his dependants. No 3.
In Case 3/70
Reference to the Court under Article 177 of the EEC Treaty by the conseil de prud'hommes d'appel de Mons (Mons Arbitration Appeal Tribunal) (Belgium) for a preliminary ruling in the action pending before that court between
Caisse de compensation pour allocations familiales (Equalization Fund for Family Allowances) des Charbonnages du Couchant de Mons,
and
Francesca Beninato (née Di Bella), widow of Vincenzo Beninato, residing at Catania (Italy),
on the interpretation of Article 42 (6) (a) of Regulation No 3 of the Council con cerning social security for migrant workers, as amended by Regulation No 1/64 of the Council of 18 December 1963,
THE COURT
composed of: R. Lecourt, President, R. Monaco and P. Pescatore (Rapporteur), Presidents of Chambers, A. M. Donner, A. Trabucchi, W. Strauß and J. Mertens de Wilmars, Judges,
Advocate-General: J. Gand
Registrar: A. Van Houtte
gives the following
CAISSE DE COMPENSATION ν DI BELLA
JUDGMENT
Issues of fact and of law
I — Facts and procedure appearing in Article 42 (6) (a) of Regulation No 3 concerning social security for migrant Mr Vincenzo Beninato, a worker of Italian workers (as amended by Regulation No nationality, was insured in Italy for a period 1/64). of eight weeks between 1 September 1943 and 31 July 1944, and subsequently in 1. Is this phrase to be understood to mean Belgium, where he worked in the coal-fields that a deceased worker must be regarded for more than ten years until he was retired as having come under the legislation only on an invalidity pension on 1 June 1959. if he has satisfied the conditions under The pension was payable solely by the which he or his dependants may acquire
Belgian social security authorities. the right in question? Mr Beninato died on 19 January 1962 at the age of 38 and his widow, Francesca 2. When the orphan permanently resides (née Di Bella), residing in Catania (Italy), in the territory of a Member State in was awarded a survivor's pension payable which the deceased worker has com by the Fonds national de retraite des pleted insufficient insurance periods to ouvriers mineurs (National Pension Fund entitle him to the benefits provided for for Mineworkers), Caisse de prévoyance de in the legislation of the country of Mons (Mons Social Security Fund). permanent residence, is the competent In a decision of which Mrs Beninato was institution in the country from which the informed on 31 December 1965, the Caisse pension is due required to pay the family de compensation pour allocations familiales allowances to the dependants?
des Charbonnages du Couchant de Mons dismissed a claim for the grant of family The judgment of the Conseil de prud' allowances in respect of a child whom she hommes d'appel de Mons was received at was bringing up. the Court Registry on 16 January 1970. The Caisse based its refusal on the fact that In accordance with Article 20 of the Protocol under Article 42 (6) of Regulation No 3, as on the Statute of the Court of Justice of the
amended as from 1 February 1964 by EEC written observations were submitted Regulation No 1/64, family allowances were by the Commission of the European payable in accordance with the Italian Communities on 23 March 1970 and by legislation and had to be borne by the the Government of the Italian Republic on institutions of that country. 10 April 1970. On appeal by Mrs Beninato, the Conseil de Upon hearing the report of the Judge- prud'hommes de première instance de Rapporteur and the views of the Advocate- Mons, Chambre pour ouvriers (Mons General, the Court decided to open the oral Arbitration Tribunal of first instance, procedure without any preparatory inquiry. Manual Workers' Division) upheld the The Commission and the Government of application for family allowances in a the Italian Republic submitted their oral decision of 30 January 1969. observations at the hearing on 5 May 1970. The Caisse de compensation appealed The Advocate-General delivered his opinion against this decision on 11 March 1969 and, at the hearing on 14 May 1970. by judgment of 15 November 1969, the
Conseil de prud'hommes d'appel de Mons II — Observations submitted to the decided to stay the proceedings and to refer Court the following questions to the Court for a preliminary ruling on the interpretation of The Commission's main observations are the phrase 'came under the legislation' as follows:
JUDGMENT OF 17. 6. 1970 — CASE 3/70
The questions referred to the Court of 42 (6) (b), such as that put forward by the Justice for interpretation arise out of the Caisse de compensation pour allocations amendment to the text of Article 42 of familiales des Charbonnages du Couchant Regulation No 3. de Mons, would result in a refusal to pay The Article originally read 'Where the the additional pension in favour of the legislation of the competent country pro orphan which, in Italy, takes the place of vides, in the event of the wage-earner's family allowances. Mr Beninato had only death, for family allowances for the children, been insured in Italy for eight weeks and entitlement to such allowances shall likewise thus had not completed the minimum of six extend to children who are permanently months' insurance required under the resident or are being brought up in the Italian legislation. Moreover, even if the territory of another Member State .
. .'. right to a proportion of a pension in respect As the Belgian legislation provided for the of an orphan was acquired under the Italian grant of family allowances in favour of the legislation by aggregating the insurance children on the death of a wage-earner, the periods completed by Mr Beninato in present case could have been settled without Belgium and in Italy in accordance with the further difficulties by the application of the provisions of Article 27 of Regulation No 3, former Article 42 of Regulation No 3 in such proportion would not be paid by conjunction with the former Article 69 of reason of the provisions of Article 28 (2) Regulation No 4. of Regulation No 4 which provides that 'If Regulation No 1/64 of the Council of 1 the insurance periods and assimilated February 1964 amended Article 42 of periods, completed under the legislation of Regulation No 3 ; paragraph (6) of Article one Member State, do not together total six 42 as amended reads : months no benefit shall be granted under 'Where the death of a paid worker or the said legislation'. assimilated worker, does not open en Such a conclusion would be a complete titlement to a pension in respect of contradiction of the spirit of Regulation industrial accidents or occupational No 1/64. The purpose of this Regulation disease pursuant to the legislation of a cannot be to deprive those concerned of Member State, granting of family allow benefits to which they might have been ances in respect of his children is entitled if the deceased worker had been governed by the following rules : subject to the legislation of a single Member (a) if the deceased worker came under the State; there is thus a gap in the present
scheme. legislation of a single Member State and if the orphan permanently resides In these circumstances the only solution or is being brought up in the territory within the spirit and objectives of the Treaty of another Member State, family and of Regulation No 3 would be to accept allowances are due in accordance with that, where an insurance period is not taken the legislation of the former Member into consideration for the grant of a State as though the orphan perma proportionate amount of a pension under nently resided or was being brought Article 28 (2) of Regulation No 4, such period has not been completed in the State up in that country; in question within the meaning of Article (b) if the deceased worker came under the 42 (6) of Regulation No 3. The phrase 'came legislation of several Member States under the legislation' used in Article 42 (6) (a)
and: of Regulation No 3 is thus to be interpreted (i) if the orphan permanently resides to mean that the deceased worked must or is being brought up in the only be regarded as having 'come under the territory of one of these States, legislation' if he has satisfied the conditions family allowances are due in ac under which his dependants may acquire the cordance with the legislation of right in question. However, this interpre that Member State; tation cannot be applied in a general way to
'
the other provisions of Regulation No 3 in A purely literal application of Article which the same phrase is used.
CAISSE DE COMPENSATION ν DI BELLA
The. main observations submitted by the logical interpretation of paragraph (6) (a) is Government of the Italian Republic are as as follows : follows: A worker may only be regarded as having For the purposes of the interpretation of come under the legislation of another paragraph (6) of Article 42 of Regulation Member State if he has in fact worked in No 3, it is necessary to consider this para that State during the minimum period graph in the context of the Article as a necessary to give rise to the legal conse whole. quences inherent in matters of social It follows from the first four paragraphs security. of Article 42 that, in. determining from Paragraphs (1) and (2) which, to a certain which State the family allowances are due extent, might be regarded as parallel to to the persons entitled to a pension, a paragraph (6) (a) and (b), use the phrase distinction must be made according to 'pension due in pursuance of the legislation whether this pension is payable by virtue which thus shows that the situation of the legislation of a single Member State envisaged is one in which the conditions for or, on the other hand, by virtue of the acquiring the right are satisfied. It is in this legislation of several Member States. In the sense that the phrase 'came under the second, case, the fact of residence in a legislation used in paragraph (6) must particular State might result in a change in be interpreted. A worker who has been the competent authority for the payment employed for a certain period cannot be of family allowances from one country to regarded as coming under particular legisla another. tion by reason of his employment if that Paragraph (5) makes a departure from this employment is unaffected by such legisla system, in that the place of permanent tion. This interpretation expressly agrees residence of the orphan has no bearing on with Article 28 (2) of Regulation No 4. the question which is the competent Moreover, any different interpretation of authority for payment. Article 42 (6) of Regulation No 3 would lead On the other hand, paragraph (6) applies to the creation of a legal vacuum. It is a criterion which is to a large extent similar inconceivable that Regulation No 3, which to that contained in paragraphs (1) to (4), was adopted in order to coordinate the in that it makes a distinction according to national laws of each Member State, whether the deceased worker involved came intended, in the difficult matter of family under the legislation of a single Member allowances in respect of minor children of State (subparagraph (a)) or under the deceased workers, to provide that no legislation of several Member States (sub Member State should be liable to pay such paragraph (b)). allowances although the worker had been If Article 42 is taken as a whole the only employed within the Community.
Grounds of judgment
1 By judgment of 15 November 1969, received at the Court Registry on 16 January 1970, the Conseil de prud'hommes d'appel de Mons submitted the following questions to the Court under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of the phrase 'came under the legislation' contained in Article 42 (6) (a) of Regulation No 3 concerning social security for migrant workers, as amended in accordance with Article 1 of Regulation No 1/64 EEC of the Council:
1. 'Is this phrase to be understood to mean that a deceased worker must be regarded as having come under the legislation only if he has satisfied the con ditions under which he or his dependants may acquire the right in question?'
JUDGMENT OF 17. 6. 1970 — CASE 3/70
2. 'When the orphan permanently resides in the territory of a Member State in which the deceased worker has completed insufficient insurance periods to entitle him to the benefits provided for in the legislation of the country of permanent residence, is the competent institution in the country from which the pension is due required to pay the family allowances to the dependants?'
2 By virtue of Article 42 (6) of Regulation No 3, in the event of the death of a wage- earner, which does not open entitlement to a pension in respect of industrial accidents or occupational disease pursuant to the legislation of a Member State, the granting of family allowances in respect of his children is governed differently according to whether the deceased worker came under the legislation of a single Member State or of several Member States.
3 If the deceased worker came under the legislation of a single Member State and if the orphan permanently resides or is being brought up in the territory of another Member State, family allowances are due in accordance with legislation of the former Member State as though the orphan permanently resided or were being brought up in that country.
4 If the deceased worker was subject to the legislation of several Member States and if the orphan permanently resides or is being brought up in the territory of one of these States, family allowances are due in accordance with the legislation of that Member State.
5 The special feature of the legal situation which gave rise to the decision to refer the case for a ruling is that the deceased worker was successively employed and insured in Italy and in Belgium.
б However, the insurance period completed under the Italian legislation was less than the minimum of six months necessary for the acquisition of any right at all and the situation cannot be remedied by calling in aid the principle of aggregation.
7 In fact, as the Italian legislation provides for the allowances in question to be paid in respect of the orphan of a worker in the form of supplements or increases in the widow's pension, Article 28 (2) of Regulation No 4 is applicable.
β As regards survivor's pensions, that provision stipulates that 8 'If the insurance periods ... completed under the legislation of one Member State do not together total six months no benefit shall be granted under the said legislation' and thus excludes any possibility of aggregation.
CAISSE DE COMPENSATION ν DI BELLA
9 The main point of the questions put by the Conseil de prud'hommes d'appel de Mons is therefore whether the phrase 'came under the legislation' used in Article 42 (6) of Regulation No 3 can refer to the legislation of a Member State which when applied has no effect on the acquisition of a right to benefits.
10 The problem of interpretation thus raised can only be resolved in the light of the objectives of the provisions of Articles 48 to 51 of the Treaty, which form the basis of Regulation No 3.
11 Those provisions, the purpose of which is to ensure that the migrant worker and his dependants obtain the benefits which correspond to the various periods of employment and insurance completed by him, do not allow Regulation No 3 to be interpreted in such a way as to deprive those concerned of certain benefits by reason of their place of permanent residence.
12 As regards in particular the system established by Article 42 (6): to take into account not only legislation under which the deceased worker completed the main part of his career for social security purposes but also other legislation to which he was temporarily subject without its having any possible practical effects for him, would amount to depriving an orphan residing permanently in the territory of this latter State of any family allowance in the absence of any right to benefit to which such allowance could be attached.
13 Such a result would be contrary to the purpose of Articles 48 to 51 of the Treaty and in particular to the object of Article 42 (6) of Regulation No 3 which is to ensure in all circumstances the payment of family allowances which correspond to insurance periods completed by the deceased worker in one or more Member States, whatever the place of permanent residence of his dependants.
14 It follows from this that in the context of Article 42 (6) the phrase 'came under the legislation' must be interpreted in such a way as to prevent the taking into account of any legislation which cannot lead to the acquisition of a right.
15 The reply to the first question must therefore be that the phrase 'came under the legislation' in Article 42 (6) (a) of Regulation No 3 must be understood to mean that a deceased worker must not be regarded as having come under the legislation unless he has in fact satisfied the conditions under which he or his dependants may acquire the right in question.
16 The reply to the second question must therefore be that where an orphan per-
JUDGMENT OF 17. 6. 1970 — CASE 3/70
manently resides in the territory of a Member State in which the deceased worker completed insufficient insurance periods to acquire a right to the benefits provided for by the legislation of the country of permanent residence, the competent institution of the country from which the pension is due, is required to pay the family allowances to the dependants.
Costs
17 The costs incurred by the Commission of the European Communities and the Government of the Italian Republic, which have submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Conseil de prud'hommes d'appel de Mons, the decision as to costs is a matter for that court.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Communities and of the Government of the Italian Republic; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 48 to 51 and 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers, as amended by Regulation No 1/64 of the Council of 18 December 1963, especially Articles 27 and 42; Having regard to Regulation No 4 of the Council on implementing procedures and supplementary provisions in respect of Regulation No 3, especially Article 28 (2); Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT
in answer to the questions referred to it by the Conseil de prud'hommes d'appel de Mons by judgment of 15 November 1969, hereby rules:
CAISSE DE COMPENSATION ν DI BELLA
1. The phrase 'came under the legislation' in Article 42 (6) (a) of Regulation No 3 must be understood to mean that a deceased worker must not be
regarded as having come under the legislation unless he has in fact satisfied the conditions under which he or his dependants may acquire the right in question;
2. Where an orphan permanently resides in the territory of a Member State in which the deceased worker insufficient insurance periods to acquire a right to the benefits provided for by the legislation of the country of permanent residence, the competent institution of the country from which the pension is due is required to pay the family allowances to the dependants.
Lecourt Monaco Pescatore
Donner Trabucchi Strauß Mertens de Wilmars
Delivered in open court in Luxembourg on 17 June 1970.
A. Van Houtte R. Lecourt
Registrar President
OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 14 MAY 19701
Mr President, periods completed under the legislation of Members of the Court, one Member State do not together total six months no benefit shall be granted under the The request for a preliminary ruling made said legislation. He then worked in the to you by the Conseil de Prud'hommes de Belgian coal-fields for more than ten years Mons concerns the interpretation of Article until 1 June 1959, on which date he began 42 (6) (a) of Regulation No 3 on social to draw an invalidity pension which was security for migrant workers, as amended in payable solely out of Belgian insurance accordance with Regulation No 1/64. funds. After his death in 1962, his widow, Mrs Beninato (née Di Bella), residing in 1. The facts are as follows : Catania, was granted a survivor's pension Mr Vincenzo Beninato, an Italian national, by the Fonds national de retraite des was insured in his country of origin for eight ouvriers mineurs. It appears that in weeks between September 1943 and July Belgium she also received family allowances 1944. Under the Italian legislation, as under in respect of a child which she is bringing up. the Community regulations, this period was However, by decision notified on 31 Decem too short for him to acquire any rights. ber 1965, the Caisse de Compensation pour Article 28 (2) of Regulation No 4 provides allocations familiales des Charbonnages du that if the insurance periods and assimilated Couchant de Mons refused to continue this
1 — Translated from the French.