C-32/76
ECLI:EU:C:1976:136
- Súd
- Súdny dvor Európskej únie
- IČS
- 61976CJ0032
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF 13. 10. 1976 — CASE 32/76
In Case 32/76,
Reference to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail (Labour Tribunal) of Charleroi, for a preliminary ruling in the proceedings pending before that court between
ALFONSA REALE, NÉE SAIEVA, residing at Montaperto, Italy, and
LA CAISSE DE COMPENSATION DES ALLOCATIONS FAMILIALES FOR THE MINING INDUSTRY
OF THE CHARLEROI AND BASSE-SAMBRE COALFIEDS, Charleroi, Belgium,
on the interpretation of Article 42 (5) of Regulation No 3 of the Council of the EEC of 25 September 1958 concerning social security for migrant workers OJ No 30 of 16 December 1958, p. 561), as amended by Regulation No 1/64/EEC of the Council of 18 December 1963 (OJ No 1 of 8 January 1964, p. 1), and Article 94 (5) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416),
THE COURT
composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, and A. O'Keeffe, Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The judgment referring the matter and I — Facts and procedure the written observations submitted under Article 20 of the Protocol on the Statute 1. The consolidated Belgian legislation of the Court of Justice of the EEC may on family allowances provides that such be summarized as follows: allowances shall normally be payable
SAIEVA v CAISSE ALLOCATIONS FAMILIALES
until a child reaches the age of 16 years. children after the age of 18 years by However, they are payable up to the age reference to Article 42 (5) of Regulation of 21 years where a child is receiving No 3 under which, it maintains, Belgium vocational training, up to the age of 25 is only liable to pay family allowances to years where he is undergoing full-time orphans as long as such orphans are education and without any age-limit entitled to pensions for accidents at where he suffers from serious invalidity. work. Under the Belgian legislation applicable in this instance such pensions
2. Article 4 (2) (B) of the laws of 24 are payable up to the age of 18 years. December 1903 on compensation for injury suffered in an accident at work Article 42 (5) provides: provided that orphans were entitled to the temporay pension for accidents at 'Where the death of a wage-earner or work up to the age of 18 years. At assimilated worker opens entitlement to present, Article 19 of the Law of 10 April a pension for industrial accidents or 1971 on accidents at work provides that occupational disease pursuant to the children shall receive the pension for legislation of one Member State, family accident at work as long as they are allowances in right of his children who entitled to family allowances and at all permanently reside or were brought up events up to the age of 18 years. in the territory of another Member State shall be granted in accordance with the
3. The applicant in the main action, legislation of the country from which the who is an Italian national, is the widow pension is due, as though the children of Calogero Reale, an Italian worker who were permanently resident or were had worked first in Italy and then in brought up in the territory of that State.' Belgium. He died on 8 August 1956 in the pit disaster at Marcinelle. There are 6. As regards the third child, the Caisse three children of the marriage, Alfonso, claimed that its duty to pay family born on 18 march 1948, Maria Rosa, allowances came to an end as from 1 born on 31 March 1954, and Lina, born October 1972, the date on which on 1 March 1956. Regulation No 1408/71 came into force, since Mr Reale had completed an
4. Although, after the death of her insurance period of five years, two husband, Mrs Reale returned to Italy with months and four weeks in Italy and her children, she received under Belgian under Article 78 (2) (b) of the new legislation a pension for accident at work regulation the payment of family for herself and her three children and allowances is the responsibility of the family allowances for the children. relevant Italian institution, in this instance, the Istituto Nazionale delle
5. The Caisse de compensation des Previdenza Sociale (National Institution for Social Insurance, hereinafter referred allocations familiales for the mining to as 'the INPS'. industry of the Charleroi and Basse- Sambre coalfields (hereinafter referred to as 'the Caisse') stopped paying Mrs Reale The article in question provides: family allowances in respect of her two eldest children when they reached the '2. Orphans' benefits shall be granted age of 18 years and in respect of her in accordance with the following rules, youngest child on 30 September 1972, irrespective of the Member State in although, at that time, she had not whose territory the orphan or the natural reached the age of 18 years. The Caisse or legal person actually maintaining him justified its refusal to pay family is resident or situated; allowances in respect of the two eldest (a)
JUDGMENT OF 13. 10. 1976 — CASE 32/76
(b) for the orphan of a deceased worker She therefore referred the matter to the who was subject to the legislation of Tribunal du Travail, Charleroi, in order several Member States: to obtain family allowances for her three (i) In accordance with the legislation children after their eighteenth birthdays. of the Member State in whose She asked the Tribunal to submit certain territory the orphan resides questions relating to the interpretation of provided that, taking into account Regulation No 3 and Regulation No where appropriate Article 79 (1) 1408/71 to the Court of Justice of the (a), a right to one of the benefits European Communities. referred to in paragraph 1 is acquired under the legislation of 9. In a judgment delivered on 25 March that State ...' 1976 the Tribunal du Travail, Charleroi, stayed the proceedings in the case and The Caisse found that, as regards requested the Court of Justice under orphans' benefits, Article 78 of Article 177 of the EEC Treaty to give a Regulation No 1408/71 removes all preliminary ruling on the following reference to pensions for accidents at questions: work or occupational diseases and '1. Interpretationof Article 42 (5) of excludes from its sphere of application Regulation No 3 of the Council of orphans' pensions granted under the EEC insurance schemes for accidents at work Must this provision be interpreted as and occupational diseases. It is meaning that family allowances cease impossible for the applicant in the main to be payable when the orphans' right action to have acquired rights since the to the temporary pension for only provision in Regulation No 1408/71 accidents at work expires under the relating to such rights appears in Article legislation of the State liable to pay 94 (9), which does not apply to the the benefits, that is, in this instance, present case. at the age of 18 years? 2. Interpretation of Article 94 (5) of 7. The Caisse asked the INPS to Regulation (EEC) No 1408/71 of the examine the rights of the applicant's Council children to family allowances for orphans (a) Is the competent institution of a after 1 October 1972 in the light of Member State entitled to Regulation No 1408/71. substitute itself for an insured
8. Mrs Reale contested the person with regard to the review interpretation of Article 42 (5) of of the rights which that person Regulation No 3 by the Caisse and took acquired before Regulation No the view that the Caisse could not 1408/71 came into force? substitute itself for her under Article 94 (b) If the preceding question is answered in the affirmative, can (5) of Regulation No 1408/71 in order to such review have the effect of achieve a review of her rights to family allowances. reducing the benefits received by the person concerned until the Article 94 (5) provides: coming into force of that regulation?' The rights of a person to whom a pension was awarded prior to the entry 10. The judgment of the Tribunal du into force of this regulation may, on the Travail was entered in the Court Register application of the person concerned, be on 29 March 1976. reviewed, taking into account the provisions of this regulation. This Written observations were submitted by provision shall also apply to the other Mrs Reale, represented by Daniele benefits referred to in Article 78.' Rossini, Director of the Welfare Service
SAIEVA v CAISSE ALLOCATIONS FAMILIALES
of the Patronato A.C.L.I., the reviewed on the application of the Commission, represented by its Legal persons concerned. As is shown in Adviser, Marie-José Jonczy, and the particular by the fifth recital of the Italian Government, represented by the preamble to Regulation No 1408/71, Ambassador, Adolfo Maresca, assisted by Regulations Nos 1408/71 and 574/72 Ivo Maria Braguglia, Deputy State were adopted by the Council in order to Advocate-General. improve the standard of living of workers and their dependants. Upon hearing the report of the Judge-Rapporteur and the views of the Mrs Reale received no pension from the Advocate-General the court decided to INPS despite a request to this effect from open the oral procedure without holding the Caisse and she thus received no any preparatory inquiry. family allowances. Furthermore, as the treatment of an insured person under Article 78 of Regulation No 1408/71 II — Written observations sub differs according to whether the said mitted to the Court person received a pension under the legislation of one Member State or of 1. As regards the first question referred several, and as its application may by the Tribunal du Travail, the applicant therefore be unfavourable to her she does in the main action maintains that there not intend to apply for a survivor's is nothing in Article 42 (5) of Regulation pension in Italy on the basis of the No 3 to justify the suspension of the insurance periods completed by her late payment of the family allowances. husband. The Court of Justice is required Family allowances remain payable as to resolve this problem in Case 19/76, long as the orphans satisfy the conditions Pietro Triches v Caisse de compensation for payment laid down by the legislation pour allocations familiales de la of the State liable to pay the pension. If religion liégeoise. the orphans resided in Belgium they would have continued to receive family In conclusion, the applicant in the main allowances after the age of 18 years action suggests that the following reply because they have continued with their be given to the second question referred education. to the Court for a preliminary ruling:
Mrs Reale suggests that the following The competent institution of a Member reply be given to the first question State is not entitled to substitute itself for referred by the Tribunal du Travail, an insured person in order to achieve a Charleroi: review of the rights which that person acquired before Regulation No 1408/71 The family allowances referred to in of the Council came into force, if the Article 42 (5) of Regulation No 3 of the intended effect of such action is to Council remain payable until such time reduce or discontinue payment of the as the children to whom they are paid benefits for which that institution is satisfy the conditions for payment laid liable under its own legislation. down by the legislation of the State liable to pay the pension for accident at work.' At all events, such review cannot have the effect of reducing the benefits As regards the second question referred received by the worker or his dependants by the Tribunal du Travail, the applicant under earlier legislation.' in the main action maintains that under
Article 94 (5) of Regulation No 1408/71, 2. As regards the first question asked rights acquired before the entry into by the Tribunal du Travail, the force of that regulation may only be Commission observes that Article 42 of
JUDGMENT OF 13. 10. 1976 — CASE 32/76
Regulation No 3 specifies the legislation reduced: in this respect, rights already which is applicable in the various acquired shall be maintained. situations which may arise. Under the terms of Article 42 (5), the right of The Commission considers, therefore, children to family allowances cannot be that the following replies may be given made subject to the condition that such to the questions submitted by the court children are themselves receiving a making the order for reference; pension. Article 42 (5) does not define '(1) Article 42 (5) of Regulation No 3 who are the beneficiaries of the pension; must be interpreted as determining it simply determines the legislation the legislation governing the applicable where a pension is payable. payment of family allowances to the children of a worker whose death As regards paragraph (a) of the second was caused by accident at work, question referred to the Court for a which is that of the Member State in preliminary ruling the Commission which the pension for accident at maintains that the term 'benefits' in work is payable. Article 78 of Regulation No 1408/71 (2) The competent institution of a includes family allowances and that there Member State is not entitled to is no doubt that Article 94 (5) of that substitute itself for an insured person regulation applies to those benefits. in order to obtain a review of the
rights which that person acquired The wording of Article 94 (5) is before the entry into force of sufficiently clear for it to be said that Regulation No 1408/71 since, under only a person to whom benefits have Article 94 (5) of Regulation No already been paid or his representative 1408/71, that power is reserved only may ask for such a review and that a to the person who has acquired the social security institution cannot rights or to his representative.' substitute itself for such person. The words 'on the application of the person 3. As regards the first question, the concerned' were in fact inserted into this Italian Government maintains that the paragraph precisely in order to prevent wording of Article 42 (5) of Regulation the benefits paid before the entry into No 3 and its role within Article 42 force of the regulation being reduced by considered as a whole show clearly that the competent institutions. the expiry of the right to a pension for accident at work cannot also bring to an In the light of the reply given to end the right of the children to the paragraph (a) of the second question the payment of family allowances. Commission considers that paragraph (b) has become irrelevant. However, it It is true that Article 42 (5) establishes observes that when it adopted Regulation the right to a pension as a condition No 1408/71 the Council wished to precedent of entitlement to family prevent an insured person from adversely allowances. However, once this condition affecting his own position by requesting precedent has been satisfied family the review of benefits already paid and allowances for orphans residing or therefore made the following statement, brought up in the territory of another which was recorded in the minutes of the Member State are regarded by Article 42 meeting; (5) as coming within the framework of the general social security scheme of the 'It is agreed that the benefits awarded State which is liable to pay the pension, under Regulation No 3 of the Council as if the children resided or were brought concerning social security for migrant up in the territory of that State. workers which are higher than the benefits resulting from the application of As regards the function of the provision, the present regulation shall not be the Italian Government points out that
SAIEVA v CAISSE ALLOCATIONS FAMILIALES
the question of family allowances which Regulation No 1408/71 cannot therefore stem from entitlement to a pension for be challenged, the abovementioned accident at work is governed by Article Article 94 (5) may only be interpreted as 42 (5) alone, without reference to other conferring solely on the persons to provisions. This confirms the fact that whom it refers the power to request the the criterion laid down in Article 42 (5) review of such rights. is in itself independent and decisive and that it is, therefore, impossible to resort In so far as paragraph (b) of the second to other criteria which have been question is not to be regarded as established with regard to different purposeless, the Italian Government situations. proposes that it should be answered in the negative. As regards paragraph (a) of the second question, the Italian Government Mrs Reale, represented by Daniele maintains that Article 94 (5) is a special Rossini, Director of the Welfare Service provision for the persons to whom it of the Patronato A.C.L.I., and the refers and that it presupposes that Commission, represented by its Legal situations which arose and were Adviser, M.-J. Jonczy presented oral consolidated under the earlier regulations argument at the hearing on 22 have become final and cannot now be September 1976. challenged. The Advocate-General delivered his As the rights acquired by those opinion at the hearing on 6 October concerned before the entry into force of 1976.
Law
1 By judgment of 25 March 1976, received at the Court Registry on the following 29 March, the Tribunal du Travail, Charleroi, referred to the Court under Article 177 of the EEC Treaty certain questions concerning the interpretation of, first, Article 42 (5) of Regulation No 3 of the Council concerning social security for migrant workers (OJ No 30 of 16 December 1958, p. 561) and, secondly, of Article 94 (5) 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 (OJ, English Special Edition 1971 (II), p. 416).
2 These questions arose within the context of an action brought by the widow of an Italian worker who died in 1956 in an accident at his place of work in Belgium. She has since returned to Italy with her three children and is seeking on their behalf the right to receive family allowances after the age of 18 years and, as regards her youngest child in particular, after 1 October 1972, the date on which Regulation No 1408/71 came into force.
JUDGMENT OF 13. 10. 1976 — CASE 32/76
3 The file shows that the Caisse de compensation des allocations familiales for the mining industry of the Charleroi and Basse-Sambre coalfields, the defendant in the main action, automatically stopped paying the widow family allowances for her two eldest children when they reached the age of 18 years and for her third child on 30 September 1972 although at that time she had not reached the age of 18 years.
4 The first question asks whether Article 42 (5) of Regulation No 3 must be interpreted as meaning that family allowances cease to be payable when the orphans' right to the temporary pension for accident at work expires under the legislation of the State liable to pay the benefits, that is, in this instance, at the age of 18 years.
5 During the course of the proceedings before the Court it has been suggested that the main action arose out of a questionable application of the Belgian legislation by the Caisse.
6 It has been pointed out that, contrary to the view apparently put forward by the Caisse, the Belgian legislation does not link the award of family allowances to the right to a pension for accident at work but rather the award of the pension is linked to the rights to family allowances.
7 However, the Court is not required to rule within the context of a request for a preliminary ruling under Article 177 of the Treaty on the meaning and scope of national legislative provisions but must restrict itself to the interpretation of the provisions of Community law in question.
8 Article 42 (5) of Regulation No 3 provides that:
'Where the death of a wage-earner or assimilated worker opens entitlement to a pension in respect of industrial accidents or occupational disease pursuant to the legislation of the Member State, family allowances in right of his children who permanently reside or were brought up in the territory of another Member State shall be granted in accordance with the legislation of the country from which the pension is due as though the children were permanently resident or were brought up in the territory of that State.'
SAIEVA v CAISSE ALLOCATIONS FAMILIALES
9 The wording of this paragraph shows that its aim is to determine the legislation of the State which is liable to pay the pension for accidents at work as the sole legislation applicable with regards to the payment of family allowances in the cases to which it refers.
10 The fact that the children are residing in another Member State does not rule out the applicability of such legislation, since the family allowances must be granted as if the children were permanently resident or were brought up in the territory of the State from which the pension is due.
11 The family allowances payable to the children of a deceased worker under this paragraph are not merely those awarded in the case of entitlement to an orphans' pension but include those awarded in the case of entitlement to any pension payable as a result of the death, in particular, the pension awarded to the widow.
12 The reply to be given to the question referred must therefore be that Article 42 (5) is to be interpreted as determining the legislation applicable to the payment of family allowances to the children of a worker who has died as a result of an accident at work and as meaning that the right of the children of the deceased to family allowances is not linked to the award of an orphans' pension.
13 The second question asks whether Article 94 (5) of Regulation No 1408/71 entitles the competent institution of a Member State to substitute itself for an insured person with regard to the review of the rights which that person acquired before the entry into force of the regulation.
14 Article 94 (5) provides that:
'The rights of a person to whom a pension was awarded prior to the entry into force of this regulation may, on the application of the person concerned, be reviewed, taking into account the provisions of this regulation. This provision shall also apply to the other benefits referred to in Article 78.'
15 The transitional provisions of the regulation, including the abovementioned paragraph, are based on the principle that benefits awarded under Regulation No 3 which are more favourable than those payable under the new regulation shall not be reduced.
JUDGMENT OF 13. 10. 1976 — CASE 32/76
16 The aim of the provision is to give to a person to whom benefits were awarded under the old regulation the right to request the review, in his favour, of such benefits.
17 It would be contrary to this aim to acknowledge that the competent institution has the power to review such benefits of its own motion and to the detriment of the person concerned.
18 The reply to be given to the second question referred is, therefore, that Article 94 (5) must be interpreted as meaning that the competent institution of a Member State is not entitled to substitute itself for an insured person with regard to the review of the rights which that person acquired before the regulation came into force.
Costs
19 The costs incurred by the Italian Government and the Commission of the European Communites, which have submitted observations to the Court, are not recoverable.
20 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 national court, the decision as to costs is a matter for that court.
On those grounds,
THE COURT
in answer to the questions referred to it by the Tribunal du Travail, Charleroi, by judgment dated 25 March 1976, hereby rules:
1. Article 42 (5) of Regulation No 2 must be interpreted as determining the legislation applicable to the payment of family allowances to the children of a worker who died as a result of an accident at work and as meaning that the right of the children of the deceased to family allowances is not linked to the award of an orphan's pension;
SAIEVA v CAISSE ALLOCATIONS FAMILIALES
2. Article 94 (5) of Regulation No 1408/71 must be interpreted as meaning that the competent institution of a Member State is not entitled to substitute itself for an insured person with regard to the review of the rights which that person acquired before the regulation came into force.
Kutscher Donner Pescatore
Mertens de Wilmars Sørensen Mackenzie Stuart O'Keeffe
Delivered in open court in Luxembourg on 13 October 1976.
A. Van Houtte H. Kutscher
Registrar President
OPINION OF MR ADVOCATE-GENERAL MAYRAS DELIVERED ON 6 OCTOBER 1976 1
Mr President, The competent organization, the Caisse Members of the Court, de compensation des allocations familiales for the mining industry of the The plaintiff in the main action is the Charleroi and Basse-Sambre coalfields, widow of an Italian mineworker who was stopped paying her family allowances for employed first in Italy and then in her eldest child on 17 March 1966 and Belgium, where he died on 8 August for her second child on 30 March 1972, 1956 in the pit disaster at Bois du Cazier. that is, in each case, on the dates on She has three children who were born on which they reached their eighteenth 18 March 1948, 31 March 1954 and 1 birthdays. The payment of family March 1956. allowances for the youngest child ceased on 30 September 1972, although she was After the death of her husband the then only sixteen years old. plaintiff returned to Italy. She received in Italy a pension for accident at work on It is difficult to be sure why the Belgian her own behalf and an orphan's pension Caisse de compensation des allocations and family allowances for her three familiales considered itself justified in children provided by the Belgian social ceasing the payments in question since security scheme. In fact, as we shall see, that organization did not consider it she did not receive the orphan's pension necessary to appear or be represented and family allowances in full. before the Tribunal du Travail (Labour
1 — Translated from the French.