C-115/77

JUDGMENT OF It. J. 1971 — CASE 115/77

In Case 115/77

REFERENCE to the Court under Article 177 of the EEC Treaty by the Landessozialgericht für das Land Nordrhein-Westfalen (Higher Social Court for North Rhine/Westphalia), Essen, for a preliminary ruling in the action pending before that court between

Gert Laumann and Anja Laumann

and

Landesversicherungsanstalt RHEINPROVINZ, Dusseldorf,

Facts and Issues

The facts of the case, the course of the I — Facts and procedure procedure and the observations submitted pursuant to Article 20 of the 1. The dispute in the main action Protocol on the Statute of the Court of centres on Article 79 (3) of Regulation Justice of the EEC may be summarized (EEC) No 1408/71 of the Council of as follows: 14 June 1971 (Official Journal, English

LAUMANN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

3. Article 79, which contains 6. By judgment of 29 October 1976 provisions common to benefits for the Sozialgericht (Social Court) dependent children of pensioners and Düsseldorf dismissed the appellants' for orphans, provides in paragraph (3) : action against the said decision. The "The right to benefits due under... Sozialgericht considered that the decision and its statement of reasons Articles 77 and 78 shall be suspended if were lawful. the children become entitled to family benefits or family allowances under the legislation of a Member State by virtue 7. By an order of 1 September 1977 the of the pursuit of a professional or trade Landessozialgericht für das Land activity. In such a case, the persons Nordrhein-Westfalen (Higher Social concerned shall be considered as Court for North Rhine-Westphalia) members of the family of a worker." Essen, to which the appellants appealed against the above-mentioned judgment, 4. The appellants in the main action, stayed the proceedings and referred the Gert Laumann, born on 7 April 1965, following preliminary questions to the and Anja Laumann, born on 13 January Court of Justice of the European 1967, both of German nationality, are Communities, pursuant to Article 177 of the minor children born of the marriage the EEC Treaty:

JUDGMENT OF 16. 3. 1971 — CASE 115/77

LAUMANN ν LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

In the activity. present case the two orphans have The Italian Government maintains first suffered the suspension of their rights to of all that since no provision of national the orphans' pension as the result of the legislation prescribes the suspension of second marriage of their mother and by virtue of the pursuit of a professional or the orphans' pension in the present case the order making the reference must be trade activity by their stepfather. interpreted to mean that the suspension On the basis of the foregoing which has been brought before the considerations the Iulian Government national court is based solely upon proceeds to consider in particular the

On the other hand, worker, not the member of the family such suspension may come into on account of whom they are paid) and operation if Article 79 (3) becomes an orphans' pension (of which the direct applicable. and sole recipient is the orphan, even if Acceptance of the interpretation which he is represented for the actual receipt the respondent in the main action places thereof by the natural or legal person upon that provision would result in an actually maintaining him). The fact that unjustified difference in treatment this difference which, in addition, is also

regulation. In fan "the pursuit of a pro benefits and of the payment of such fessional or trade activity" (Article 79 benefits when workers and "their (3) and Article 12 (3)) constitutes the dependants" move from one Member individual act of a specific person, the Sute to another within the Community. exercise of a personal choice; whilst it is The Iulian Government maintains that

Furthermore, the interpretation which The Iulian Government states, the respondent in the main action places however, that it seems possible on a upon the legislation in question is correct interpretation of Article 79 (3) incompatible with the objective of to attain the desired aim of avoiding avoiding privileged situations consisting both placing orphans in a privileged in the overlapping of an orphans' situation and treating them unfav­ pension with family allowances ourably in relation to the treatment amounting to more than was provided guaranteed them under the legislation of an individual Member Sute. In fact for under the legislation of the Member Sute applicable to the deceased worker. the sentence "... the persons concerned shall be considered as members of the In order to attain this objective it is sufficient to establish that the amount of family of a worker" shows clearly that the benefits which an orphan obtains the legislature was thinking principally pursuant to the legislation of the of family allowances and intended to set Member Sute to which the deceased up a scheme for such allowances. The link with benefits which are not "of the worker was subject constitutes a ceiling same kind" as family allowances is not which may not be exceeded when the contained in Article 79 (3) but follows orphan moves to the territory of as a result of the reference to another Member Sute; in this way the orphan who moves within the "paragraph 2 and under Articles 77 and 78". Community is not adversely affected by the application of a provision of It thus appears possible to maintain that Community legislation. mat assimilation involves suspension only where benefits "of the same kind" Alternatively, the orphan moving from are concerned, and more particularly one Member Sute to another could be that Article 79 (3) prohibits the over­ permitted to exercise an option, through lapping of family allowances in favour a declaration made by his legal rep­ of the same orphan under the legislation resentative, for "mixed" treatment of a number of Member States. consisting of a number of benefits Furthermore, regard must be had to the provided by institution of different fact that "the right ... to family benefits States which together are not less than the benefits to which he is entitled or family allowances" under the legislation of the Member Sute in under the legislation of the Sute to which the deceased worker was subject. which the professional or trade activity referred to in Article 79 (3) was pursued The Iulian Government relies upon the does not appear to constitute a decisions of the Court of Justice in Case "right" which cannot be renounced. 24/75, Petrani ([1975] ECR 1149) and Consequently, it cannot be' ruled out in Case 112/76, Manzoni ([1977] ECR that the orphan (or his legal rep­ 1647) and recalls the Court's dictum resentative) may renounce that part of that the aim of Articles 48 to 51 of the the "right" which exceeds the amount Treaty would not be attained if, as a of the benefits previously received and consequence of the exercise of their thus exercise an option in favour of the right to freedom of movement, workers treatment most beneficial to him.

— Article 79 (3) of Regulation (EEC) provisions of Article 79 (3) only if the No 1408/71 must be interpreted to persons thereby covered include, apart mean that it precludes the over­ from workers moving within the Community, workers who are not lapping of several family allowances theoretically due under the moving within the Community. legislation of several Member States Although Article 78 (2) and Article 2 "with respect to" the same "child" (1) (the general provision concerning but not the overlapping of an the persons covered by the regulation) orphans' pension granted by one do indeed expressly include workers Member Sute with family who were or are covered by the allowances granted by another legislation of a single Member Sute, Member Sute to the individual on that merely amounts to taking account whom the child is held to be of the fact that all movements do not dependent. necessarily bring about the application of the laws of several countries. For — Alternatively, Article 79 (3) of Regu­ lation (EEC) No 1408/71 must be example, a worker may possibly interpreted to mean that it entitles move before commencing his first the child to opt for the retention of employment. It follows that the benefits which are payable to him provisions of Article 79 (3) of the regu­ under Articles 77 and 78 of that lation relate only to orphans' benefits regulation in so far as is necessary to directly or indirectly affected by the ensure that he receives treatment as movement of a parent and not to favourable as that which he pre­ benefits intended for orphans who, on viously enjoyed. other independent grounds, are entided under the legislation of several Member The Commission observes first that, States. In the present case the unlike the general system laid down by suspension of the German orphans' pension can only be decided under the Article 12 (2) and (3) of Regulation (EEC) No 1408/71, Article 79 (3) provisions of the Reichsversicherungs­ establishes a specific prohibition on over­ ordnung and not under Community law. lapping within the framework of Community law. Only if the overlapping of the German The Commission next considers the orphans' pension with the Belgian family allowances were due to the fact view inherent in the questions submitted by the court making the reference, that that the appellants' father or stepfather moved between the said Member Sutes, the right of the appellants in the main which, the Commission maintains, was action to an orphans' pension is not the case with the events involved in governed by the statement of the persons the main action, would the Commission covered by Regulation (EEC) No 1408/71, and maintains that the facts on raise the questions put by the court which the dispute in the main action making the reference, beginning with turns do not provide any grounds for the final question, since if that question is answered in the affirmative the two the conclusion that the deceased father, former questions become devoid of the mother or the stepfather of the purpose. appellants are or were workers moving within the Community. In those circum­ The Commission first remarks that stances the appellants' rights to a the orphans' pension and the family

allowances constitute quite disimilar of insurance or employment and benefits and then states that Anide 79 where the person on whom the (3) relates moreover to family benefits orphans are dependent for orphans, who are considered both in (a) does not pursue a professional or their general status as children and in trade activity in the territory of their specific status as orphans. Fur that Sute rights acquired in the thermore, Article 79 governs as a whole Sute of residence are suspended the overlapping of benefits within the (Anide 10 (1) (b)); meaning of Article 78 with benefits payable in the Sute of residence by (b) pursues a professional or trade virtue of the pursuit of a professional or activity in that territory rights

lapping. benefits granted to orphans as such with In accordance with those provisions the family benefits provided without regard overlapping of rights to family benefits for that particular status does not or family allowances, supplementary or constitute an unjustified overlapping of special orphans' pensions with rights to benefits from a social point of view. family benefits or family allowances In conclusion, the Commission is of the payable in the Sute where the orphans view that the following reply could be reside is governed as follows: given to the questions submitted:

LAUMANN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

relating to the movement within the III — Oral procedure Community of the insured worker. 2. According to the provisions of The appellants in the main action, Article 79 (3) the right to sup­ represented by L. Dahmen, and the Com­ plementary or special allowances for mission of the European Communities, orphans or orphans' pensions is to be represented by Dr N. Koch, acting as suspended only in so far as it Agent, presented oral argument at the overlaps with rights similar in kind to hearing on 15 February 1978. family benefits or family allowances The Advocate General delivered his acquired by virtue of the pursuit of a opinion at the hearing on 2 March professional or trade activity. 1978.

Decision

1 By an order of 1 September 1977, received at the Court Registry on 27 September 1977, the Landessozialgericht für das Land Nordrhein- Westfalen in Essen referred to the Court under Article 177 of the EEC Treaty a series of questions on the interpretation of Article 79 (3) of Regu­ lation (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 (Official Journal, English Special Edition 1971 (II), p. 416).

2 The file establishes that, following the divorce of their parents in the Federal Republic of Germany and the remarriage of their mother to a Belgian national, the appellants in the main action, who are minors of German nationality, now live in Belgium in the home of their mother and stepfather.

Persons covered by the regulation

4 The Commission has questioned whether Regulation No 1408/71 is applicable to the present case since neither the father, the mother nor the stepfather of the appellants has moved from one Member State to another in connexion with work.

5 As in the case of the earlier Regulation No 3, the persons covered by Regu­ lation No 1408/71, as is indicated by its heading, include not only employed persons but also their families moving within the Community.

Thus pursuant to Article 2 (1) of Regulation No 1408/71 which defines the persons covered by the regulation the provisions of the latter shall apply to the survivors of workers who are or have been subject to the legislation of one or more Member States.

The general terms in which those provisions are couched show that the application of the regulation is not limited to workers or their survivors who have had employment in several Member States or who are, or have been, employed in one Sute whilst residing or having resided in another.

Thus the regulation also applies when the residence in another Member State was that not of the worker himself but of a survivor of his.

In the system established by Regulation No 1408/71 family allowances are generated by an actual occupation (even if the worker is no longer engaged in such occupation) and the direct and sole recipient is the worker himself.

On the other hand, the direct and sole recipient of the orphans' pension is the orphan himself and the pension, like other survivors' benefits, constitutes the projection in time of a prior occupation, pursuit of which ceased on the death of the worker.

The provisions of Article 79 (3) of Regulation No 1408/71 must be interpreted in the light of these considerations.

8 Where Article 79 (3) provides that if children become entitled to family benefits or family allowances under the legislation of a Member Sute by virtue of the pursuit of a professional or trade activity "the right to benefits due under ... Article 78 shall be suspended", it sets out a Community rule against the overlapping of benefits which must be interpreted within the framework of the system of the regulation and of its objectives.

As has been stated, the benefits referred to in Article 78 cover not only orphans' pensions but also family allowances, entitlement to the latter

JUDGMENT OF 16. 3. 1971 — CASE 115/77

10 The first question has thus become of purpose.

Costs

11 The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

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.

LAUMANN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

On those grounds,

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 2 MARCH 1978 <apnote>1</apnote>

Mr President, 1 August 1972 received family benefits Members of the Court, by reason of his employment in Belgium, that is dependent child Both appellants in the main action, allowances under Belgian legislation. German nationals born in 1965 and Initially the allowance for the first child 1967, moved to Belgium following the amounted to Bfrs 845.25 and for the divorce of their parents and the second Bfrs 1 168.75; subsequently these remarriage of their mother to a Belgian sums were increased to Bfrs 3 599.50 for national, to the home of their mother the first child and Bfrs 5 185 for the and stepfather. The stepfather has from second child, unul August 1977.

1 — Transissed from the German.