C-733/79

C O S I M O LATERZA

on the interpretation to be given to Article 77 (2) (b) (i) of Regulation (EEC) N o 1408/71 of the Council of 14 J u n e 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),

T H E C O U R T (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T . Koopmans, Judges,

Advocate General: J.-P. W a r n e r Registrar: J. A. Pompe, D e p u t y Registrar

gives the following

I — F a c t s and w r i t t e n p r o c e d u r e In the meantime Mr Laterza's file was forwarded on 11 June 1970 to the 1. Mr Cosimo Laterza, an Italian Istituto Nazionale della Previdenza national, having been employed in Italy Sociale [National Social Welfare from 1950 to 1955, was employed as a Institution] (hereinafter referred to as the miner in Belgium from December 1955 "INPS") in Italy with a view to his being to December 1969 when he ceased to awarded a proportional invalidity work as a miner because of invalidity. pension payable by the Italian social The "Fonds National de Retraite des welfare institution by applying provisions Ouvriers Mineurs" [National Pension of Community law relating to aggre­ Fund for Miners] (hereinafter referred to gation and the award of pro rata as "the Pension Fund") by a decision of pensions. 12 May 1970 awarded him an invalidity INPS had initially, on the strength of pension under Belgian law alone; in the Regulation No 3, refused to recognize case in point under the "régime spécial Mr Laterza's invalidity solely on the des ouvriers mineurs" ["the special basis of the decisions taken by the scheme for miners"]. Belgian authorities. It was then invited At the date when this benefit was by the Belgian social security institution granted the applicable Community regu- to reconsider its position in the light of lation was Regulation No 3, in Annex F Article 40 (3) of Regulation No 1408/71 to which the special Belgian scheme for which runs: miners is classified as Type Β legislation. "A decision taken by an institution of a It is therefore by reason of the duration Member State concerning the degree of of his completed insurance periods that invalidity of a claimant shall be binding the Pension Fund awarded Mr Laterza on the institution of any other Member an invalidity pension of BFR 4 826.50 State concerned, provided that the per month. concordance between the legislations of Mr Laterza returned to Italy in February these States on conditions relating to the 1971 and married on 18 October 1971. degree of invalidity is acknowledged in In consequence of this marriage his Annex IV". invalidity pension was increased to BFR 6 921 per month as from 1 November Since there is that concordance between 1971. Since two children were born on the Belgian and Italian systems in 12 June 1972 and 21 March 1974 the question, INPS awarded Mr Laterza on competent Caisse de Compensation des 7 January 1977 a proportional Italian pension as from the entry into force of Allocations Familiales [Family Allow­ the said regulation, namely 1 October ances Compensation Fund] (hereinafter 1972. referred to as "the Family Allowances Fund") paid Mr Laterza family The Belgian institution, having regard to allowances in respect of his dependent the award of this proportional pension, children from 1 October 1972 to 31 has October 1975, on the basis of the provisions of Belgian law relating — on the one hand, pursuant to Article thereto. 12 (2) of Regulation No 1408/71,

— on the other stopped paying family "must be interpreted as meaning that allowances in respect of the entitlement to family benefits from the dependent children and sought Member State in whose territory the repayment of those family allowances recipient of an invalidity pension resides paid from 1 October 1972 to 31 (in this case Italy), takes away the right October 1975, the date when to higher family benefits awarded pre- payment was suspended pending the viously by another Member State (in this Italian decision (a sum of BFR case Belgium)". 104 189 in all). 3. A certified copy of the judgment In support of this last decision the making the reference was received at the Belgian institution relied on the Court on 17 October 1979. provisions of Article 77 (2) (b) (i) of Regulation No 1408/71 under which In accordance with Article 20 of the family allowances are granted irres- Protocol on the Statute of the Court of pective of the Member State in whose Justice of the EEC written observations territory the pensioner or the dependent were submitted by Mr Laterza, children are residing: represented by Daniele Rossini, Director of the social welfare service "Patronato ACLI", and also by the Commission of "(b) to a pensioner who draws pensions the European Communities, represented under the legislation of more than by its Legal Adviser Jean Amphoux, one Member State: acting as Agent. (i) in accordance with the Having heard the report of the Judge- legislation of whichever of these Rapporteur and the views of the States he resides in provided Advocate General the Court decided by that, taking into account where an order of 30 January 1980 to assign appropriate the provisions of the case to the First Chamber. Article 79 (1) (a), a right to one of the benefits referred to in On 4 February 1980 the Court put to the paragraph 1 is acquired under parties to the main action a question the legislation of that State". which Mr Laterza answered in writing on 14 February 1980. By virtue of these provisions as from 1 October 1972 only the (lower) Italian family allowances corresponding to the II — O b s e r v a t i o n s submitted Italian proportion of the invalidity p u r s u a n t to A r t i c l e 20 of pension awarded by the INPS are the P r o t o c o l on the S t a t u t e payable to Mr Laterza. of the C o u r t of J u s t i c e of the E E C 2. Mr Laterza refused to repay the sums claimed by the Family Allowances Mr Laterza stresses first that he had Fund and the latter sued him before the become entitled to a full invalidity

Article 77 (2) (b) (i) of Regulation No 1408/71 clearly and expressly forbids a Mr Laterza therefore suggests that the double payment of family allowances. It question referred to the Court by the is therefore necessary to look for a Tribunal du Travail be answered in the solution which avoids unjustified over­ negative but that it be stated that any lapping of benefits without however benefits which may be payable under the involving the loss of the worker's rights legislation of the Member State to which under the law of the State awarding the the pensioner has transferred his most favourable benefits. The solution in residence are to be deducted from the this case would be to allow Mr Laterza higher family allowances awarded under to receive the family allowances under the legislation of another Member State. the Belgian scheme reduced by the family allowances awarded under the Italian scheme. The Commission of the European Communities points out, in the first place, that the purpose of Article 77 (2) It should be noted, on the other hand, of Regulation No 1408/71 is to that Article 77 (2) (b) (i) of Regulation determine under which law benefits for No 1408/71 does not state whether dependent children of pensioners are account is to be taken of the residence of awarded. the pensioner when the event giving rise to entitlement to family allowances occurred (the award of a pension) or any later residence. Article 42 (2) of Regulation N o 3/58, which preceded Regulation No 1408/71, provided that a beneficiary of a pension The provision in question may therefore under the legislation of one Member be interpreted as meaning that the initial State was entitled to the allowances

provided for by that legislation if he was children of pensioners, which is provided resident in the territory of the said State, for in Article 79 in the event of the but that, if he was resident in another children becoming entitled to family Member State, he retained that allowances under the legislation of entitlement up to the amount of family another Member State by virtue of the allowances and/or supplements to the pursuit of a professional activity was to pension in respect of dependent children be suspended completely or only awarded by the legislation of the country partially up to the amount of those of residence. family allowances, the Court in fact held that the rule against overlapping "is As the application of this system proved applicable only to the extent to which it to be too complex Regulation No 1/64 does not, without cause, deprive the amended Article 42 by providing that persons concerned of the benefit of a persons entitled to pensions payable part of the legislation of a Member under the laws of more than one State". Member State were entitled to family allowances as provided for in the The judgments in both the Triches and legislation of the Member State where the Rossi cases lay down the principle they were resident, if one of the that the Community rules cannot be institutions responsible for paying their applied "in the absence of an express pensions was in that Member State.

produced in this case since according to lation No 3 has been acknowledged by Belgian Law (Article 51 (3) of the Lois the Court in its judgment of 13 July coordonnées relatives aux allocations 1976 in Case 19/76 Pietro Triches ν familiales pour travailleurs salaries Caisse de Compensation pour Allocations [Consolidated laws on family allowances Familiales de la Région Liégeoise [1976] for employed persons]) "family allow- ECR 1243). ances are not payable for the benefit of children educated outside the Kingdom". Consequently the right of the person The question referred to the Court by concerned to be paid Belgian family the Tribunal du Travail de Charleroi allowances irrespective of the place asks in effect whether the rule laid down where he or his dependent children by the Court of Justice and formulated reside within the Community exists in its judgment of 6 March 1979 (Case solely by virtue of Community law. 100/78, Claudino Rossi ν Caisse de Compensation pour Allocations Familiales des Régions de Charleroi et Namur [1979] The provision at issue is based on the ECR 831) on the scope of the rule view that, in principle, the same against overlapping benefits contained in dependent children make the recipient Article 79.(3) of Regulation No 1408/71 eligible only once for the provision of also holds good for the application of family benefits.

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JUDGMENT OF 12. 6. 1980 — CASE 733/79

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III — Oral procedure the European Comunities, represented by its Legal Adviser, J. Amphoux, presented oral argument at the hearing on 13 The Caisse de Compensation des March 1980. Allocations Familiales des Régions de Charleroi et de Namur, represented by The Advocate General delivered his Mrs Debrulle, and the Commission of opinion at the sitting on 27 March 1980.

Decision

1 By a judgment of 11 October 1979 the Tribunal du Travail de Charleroi referred to the Court, pursuant to Article 177 of the EEC Treaty, a question on the interpretation of Article 77 (2) (b) (i) 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 (Official Journal, English Special Edition 1971 (II), p. 416).

2 This question was raised in an action relating to the decision of the competent Belgian social security institution not to acknowledge that an Italian worker in receipt of a Belgian invalidity pension and residing in Italy was entitled, as from 1 October 1972, to Belgian allowances for dependent children and to order him to repay the allowances paid from the said date to 31 October 1975.

5 On the basis of the grant of those benefits the Belgian institution reduced the amount of the invalidity pension paid up, to 1 October 1972 by the amount of the said proportional pension, decided to stop payment of the allowances for dependent children provided for under Belgian legislation as from that date, and at the same time sought repayment from Mr Laterza of the allowances paid up to 31 October 1975 (namely BFR 104 189), the date when the payment of those benefits had been suspended pending the decision of the Italian authorities on the award of a proportional pension. In support of its decision the Belgian social security institution referred to the provision of Article 17 (2) (b) (i) of Regulation No 1408/71 according to which family allowances for persons receiving pensions for old age, invalidity or an accident at work or occupational disease are to be granted irrespective of the Member State in whose territory the pensioner or the children are residing:

"(b) to a pensioner who draws pensions under the legislation of more than one Member State:

(i) in accordance with the legislation of whichever of these States he resides in provided that . . . a right to one of the benefits referred to in paragraph 1 is acquired under the legislation of that State".

6 Mr Laterza challenges the basis of this decision. Since the amount of the allowances for dependent children provided for by Italian legislation is less than that of the Belgian allowances, he points out that the above-mentioned decision leads in this case to his rights to family benefits being reduced and maintains that the provisions in question cannot be interpreted and applied in such a way as to take away from the insured person his right to the greatest amount of benefits payable to him under the law of a Member State, the objectives of Article 51 of the Treaty and of Regulation No 1408/71 being disregarded.

8 As the Court stated in its judgment of 6 March 1979 (Case 100/78, Claudino Rossi ν Caisse de Compensation pour Allocations Familiales des Régions de Charleroi et Namur [1979] ECR 831) the regulations on social security for migrant workers did not set up a common scheme of social security, but "allowed different schemes to exist, creating different claims on different institutions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by Community law". In the same case the Court also stated that "the Community rules could not, in the absence of an express exception consistent with the aims of the Treaty, be applied in such a way as to deprive a migrant worker or his dependants of the benefit of a part of the legislation of a Member State" or to lead to a reduction in the benefits payable by virtue of that legislation supplemented by Community law. In laying down and developing the rules for coordinating national laws Regulation No 1408/71 is in fact guided by the fundamental principle stated in the seventh and eight recitals of the preamble to the regulation, that the aforesaid rules must guarantee to workers who move within the Community all the benefits which have accrued to them in the various Member States whilst limiting them "to the greatest amount" of such benefits.

9 In accordance with these principles the provisions of Article 77 (2) (b) (i) of Regulation No 1408/71 cannot be applied in such a way as to deprive the worker, by substituting the benefits provided by one Member State for the benefits payable by another Member State, of the most favourable benefits. The guiding principles of Regulation No 1408/71 require on the other hand that where, in the case covered by Article 77 (2) (b) (i), the amount of the benefits provided by the Member State in which the worker is residing is less than that of the benefits awarded by the other State responsible for paying them the worker continues to be entitled to the greatest amount and receives

T H E COURT (First Chamber)

in answer to the question referred to it by the Tribunal du Travail de Charleroi, by judgment of 11 October 1979, hereby rules:

Article 77 (2) (b) (i) of Regulation No 1408/71 must be interpreted as meaning that entitlement to family benefits from the State in whose territory the recipient of an invalidity pension resides does not take away the right to higher benefits awarded previously by another Member State. If the amount of family benefits actually received by the worker in

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the Member State in which he resides is less than the amount of the benefits provided for by the legislation of the other Member State, he is entitled to a supplement to the benefits from the competent institution of the latter State equal to the difference between the two amounts.

O'Keeffe Bosco Koopmans