C-104/80
ECLI:EU:C:1981:48
- Súd
- Súdny dvor Európskej únie
- IČS
- 61980CJ0104
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF 19. 2. 1981 — CASE 104/80
those concerned of the benefit of an allowances payable under the entitlement to benefits conferred on legislation of the State of employment them by the legislation of a Member only up to the amount received, in State. respect of the same period and the same member of the family, in the State of residence by the spouse 3. Article 10 (1) (a) of Regulation No pursuing a professional or trade 574/72 as amended suspends payment activity within the territory of that of family benefits or family State.
In Case 104/80
REFERENCE to the Court under Article 177 of the EEC Treaty by the First Chamber of the Sozialgericht [Social Court] Schleswig for a preliminary ruling in the action pending before that court between
KURT BEECK
and
BUNDESANSTALT FÜR ARBEIT [Federal Employment Office]
on the interpretation of Regulation No 1408/71 of the Council of 14 June 1971 (Official Journal, English Special Edition 1971 (II), p. 416) and Regu- lation No 574/72 of the Council of 21 March 1972 (Official Journal, English Special Edition 1972 (I), p. 159) and in particular the provisions of those regulations which deal with the entitlement of frontier workers to family allowances,
T H E COURT (Second Chamber)
composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,
Advocate General: G. Reischl Registrar: H. A. Rühi, Principal Administrator
gives the following
BEECK v BUNDESANSTALT FÜR ARBEIT
JUDGMENT
Facts and Issues
The facts of the case, the course of The objection lodged by the plaintiff the procedure and the observations against the decision of the Arbeitsamt submitted under Article 20 of the was dismissed. He then brought an Protocol on the Statute of the Court of action before the Sozialgericht Schleswig Justice of the EEC may be summarized relying on a judgment of the Bun- as follows: dessozialgericht [Federal Social Court] of 25 October 1977 in another case (Az.: 8/12 RKg 8/77). That judgment I — Facts and w r i t t e n p r o c e d u r e concerned a case, which is virtually identical with this case, in which a German national holding a permanent The plaintiff in the main action before post as an employed person in Flensburg the Sozialgericht Schleswig, Kurt Beeck, and residing with his wife and two is a German national who lives in children in Denmark had applied to Denmark with his wife and two children, the Arbeitsamt Flensburg for family Klaus (born on 18 March 1967) and allowances whilst his wife, who worked Ursula (born on 2 July 1968). He works in Denmark, received Danish family as an employed person in Flensburg in allowances for the two children. The the Federal Republic of Germany and grounds and operative part of the travels each day from his home in judgment of the Bundessozialgericht may Denmark to his place of work. He has be summarized as follows: no living accommodation in Flensburg. His wife works as an employed person in 1. In view of the close connexion Denmark. She receives Danish family between the legislation on family allowances (børnetilskud) in respect of allowances and provisions on taxation the two children. a German national who has been in gainful employment in the Federal In December 1977 the plaintiff applied to Republic of Germany for several years the Arbeitsamt [Employment Office] and is subject to German tax laws Flensburg for payment in respect of his should be treated as having his second child, his daughter Ursula, of half habitual residence, within the the German family allowance in meaning of Article 1 (1) of the accordance with Article 8 (2) of the Federal Law, within the territory in Bundeskindergeldgesetz [Federal Law on which that law applies. Accordingly Family Allowances], hereinafter referred he has the status of a person entitled to as "the Federal Law". In January to claim under the said Article 1 (1) 1978 the Arbeitsamt refused his and by virtue of subparagraph 1 (a) of application on the ground that in the second paragraph of Article 2 (5) accordance with Article 10 (1) (a) of thereof, his children qualify for the Regulation No 574/72 entitlement to grant of allowances. family allowances under the Federal Law must be suspended because the plaintiff's 2. There is no question of a suspension wife was in employment and was in of German entitlement to family receipt of family allowances for their allowance under Article 10 (1) (a) children pursuant to Danish law. of Regulation No 574/72. That
JUDGMENT OF 19. 2. 1981 — CASE 104/80
provision is not applicable owing to by Article 1 (5) of Regulation No the fact that the entitlement in issue is 878/73] if his wife receives the already barred by the provisions of Danish family allowance (børne- national law to be found in Article 8 tilskud) for those children in (1) (2) of the Federal Law whereby Denmark, even though Article 8 (2) family allowance is not granted for a of the German Bundeskinder- child in respect of whom comparable geldgesetz ("the Federal Law") benefits are granted outside the provides for payment of a family territory in which that Law applies. allowance to the extent of the difference between the Danish and the German family allowances? By an order dated 19 November 1979 the Sozialgericht Schleswig stayed the proceedings and in accordance with The Sozialgericht Schleswig gave the Article 177 of the EEC Treaty asked the following grounds for its order: Court to give a preliminary ruling on the following questions: " . . . The Court is convinced that the plaintiff has no primary entitlement to 1. Is a German national who resides receive the family allowance under the with his wife and children in Federal Law because neither his legal Denmark and is employed in the residence nor his habitual place of Federal Republic but returns daily residence, within the meaning of Article from his place of work to his 1 (1), is within the area of application of residence in Denmark, and whose that law. The firm opinion of the Court wife is employed also in Denmark, is that the plaintiff's claim to the German entitled to receive family allowance family allowance for his children results under the national laws of the Federal from overriding European law, because Republic of Germany pursuant to according to Article 73 (1), taken in Article 20 in conjunction with Article conjunction with Article 13 (2) (a) of 4 and Article 1 of Regulation No Regulation (EEC) No 1408/71, he is to 1408/71 of the Council of 14 June be treated as if he were resident with his 1971 as a "frontier worker" within children in the Federal Republic of the meaning of those overriding Germany. According to Article 8 (1) (2) provisions of European law? of the Federal Law, the family allowance is not payable for a child where a person, 2. Is such an employed person also so in relation to whom the child is taken entitled if, independently of European into consideration under Article 2 (1), is law, he is already treated under entitled to receive family allowances for national law as if he had his habitual that child which are payable outside the residence in the Federal Republic of area of application of that law and which Germany? are comparable to the German family allowance or to one of the benefits listed under paragraph (1). However, Article 8 3. Is an entitlement to family allowance (2) of the Federal Law provides that the conferred on a worker residing in difference between family allowances Denmark by German national shall be paid if in the circumstances legislation totally suspended under referred to in paragraph (1) (2), inter Article 10 (1) (a) of Regulation No alia, the. gross amount of the other 574/72 on the implementation of benefit is lower than that of the German Regulation No 1408/71 [as amended family allowance. According to that
BEECK v BUNDESANSTALT FÜR ARBEIT
provision the plaintiff would be entitled II — O b s e r v a t i o n s submitted to receive the German family allowance u n d e r A r t i c l e 20 of the for his child Ursula to the extent of the P r o t o c o l on the S t a t u t e of difference in benefits because the Danish the C o u r t of J u s t i c e family allowance for his second child, Ursula, is lower than the family allowance which he is entitled to receive The plaintiff in the main action cites in in the Federal Republic.
The court is in support of his case the decision of the doubt as to whether Article 10 (1) (a) of Bundessozialgericht of 25 October 1977 Regulation (EEC) No 574/72, which in and a commentary (Winckenhagen and that respect has the same result as Article Krebs) on the Federal Law. It appears 8 (1) of the Federal Law, despite the from the passages cited by the plaintiff national provision in Article 8 (2) that he claims entitlement to family thereof, suspends in toto the national allowances under Article 1 (1) of the entitlement to receive a family allowance Federal Law on the ground that for tax which is granted according to European purposes he is resident within the area of law on the ground that the plaintiff's application thereof. wife receives a family allowance under the primary Danish law, or whether The defendant in the main action is of the Article 10 (1) (a) of Regulation No view that the first and second questions 574/72 does not affect Article 8 (2) of of the Sozialgericht are not relevant to the Federal Law." the issue to be decided as the provisions referred to are of no assistance in settling an issue concerning family allowances The order making the reference for a and that the only crucial question is the preliminary ruling was lodged at the third one. Court Registry on 25 March 1980.
In accordance with Article 20 of the Protocol on the Statute of the Court of In that regard it observes that the Justice of the EEC, written observations expression "an entitlement . . . conferred were submitted by the plaintiff in the by German national legislation" should main action, by the Bundesanstalt für be understood as meaning "an Arbeit, the defendant in the main action, entitlement under Article 73 of Regu- represented for this purpose by Mr lation No 1408/71 in application of the Müller, by the Commission of the national German provisions of the Bun- European Communities, represented for deskindergeldgesetz", that is to say the this purpose by Norbert Koch, acting as Federal German law on family Agent, and by the Government of the allowances. The question put to the Italian Republic, represented for this Court should be read in the light of that purpose by Franco Favara, Avvocato correction, it being understood that the dello Stato. plaintiff has no entitlement to family allowances arising from German law alone but entitlement pursuant to Article Upon hearing the report of the Judge- 73 (1) in conjunction with Article 13 (2) Rapporteur and the views of the (a) of Regulation No 1408/71 and Advocate General the Court decided to Article 2 of the Federal Law. open the oral procedure without any preparatory inquiry. In support of its contention the defendant in the main action submits By an order of 16 September 1980 the that, despite the erroneous finding of the Court decided to assign the case to the Bundessozialgericht in its decision of Second Chamber pursuant to Article 95 25 October 1977, a German frontier (1) and (2) of the Rules of Procedure. worker who works in the Federal
JUDGMENT OF 19. 2. 1981 — CASE 104/80
Republic of Germany and lives with his where a right to benefits which is not family in Denmark should not be subject to conditions of insurance or regarded as having his habitual residence employment exists in the State in which in the Federal Republic within the the children reside and the spouse of the meaning of Article 1 (1) of the Federal worker to whom benefits are due under Law. As regards the geographical area of Article 73 is employed in that State. By application of that law it is not virtue of the second sentence of Article permissible to refer to an irrebuttable 10 (1) (a) of Regulation No 574/72, presumption of residence which exists in which is a Community provision aimed revenue law but which cannot apply to at a specific instance of overlapping and family allowances and therefore to the which excludes any application of application of the Federal Law. In regard parallel national provisions, if the spouse to- family allowances reference should be of the person entitled to German family made to the concept of "habitual allowances under the Community residence" which the Bundesfinanzhof legislation pursues a professional or trade [Federal Finance Court] defined in a activity in the State of residence of the judgment of 5 February 1965 in which it child in respect of which that benefit is stated that "frontier workers, that is to due, in this case Denmark, the right say workers who daily enter the country to the "børnetilskud" accruing under from abroad in order to work and leave Danish national law overrides entitle- the country to return abroad when work ment to German family allowance is over, must be regarded as not being accruing under Community law and habitually resident in this country". results in the complete suspension of the latter. In such a case, where spouses have concurrent entitlements in the two States of the European Community in which The plaintiff in the main action is a they work, only the entitlement in the typical frontier worker who has no State of residence of the children is to be habitual residence within the Federal satisfied and the other State is released Republic and accordingly no rights from its obligation. under Article 1 (1) of the Federal Law.
Finally, the Bundesanstalt für Arbeit is On the other hand, under the concerned to state the meaning which it aforementioned provisions of Regulation gives to the expression "benefits due No 1408/71, and especially under Article under the legislation of a Member 73 (1), an employed person subject to State", occurring in Article 10 (1) (a) of the laws of the Federal Republic is Regulation No 574/72. It considers that entitled in respect of children living in there is an entitlement to benefits even if Denmark to the family allowances they have not necessarily fallen due for provided for by German legislation just payment. as if his children lived within the Fed- eral Republic of Germany. However, Consequently, in the opinion of the Community law provides in Article 10 Bundesanstalt für Arbeit, the third (1) (a) of Regulation No 574/72 question contained in the order should (successively amended by Regulations be answered as follows : No 878/73 of the Council of 26 March 1973 (Official Journal L 86) and No 1209/76 of the Council of 30 April 1976 "Pursuant to Article 10 (1) (a) of Regu- (Official Journal L 138)) that the lation (EEC) No 574/72 the entitlement entitlements which it thus accords under of a German frontier worker residing in Article 73 (1) may be suspended in full Denmark to German family allowances
BEECK v BUNDESANSTALT FÜR ARBEIT
under Article 73 (1) taken together with fact that entitlement to family allowances Article 13 (2) (a) of Regulation (EEC) is already excluded by Article 8 of the No 1408/71 and with the provisions of Federal Law which is a provision of the Federal Law is suspended in full with national law designed to avoid the over- no possibility of part of the child lapping of entitlements. The conflict allowance being paid under Article 8 (2) between those provisions may be of that Law if his wife is entitled as a resolved only by the precedence of worker employed in Denmark to 'børne- Community law and by the application tilskud' in respect of the children of Article 10 (1) (a) of Regulation residing there." No 574/72 alone. That being so, a distinction should be drawn depending on whether the application of that article in regard to German law is to be made before or after 31 December 1978. The Commission of the European Communities sets out the facts of the case and the problem which has arisen before the national court and then discusses the answer which should be The Commission states that a specific given to the questions raised. answer to the questions referred to the Court is made more difficult by the fact that they also concern the interpretation of national law, which is not within the jurisdiction of the Court. The answer The Commission first reviews the should accordingly be based on relevant national provisions in order to hypotheses. In this regard Questions 1 be able to answer the national court's and 2 may be answered together. The first two questions. It then goes on to Commission believes that in view of that discuss the relevant provisions of position the questions may be answered Community law. It states that the as follows: plaintiff in the main action is a "frontier worker" within the meaning of Article 1 (b) of Regulation No 1408/71 and since no specific rules have been enacted in Community law on family allowances for "(1) For so long and in so far as the frontier workers Articles 73 and 13 (2) provisions of the Bundeskinder- (a), of Regulation No 1408/71 apply to geldgesetz relating to the habitual them (Article 20, concerning benefits for residence of a claimant and the frontier workers in the event of sickness children in question confer, in or maternity, not being relevant to the terms or on the construction given facts of the main action). to them by case-law, an entitlement to family allowance on persons who are gainfully employed as frontier workers in the Federal Republic of Germany and who reside, as do the Contrary to the opinion expressed by the children in question, in another Bundessozialgericht in the judgment of Member State, that entitlement is 25 October 1977 cited by the court acquired by virtue of German law making the reference, the prohibition of and there is no need to apply the overlapping of benefits contained in provisions of Article 73 (1) and of Article 10 (1) (a) of Regulation No Article 13 (2) (a) of Regulation 574/72 is not made inoperative by the (EEC) No 1408/71.
JUDGMENT OF 19. 2. 1981 — CASE 104/80
(2) In that event the entitlement of the benefit of a part of the legislation of the person concerned to family a Member State save in the case of an allowances for children residing in express exception which is in accordance Denmark and in respect of whom with the Treaty; an example of the way Danish family allowances are such an exception should be interpreted received is suspended only in was given by the Court itself in its respect of the amount of the judgment of 6 March 1979 in Case Danish benefit and, furthermore, 100/78 Rossi [1979] ECR 831; that only in respect of half the amount method of interpretation should be of the family allowances if, under applied to Article 10 (1) of Regulation the provisions of German law, the No 574/72, which may not cause a person concerned would have been migrant worker and the members of his entitled to half the amount of the family to lose a right accorded by a family allowances and if that national law — judgment of 21 October amount exceeds the difference 1975 in Case 24/75 Petroni [1975] ECR between the Danish benefit and the 1149. whole of the German family allowances."
The Italian Government submits that in truth Article 10 (1) of Regulation (EEC) No 574/72 does not embody an The Government of the Italian Republic additional, or, in comparison to the rule also observes that it is Article 73 (1) and in Article 76 of Regulation (EEC) No Article 76 of Regulation 1408/71 which 1408/71, a more stringent Community appear to be important for the resolution rule against overlapping. Article 10 (1) is of the dispute. The residence of the intended solely to determine the national persons entitled to or receiving benefits legislation to be applied in the event of does not matter. The basic principle of there being different and competing rules Community law is that entitlements against overlapping in both the national remain intact irrespective of residence. legislation of the country in which the That is the "logically necessary result" of member of the family resides and in the Articles 48 (3) and 53 of the Treaty, and national legislation to which the worker of freedom of movement, not only for is subject. workers and members of their family, but for persons in general.
This case does not involve any such concurrence of national rules against overlapping which act negatively in Accordingly, as an exception to that regard to benefits of the same nature principle, Article 76 of Regulation No granted for the same period but 1408/71 should be construed in the light concurrence of rules which act positively of Articles 3, 48 and 51 of the Treaty as and confer and quantify entitlement to being "only intended to limit the benefits even where other supplementary possibility of overlapping benefits" — benefits are available. The Italian judgment of 20 April 1978 in Case Government regards the present case as 134/77 Ragazzoni [1978] ECR 963. A being "on all fours" with the Rossi migrant worker may not be deprived of judgment, cited above.
BEECK v BUNDESANSTALT FÜR ARBEIT
In conclusion the Italian Government III — Oral procedure proposes that the answer should be that: "Article 10 (1) of Regulation (EEC) No 574/72 does not have the effect of At the sitting on 20 November 1980 the suspending an entitlement, accorded by Commission, represented for the purpose the national legislation of a Member of the oral procedure by its Legal State, to the difference between family Adviser, Dr. N. Koch, submitted oral allowances due by virtue of Article 73 (1) argument and replied to questions put by of Regulation (EEC) No 1408/71 and the Court. family allowances due in respect of the same 'member of the family' under the The Advocate General delivered his national legislation of another Member opinion at the sitting on 18 December State." 1980.
Decision
1 By an order dated 19 November 1979 which was received at the Court on 25 March 1980 the Sozialgericht [Social Court] Schleswig referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of various provisions of Regulation 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) and of Regulation No 574/72 of the Council of 21 March 1972 laying down the procedure of implementing Regulation No 1408/71 (Official Journal, English Special Edition 1972 (I), p. 159).
2 Those questions have been put to the Court in the context of a dispute between a frontier worker of German nationality and the Bundesanstalt für Arbeit [Federal Employment Office]. The frontier worker resides in Denmark with his wife and two children but works as an employed person in Flensburg in the Federal Republic of Germany. He travels each day from his Danish residence to his place of work, where he has no living accommodation. His wife is employed in Denmark and receives family allowances (børnetilskud) in that country in respect of their two children. Acting on behalf of the Bundesanstalt für Arbeit, the Arbeitsamt [Employment Office] Flensburg refused his application for the payment in the Federal Republic of half the amount of German allowances payable in respect of his second child under Article 8 (2) of the Federal German Law on family allowances (the Bundeskindergeldgesetz, hereinafter referred to as "the Federal Law"). According to that provision, half the amount of the
JUDGMENT OF 19. 2. 1981 — CASE 104/80
allowance provided for may be granted in respect of a dependent child when the benefit provided by another Member State does not exceed 75% of the "Kindergeld" [family allowance].
3 Acting for the Bundesanstalt für Arbeit, the Landesarbeitsamt [Regional Employment Office] Schleswig-Holstein dismissed the objection lodged against that refusal on the ground that his entitlement to family allowances must be suspended in accordance with the Community rule on overlapping benefits contained in Article 10 (1) (a) of Regulation No 574/72 of the Council. The plaintiff in the main action thereupon brought proceedings in which he relied on a judgment given by the Bundessozialgericht [Federal Social Court] on 25 October 1977 in a similar case and which held in effect that, in view of the German definition of residence for tax purposes and the close links existing between the legislation on family allowances and provisions on taxation, a German national must be able to receive family allowances in the same way as a resident.
4 In view of the arguments submitted to it the Sozialgericht Schleswig stayed the proceedings and referred three questions to the Court, the first two of which are as follows:
"1. Is a German national who resides with his wife and children in Denmark and is employed in the Federal Republic but returns daily from his place of work to his residence in Denmark, and whose wife is employed also in Denmark, entitled to receive family allowance under the national laws of the Federal Republic of Germany pursuant to Article 20 in conjunction with Article 4 and Article 1 of Regulation No 1408/71 of the Council of 14 June 1971 as a 'frontier worker' within the meaning of those overriding provisions of European law?
2. Is such an employed person also so entitled if, independently of European law, he is already treated under national law as if he had his residence in the Federal Republic of Germany?"
5 By those questions the national court is asking whether a frontier worker within the meaning of Article 1 (b) of Regulation No 1408/71 acquires a right to family allowances pursuant to the provisions of that Community
BEECK v BUNDESANSTALT FÜR ARBEIT
regulation. It should first be noted that Article 20 of Regulation No 1408/71, which is referred to in the first question, is not relevant to the case in hand since under the scheme of the regulation that article is concerned with -benefits for frontier workers in the event of sickness or maternity; on the other hand, the provisions on family benefits, of which family allowances within the meaning of Article 4 (1) (h) forms part, are applicable to workers as a whole and are those contained in Articles 73 (1) and 13 (2) (a).
6 Article 73 (1) of Regulation No 1408/71 affords a worker subject to the legislation of a Member State entitlement, in respect of the members of his family residing on the territory of another Member State, to the family benefits provided for by the legislation of the first-mentioned State as if they resided on the territory of that State.
7 Therefore, for Article 73 (1) to apply, it is sufficient for the worker to be employed on the territory of a Member State whilst the members of the worker's family reside on the territory of another Member State. That provision goes together with the rule laid down in Article 13 (2) (a) of the same regulation which states that a worker employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State. That arrangement stems from the objective of Regulation No 1408/71, which is to guarantee all workers who are nationals of the Member States and who move within the Community equality of treatment in regard to the different national laws and the enjoyment of social security benefits irrespective of the place of their employment or of their residence, and it must be interpreted uniformly in all Member States regardless of the arrangements made by national laws on the acquisition of entitlement to family benefits.
8 The answer to the first two questions from the Sozialgericht Schleswig should therefore be that by virtue of Articles 73 and 13 (2) (a) of Regulation No 1408/71 taken together a frontier worker residing with his wife and children in a Member State other than the State of employment acquires an entitlement under Community law to family allowances in the latter State.
JUDGMENT OF 19. 2. 1981 — CASE 104/80
9 In addition the Sozialgericht Schleswig has put the following third question to the Court:
"Is an entitlement to family allowance conferred on a worker residing in Denmark by German national legislation totally suspended under Article 10 (1) (a) of Regulation No 574/72 on the implementation of Regulation No 1408/71 [as amended by Article 1 (5) of Regulation No 878/73] if his wife receives the Danish family allowance (børnetilskud) for those children in. Denmark, even though Article 8 (2) of the German Bundeskindergeldgesetz provides for payment of a family allowance to the extent of the difference between the Danish and the German family allowances?"
10 By that question the national court requests the Court to provide it with guidance in interpreting the rule on overlapping benefits stated in Article 10 (1) (a) of Regulation No 574/72 where the wife of a worker acquires a parallel entitlement to family allowances in the State of residence which overlaps with the worker's entitlement in the State of employment.
1 1 The aforementioned Article 10 (1) (a) of Regulation No 574/72 of the Council of 21 March 1972 as amended by Regulation No 878/73 of the Council of 26 March 1973 (Official Journal L 86, p. 1), amended in turn by Council Regulation No 1209/76 of 30 April 1976 (Official Journal L 138, p. 1), provides that:
"Entitlement to family benefits or family allowances due under the legislation of a Member State, according to which acquisition of the right to those benefits or allowances is not subject to conditions of insurance or employment, shall be suspended when, during the same period and for the same member of the family:
(a) benefits are due in pursuance of Article 73 or 74 of the regulation. If, however, the spouse of the worker or unemployed worker referred to in those articles exercises a professional or trade activity in the territory of the said Member State, the right to family benefits or family allowances due in pursuance of the said articles shall be suspended; and only those
BEECK v BUNDESANSTALT FÜR ARBEIT
family benefits or family allowances of the Member State in whose territory the member of the family is residing shall be paid, the cost to be borne by that Member State."
12 That rule against overlapping benefits, under which priority is given to entitlement to benefits payable in the country of residence of the child, applies in a case such as the one described by the national court in which there is an overlapping of comparable benefits. The conclusion must therefore be drawn that entitlement to family allowances payable by virtue of Article 73 is suspended in the State of employment of the frontier worker in view of the entitlement acquired by his spouse in the State of residence the cost of which is borne by that State. However, under well-established case-law based on the fundamental principle of freedom of movement for workers and the objective of Article 51 of the EEC Treaty, a rule designed to prevent the overlapping of family allowances is applicable only to the extent to which it does not, without cause, deprive those concerned of an entitlement to benefits conferred on them by the legislation of a Member State. Accordingly, where the amount of the allowances the payment of which is suspended exceeds that of the allowances received by virtue of the pursuit of a professional or trade activity the rule on overlapping benefits contained in Article 10 (1) (a) of Regulation No 574/72 as amended should be applied only in part and the difference between those amounts should be granted as a supplement.
1 3 Consequently the answer to the third question should be that Article 10 (1) (a) of Regulation No 574/72 as amended suspends payment of family benefits or family allowances payable under the legislation of the State of employment only up to the amount received, in respect of the same period and the same member of the family, in the State of residence by the spouse pursuing a professional or trade activity within the territory of that State.
Costs
1 4 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. 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.
JUDGMENT OF 19. 2. 1981 — CASE 104/80
On those grounds,
T H E COURT (Second Chamber),
in answer to the questions referred to it by the Sozialgericht Schleswig by an order of 19 November 1979, hereby rules:
1. By virtue of Articles 73 and 13 (2) (a) of Regulation No 1408/71 taken together a frontier worker residing with his wife and children in a Member State other than the State of employment acquires an entitlement under Community law to family allowances in the latter State.
2. Article 10 (1) (a) of Regulation No 574/72 as amended suspends payment of family benefits or family allowances payable under the legislation of the State of employment only up to the amount received, in respect of the same period and the same member of the family, in the State of residence by the spouse pursuing a professional or trade activity within the territory of that State.
Pescatore Touffait Due
Delivered in open court in Luxembourg on 19 February 1981.
A. Van Houtte P. Pescatore Registrar President of the Second Chamber