C-149/82

JUDGMENT OF 3. 2. 1983 — CASE 149/82

in question is intended to resolve is restrictive manner but as meaning that not to be answered differently it applies to a divorced spouse. according to whether or not the marriage bond still exists between the 3. The task assigned to the Court by two parents who might, depending on Article 177 of the EEC Treaty is not the case, be entitled to benefits in that of delivering opinions on general respect of the same child. In view of or hypothetical . questions but of the purpose of that provision, it assisting in the administration of should not be interpreted in a justice in the Member States.

In Case 149/82

REFERENCE to the Court by the Social Security Commissioner for a pre­ liminary ruling under Article 177 of the EEC Treaty in the action pending before the Commissioner between

STEPHANIE ROBARDS

and

ROBARDS v INSURANCE OFFICER

JUDGMENT

Facts and Issues

The facts of the case, the course of the the person in question is mainly procedure and the observations sub­ dependent on that worker." mitted in pursuance of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized Under Article 76 of Regulation No as follows: 1408/71:

"Entitlement to family benefits or family I — Facts and procedure allowances under Articles 73 and 74 shall be suspended if, by reason of the pursuit of a professional or trade activity, family benefits or family allowances are also 1. Article 73 (1) of Regulation No 1408/71 of the Council of 14 June 1971 payable under the legislation of the provides that: Member State in whose territory the members of the family are residing."

JUDGMENT OF 3. 2. 1983 — CASE 149/82

member of the family is residing shall youngest children, on Article 73 (1) of be paid, the cost to be borne by that Regulation No 1408/71 and Article 10 Member State. (1) (a) of Regulation No 574/72, the Insurance Officer having taken the view that the provision contained in the (b) . . ." second sentence of Article 10 (1) (a) could no longer apply after divorce.

2. Mrs Stephanie Robards, a British national, married Mr Hugh John Mrs Robards appealed to the local Robards in 1967. There are three tribunal against the decision of the children of the marriage. The family had Insurance Officer in so far as that been living in Ireland since 1970. ' decision affected the benefits paid in respect of her two youngest children. The Insurance Officer conceded that, in In 1978 the spouses separated and Mrs accordance with the principles laid down Robards returned to the United by decisions of the Court of Justice in Kingdom. She was accompanied by her that sphere, she was entitled to the two youngest children, the eldest difference between the higher amount of remaining in Ireland. Mrs Robards was the United Kingdom benefits and the in paid employment in the United allowance paid to Mr Robards in Kingdom but Mr Robards continued to Ireland. However, the local tribunal reside and work in Ireland. dismissed the appeal.

The marriage was terminated by the 3. Mrs Robards appealed against that High Court in England by a decree decision to the Social Security absolute of divorce dated 3 June 1980. Commissioner. By a custody order of that court dated 4 February 1980 custody of the two youngest children was awarded to the The Social Security Commissioner mother and custody of the eldest was considered that, if Mrs Robards and her awarded to the father who was ordered former husband were both in the United to pay a sum of UKL 9 per child per Kingdom, there is no doubt that Mrs week by way of maintenance for the two Robards would be entitled to child youngest children. benefit in respect of the two children in priority to her former husband.

child receives the benefit in priority to a of the marriage. If it were otherwise, person contributing to the maintenance the absurd situation would be of the child. As regards the right to reached where she could claim receive child benefit in the United United Kingdom child benefit for Kingdom, it is not necessary that the her eldest son living in Ireland, claimant should be a worker or engaged whilst, at the same time, her former in any professional or trade activity. husband can receive Irish child allowances for the children living in the United Kingdom. As far as Irish legislation is concerned, the Social Security Commissioner explained that, by virtue of the (b) The children living with her cannot Children's Allowances Act 1944 and the be regarded, since the dissolution of Children's Allowances (Amendment) Act the marriage, as "members of the 1946 as amended by the Social Welfare family" (within the meaning of (Miscellaneous Provisions) Act 1963, the Article 73 (1) of Regulation No person with whom a child, who qualifies 1408/71 and on the basis of the for benefit, normally resides is to be definition of that term in Article 1 (f) qualified for a children's allowance. of that regulation) of Mr Robards, Apart from the case of a person making no matter what may be the financial provision for the support of a provisions of national law on that child residing in an institution, there is point. no provision for qualifying a person for children's allowances for a child by (c) By the mere fact that under Article reason only of his making a financial 73 (1) of Regulation No 1408/71, contribution to the child's maintenance. the children are regarded as residing on Irish territory, Mr Robards does not satisfy the conditions laid down The Social Security Commissioner by Irish legislation requiring that the considered that the determination of the two children must be "normally dispute before him depended upon residing with him". whether Mrs Robards's right to family benefits under United Kingdom legislation was suspended pursuant to (d) It would be contrary to the principle Community provisions, in particular of equality of the sexes to deprive Article 10 (1) (a) of Regulation No her of the right to family benefits in 574/72 of the Council of 21 March respect of the children living with 1972, as a result of the grant by the her in the United Kingdom, the competent Irish institution of family Member State to whose legislation benefits to Mr Robards in respect of the she is subject. two children living with Mrs Robards. Under those circumstances the Social In that connection Mrs Robards put Security Commissioner decided on 5 forward inter alia the following ar­ May 1982 to refer the following guments in the proceedings before the questions to the Court of Justice for a Social Security Commissioner: preliminary ruling under Article 177 of the EEC Treaty:

4. If the answer to Question 3 (b) is in (b) under Article 10 (1) (a) of Regu­ the affirmative, is Article 10 of Regu­ lation No 574/72 if the divorced lation No 574/72 valid in so far as it spouse of that worker exercises a operates to deprive a worker of professional or trade activity in family benefits to which he would be that other Member State and is entitled under national law alone?" entitled under the domestic law of that State to family benefits in respect of those children? 4. The decision making the reference was received at the Court Registry on 3. If the answer to Questions 2 (a) and 30 May 1982. 2 (b) are both in the negative :

(a) are family benefits provided for In pursuance of Article 20 of the by the law of a Member State to Protocol on the Statute of the Court of be regarded (for purposes of Justice of the EEC, written observations

ROBARDS v INSURANCE OFFICER

JUDGMENT OF 3. 2. 1983 — CASE 149/82

The conditions (a) of Regulation No 574/72 were to be fulfilled are those laid down by the applied to divorced persons, one or other legislation of the Member State of of whom might well remarry, it would be employment which also has to decide conceivable that yet another Member who are the members of the family. The State might be entitled to apply Article fact that benefit is not payable to the 73 of Regulation No 1408/71 the result worker himself because the child is not of which would be that Article 10 (1) (a) living under his roof would, regard being of Regulation No 574/72 would fall to had to Article 1 (f) of Regulation No be applied a second time in respect of the 1408/71, be relevant only if that is the

operated. lation No 1408/71 if benefits are not applied by the person to whom they should be provided for the maintenance of a member of the family, the As regards part (h) of the third question, competent institution is to discharge its the Insurance Officer considers that, if legal obligations by providing those Article 73 (1) has been incorrectly benefits to the person actually main applied, the country of residence is taining that member of the family nevertheless justified in applying over through the agency of the competent lapping provisions. The question "who is authority of the country of residence. It a member of a worker's family" has to is therefore possible for the beneficiary in be resolved by reference to the the country of residence to request the legislation under which benefits are competent institution in that country to provided. The right of the country of apply to the competent institution in the employment to determine whether or not Member State of employment to have benefits are payable under its legislation the benefit paid direct to the country of cannot be denied. If that legislation does residence. not recognize divorce the Member State

As regards the fourth question, the Article 10 of Regulation No 574/72 is Insurance Officer observes that Article designed to provide rules applicable in 10 of Regulation No 574/72 constitutes the case of overlapping of rights to both a general overlapping rule and an family benefits or family allowances, and exception to the rule of priority for the its task is to give effect to Chapter 7 of legislation of the country of employment, Regulation No 1408/71 and in particular neither of which may be said to be Article 76 thereof. The rules contained in incompatible with the objectives of Article 10 of Regulation No 574/72 and Article 51 of the Treaty. However, under Article 76 of Regulation No 1408/71 are the case-law of the Court, such a rule a particular application of the general designed to prevent the overlapping of principle laid down in Article 12 of benefits is applicable only to the extent Regulation No 1408/71 which states that to which it does not, without cause, the regulation can neither confer nor deprive those concerned of an maintain the right to several benefits of entitlement to benefits conferred on the same kind for one and the same them by the legislation of a Member period of compulsory insurance. Article State. Accordingly, in an appropriate 76 of Regulation No 1408/71 provides case, where the amount of the that, if benefits are also payable as a allowances the payment of which is result of the pursuit of a professional or suspended exceeds that of the allowances trade activity in the territory of the received by virtue of the pursuit of a Member State in which the members of professional or trade activity, the rule on the family are resident, entitlement to overlapping benefits contained in Article benefits payable under Article 73 of that 10 (1) (a) of Regulation No 574/72 regulation is suspended. Article 10 of should be applied only in part and the Regulation No 574/72 suspends the difference between those amounts should right to family benefits or family be granted as a supplement. allowances irrespective of conditions of

insurance or employment where benefits Article 10 (1) (a) of Regulation No are payable under Article 73 or 74 of the 574/72 as covering those persons who regulation. have lawful custody of the children for whom child benefits are payable and with whom they reside, thus achieving the objective of the provision, namely to However, an exception to that rule is fill a vacuum which occurs in cases provided for by Article 10 (1) (a) in where marriages have been dissolved and favour of the spouse pursuing a pro­ the party having custody of the children fessional or trade activity. That exception is a worker within the meaning of the seeks to cover the most common case of regulation. migrant workers whose families live in two or more Member States and it was not the legislature's intention narrowly to restrict this exception to the spouse of the worker. It should rather be construed 3. Observations of the Commission as covering the situation of the former spouse and indeed of the persons who have custody of the children, the failure by the legislation to mention such exceptional cases being regarded as an oversight. Child allowances are granted The Commission considers that the term for the ultimate advantage of the child "member of the family", used in Article who would be most likely to receive 73 (1) of Regulation No 1408/71, is benefit from them where they are paid to defined in Article 1 (f) of that regulation the person having effective charge of him which refers to the "legislation under or her. which benefits are provided". The Irish legislation must therefore be considered to see whether it regards the children in question as being "any person defined or Such an interpretation of Article 10 of recognized as a member of the family Regulation No 574/72 would be in or designated as a member of the conformity with the case-law of the household". In that connection Article Court based on the fundamental 1 (f) states that, where the relevant principle of freedom of movement for legislation provides that such persons workers and the objective of Article 51 need to be living under the same roof as of the EEC Treaty whereby a rule the worker, that condition is deemed to designed to prevent the overlapping of . be satisfied if the person familyin allowances question is is appl the extent to which it does not, without mainly dependent on that worker. cause, deprive those concerned of an entitlement to benefits conferred on them by the legislation of a Member State. There is no mention in that case-law of the possible invalidity of It appears that the Irish legislation does Article 10 (1) (a) of Regulation No not make express use of the concepts as 574/72. used in Article 1 (f) of the regulation. Its test is rather that of "normal residence", as the Social Security Commissioner explained in his decision. In applying Article 73 (1) of Regulation No 1408/71 The Council considers that the Court the Irish authorities ought to have should interpret the term spouse used in considered whether — and always

At the hearing on 25 November 1982 In that connection, the Commission oral argument was presented by the observes first that Article 76 of Regu­ following: Michael Douglas, barrister, lation No 1408/71 cannot be applied in for Stephanie Robards; Ann V. Windsor, this case because the benefits in question for the Insurance Officer; John Carbcry are not payable in the United Kingdom for the Council; and John Forman, for "by reason of" the pursuit of a pro­ the Commission. fessional or trade activity.

Mrs Robards claimed in particular that, As regards Article 10 (1) (a) of Regu­ in order to avoid any difficulties in the lation No 574/72, the effect of that case of divorced spouses, it is not provision prior to the divorce was to sufficient to interpret Article 10 (1) (a) of suspend the Irish benefits by reason of Regulation No 574/72 but it must be the pursuit by Mrs Robards of a pro­ stated more generally that Articles 73 fessional or trade activity in the United and 76 of Regulation No 1408/71 and

JUDGMENT OF 3. 2. 1983 — CASE 149/82

Article 10 of Regulation No 57'4/72 may which they are entitled under the in no event have the effect of depriving legislation of the Member State in which members of an autonomous family unit, they reside. of which the worker does not form part, as is the case, after divorce, of the The Advocate General delivered his former spouse who does not have the opinion at the sitting on 16 December custody of the children, of the benefits to 1982.

Decision

1 By decision of 5 May 1982, which was received at the Court on 13 May 1982, the Social Security Commissioner referred to the Court for a pre­ liminary ruling pursuant to Article 177 of the EEC Treaty four questions on the interpretation of Articles 1 (f), 73 and 76 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 Article 10 (1) (a) of Regulation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71, as well as on the validity of the latter article.

4 On her return to the United Kingdom Mrs Robards received United Kingdom child benefit. After the divorce Mr Robards claimed payment of children's allowances under Irish legislation which were granted to him as from 1 July 1980. As regards the two younger children, residing in the United Kingdom, the allowances were granted pursuant to Article 73 (1) of Regulation No 1408/71. Following that decision, the Insurance Officer withheld United Kingdom child benefit from Mrs Robards. In respect of the two younger children, that decision was based on Article 73 (1) of Regu­ lation No 1408/71 and Article 10 (1) (a) of Regulation No 574/72. However, he subsequently conceded that, by virtue of the principle laid down in the judgment of the Court of 19 February 1981 in Case 104/80 Beek v Bundesanstalt für Arbeit [1981] ECR 503, the payment of the United Kingdom benefit should only be suspended up to the amount of the Irish allowances paid to Mr Robards.

s Mrs Robards appealed against the decision to suspend payment of United Kingdom benefit in respect of her two younger children.

6 When the matter was brought before the Social Security Commissioner he took the view that Mrs Robards's right to receive United Kingdom child benefit raised questions of Community law. He therefore decided to stay the proceedings and to refer to the Court a series of questions relating to the provisions of Regulations Nos 1408/71 and 574/72 as to family benefits and allowances and concerning in particular:

(1) the interpretation of the term 'member of the family' as used in the provisions of Regulation No 1408/71 relating to family benefits;

"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 Article 74 of [Regulation No 1408/71]. 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 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.

(b) . . ."

s It is clear from the Social Security Commissioner's decision making the reference to the Court that, as regards the right to receive child benefit, it is not necessary under United Kingdom legislation that the claimant should be a worker or be engaged in any professional or trade activity, since that benefit is paid to the person who is responsible for a child irrespective of

ROBARDS v INSURANCE OFFICER

conditions of insurance or employment. The fact that such benefit is payable cannot therefore have the effect of causing the benefits payable in pursuance of Article 73 of Regulation No 1408/71 to be suspended under Article 76 of that regulation. On the other hand, the question remains whether under Article 10 (1) (a) of Regulation No 574/72 entitlement to the aforesaid benefit might be suspended if, in respect of the same children, benefits were payable in pursuance of Article 73 of Regulation No 1408/71 and the derogation provided for in the second sentence of Article 10 (1) (a) were inapplicable.

JUDGMENT OF 3. 2. 1983 — CASE 149/82

i2 The reply to be given to the Social Security Commissioner must therefore be that the provision for suspension contained in the first sentence of Article 10 (1) (a) of Regulation No 574/72 must be interpreted as meaning that it applies whenever the institution of another Member State has in fact granted family benefits to a worker in respect of the same child, in pursuance of Article 73 of Regulation No 1408/71, without its being necessary to examine whether all the conditions for the grant of those benefits are satisfied under the legislation of that other Member State.

13 In those circumstances it is no longer necessary to answer the questions concerning the interpretation of Article 73 of Regulation No 1408/71 and of the term "member of the family".

The second sentence of Article 10 (1) (a) of Regulation No 574 / 72

w The questions submitted by the Social Security Commissioner then seek to ascertain whether the derogation provided for by the second sentence of Article 10 (1) (a) of Regulation No 574/72 covers the case of a divorced spouse.

is The provision in question, like Article 76 of Regulation No 1408/71 which is also concerned with an instance of the overlapping of family benefits, seeks to give priority to the benefits of the Member State in the territory of which the children reside and in which one of the recipients in question pursues a professional or trade activity. The problem of overlapping benefits which the provision in question is intended to resolve is not to be answered differently according to whether or not the marriage bond still exists between the two parents who might, depending on the case, be entitled to benefits in respect of the same child. In view of the purpose of that provision, it should not be interpreted in a restrictive manner.

20 The reply to be given therefore to the Social Security Commissioner is that the second sentence of Article 10 (1) (a) of Regulation No 574/72 must be interpreted as meaning that it applies to a divorced spouse.

2i In view of that reply there is no need to answer the fourth question relating to the validity of Article 10 (1) (a) of Regulation No 574/72 which was submitted in the event of that provision's having the effect of depriving the divorced spouse of entitlement to family benefits to which that spouse would be entitled under national law alone.

JUDGMENT OF 3. 2. 1983 — CASE 149/82

Costs

22 The costs incurred by the Council 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 proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

J. A. Pompe U. Everling Deputy Registrar President of the Third Chamber