C-242/83

JUDGMENT OF 12. 7. 1984 — CASE 242/83

In Case 2 4 2 / 8 3

R E F E R E N C E t o the C o u r t u n d e r Article 177 of the E E C T r e a t y by the C o u r de Cassation du R o y a u m e de Belgique [ C o u r t of Cassation of the K i n g d o m of Belgium] for a preliminary ruling in t h e proceedings pending before t h a t court between

CAISSE DE C O M P E N S A T I O N POUR ALLOCATIONS FAMILIALES DU BÂTIMENT, DE L'INDUSTRIE ET DU C O M M E R C E DU H A I N A U T [Family Allowances C o m p e n s a t i o n Fund for t h e Building T r a d e , Industry a n d C o m m e r c e , H a i n a u t ]

and

SALVATORE PATTERI

Facts and Issues

The facts of the case, the course of I — Facts and written p r o c e d u r e the procedure and the observations submitted under Article 20 of the Salvatore Patteri, an Italian national, Protocol on the Statute of the Court of having been employed as a miner in Justice of the EEC may be summarized Belgium from 28 June 1956 to 31 July as follows: 1971, is in receipt of an invalidity

CAISSE DE COMPENSATION POUR ALLOCATIONS FAMILIALES v PATTERI

pension granted under the Belgian familiales pour travailleurs salariés retirement scheme for miners; he also coordonnées par l'arrêté royal du 19 receives a proportional invalidity pension décembre 1939 [Laws on family from the competent Italian institution as allowances for employed persons, con- a result of his having worked in Italy solidated by Royal Decree of 19 from 1942 to 1956. Until 9 August 1979, December 1939, hereinafter referred to when he returned to Italy permanently, as "the Consolidated Laws"]. he received family allowances in Belgium for his three children who live with him.

JUDGMENT OF 12. 7. 1984 — CASE 242/83

another Member State. If the amount of provisions of Regulation N o 1408/71, family benefits actually received by the and in particular Article 77 thereof, as worker in the Member State in which he conferring a direct right upon individuals resides is less than the amount of the only to the extent that it is necessary to benefits provided for by the legislation of secure the actual payment of benefits, the the other Member State, he is entitled to principle and the amount of which a supplement to the benefits from the continue to be governed exclusively by competent institution of the latter State the various national laws. Consequently, equal to the difference between the two Article 77 of Regulation No 1408/71 amounts." cannot create for migrant workers direct entitlement to payment by the authorities of a Member State of family allowances which are not payable under the national law of that Member State.

CAISSE DE COMPENSATION POUR ALLOCATIONS FAMILIALES v PATTERI

that its appeal called in question the inter- Communities had given a preliminary pretation given by the contested ruling on the following questions: judgment to Article 77 (2) (b) (i) of Regulation No 1408/71, which was in conformity with the interpretation given thereto by the earlier judgment of the Court of Justice in Laterza (cited above). 1. Does Article 51 of the Treaty of Rome authorize the Council of Ministers only to adopt such measures as are necessary to secure for migrant workers the actual payment of social However, the Fund contended that new security benefits, the said benefits factors warranted a further reference to continuing to be governed, as regards the Court of Justice under Article 177 of the principle and the amount thereof,, the EEC Treaty. In the Fund's view, exclusively by separate bodies of rules those new factors were: first, that the giving rise to separate claims against., judgment in Laterza (and others dealing separate institutions, and is it with similar cases) had interpreted the therefore appropriate to interpret the provision at issue (or provisions con- provisions of Regulation No 1408/71, cerning similar circumstances) without and in particular Article 77 thereof, considering the validity of the provision as conferring a direct right upon itself, and, furthermore, that Article 51 individuals only to the extent necess- of the EEC Treaty conferred on the ary to secure the actual payment of Council the power to issue regulations benefits, the principle and the amount capable of giving rise to direct rights of which continue to be governed only (a) for the purpose of granting exclusively by the various national social benefits based on the aggregation laws, so that the said provision cannot of successive reference periods taken into create for migrant workers direct account under the laws of the Member entitlement to payment by the auth- States (Article 51 (a)) and (b)) in order orities of a Member State of family to secure the actual payment of benefits allowances which are not payable due under the legislation of one Member under the national law of that State to persons residing in the territory Member State? of another Member State (Anicie 51 (b)).

1408/71 valid in the light of Article II — W r i t t e n o b s e r v a t i o n s s u b - 51 of the Treaty of Rome? m i t t e d to t h e C o u r t p u r - s u a n t to A r t i c l e 20 of t h e P r o t o c o l on t h e S t a t u t e of the C o u r t of J u s t i c e of t h e EEC The order making the reference was received at the Court Registry on 25 In its observations, the Fund starts from October 1983. the premise that, although the two questions purport to deal with separate subjects, only one issue is raised. That issue is simply whether Article 51 of the Pursuant to Article 20 of the Protocol on EEC Treaty empowered the Council to the Statute of the Court of Justice of issue regulations which have the effect of the EEC, written observations were conferring upon migrant workers, at the submitted by the appellant Fund, expense of the authorities of a Member represented by Antoine de Bruyn, Avocat State, direct entitlement to family with right of audience before the Court allowances which are not payable under of Cassation of the Kingdom of Belgium, the law of that Member State. The and Michel Mahieu of the Brussels Bar, essential question, therefore, concerns by Salvatore Patteri, the respondent, the extent of the powers conferred on represented by D. Rossini, a trade union the Council by Article 51 of the EEC representative, by the Commission of the Treaty. European Communities, represented by J. Griesmar, a member of its Legal The first part of the Fund's observations Department, acting as Agent, assisted by explains in detail precisely what is new F. Herbert of the Brussels Bar, by the about the factors upon which the Fund Council of the European Communities, — followed cautiously by the Cour de represented by John Carbery, adviser in Cassation — relies as the basis for asking the Legal Department of the General the Court of Justice to reconsider an Secretariat of the Council, Brussels, earlier preliminary ruling and to depart acting as Agent, by the Government of from its previous decision. In the Fund's the Federal Republic of Germany, view, the new and decisive aspect of the represented by M. Seidel and E. Roder, circumstances of this case is to be seen in acting as Agents, and by the Government the light of earlier judgments of the of the Italian Republic, represented by Court of Justice on the matter at issue. P. G. Ferri, Avvocato dello Stato, acting According to the Fund, the judgment in as Agent. Laterza, to which the judgment of 25 September 1981 of the Cour de Travail, Mons, expressly refers, is the only ruling of the Court of Justice on the interpre- Upon hearing the report of the Judge- tation of Article 77 (2) (b) (i) of Regu- Rapporteur and the views of the lation No 1408/71; that judgment Advocate General, the Court decided to merely interprets that provision in the open the oral procedure without any light, first, of the aims of the EEC preparatory inquiry. Treaty and, secondly, of the recitals in the preamble to Regulation N o 1408/71 and, more specifically, of the seventh and eighth recitals. In the Fund's view Pursuant to Article 95 (1) and (2) of the that judgment does not consider the Rules of Procedure, the Court assigned question of the limits to which the the case to the First Chamber. powers conferred on the Council by

Article 51 of the EEC Treaty are subject retaining the right to national social or the possibility that the provision at security benefits, of insurance periods issue might be invalid if the interpret- (Article 51 (a)) and the payment of ation given to it disregarded those limits. benefits to persons resident in the Subsequently, the Fund reviews the territories of Member States (Article 51 decisions of the Court relating to Regu- (b)). Furthermore, the arrangements to lation No 3/58, as amended by Regu- be made pursuant to Article 51 of the lation No 1/64, although it acknow- EEC Treaty are left to the Council's ledges that any reference to the various discretion, subject solely to the proviso solutions adopted in conformity with that the Council may not replace the those instruments must be made with national schemes by a single system and caution. Perusal of the judgments of 17 should (and hence certainly may) depart June 1970 in Case 3/70 (Beninato (née from national law with regard to two Di Bella), [1970] ECR 415), of 13 July specific matters, namely: (a) the calcu- 1976 in Case 19/76 (Triebes, [1976] ECR lation of insurance periods and (b) the 1243) and of 13 October 1976 in Case actual payment of benefits in the 32/76 (Saieva, [1976] ECR 1523) does territories of all the Member States. In not provide a clear answer to the the Fund's view, any regulation which question raised in this case. Finally, the fails to comply with these requirements Fund reviews the judgments relating to should be regarded as invalid. the implementation of Regulation No 1408/71, that is to say, first, the judgment of 6 May 1979 in Case 100/78 (Rossi, [1979] ECR 831), and then the judgments of 22 May 1980 in Case 143/79 (Walsh, [1980] ECR 1639), 9 Accordingly, the Fund considers it July 1980 in Case 807/79 (Gravina, appropriate to examine the following [1980] ECR 2205) and 15 September two questions: 1983 in Case 279/82 (Jerzak, [1983] ECR 2603), and concludes that those judgments also fail to clarify the extent of the powers conferred on the Council by Article 51 of the EEC Treaty. As far (1) Does Article 51 of the EEC Treaty as the Fund is concerned, no doubt can require the Council to adopt rules remain that new factors have emerged whereby a recipient who is not justifying a re-examination of the resident in the territory of a Member interpretation of Article 77 (2) (b) (i) of State retains entitlement to benefits Regulation No 1408/71. payable under the legislation of that State, even if that legislation imposes, as a condition for payment, the requirement that recipients are to be resident in the territory of that State and even if the legislation of the State in which the recipient is As regards the substance of the question resident also entitles him to similar concerning the extent of the powers benefits? conferred on the Council by Article 51 of the EEC Treaty, the Fund starts from the premise that Article 51 is intended essentially to empower the Council to make arrangements to secure for migrant (2) Does Article 51 of the EEC Treaty workers and their dependants aggre- authorize the Council to adopt such gation, for the purpose of acquiring and rules?

As regards the first question, the Fundcircumstances intended to be covered by Article 77 (2) (a) and Article 77 (2) (b) observes that the Court has held that the aims of Articles 48 to 51 of the EEC of Regulation No 1408/71. The first of Treaty included the (negative) objective those provisions, which is not criticized of not depriving migrant workers or their by the Fund, embodies the Council's dependants of the benefit of a part of the logical reaction to its duty to make sure legislation of a Member State, a finding that where entitlement to a benefit exists which led the Court to decide that the under the legislation of only one rule against overlapping benefits should Member State, it cannot be jeopardized be applied only partially, that is to say, where an allowance which ceases to be (as a result of its being suppressed or suspended) merely because the recipient paid in one Member State is greater than transfers his residence to the territory of the allowance that is payable in another. another Member State — even where the It is on this precise point that the Fund asks the Court to reconsider its position legislation of the recipient's Member on the ground that, where an instrument State of origin provides, as a pre- confers powers and itself enumerates thecondition for entitlement to, or for the aims that the legislative authority actual payment of, benefits, that the concerned (the Council in this instance)recipient must be resident in its own is required to pursue, those aims alone, territory. However, as far as Article 77 as they are set out, should be taken into account for the purpose of interpreting(2) (b) is concerned, the Fund maintains the instrument in question. Accordingly,that, whilst it is true that the general aims the only aims which the Council is of Article 48 to 51 of the EEC Treaty certainly include the desire to ensure that required to pursue are the two set out in Article 51 (b), which is the relevant migrant worker's rights are retained, provision in this case, the only aim that it as a matter of principle, irrespective of requires the Council to pursue is that of the workers' movements within the making arrangements whereby migrant Community, it is none the less true that workers and their dependants retain Article 51 (b) defined the aim that the entitlement to the payment of benefits Council is required to pursue in precise payable under the national legislation, even though the recipients reside in theterms. That aim consists solely in territory of another Member State. securing the actual payment of benefits where they are payable under the legislation of a given Member State and would, in principle, be lost in the event of the recipient's moving within the Community. Where two bodies of legislation apply and a choice is to be made between them to avoid overlapping benefits, Article 51 (b) in no way precludes the Council from making a straightforward election. So the Fund's first question must definitely be answered in the negative, since Article 51 (b) of the EEC Treaty certainly does not require the Council to make a choice combining two bodies of legislation so as The Fund goes on to draw attention to to enable workers to continue to enjoy the differences between the separate

the benefit of the most favourable expressly provided for in Article 51 of legislation. By providing for the actual the EEC Treaty (to secure actual payment of the benefits payable by the payment of benefits that would otherwise Member State in which the worker be forfeited as a result of the recipient's resides — and the Council did no more moving within the Community) and not than that according to the Fund's in other circumstances (concurrent interpretation of Article 77 (2) (b) (i) of application of laws providing for benefits Regulation No 1408/71 — the Council of differing amounts).

The Fund. does not applies concurrently the provision against consider that Article 51 of the EEC overlapping benefits will be put into Treaty lays down any such requirement. effect partially and the right to the "difference" at issue in this case will be left intact. The Fund considers that the provisions of Anicie 51 of the EEC Treaty essentially constitute a device — as the Court has already pointed out — The Fund considers that Article 77 (2) for identifying the applicable national (b) (i) of Regulation No 1408/71 must law, a kind of rule of private inter- be construed in accordance with the national law within the Community legal natural meaning of its wording, and

Moreover, if conditions for its implementation, there is no provision to that effect in that including the residence requirement. legislation there is no right to the Accordingly, the Council is authorized difference between the benefit paid in to waive a residence clause laid down by this way and the — ex hypothesi — national law solely in the eventuality higher benefit payable under the law of another Member State.

Consequently, Article 77 (2) (b) (i) of Council of Ministers to make ar- Regulation No 1408/71 should, despite rangements to secure the actual payment its express terms, be interpreted as of benefits to persons resident in the having the effect of maintaining the territories of the Member States and, application of part of the legislation of a exclusively for that purpose, to override Member State other than that in which the laws of Member States which have the recipient resides only if it is held that the effect of depriving of those benefits Article 51 (b) of the EEC Treaty requires persons resident in the territory of such an interpretation, and this, in the another Member State. Consequently, Fund's view, is manifestly not the case. Article 77 (2) (b) (i) of Regulation No 1408/71 must be interpreted as meaning that, where a worker receives pensions As regards the validity of Article 77 (2) under the laws of several Member States, (b) (i) of Regulation No 1408//71, the the benefits are to be granted in Fund considers that, if it is accepted that accordance with the legislation of the Article 51 (b) of the EEC Treaty merely State within whose territory he resides, authorizes the Council to make ar- irrespective of which State that is — rangements to secure actual payment of provided that entitlement to one of the the benefits, it inevitably follows that, benefits arises under the legislation of where entitlement to benefits arises that State — and to the exclusion of any under the legislation of several Member benefit or part of a benefit that is States, the Council has no power other payable by virtue of the legislation of than that of designating, by means of another State." a provision designed to prevent the overlapping of benefits, the national legislation which will be exclusively applicable. It also follows that the Second question Council may designate the legislation of a particular Member State as applicable, "Article 51 (b) of the Treaty must be even if the residence clause contained interpreted as not authorizing the therein is not satisfied, only in the event Council of Ministers to establish a that, were that national legislation system whereby entitlement to family not applied, the recipient would be benefits payable by the State in whose completely deprived of any benefit. territory the recipient of an invalidity Although the opposite interpretation has pension resides does not take away the previously been adopted by the Court, right to higher benefits awarded pre- the effect of that interpretation is, in the viously by another Member State or at Fund's view, to render Article 77 (2) (b) least to a supplement equal to the (i) of Regulation No 1408/71 invalid difference between the two amounts, under Article 51 (b) of the Treaty. thus causing a right to accrue to the recipient which was not created by the In conclusion, the Fund proposes that legislation of either of the Member the questions submitted by the Court of States. Consequently, if it were necessary Cassation of the Kingdom of Belgium to interpret Article 77 (2) (b) (i) of Regu- should be answered as follows: lation N o 1408/71 in such a way as to create such a system, that Article would not be valid in the light of Article 51 (b) of the Treaty." First question

transferring his residence to Italy he has since been laid down in Decision No not forfeited his entitlement to family 122 of 20 April 1983 of the Adminis- benefits previously awarded in Belgium, trative Commission of the European and that he ought to receive — in Communities on Social Security for accordance with the case-law of the Migrant Workers (Official Journal N o Court of Justice — the difference C 295 of 2. 11. 1983). between the benefits paid under the Belgian scheme and those paid under the Italian scheme.

It seems accordance with the legislation of obvious that that formality ought to be that State (Article 77 (2) (a)); completed when the right is recognized. Furthermore, Anicie 92 of Regulation No 574/72 requires any person to whom benefits are paid under Article 77 or 78 (b) Where the migrant worker is the of Regulation No 1408/71 to inform the recipient of pensions from several institution responsible for the payment of Member States, family benefits are to such benefits, inter alia, of any transfer be granted to him, in order of of residence leading to the loss of a right priority, in accordance with the to benefits already acquired.

To determine which law is applicable and, hence, the institution responsible for payment of the benefits, regard should As regards the Fund's claim that the be had to the situation of the insured Belgian legislation does not give rise to person when the event which created the any entitlement to family allowances for right to the benefits occurred (in this children brought up outside Belgian case, award of the invalidity pension). A territory (last paragraph of Article 51 of change of residence merely creates a the Consolidated Laws of 19 December conflict of laws which must be settled in 1939), Mr Patteri points out that a accordance with the relevant case-law territorial clause of that kind is rendered of the Court of Justice (judgments in completely inoperative by Article 51 (b) Case 733/79, Laterza, Case 807/79, of the EEC Treaty.

JUDGMENT OF 12. 7. 1984 — CASE 242/83

CAISSE DE COMPENSATION POUR ALLOCATIONS FAMILIALES v PATTERI

In the EEC Treaty, since it appears that the support of this view the Commission problem of validity which is the subject refers to Mr Advocate General Reischl's of the second question referred to the Opinion of 21 February 1979 in Case Court for a preliminary ruling arises only 139/78 (Cuccioli, [1979] ECR 991 at if Article 51 has the more restrictive p. 1003), where it is pointed out that the scope attributed to it by the Fund. key factor in interpreting Article 51 is However, the Commission is unable to the reference in the first paragraph of accept the Fund's interpretation of that that article to "such measures in the field

In the Nonnenmacher, [1964] ECR 281 at Commission's view, this emerges from p. 288). The Commission considers that the actual wording of Article 51 it was on that basis that the Court ["notamment", that is to say "in formulated one of the basic principles for particular", being included in the French the interpretation of social security regu- version of the Clause: "to this end, it lations in the light of the aims of Article shall make arrangements, [in particular,] 51, that is to say the principle that to secure . . . dependants"].

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(Case 181/83, Weber, observations of 1408/71 should also be based on Articles the Commission). The aggregation of 40 to 51 of the EEC Treaty. Thus the insurance periods (Article 51 (a)) and theCourt referred to the principle of exporting of benefits (Article 51 (b)) areacquired rights, according to which the not the aims of Article 51 but merely two Community rules cannot, in the absence measures that are necessary to attain its of an express exception consistent with objective, which is the free movement the aims of the EEC Treaty, be applied of workers. It follows that there is in such a way as to deprive a migrant confusion on the part of the Fund worker or his dependants of the benefits between the aims and the means of of a part of the legislation of a Member attaining those aims. In the Com State (judgment of 6. 3. 1979 in Case mission's view, Article 51 of the EEC 100/78, Rossi, [1979] EĆR 831, to which Treaty authorizes the Council to take all the judgment in Laterza, cited above, necessary measures with a view to securing the effective free movement of refers). The Commission points out that,

The Court to separate claims against separate confirmed that this view was well institutions, is precisely, in the Com founded by referring in its judgment in mission's view, that it was necessary to Rossi to the claimant's direct rights " by ensure that the migrant worker's virtue either of national law alone or of working record was not seen as an national law supplemented, if necessary, undifferentiated whole, resulting in the by Community law". The Commission loss of rights acquired either under considers that the character of Article 77 national law alone or under national law of Regulation No 1408/71 as a conflict- supplemented by Community law.

CAISSE DE COMPENSATION POUR ALLOCATIONS FAMILIALES v PATTERI

Finally, the Commission emphasizes that movement which is guaranteed to it is certain that Mr Patteri was entitled him, to suffer the loss of rights to Belgian family allowances before he acquired either under internal law transferred his and his family's residence alone or under internal law to Italy on 9 August 1979. Hence it was supplemented by Community law. the very exercise of his right of free Thus, Regulation No 1408/71, in movement which caused him to forfeit a laying down and developing rules for benefit that he had acquired under coordinating national laws, must national law alone. In the Commission's guarantee to workers who move view, this is a further reason for in- within the Community all the terpreting Article 77 (2) (b) (i) in the benefits which have accrued to them present instance in conformity with the in the various Member States whilst judgment in Laterza. limiting them to the highest amount of such benefits.

(1) Article 51 of the EEC Treaty is In its observations submitted to the intended to provide and secure the Court, the Government of the Federal utmost freedom of movement for Republic of Germany bases its interpret- workers. That aim would not be ation of Article 77 (2) (b) (i) of Regu- attained but disregarded if the lation No 1408/71 on the wording of worker were obliged, in order to that provision, on the scheme of Chapter avail himself of the freedom of 8 thereof and on a comparison between

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case may be. Chapter 7 of the Regu- allowances in respect of children who are lation is also based on the principle that, resident in Italy should be granted in in each case, only one Member State is accordance with the relevant Italian required to grant family benefits and legislation. allowances. By virtue of that chapter, the Member State responsible for paying the benefit is, as a matter of principle, the In conclusion, the German Government State in which the recipient resides considers that, having regard to Com-

The Italian that entitlement could be suspended only Government's view is that the above if corresponding benefits were payable wording stresses aspects concerned under the legislation of the State of exclusively with means, that is to say residence. In that case the rule against substantially with the technique of overlapping benefits would be only partly Community legislation, and not with the applied and any difference would have to aims with which the regulation provided be granted in the form of a supplement. for in Article 51 of the EEC Treaty The Court of Cassation of the Kingdom must strictly conform.

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In the Italian Government's opinion, the present structure of social security in the According to the Italian Government, Community is such that a worker is it is pointless to plead insurmount- wholly and solely subject to the laws able administrative difficulties in

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implementing the decision in Laterza. not invalidate the said Regulation No That would be tantamount to attaching 1408/71 where that obligation is greater importance to administrative necessary, in relation to the movement of efficiency than to rights firmly based on the beneficiary or members of his family genuine legal principles underlying the within the Community, in order to Community legal order. implement the objectives laid down in Articles 48 to 51 of the EEC Treaty." Since there is a logical link between the two questions, in so far as the first introduces the second, the Italian I l l — O r a l p r o c e d u r e Government proposes the following single answer: • At the sitting on 30 May 1984 oral argument was presented by the "The fact that, by applying one of the appellants in the main proceedings, provisions of Regulation (EEC) No represented by M. Mahieu, the Italian 1408/71 of the Council of 14 June 1971 Government, represented by P. G. Ferri, and, in particular, Article 77 (2) (b) (i) acting as Agent, the Council of the thereof, the competent institution of a European Communities, represented by Member State is obliged to pay a J. Carbery, acting as Agent, and the migrant worker an amount equal to the Commission of the European Com- difference between a benefit provided for munities, represented by F. Herbert, under the legislation of that Member Avocat. State and a benefit of identical name, purpose and nature provided for by the The Advocate General delivered his legislation of another Member State does opinion at the sitting on 21 June 1984.

3 It appears from the documents forwarded by the national court that the worker in question, who was employed in Belgium from 28 June 1956 to 31 July 1971, received family allowances in respect of his dependent children under Belgian legislation until he returned to Italy permanently on 9 August 1979. After that date, the Belgian social security institution refused to pay him the difference between the amount of the Belgian family allowances which he had received until then and the lesser amount of family allowances which he subsequently received in Italy. In support of its decision, the Belgian social security institution referred to Article 77 (2) (b) (i) of Regu- lation No 1408/71, according to which a worker who draws an invalidity pension under the legislation of more than one Member State is to be granted, irrespective of the Member State in whose territory the pensioner or the children are residing, family allowances "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".

4 The Belgian social security institution did not consider that the issue had already been resolved by virtue of the Court's interpretation of that provision in its judgment of 12 June 1980 (Case 733/79, Laterza, [1980] ECR 1915). According to the Belgian social security institution, Article 51 of the EEC Treaty confers powers on the Council solely for the purpose of aggregating insurance periods and ensuring the actual payment of benefits to persons residing in the territory of the Member States, and in view of those limits Article 77 (2) (b) (i) of Regulation No 1408/71 can constitute nothing more than a renvoi rule for the designation of the applicable national law. It therefore considered that if Article 77 (2) (b) (i) had to be construed as giving rise to a right not provided for in any national legislation it would not be covered by Article 51 of the EEC Treaty.

" 1 . Does Article 51 of the Treaty of Rome authorize the Council of Ministers only to adopt such measures as are necessary to secure for migrant workers the actual payment of social security benefits, the said benefits continuing to be governed, as regards the principle and the amount thereof, exclusively by separate bodies of rules giving rise to separate claims against separate institutions, and is it therefore appro- priate to interpret the provisions of Regulation N o 1408/71, and in particular Article 77 thereof, as conferring a direct right upon individuals only to the extent necessary to secure the actual payment of benefits, the principle and the amount of which continue tó be governed exclusively by the various national laws, so that the said provision cannot create for migrant workers direct entitlement to payment by the authorities of a Member State of family allowances which are not payable under the national law of that Member State?

2. If it is necessary to interpret Article 77 (2) (b) (i) of Regulation N o 1408/71 as meaning that entitlement to the payment of family benefits by the Member State in whose territory the recipient of an invalidity pension resides does not take away a previously acquired right to higher benefits payable by another Member State, or at least to a supplement equal to the difference between the two amounts, establishing for the recipient a right which was not created by the legislation of either Member State, is Regulation No 1408/71 valid in the light of Article 51 of the Treaty of Rome?"

7 As both the Belgian social security institution and the Commission of the European Communities point out, the two separate questions submitted to the Court concern, in reality, only one issue: that of the interpretation of Article 51 of the EEC Treaty. In fact, the validity of Article 77 (2) (b) (i) of Regulation N o 1408/71 can be called in question only if Article 51 of the EEC Treaty has the restrictive scope attributed to it by the Belgian social security institution.

1 1 For those reasons, it must be stated in reply to the questions submitted, in the first place, that where, in the case referred to in Article 77 (2) (b) (i) of Regulation No 1408/71, the amount of benefits paid by the State of residence is lower than that of the benefits granted by another Member State which is responsible for payment, the worker retains the right to the higher amount of benefits and is entitled to receive an additional benefit, paid by the competent social security institution of that State, equal to the difference between the two amounts; and, in the second place, that consideration of the questions referred to the Court has disclosed no factor of such a kind as to affect the validity of Article 77 (2) (b) (i) of Regulation N o 1408/71.

Costs

i2 The costs incurred by the Council of the European Communities, the Commission of the European Communities, the Government of the Federal

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Republic of Germany 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 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,

For the Registrar H. A. Rühi T. Koopmans Principal Administrator President of the First Chamber