C-377/85
ECLI:EU:C:1987:55
- Súd
- Súdny dvor Európskej únie
- IČS
- 61985CC0377
- Zdroj
- eur-lex.europa.eu ↗
BURCHELL v ADJUDICATION OFFICER
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 3 February 1987*
Mr President, paid even if the members of the family are Members of the Court, not resident in the Netherlands.
1. The Court has already been asked on a Thus there arose two separate rights in number of occasions to give preliminary respect of the same children and for the rulings regarding the conditions of same periods purely as a result of the application of Article 73 (1) of Council application of two national schemes neither Regulation No 1408/71 of 14 June 1971 ' of which contained at the time a clause (hereinafter referred to as 'Article 73') and preventing overlapping payments — the Article 10 (1) (a) of Council Regulation No Netherlands legislature introduced such a 574/72 of 21 March 1972 2 (hereinafter clause only from 1 August 1985. referred to as 'Article 10') laying down the procedure for implementing Regulation No 1408/71. However, the particular circum- stances of this case, which result, as the Commission has observed, from a 'coin- 2. The decisive issue in this case is whether cidence', have not before been submitted to or not Article 73 applies in such circum- the Court. stances, particularly in the light of the judgment of the Court in Case 104/80 Beeck v Bundesanstalt fiir Arbeit,1 on which the respondent in the main proceedings largely relied in refusing to grant Mrs The appellant in the main proceedings, Burchell the benefits she had applied for Beverly Leila Burchell, who is divorced and under the British legislation. unemployed, lives in the United Kingdom with her two children, while her former husband remains in the Netherlands, where he is employed. In 1980, when she Only if Article 73 is in fact applicable can submitted an application to the British social Article 10 take effect.4 Clearly Article 73 security authorities, Mrs Burchell fulfilled does not govern Mrs Burchell's position, all the conditions of eligibility for child since she is not employed and her children, benefit under British law. like her, are resident in the United Kingdom.
At the same time her former husband received family allowances in the Netherlands for the same two children, What, then, of her ex-husband? It follows since under Netherlands law — unlike that from the judgment of the Court in of any other Member State, according to Kromhout v Raad van Arbeid Leiden5 that if the Commission — family benefits may be 3 — Judgment of 19 February 1981 [1981] ECR 503. 4 — Judgment of 3 February 1983 in Case 149/82 Robardl v * Translated from the French. Imumme Officer[1983] ECR 171 at paragraph 12. 1 — Official Journal, English Special Edition 1971 (II), p. 416. 5 — Judgment of 4 July 1985 in Case 104/84 [1985] 2 — Official Journal, English Special Edition 1972 (I), p. 159. ECR 2205.
OPINION OF MR DARMON — CASE 377/85
he had received social security benefits in hence in the rights of workers employed in the Netherlands pursuant to Article 73, the the Member States, are unaffected by rule in Article 10 against overlapping Article 51 of the Treat/ (paragraph 20). benefits would have been applicable to the appellant in the main proceedings since in such a case 'a child in respect of whom family benefits or family allowances are due That, I think, is the philosophy which must is, as a member of the family of one of the govern the resolution of this case: the rights recipients of such benefits or allowances, a of workers to social security benefits are person covered by the Community legis- based primarily on national law.
The role of lation . . . without there being any need to primary and secondary Community law on ascertain whether the other recipient who is social security, as it now stands, is only to also entitled to family benefits or family ensure that workers are at liberty to exercise allowances in respect of the same child is their right of free movement within the also covered by that legislation' (paragraph Community. Consequently, it enters into 1 of the operative part). play only where national law does not afford migrant workers the same guarantees as those enjoyed by nationals of the Member State of establishment or the The question whether or not Article 73 highest amount of benefits available under applies to the father cannot be resolved one of the applicable national systems,7 or without reference to the rules governing the where it may give rise to unjust application of Article 51 of the EEC Treaty, enrichment.8 the subject-matter of the third question referred by the Social Security Commis-
sioner. It cannot be maintained, as the Adjudication Officer suggested in his observations, that Community law modifies national law on In its judgment in Pinna v Caisse d'allo- social security. The underlying principle of cations familiales de la Savoie,6 the Court the relevant Community law is coordination held, in accordance with its previous and it plays a purely complementary role in case-law on the granting of social security circumstances where the objectives of the benefits to workers moving within the Treaty would not otherwise be achieved. Community and to members of their families, that: Consequently, it must always be determined whether it is necessary to apply regulations 'Article 51 of the Treaty provides for the adopted pursuant to Article 51 in order fully coordination, not the harmonization, of the to achieve those objectives.
If they have legislation of the Member States. As a already been met by the application of result, Article 51 leaves in being differences national law alone, there is no need to have between the Member States' social security recourse to Community law. systems and, consequently, in the rights of workers employed in the Member States. It follows that substantive and procedural Nor is it possible to accept the argument put differences between the social security forward by the Adjudication Officer and the systems of individual Member States, and 7 — See in particular the judgment of 12 June 1980 in Case 6 — Judgment of 15 January 1986 in Case 41/84 [1986] 733/79 CCAFv Latera [1980] ECR 1915. £CR 17. 8 — Kromhout, referred to above, in particular paragraph 13.
BURCHELL v ADJUDICATION OFFICER
Netherlands Government to the effect that who are nationals of the Member States and the principle that regulations are directly who move within the Community equality applicable gives individuals rights in social of treatment in regard to the different security matters which are independent of national laws and the enjoyment of social those they enjoy under national law. That security benefits irrespective of the place of reasoning is perfectly well-founded with their employment or of their residence, and regard to harmonizing provisions of it must be interpreted uniformly in all Community law but it loses much of its Member States regardless of the force where coordinating provisions are arrangements made by national laws on the concerned. In such circumstances regu- acquisition of entitlement to family benefits' lations are directly applicable only in so far (paragraph 7). as co-ordination is necessary in order to achieve Community objectives.
In the Beeck case, although family benefits That analysis is not, I think, contradicted by could be granted both under German anything that was said in the Beeck national law as interpreted by the Bundesso- judgment, in which the Court held that: zialgericht, the final court of appeal in such matters, and on the basis of Article 73, the applicable rules against overlapping benefits were not the same under the two systems. It appears from the judgment and from the Opinion of the Advocate General that under 'Article 73 (1) of Regulation No 1408/71 German law no family allowances at all affords a worker subject to the legislation of could be paid where comparable family a Member State entitlement, in respect of benefits were paid outside the area of the members of his family residing on the application of that law. Such treatment did territory of another Member State, to the not meet the guarantee afforded by family benefits provided for by the legis- Community law — and reiterated in that lation of the first-mentioned State as if they judgment — under which the application of resided on the territory of that State' the Community rule preventing overlapping (paragraph 6; my emphasis) payments entailed the suspension of payment of family benefits 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 and that the 'arrangement' created by that spouse pursuing a professional or trade provision in combination with the rule laid activity within the territory of that State' down in Article 13 (2) (a) of the same regu- (Mrs Beeck was employed in the State of lation residence). That is why the Court followed the Advocate General, Mr Reischl, who warned against the danger of leaving Member States the possibility, in their legis- lation, of 'ousting' the provisions of Community law on overlapping benefits. It 'stems from the objective of Regulation No was therefore necessary for the Court to 1408/71, which is to guarantee all workers declare Article 73 applicable in such circum-
OPINION OF MR DARMON —CASE 377/85
stances in order that workers' rights should That legislation thus precluded recourse to be fully safeguarded when rules governing Article 73, and Article 10 was therefore overlapping benefits were applied. In other inapplicable. words, where national law alone does not ensure that rights guaranteed by There is thus nothing in Community law to Community law are respected in the prevent the overlapping application of the resolution of the overlap between one entit- British and Dutch substantive rules. The lement and another higher entitlement, result, of course, is that during the period in reference must be made to the Community question the children of the appellant in the rule. main proceedings enjoyed an exceptional situation in comparison with the children of In this case it must be observed that, during migrant workers who did not have the the relevant period, Dutch law benefit of such a 'coincidence'. That (i) provided for the payment of family situation cannot be regarded as unjust benefits for children who were resident enrichment as referred to in the Kromhout in another Member State; judgment since it does not result from the application of a Community rule and its (ii) contained no provision regarding over- continued existence is a matter for the lapping benefits. national legislatures alone.
3. I therefore propose that the Court give the following answer to the Social Security Commissioner:
The rule against overlapping benefits laid down in Article 10 (1) (a) of Regulation N o 574/72 applies only to benefits granted under Articles 73 or 74 of Regulation No 1408/71.
Family benefits paid solely pursuant to national legislation do not fall within the scope of Article 73 of Regulation No 1408/71 — or, therefore, that of Article 10 of Regulation No 574/72 — where there is no provision against overlapping benefits in national law such as to call in question the principle underlying the Community rules or the level of entitlement guaranteed by them.