C-313/86

OPINION OF SIR GORDON SLYNN — CASE 313/86

O P I N I O N O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 23 February 1988

My Lords, within the Community' (the 'Regulation'). A consolidated version of that regulation is set out in Annex I to Council Regulation N o 2001/83 (Official Journal 1983, L 230, p. 6). Mr Olivier Lenoir, a French national, is retired and entitled to a French State old-age pension. He has apparently not worked in any Member State other than France. In June 1983 he moved with his wife and two children from his home in Article 4 (1) provides that the Regulation France to Eastbourne in England. shall apply to all legislation concerning specified branches of social security which include '(c) old age benefits' and '(h) family benefits'. Title III has special provisions relating to the various categories of benefits, H e continues to receive his French pension, e. g. those relating to pensions for employed which is paid by the Caisse d'allocations persons who have been subject to the legis- familiales des Alpes Maritimes (the 'CAF'). lation of two or more Member States However, by decision of 10 November (Chapter 3) and to family allowances and 1984, the CAF stopped payments until then family benefits for those who are employed made under two heads, a single wage or unemployed. Article 77 falls in Chapter 8 allowance ('allocation de salaire unique') 'Benefits for dependent children of and schooling expenses allowance ('allo- pensioners and for orphans'. It provides as cation de rentrée scolaire'), and demanded follows: repayment of the amounts disbursed under those heads since the family moved to England. An appeal against that decision was rejected by the commission des recours gracieux (Appeal Committee) of the CAF. ' 1 . The term "benefits", for the purposes of Mr Lenoir has further appealed to the this article, shall mean family allowances for commission de première instance de sécurité persons receiving pensions for old sociale des Alpes Maritimes (Social Security age . . . and increases or supplements to such First Instance Appeals Board: the 'national pensions in respect of the children of such court'). pensioners . . .

Article 1 contains definitions of terms used in the Regulation. Paragraph (u) reads: Although the national court's question refers to the supplementary family allowance, the national proceedings in fact concern the single wage allowance which '(u) (i) "Family benefits" means all benefits was, in 1978, incorporated with other in kind or in cash intended to meet benefits into the supplementary family family expenses under the legis- allowance, but which continues to be paid lation provided for in Article 4 (1) to those who were entitled to receive it in (h) . . . 1977 but do not qualify for the supplementary family allowance. That is M r Lenoir's position. I therefore deal only with the single wage allowance and with (ii) "Family allowances" means peri- schooling expenses. odical cash benefits granted exclu- sively by reference to the number and, where appropriate, the age of members of the family'. It seems that the disputed payments were in fact made to Mr Lenoir's wife but by reference to their joint resources. In a letter of 4 December 1984 to the CAF which is Although 'benefits' for the purposes of before the Court, Mr Lenoir states that he is Article 77 is given a special meaning and is challenging the refusal to continue those not the same as 'family benefits' defined in payments and the demand for recovery on Article 1 (u) (i), there is nothing in my view his wife's behalf by virtue of a notarial to suggest that 'family allowances' in Article power of attorney. N o question of Mr 77 should be given a meaning other than Lenoir's competence to bring the national that set out in Article 1 (u) (ii). proceedings seems to have arisen.

The Commission considers that the specific payments in question were not intended to be 'exported'. It refers to Article 10 (1) of the Regulation which recognizes that some The French Government argues that the payments may be withheld if the person disputed payments are not 'family otherwise entitled to them resides in a allowances' under French or Community Member State other than the one making law. In French law, there is no special the payments. Thus, 'save as otherwise provision for dependent children of provided in this Regulation, invalidity, pensioners. Family benefits are payable to old-age or survivors' cash benefits, pensions all social security recipients provided the for accidents at work or occupational appropriate conditions are met. Book V of diseases and death grants acquired under the Social Security Code lists family benefits the legislation of one or more Member which include family allowances, what is States shall not be subject to any reduction, now the supplementary family allowance modification, suspension, withdrawal or and the schooling expenses allowance confiscation by reason of the fact that the (Article L 511-1 of the Code). The single recipient resides in the territory of a wage allowance is payable under Article L Member State other than that in which the 522-1 to a household or person whose institution responsible for payment is resources do not exceed a specified ceiling situated'. and who are responsible for children, all of whom are above the age range specified for another allowance payable in respect of young children. The schooling expenses allowance, a lump sum paid at the beginning of the school year, is payable under Article L 543-1 to families in receipt The single wage allowance, even if it would of family benefit for each child of otherwise fall within the definition, it is compulsory school age; Article L 543-2 said, is excluded because in the preparatory provides for financial ceilings, varying work for the Regulation it was proposed to according to the number of children, above exclude it as being a special family benefit, which the allowance will not be paid. the purpose of which was to pay a spouse France argues that these allowances do not who stayed at home in order to look after

I am not satisfied that the travaux prépara- toires are helpful or necessary for the inter- pretation of Article 1 (u) (ii), not least since It is this somewhat remarkable result that in some areas substantial changes were leads the Italian Government to contend made by the Council to the Commission's that the provision is invalid, on the basis proposal. The short issue is whether in the that it is incompatible with Article 51 of the context of the Regulation as it stands Treaty pursuant to which, inter alia, the 'exclusively' is given its ordinary meaning or Regulation was made. whether some other qualifications are to be implied or may be introduced before a payment can be a 'family allowance'. It is clear that in Article 1 (u) (ii) 'members of the family' has to be read in the light of the definition in Article 1 (f) ('any person The Commission's reply is that this issue is defined or recognized as a member of the not raised in the Reference and is not family or designated as a member of the before the Court. Even if the Court were to household by the legislation under which consider the Regulation pro tanto invalid it benefits are provided . . . ') so that to that cannot so declare.

OPINION OF SIR GORDON SLYNN — CASE 313/86

It is clear that if a question of validity alone in the national proceedings. T o put the is referred to the Court, the Court can rule national court inevitably in the position of on the interpretation; can it do the having to make a second reference seems to contrary? me an unnecessary duplication.

Article 51 of the Treaty provides, so far as is relevant to the Italian Government's argument:

LENOIR v CAISSE D'ALLOCATIONS FAMILIALES DES ALPES-MARITIMES

Article 73 frustrated the aim of Article 51 of had been a migrant worker in another the Treaty which was to coordinate (but not Member State and who wished to return on harmonize) social security legislation. retirement to France. He would not be able to take with him family benefits dependent on factors other than the number and age of members of his family which, had he stayed in the Member State to the legislation of which he was subject, he would have been If it were shown here that Article 77 paid. This ultimately may be a deterrent to affected only French nationals, a similar the migrant worker to move back or even in result would follow. This has not been so the first place to move away from his shown. Indeed means-tested grants are country of origin for the purpose of his available in other Member States and it work. It is unacceptable, says the Italian seems to follow that they are not family Government, if under Article 73 an allowances for the purposes of the Regu- employed person can have the family lation. The present article does not heighten benefits provided for by the legislation of or create disparities which exist between the the Member State to whose legislation he is Member States and it is accepted that subject, even if the members of his family existing disparities may have to be tolerated do not live with him, but if a pensioner between the various systems of the Member (living with his family) loses family benefits States. under the legislation of the Member State to which he was subject, if he himself moves back to his native land.

adopted pursuant to Article 51 of the Accordingly in my view he is entitled to rely Treaty. Article 77 in my view should on the invalidity of the Regulation. therefore be declared pro tanto void. It is in my opinion immaterial that Mr Lenoir was not a migrant worker and that he is the less common case of a national adversely It would in my opinion be right, as in affected by the legislation of his own Pinna, to limit the effects of such a decision, Member State to which he was subject but if given by the Court, to those pensioners in which State he no longer resides. The who brought proceedings or made a claim Regulation applied both to him as an prior to the date of the Court's judgment in employed person subject to the legislation of respect of claims for benefits relating to one Member State and to the members of periods prior to that date and to benefits his family (Article 2 of the Regulation). due subsequent to the date of judgment.

I would accordingly answer the question referred on the lines that Article 77 of Council Regulation N o 1408/71 of 14 June 1971, as now contained in Regulation N o 2001/83 of 2 June 1983, is invalid in so far as it limits entitlement to benefits in particular in respect of school expense allowances and single wage allowances to periodical cash allowances granted exclusively by reference to the number, and where appropriate, the age of members of the family of a pensioner to whom the Regulation applies.

Mr Lenoir's costs fall to be dealt with by the national court as a step in the national proceedings. The costs of France, Italy and the Commission are not recoverable.