C-269/87

Mr President, Natalino Ventura's father, who died on 30 Members of the Court, August 1974, was an Italian migrant worker who paid social security contributions in Germany for 125 months and in Italy for some five months. When, in June 1975, Natalino Ventura moved to Italy, the Landesversicherungsanstalt (Regional 1. The Bayerische Landessozialgericht Insurance Office) Schwaben (hereinafter (Bavarian Higher Social Court) has referred referred to as 'the Landesversicherungs- the following question to the Court for a anstalt') ceased to pay an orphan's pension preliminary ruling: to him. The Landesversicherungsanstalt based its decision on Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons 'Must Article 44 (3) of Regulation (EEC) and to members of their families moving No 1408/71 of the Council of 14 June 1971 within the Community (as amended and be interpreted as meaning that orphans' supplemented by Council Regulation (EEC) benefits within the meaning of Article 79 of No 2001/83 of 2 June 1983, Official the regulation must be provided to an Journal 1983, L 230, p. 8). Under Article orphan residing in Italy without application 78 (2) (b) (i) of that regulation the of Article 48 (1) of the regulation if the applicable legislation is that of the Member insured person has in fact completed in Italy State in which the orphan resides. However, alone an insurance period of less than 12 the Italian social security institution, the months (Article 48 (1) of Regulation No INPS, refused to pay Mr Ventura any 1408/71) but meets the qualifying period benefit, on the basis of a provision of Italian requirement and other requirements of law requiring a minimum insurance period Italian law once regard is had to periods of 60 months and of Article 48 (1) of Regu- completed in other Member States?' lation No 1408/71 according to which a Member State in which the insurance period completed does not amount to one year may refuse to pay benefit under its legis- lation. Nevertheless, on 2 December 1980 Background the Landesversicherungsanstalt decided, having regard to the case-law of the Court mentioned in Section 9 below, to award Mr Ventura a supplementary orphan's pension of DM 80 per month, corresponding to the difference between the German orphan's 2. The background to this question can be pension and the (estimated) orphans' summarized as follows: pension payable in Italy.

'if the total length of the periods of insurance or residence completed under the legislation of a Member State does not amount to one year and if under that legis­ 7. It appears to me that the reason why lation no right to benefit is acquired by Article 48 (1) is not stated to be applicable virtue only of those periods'. to orphans' pensions is connected with the rule set out in Article 78 (2) (b). Of the various national bodies of social security legislation which are potentially applicable, that article designates only one as being Consequently, if Article 48 (1) applied the applicable to orphans' pensions rather than, Italian social security institution would not as in the case of old-age and invalidity have to provide any benefit. pensions, appointing the legislation of various Member States, in particular in proportion to the duration of the insurance periods completed in each of those States. Where a system of apportionment exists, as 5. The answer to this question is to be in the case of old-age and invalidity found in Article 44 (3) of Regulation No pensions, the rule set out in Article 48 (1) is 1408/71, to which the national court refers designed to exclude minimal benefits arising in its question. That provision reads as under the legislation of one (or more) follows: Member States. Such a rule is unnecessary

OPINION OF MR VAN GERVEN —CASE 269/87

'Whereas the method of calculating family allowances for orphans and children of pensioners which is laid down in Article 42 of Regulation No 3 and in Articles 69 and Conformity with Article 51 of the EEC 70 of Regulation No 4 has proved to be Treaty excessively complex to apply and the present system should be replaced by a simpler one.'

11. The Italian Government argues in its written observations that Articles 78 and 79 9. Admittedly, in its subsequent decisions of Regulation No 1408/71 conflict with the on Article 51 of the EEC Treaty, in objectives and wording of Article 51 of particular its judgment of 9 July 1980 in the EEC Treaty. Its reasoning relates Case 807/79 (Gravina [1980] ECR 2205, at in particular to Article 78 (2) (b) (i), p. 2218, paragraph 6), the Court held that discussed above, as a result of which in this the insurance institution of another Member case the only legislation which is in principle State, other than the only Member State applicable is that of the Member State in designated, was under a duty to provide whose territory the orphan resides ('où supplementary benefits — a duty which réside l'orphelin') that is to say in this the Landesversicherungsanstalt has instance the legislation of Italy.

VENTURA ν LANDESVERSICHERUNGSANSTALT SCHWABEN

13. Nevertheless, I would suggest that that approach should not be taken here. As can 14. Secondly, I would briefly dwell on an be seen from Article 78 of the regulation, argument developed by Mr Ventura and the fact that the Council decided to opt for also referred to by the Commission during the legislation of the State in which the the hearing, because it has to do with what orphan resides as, in principle, the only is at stake in practice in this case. Mr applicable legislation — unlike in the case of Ventura complains that he has been the the provisions governing, in particular, victim of a conflict of competence between old-age pensions (see Section 7 above) — the national insurance institutions of the seems to me to be a choice (motivated, two Member States. Indeed, since 1 August as I pointed out in Section 7 above, by the 1980 Mr Ventura has been receiving only aim of simplification) which falls within DM 80 supplementary benefit from the German insurance institution in accordance with the Court's judgment in Gravina to which I have already referred and which has been confirmed (see Section 9 above) on 'the freedom conferred on the Council by several occasions (for that matter, it is Article 51 to c h o o s e . . . any means which, remarkable that the German insurance viewed objectively, are justified, even if the institution has not complied retroactively provisions adopted do not result in the elim- with that judgment of the Court, even ination of all possibility of inequality though it is an interpretative judgment). As between workers arising by reasons of a result of that situation, Mr Ventura claims disparities between the national schemes in that the German social security institution,

Proposed reply to the preliminary question

16. In view of the findings set out in Sections 4 to 9 with regard to the non-applicability of Article 48 (1) of Regulation N o 1408/71 to orphans' pensions referred to in Article 78 of that regulation — findings which d o not detract from the Italian Government's observations with regard to the validity of Article 78 or from M r Ventura's observations with regard to the conflict between the national social security institutions — I concur with the reply suggested by the Commission

VENTURA ν LANDESVERSICHERUNGSANSTALT SCHWABEN

in its written observations and consider that the question referred by the Bayerische Landessozialgericht should be answered in the following terms:

'Article 44 (3) of Regulation No 1408/71 must be interpreted as meaning that orphans' benefits within the meaning of Article 78 of the regulation must be provided by the Member State in which the orphan resides, without application of Article 48 (1) of that regulation, if the insured person has in fact completed in that Member State an insurance period of less than 12 months but meets the qualifying period requirement and the other requirements of the law of that Member State on the basis of insurance periods completed in other Member States.'