C-359/87
ECLI:EU:C:1988:523
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OPINION OF MR LENZ — CASE 359/87
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 1 December 1988 *
Mr President, reside; the employed person must satisfy the Members of the Court, conditions regarding the employment in which French legislation bases entitlement to such benefits.'
A — Facts
1. The case in which I am giving my 3. In the first reference for a preliminary Opinion today has been referred to the ruling the Court of Justice was asked Court by the French Cour de cassation for a whether this provision was valid. In its preliminary ruling. To be more specific, it is judgment of 15 January 1986 2the Court a second reference for a preliminary ruling ruled as follows: in a dispute between an Italian migrant worker, Mr Pinna, the plaintiff, and the Caisse d'allocations familiales de la Savoie, the defendant. '(1) Article 73(2) of Regulation No 1408/71 is invalid in so far as it precludes the award to employed 2. The plaintiff is claiming family persons subject to French legislation of allowances in respect of his two children French family benefits for members of Sandro and Rosetta. He was refused these their families residing in the territory of allowances in respect of certain periods another Member State. during which his children were staying with their mother in Italy. The refusal to pay the benefits appeared to be based on Article 73(2) of Regulation No 1408/71, 1 which reads as follows: (2) Except as regards employed persons who have already brought legal proceedings or made an equivalent claim prior to the date of this 'An employed person subject to French judgment, the aforesaid invalidity of legislation shall be entitled, in respect of Article 73(2) of Regulation No members of his family residing in the 1408/71 cannot be relied on in order to territory of a Member State other than support claims to benefits for periods France, to the family allowances provided prior to that date.' for by the legislation of the Member State in whose territory those members of the family
* Original language: German. 1 — Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed 4. In these proceedings the question persons, to self-employed persons and to members of their concerns the content and scope of the families moving within the Community, Official Journal, English Special Edition 1971 (2), p. 416 as amended by Council Regulation (EEC) No 2201/83 of 2 June 1983, 2 — Judgment of 15 January 1986 in Case 41/84 Pinnat Caisse Official Journal L 230, 23.8.1983, p. 6. d'allocations familiales de la Savoie [1986] ECR 1 et seq.
PINNA v CAISSE D'ALLOCATIONS FAMILIALES DE LA SAVOIE
judgment and the rules which are now 7. In view of the fact that such rules can applicable. only be adopted unanimously by the Council acting on a proposal from the Commission, 4 uncertainty persists, according to the national court, in relation 5. The court making the reference has to the provisions which now must be applied referred the following questions to the to the granting of family benefits to migrant Court for a preliminary ruling: workers subject to French legislation and it is for this Court to clarify the point.
'(1) Does the fact that Article 73(2) of Regulation No 1408/71 has been declared invalid mean that the system for the payment of family benefits 8. The observations of the parties submitted which is defined in Article 73(1) of that to the Court during the proceedings before regulation has become of general it cover a broad spectrum. The view was put application or, to the contrary, that forward that the judgment in Case 41/84 new rules must be adopted under the gave rise to a gap in the law which can only procedure laid down in Article 51 of be filled by legislative action on the part of the Treaty of Rome? the Council acting under Article 51 of the EEC Treaty. 5Four alternatives have been proposed to fill the gap provisionally: first, the French Government considers in (2) In the latter case, what is the system practice that the legal situation which applicable during the transitional period pertained prior to the judgment in Case to migrant workers subject to French 41/84 is applicable. The responsible auth legislation?' orities have been requested to adhere provisionally to the original procedure. The French Government considers it possible to maintain the French legislation during the 6. The national court takes the view, on the transitional period without any intervention one hand, that it is the duty of the Council, in the form of Community rules. Another acting unanimously on a proposal from the solution put forward involves applying Commission, to adopt in the field of social Regulation No 3, so as to revive, as it were, security the measures necessary to create the legal position which applied before freedom of movement for workers and to Regulation No 1408/71 entered into force. this end introduce in particular a system Finally, the Commission takes the view that, which guarantees immigrant workers and at least transitionally, Article 73(1) of Regu members of their family entitlement to the lation No 1408/71 must be applied. same benefits as persons resident in the Furthermore, several parties put forward the territories of the Member States. On the view that Article 73(1) is now of general other hand, the Court has held that the application without any specific need for the criterion of the place of residence is not of adoption of a legal rule which would fill the such a nature as to secure the equal gap· treatment laid down by Article 48 of the EEC Treaty and should therefore not be 4 — The documents before lhe Court reveal that the employed in this context. 3 Commission did not submit such a proposal until 2 February 1988 5 — See the observations of the defendant in the main 3 — Judgment in Case 41/84, paragraph 24. proceedings and of the French Government
OPINION OF MR LENZ — CASE 359/87
9. Reference is made to the Report for the 12. In the final analysis this dispute is thus Hearing for particulars of the facts and located at the junction of the application of arguments of the parties. law, interpretation, judicial development of the law and law-making. In the specific case before us there can be no question of delimiting in the abstract the boundaries of the Court's jurisdiction. It is, none the less, B — Law essential that the Court's power to give a binding answer to the preliminary questions be stated in positive terms. Consequently,
the problem boils down to the question whether, and to what extent, the determi 10. The fact that a reference for a nation of the content of the applicable legal preliminary ruling has already been made to rules, which the Court is asked to provide, the Court in the same action does not is still interpretation, and therefore represent a bar to the admissibility of these application, of the law or whether a proceedings. At an early stage the Court of law-making act is required, the adoption of Justice decided that although an interpe- which lies outside the Court's jurisdiction. tation given by the Court of Justice binds the national court in question it is for the latter to decide whether it is sufficiently enlightened by the preliminary ruling given or whether it is necessary to make a further 13. At the outset of my examination certain reference to the Court. 6 general remarks on the obligations flowing from a judgment on a reference for a preliminary ruling are called for. In such a
case the EEC Treaty provides no express rule, unlike Article 176 of the Treaty which, 11. The questions referred to this Court for according to its wording and system, applies a preliminary ruling ask expressly whether, to actions for annulment and actions for following the declaration that Article 73(2) failure to act. The first paragraph of the of Regulation No 1408/71 is invalid, the provision provides that the institution whose system of payment laid down in Article act has been declared void or whose failure 73(1) must be applied or whether the to act has been declared contrary to the Council is obliged to adopt new provisions. Treaty is to be required to take the Only in the latter case is the question necessary measures to comply with the concerning the transitional period raised. judgment of the Court of Justice. However, in the discussion about the result of the Court's judgment doubts were raised as to whether the Court has jurisdiction to determine the rules applicable since this would entail the assumption of law-making 14. This provision is one which may be powers which are not available to the Court applied by analogy, in so far as a similar as a judicial institution. It is instead for the legal position is brought about by a legislative institutions to adopt the measures declaration that a Community act is invalid called for as a result of the judgment. and there is a need to take measures.
The Court has moreover already drawn this 6 — Judgment of 24 June 1969 in Case 29/68 Milch-, Fett- und conclusion as regards preliminary ruling Eierkontor GmbH v Hauptzollamt Saarbrücken [1969] ECR 165, paragraph 3 of the judgment; also judgment of 13 proceedings. It has held on numerous May 1981 in Case 66/80 SpA International Chemical Corporation v Amministrazione delle finanze dello Stato
occasions, and in the same terms, that, [1981] ECR 1191, paragraph 14 of the judgment. although the Treaty does not expressly
PINNA v CAISSE D'ALLOCATIONS FAMILIALES DE LA SAVOIE
specify the consequences which flow from a institutions. If it is true that, so far as the declaration of invalidity following a review of the legality of acts of the reference for a preliminary ruling, Articles institutions is concerned, the remedies in a 174 and 176 do however contain clear rules direct action and in a reference for a as to the effects of the annulment of a regu preliminary ruling fulfil complementary lation in the context of a direct action. In functions, then nothing fundamentally numerous cases concerning a reference for different can apply to the consequences of a preliminary ruling the Court has that review. accordingly based itself on the Community institutions' obligations to act which result 7 from a judgment.
17. The fact that Article 176 of the EEC 15. The parallel is all the more legitimate Treaty is potentially applicable as the conse since in a judgment following a reference quence of a preliminary ruling does not for a preliminary ruling the Court may however give any indication as to whether prescribe the effects of a judgment annulling this provision needs to be invoked in the an act. Although a preliminary ruling is case in point. Still less is there an obligation addressed to the court which made the to apply the provision irrespective of the reference, other courts must also take circumstances of the case. The institutions' cognizance of the invalidity of an act once obligation to act can only become of this has been declared. Such a declaration, relevance where the Court's power to according to the case-law of the Court, is determine the applicable law ends, thereby 'sufficient reason to regard the disputed act giving rise to a lacuna which must be filled. 8 of a Community institution as invalid.'
16. Such a harmonizing approach is 18. As regards next the Court's powers to required because of the principle of the define or determine the regularity of a legal unity of the legal order. That becomes even position, these, as appears moveover from clearer in the light of the Court's most its case-law, are very broad. In Case l0 recent decisions on its exclusive jurisdiction 300 / 86 , for example, the Court expressly to declare invalid acts of Community determined the applicable transitional regime, which consisted in the continuation 7 — Judgment of 19 October 1988 in Joined Cases 117/76 and of the application of the legal situation 16/77 Albert Ruckdeschel ò Co. and Hansa-Lagerhaus Stroh & Co. v Hauptzollamt Hamburg-St. Annen; Diamalt which had been declared to be invalid and AC v Hauptzollamt Itzehoe [1977] ECR 1753; judgment of its extension to groups which were the 19 October 1977 in Joined Cases 124/76 and 20/77 SA Moulins et huileries de Pont-à-Mousson v Office national subject of different treatment. interprofessionnel des céréales; Société coopérative 'providence agricole de la Champagne'v Office national interprofessionnel des céréales [1977] ECR 1795; judgment of 15 October 1980 in Case 4/79 Société coopérative 'providence agricole de la Champagne' v Office national interprofessionnel des céréales (ONIC) [1980] ECR 2823, paragraphs 44 and 46; judgment of 15 October 1980 in Case 109/79 SARL Matseries de Beauce v Office national interprofessionnel des 19. I must now examine the question céréales (ONIC) [1980] ECR 2883, paragraphs 44 and 46; judgment of 15 October 1980 in Case 145/79 SA Roquette whether the judgment in Case 41/84 caused Frères v French Republic [IWO] ECR 2917, paragraphs 51 a legal vacuum which must be filled by and 53; judgment of 13 May 1981 in Case 66/80 SpA International Chemical Corporation v Amministrazione delle finanze dello Stato [1981] ECR 1191, paragraph 16. 9 — Judgment of 22 October 1987 in Case 314/85 Foto-Frost, 8 — Judgment in Case 66/80, supra, paragraph 13; judgment in Ammersbekv HauptzolUmt Lübeck-Ost [1987] ECR 4199. Case 112/83 Société des produits de mais SA v Adminis- 10 — Judgment of 29 June 1988 in Case 300/86 Luc Van Land- tration des douanes et droits indirects [1985] ECR 719, schoot v M. V. Mera [1988] ECR 3443, paragraph 3 of the paragraph 16. operative part of the judgment.
OPINION OF MR LENZ —CASE 359/87
judicial creativity or whether the applicable graphs 1 and 2 of Article 73 of the regu rules may be deduced from an intelligent lation appear to cover different situations appraisal of that judgment. ratione materine since Article 73(1) refers to 'family benefits' whereas Article 73(2) refers to 'family allowances'. Secondly, the exception to the rule in Article 73(1), formulated as 'a Member State other than 20. In the first paragraph of the operative France', still appears to demand recognition part of the judgment in Case 41/84 the of its validity. Court ruled as follows: 'Article 73(2) of Regulation No 1408/71 is invalid in so far as it precludes the award to employed persons subject to French legislation of French family benefits for members of their family residing in the territory of another Member State'. This formulation involves a substantive delimitation of the invalid part 22. (a) I turn now to the first argument. of the provision. Similarly, the grounds of Article 1 of Regulation No 1408/71 the judgment admit of no other contains a legal definition of both the conclusion. 11 In this respect it should be concept of 'family benefits' and the noted that the Court specifically did not expression 'family allowances'. Article choose a simple and shorter formula such as 1(u)(i) and (ii) read as follows: '(i) "family 'Article 73(2) of Regulation No 1408/71 is benefits" means all benefits in kind or in invalid'. Nevertheless, paragraph 2 of the cash intended to meet family expenses under operative part of the judgment, which limits the legislation provided for in Article the effects of the judgment with respect to 4(l)(h), excluding the special childbirth the past, indicates that the Court was basing allowances mentioned in Annex II ; itself on the premise that Article 73(2) was '(ii) "family allowances" means periodical invalid in its entirety. Paragraph 2 reads as cash benefits granted exclusively by follows: 'Except as regards employed reference to the number and, where appro persons who have already brought legal priate, the age of members of the family;'. proceedings or made an equivalent claim prior to the date of this judgment, the aforesaid invalidity of Article 73(2) of Regulation No 1408/71 cannot be relied on in order to support claims ... '
23. The abovementioned Article 4(1)(h) consists of a single term, namely the words 21. If it is assumed that Article 73(2) of 'family benefits', and contains no limitation Regulation No 1408/71 constitutes an since it simply defines family benefits as a exception to the general rule set out in type of benefit covered by the regulation. Article 73(1) of Regulation No 1408/71, Similarly, Annex I, in relation to 'family then the theory of norms suggests that the allowances' as periodical cash benefits, basic rule should now be generally entails no limitation of the matters applicable. However, two objections may be concerned. Consequently, Article 1(u)(i) raised against this. In the first place, para may be read as follows: 'Family benefits [are] all benefits in kind or in cash intended 11 — Judgment in Case 41/84, supra, p. 25, paragraphs 21 to 25. to meet family expenses'.
PINNA v CAISSE D'ALLOCATIONS FAMILIALES DE LA SAVOIE
24. It thus becomes clear that family pan of the judgment or the scheme of the allowances constitute only one category of pan of Article 73 which is still valid. family benefits. Thus, 'family benefits' and 'family allowances' are not mutually exclusive but have the relationship of principal concept and particular application 28. A formal argument against the of that concept. It follows from this, hypothesis that the full wording of Article however, that the relationship ratione 73(1) of Regulation No 1408/71 continues materiae between Article 73(1) and Anicie to apply is supplied by the fact that the 73(2) of the regulation is that of general Court was not asked about the validity of rule and specific rule. that paragraph. However, the following considerations would seem to bear rather on the substantive content of the judgment. As has been shown above, in its judgment in Case 41/84 the Courtdeclared the scope of 25. The originally valid wording of Article application ratione materiae of Article 73(2) 73(2) of Regulation No 1408/71 contained of Regulation No 1408/71 to be invalid. As two types of exception of a different nature may be gathered from the grounds of the to the basic rule contained in Article 73(1) decision, it was precisely the dualism of the of Regulation No 1408/71; these are, first, system which constituted a criterion for the the restriction, as regards the matters invalidity of the provision, along with the covered, to family allowances and, breach of the principle of equal treatment. secondly, the territorial restriction to a The offending dualism can be seen in the worker who is subject to French legislation fact that in Article73(1) the principle of the but the members of whose family reside in State of employment was chosen as the the territory of a Member State other than applicable test whereas the criterion of the France. Accordingly, Article 73(2) State of residence became operative solely represents an exception to the rule as regards the exceptions in Article 73(2). If contained in Article 73(1). If those two the exception formulated in Article73(1) exceptions cease to exist, as the Court has were allowed to subsist, the result would be ruled, then no objection can be made to the the presence, as in the past, of a dualist general validity of the rule contained in system, the specific form of which, however, Article 73(1). could no longer be deduced from the wording of the regulation. Inasmuch as the phrase at issue contained in paragraph 1 of Article 73 constitutes no more than a reference to the exceptions in the invalid 26. (b) Now, as I have already indicated, I paragraph 2, it is also covered by the will examine the argument based on the operative pan of the judgment in Case wording of Article 73(1) of the regulation. 41/84.
29. Such a teleological interpetation of 27. It is correct that the Court did not judgments of the Court is entirely appro expressly declare the phrase 'a Member priate and even habitual. For example, in 12 State other than France' to be invalid. Prima Case 130/79, which also concerns the facie, this implies that it continues to apply. As will be shown, however, this interpre 12 — Judgment of 12 June 1980 in Case 130/79 Express Dairy Foods Limited v Intervention Board for Agricultural Produce tation is not consistent with the operative [1980] ECR 1887
OPINION OF MR LENZ — CASE 359/87
consequences of a declaration that a that the Community legislature wished to Community act was invalid, the Court first create such a lacuna. Even a gap in the rules considered the grounds leading to invalidity which had arisen inadvertently would have and then declared that other regulations had to be filled in a manner consistent with whose content was identical to the invalid the system by means of judicial development provision were also invalid. In its judgment of the law. 13 in Case 33/84 the Court even accepted that a regulation had been implicitly declared invalid. In that case too regulations connected in substance with the provision declared to be invalid were, having regard 32. Precisely because Regulation No to the sense and purpose of a previous 1408/71 is a coordinating regulation which judgment, also regarded as invalid. does not independently create individual entitlements but rather determines the connecting factor for the purposes of the applicable legal system, it makes no sense to exclude French family benefits from the scope of the legislation. Such an exception would per se be incompatible with the
30. There could be grounds for holding a Community-law principle of equal view other than that the operative part of treatment. the judgment in Case 41/84 contains an implied declaration of invalidity only if, from the outset, Article 73(1) could not be regarded as the basic rule for the exception contained in paragraph 2. In that case, the 33. The theory which the plaintiff's only possible construction would be as representative expounded at the hearing follows: Article 73(1) lays down a coordi regarding the interpretation of the judgment nating rule for family benefits which applies in Case 41/84 does appear to be based on to all the Member States except France. the hypothesis which has just been rejected. Solely as regards the limited field of family Although in his examination he singled out allowances was a constitutive rule laid down individual passages of the judgment and the for France in paragraph 2. text of the regulation and related them to one another, he disregarded the terms in which the Court in its judgment chose to express itself. For in its judgment in Case 41/84 the Court plainly proceeded on the basis that the rule for determining the
31. For several reasons, however, this prop connecting factor in the case of family osition is not convincing. First, there is no benefits was of general application and discernible objective ground for wholly applied also to France. In paragraph 25 it is excluding France from the coordination of stated that Article 73(2) of Regulation No family benefits at the Community level. 1408/71 is invalid in so far as it precludes Apart from that, even if paragraph 2 were the award to workers subject to French valid, there would still have been a gap in legislation of French family benefits for the law. Family benefits other than family members of their family residing in the allowances would have been left entirely out territory of another Member State.
The of account. It cannot seriously be imagined same formulation is repeated in the first paragraph of the operative part. It only 13 — Judgment of 22 May 1985 in Case 33/84 SpA Fragd v makes sense on the assumption that, in Amministrazione delle finanze dello Stato [1985] ECR 1605, principle, workers subject to French legis- paragraph 13.
PINNA v CAISSE D'ALLOCATIONS FAMILIALES DE LA SAVOIE
lation receive French family benefits and whom the regulation applies is to be subject only the provision relating to family to the legislation of a single Member State allowances which makes an exception to only 4and that as a rule that State will be 5 that rule is invalid. the State in which the person is employed. 1
37. The few departures from the principle 34. The basic rule in Article 73(1), which is of the State of employment which are laid thus applicable, also corresponds to the down in the regulation itself such as, for need, stressed by the Court, for an effective example, those relating to pension insurance coordinating rule. It is consistent with the or frontier workers, do not provide any Community-law principle of equal treatment ground for calling in question the rule which underlies Articles 7 and 48 of the which is here regarded as applicable. On the EEC Treaty. As regards the persons and contrary, apart from the clear wording of matters covered by Regulation No 1408/71, Article 13, the ratio of the regulation the Community-law prohibition of discrimi militates in favour of the solution which has nation is specifically repeated in Article 3 of been proposed. The person entitled to the regulation which rules as follows: family benefits is the worker who submits 'Persons resident in the territory of one of his claims to the competent institution, and the Member States in which this regulation does so in the State in which, moreover, he applies should be subject to the same obli pays taxes and social security contributions. gations and enjoy the same benefits under Exceptions, where the principle of the State the legislation of any Member State as of employment is replaced by that of the nationals of that State'. State of residence, are, on the other hand, often inspired by the fact that it is the institution to which contributions were paid to which as a rule claims must be addressed. In this case there is no reason for such a derogation. 35. To maintain in force the full wording of Article 73(1), with the legal consequences which I have already outlined, would also be contrary to Article 51(b) of the EEC 38. Now that the general application of Treaty which guarantees to migrant workers Article 73(1) has been identified as the and their dependants the payment of solution which results from the judgment in benefits (of one Member State) to persons Case 41/84, it remains to discuss the resident in the territories of (the other) objection raised by the French Government Member States. and the defendant that to generalize the system laid down in Anicie 73(1) violates the requirement of unanimity set out in Article 51 of the EEC Treaty.
36. In contrast, as amended, Article 73(1) would be consistent not only with the prin ciples already set out in the EEC Treaty but 39. That view cannot be accepted. By virtue also with the general provisions of Regu of Article 4 of the EEC Treaty the tasks lation No 1408/71. In addition to the entrusted by the Community are to be principle of equal treatment set out in Article 3, Article 13 would also be complied 14 — See Article 13(1) of the regulation with. According to that article, a worker to 15 — See Article13(2)(a) of the regulation
OPINION OF MR LENZ — CASE 359/87
carried out by the four institutions named 42. Considerations drawn from the theory therein; in carrying out its tasks each of law and jurisprudence could also be used institution acts within the limits of the to arrive at the same result. Of necessity powers conferred upon it by the Treaty. these would be tinged with personal views. Under the first paragraph of Article 177 the For that reason I do not consider it Court is assigned the task of interpreting the necessary to put these considerations before Treaty by way of preliminary ruling. the Court. The wording of the Treaty, which is binding on us all, provides a sufficient basis.
40. In its decision of 15 January 1986 the Court did no more than that:
43. Of course — and here I am only stating the obvious — generalizing the application of Article 73(1) in no way detracts from the by declaring that 'the criterion [the State of power of the Council and Commission to residence of the members of the family change the law. There is therefore no obli contained in Article 73(2)] is not of such a gation to retain the principle in Article nature as to secure the equal treatment laid 73(1). The Council may perfectly well seek down by Article 48 of the Treaty ... ', it another solution and, as we have heard, that interpreted the Treaty; is what it appears to be doing. One thing it may not do: it may not apply the principle of Article 73(2) since that principle is not of such a nature as to secure the equal treatment prescribed by the Treaty. by declaring that Article 73(2) of Regulation No 1408/71 'is invalid in so far as . .. ', it also gave a ruling concerning the validity of a act of an institution.
44. Finally, I should comment on Articles 60 and 220 of the Acts of Accession of Spain and Portugal which were introduced 41. Finally, when the Court declares a into the discussion although, to my mind, regulation void it may prescribe the effects these provisions have no direct bearing to which are to be regarded as continuing to the questions which have to be answered apply. That applies by analogy to judgments here. Both articles contain, for Spain and 16 in proceedings under Article 177. The Portugal respectively, a reference to Article Court is not doing anything else when it 73 of Regulation No 1408/71. In particular, designates the rule in Article 73(1) of the the reference inter alia to Article 73(2) and regulation as the rule which continues to the stipulation of application by analogy apply after paragraph 2 has been declared establishes a transitional system which is invalid. The suggestion that the Court is valid until the end of 1988. Unlike Article thereby exceeding its jurisdiction must be 73 of the regulation, the provisions of the rejected as unfounded. Acts of Accession are not, moreover, subject to review by the Court as regards their 16 — Judgment in Case 4/79, supra, paragraphs 44 and 46; validity, and are not, in the context of such judgment in Case 109/79, supra, paragraphs 44 and 46; a review, subject to examination against the judgment in Case 145/79, supra, paragraphs 51 and 53.
PINNA v CAISSE D'ALLOCATIONS FAMILIALES DE LA SAVOIE
principles of the EEC Treaty since they, like 46. The above comments are however the Treaty, constitute primary Community doubly academic, first because Articles 60 law. 1 and 220 of the Acts of Accession have no 45. In so far as Article 60 and Article 220 relevance to the application of the law in the of the Acts of Accession refer to Article 99 Pinna case and secondly because the of Regulation No 1408/71 for the purpose provisions themselves provide that the tran of bringing into application a uniform sitional system is to expire at the end of system, to be introduced under this 1988. provision also for the Iberian Member States, an act of the Community legislative institutions would appear to be necessary. The system of Article73(1) which in the 47. The costs incurred by the French, Pinna case has been declared to be of Italian, Portuguese and Greek Governments general application owes its applicability to and by the Commission are not recoverable. a procedure of a lower order than that of As these proceedings are, in so far as the the Acts of Accession and does not parties to the main proceedings are correspond to the method for establishing a concerned, in the nature of a step in the 'uniform solution' provided for in the Acts proceedings before the national court, the of Accession themselves. decision on costs is a matter for that court.
C — Conclusion
48 . In the light of the foregoing I propose that the Court should answer the question referred to it as follows:
'Following declaration in the judgment in Case 41 / 84 that Article 73(2) of Regu lation No 1408/71 is invalid, the general system laid down in Article 73(1) of Regulation No 1408 / 71 is also applicable to France . The system applies without any limitation in so far as the Community legislative institutions do not make use of their power of amendment . Accordingly, Article 73(1) and (2) should be read as follows:
A worker subject to the legislation of a Member State is entitled to the family benefits provided for by the legislation of that Member State for members of his family residing in the territory of another Member State as though they were residing in the territory of the first State.'
17 — Judgment of 28 April 1988 in Cases 31 and 35/86 SA Laisa and Others v Council [1988] ECR 2285