C-1/88

1. The tribunal du travail, Namur, has asked for a preliminary ruling on the inter­ pretation of Article 78(2) of Regulation No 4. Mr Baldi then brought an action before 1408/71 of the Council of 14 June 1971 on the tribunal du travail, Namur, for an order the application of social security to that the CCAF should pay him the employed persons and members of their difference between the family allowances family moving within the Community received in Italy and the higher allowances (Official Journal, English Special Edition payable under the Belgian legislation. His 1971 (II), p. 416). claim is based in particular on Article 78 of Regulation No 1408/71, regarding the interpretation of which the tribunal du travail, Namur, has submitted the following 2. The plaintiff in the main proceedings, question to the Court: Adalino Baldi, was employed in Belgium until 6 April 1977. At the end of July 1977, he transferred his residence to Italy. Since 1 May 1972 he had been in receipt of an Italian invalidity pension. It also appears 'Is Article 78(2) of Regulation No 1408/71 from the file on the case forwarded to the to be interpreted as meaning that an orphan Court by the tribunal du travail that by in respect of whom family allowances are decision of 31 March 1984 Mr Baldi was payable at the rate for orphans as a result of awarded a Belgian invalidity pension with the death of his mother who was not an effect from 6 April 1978. employed person may, as a result of a change of residence to the territory of another Member State by which family allowances are payable at a different rate, 3. As a result of his wife's death, which forfeit the family allowances payable by the occurred on 10 March 1961, he received in first Member State, or as meaning that he is respect of his son Renaldo Belgian family entitled to receive from the competent allowances, at the increased rate for orphans, institution of the first Member State the until 31 August 1981, when the Caisse de difference between the family allowances compensation pour allocations familiales de payable in the second Member State and the l'Union des classes moyennes (Compen­ orphan's allowances previously payable?' sation Fund for Family Allowances for the Union of Small Firms and Traders — here­ inafter referred to as the 'CCAF'), the defendant in the main proceedings, suspended payment. Furthermore, by letter 5. The problem stems from the fact that, of 14 February 1984, that institution according to the defendant in the main

6. The defendant in the main proceedings also considers that Mr Baldi cannot found his claim on Community law, in this case Regulation No 1408/71 of the Council. 10. However, it has been consistently held by the Court ' and in particular in the Laterza and Patteri judgments delivered in proceedings between — as in this case — migrant workers and Belgian 7. For its part, the national court refers in compensation funds for family allowances, its question to Article 78(2) of that regu­ that lation, which is entitled Orphans'. It should however be noted that paragraph (2) of that article refers to orphans of 'a .. . worker' and not to orphans whose deceased parent did not work, as in the case of Mrs Baldi. Article 77, on the other hand, is entitled 'Article 77(2)(b)(i) of Regulation No 'Dependent children of pensioners' and Mr 1408/71 must be interpreted as meaning Baldi's son is indeed the dependent child of that entitlement to family benefits from the a pensioner. State in whose territory the recipient of an invalidity pension resides does not take away the right to higher benefits awarded previously by another Member State. If the amount of family benefits actually received by the worker in the Member State in which 8. I consider therefore that a situation such he resides is less than the amount of the as that described by the national court falls benefits provided for by the legislation of within the scope of Article 77. Its first the other Member State, he is entitled to a paragraph states that the term 'benefits' for supplement to the benefits from the the purposes of that articleis to mean I — See the judgment of 12 June 1980 in Case 773/79 Caisse de 'family allowances for persons receiving compulsation v Lateza [1980] ECR 1915, of 24 November pensions for old-age, invalidity or accident 1983 in Case 320/82 D'Amario v Landesverstchentngsanslalt Schwaben [1983] ECR 3811 and of 12 July 1984 in Case at work or occupational disease, and 242/83 Caisse de compensation v Patteri [1984] ECR 3171

14. The family allowances thus ought indeed to be paid by Belgium at the Belgian rates since, by virtue of Article 13 (2) (a) of Regulation No 1408/71, Adalino Baldi was 12. That has undoubtedly been the position subject to Belgian legislation by reason of since 6 April 1978, as on that date Mr Baldi the fact that he was employed in that became entitled to pensions under the legis­ country. lation of more than one Member State. However, the problem is different with respect to the previous period, during which Mr Baldi received only one pension under the legislation of only one Member State, 15. On 6 April 1977, Mr Baldi fell ill and namely Italy. That pension was paid to him during his illness, at the end of July 1977, as from 1 May 1972. He was thus already in he returned to Italy. However, sickness receipt of it for part of the period during benefits under Belgian legislation and, which he was still working in Belgium. The consequently, Belgian family allowances as question might therefore be asked whether well were still payable to him since, as the the family allowances ought not to have Commission pointed out at the hearing, been paid as from that date by Italy, since 'until a person becomes a pensioner he Article 77(2)(a) provides that remains a worker'.

'benefits shall be granted ... to a pensioner 16. But matters are complicated by the fact who draws a pension under the legislation that it follows from Decision No 84 of the of one Member State only, in accordance Administrative Commission set up by Article with the legislation of the Member State 80 of Regulation No 1408/71 that, for the responsible for the pension'. purposes of Article 79(3), family benefits or

17. If it were accepted, nevertheless, that payment of the Belgian family allowances 20. It should also be noted that the could validly have been discontinued six D'Amano judgment cited in footnote 1 months after Mr Baldi fell ill, that is to say, states that the decision in question applies to with effect from 6 October 1977, his Articles 77 and 78, without further situation would then have been, as from that distinction. Finally, Decision No 129 of the date, that of a person entitled to an inva­ Administrative Commission (Official lidity pension under the legislation of one Journal 1986, C 141, p. 7), which reflects Member State only. Mr Baldi's case would the consequences of that judgment, likewise therefore have come within the scope of makes no distinction between the various Article 77(2)(a), until 6 April 1978, when he subparagraphs of Article 77. became entitled to a Belgian invalidity pension, which, as we have seen, rendered applicable Article 77(2)(b)(i).

21. It must therefore be concluded that during that first period as well, that is to say the period starting when the CCAF ceased to pay Mr Baldi the Belgian family 18. The effect of the rule contained in allowances at the rate for orphans and Anicie 77(2)(a) would be to specify Italian ending on the date on which Mr Baldi legislation, under which the invalidity became entitled to a Belgian invalidity pension was paid, as the applicable legis­ pension, the CCAF was under an obligation lation for the purpose of family allowances. to pay him the difference between the amount of the Belgian family allowances at 2 — See judgment of 14 May 1981 in Case 98/80 Romano v the rate for orphans and that of the Italian Institut national d'assurance maladie-invahdile [1981] ECR 1241 family allowances.