C-24/88

2. The characteristic factor which distin­ guishes the facts of the case before the 4. Mr Georges, of Belgian nationality, national court, the tribunal du travail works at the same time as an employed (Labour Tribunal), Dinant, from other cases person in France and as a self-employed dealt with in the Court's previous decisions ' person in Belgium. The members of his is the fact that the plaintiff, who in the family reside in Belgium. Under Article proceedings before the national court is 73(2) (the facts at issue occurred before the seeking to avoid or limit the application of Court's judgment of 15 January 1986 in Article 76, has himselfhe\d two jobs: one as Case 41/84 Pinna v Caisse d'allocations an employed person in the territory of one familiales de la Savoie [1986] ECR 1, and Member State, France, and the other, as a the declaration that that provision is void is self-employed person, in the Member State not applicable to this case), family in which the members of his family reside, allowances for family members are paid in Belgium. Belgium by the competent Belgian institution, the Office national d'allocations familiales pour travailleurs salariés (National Office for Family Allowances for Employed As the Court will be aware, in the other Persons, hereinafter referred to as 'the cases previously brought before it, the occu­ Office') for the account of the French pation under consideration for the purposes institution. of the rule against overlapping benefits contained in Article 76 was pursued by a

* Original language: Italian. 1 — In particular, the judgment of 19 February 1981 in Case 104/80 Beeck v Bundesanstalt jur Arbeit [19811 ECR 503; As a result of a check carried out in 1982, it the judgment of 12 June 1980 in Case 733/79 CCAF v appeared that in the period from 1977 to Laterza [1980] ECR 1915; the judgment of 13 November 1984 in Case 191/83 Salzano v Bundesanstalt jur Arbeil 1982 Mr Georges had worked in Belgium as [1984] ECR 3741; the judgment of 4 July 1985 in Case a self-employed person in respect of which 104/84 Krombout v Raad van Arbeid [1985] ECR 2205 and the judgment of 23 April 1986 in Case 153/84 Ferraioli v activity he had received, during the same Deutsche Bundespost [1986] ECR 1401. period, family allowances paid by the

(ii) secondly, since under the Belgian rules, the amount of the family allowances for (ii) his entitlement to allowances payable employed persons is higher than those by the country of residence takes paid to self-employed persons, so that priority; Mr Georges had been paid amounts higher than those which were in fact due to him, that the amount incorrectly paid would be recovered. (iii) entitlement in the country of employment is suspended only up to the amount received for the same period and for the same members of the family in the country of residence?'

Mr Georges brought an action against that decision before the tribunal du travail, Dinant, alleging, inter alia, that the Office's 5. Before discussing the question referred to interpretation of Article 76 was wrong and the Court, I think it would be appropriate that in any event he was not obliged to to draw the Court's attention to two aspects repay the amount claimed by the Office. which emerge from consideration of the file

GEORGES v ONAFTS

in the case and which have some importance decisions, France has not agreed to accept in this case. liability for the payment of the difference between the two amounts.

In the second place, the decision of the tribunal du travail, Dinant, and the obser­ 7. However, it does not seem to me (and I vations submitted by the Office reveal that agree here with the national court and with the Belgian courts have already been seised the observations of the Belgian Government of disputes similar to the one in this case. In and the Office and disagree with the particular, in the judgment of 4 December Commission's argument, which I find 1981 in Donnay et Marchand v Office particularly weak) that that result auto­ national d'allocations familiales pour matically follows from the Court's judgment travailleurs salariés, confirmed, following the in Ferraioli (judgment of 23 April 1986 in Case 153/84 [1986] ECR 1401). lodging of an objection, by a decision of 28 June 1985 (still pending before the cour du travail (Labour Court), Liège, as a result of an appeal lodged on 21 August 1985) the national court decided in a similar case that the plaintiff was entitled to payment of the 8. In my view, the true problem in the difference between the amount of the family present case is to determine what family allowances paid to self-employed persons allowances should be paid in a case such as and those paid to employed persons. that described by the national court and However, on that occasion, the tribunal du which Member State should be liable for the travail, Dinant, decided that it was not payment of such allowances. appropriate to refer a question to the Court of Justice for a preliminary ruling. The same situation seems to have arisen in the Lepoivre case now pending before the cour du travail, Brussels. In its observations, the Office draws the Court's attention to the 9. When the problem is expressed in those fact that, notwithstanding those judicial terms, it seems clear that the Court's

11. The reply depends on the scope which is to be given to Article 76. In particular, 10. The present case involves a different does such a provision come into play only in situation which offers the prospect of a the case in which the activities pursued in wholly Belgian alternative and ultimately of the Member State in which the members of possible Franco-Belgian implications. In the family of an employed person who clearer language, the Court must resolve works in another Member State reside is three questions. First, must the family carried on by a member of the family or allowances be paid by the Belgian social also, as is the case here, where the security institution responsible for self- employed person himself carries on the employed persons (as the defendant in the second activity? main proceedings argues) or by the Belgian institution responsible for employed persons, as a consequence of the obligation imposed on it by Article 73 of Regulation No 1408/71, that institution acting in that case on behalf of the French institution? Second, if the reply to the first question is that the 12. In my view, nothing militates in favour allowances must be paid by the institution of the restrictive interpretation represented responsible for self-employed persons, in so by the first alternative. The terms of Article far as the amount of those allowances is 76 in no way lend themselves to such an lower than that paid by the institution interpretation. Moreover, beyond purely responsible for employed persons, is an literal considerations, the raison d'être itself employed person entitled to payment of an of Article 76, which is and remains an anti- additional allowance equal to the difference overlapping provision, requires that payment between the two amounts? Third, if the of benefits and family allowances due under

13. Consequently, within the limits in which Article 76 operates, that is to say, in so far Similarly, in Kromhout, the Court stated in as family benefits have actually been paid in paragraph 21 that: 'Where the amount of the Member State of residence in respect of the allowances the payment of which is activities actually carried on there (which suspended exceeds that of the allowances seems to be the situation in the case before received by virtue of the pursuit of a the national court), the payment of family professional or trade activity, the rule on allowances under Article 73 is to be overlapping benefits contained in Article suspended. It also follows that those 10(1)(a) of Regulation No 574/72 should allowances must be paid to the worker in be applied only in part and the difference respect of the activity pursued in the between those amounts should be granted as Member State of residence and therefore, in a supplement'. In the same judgment, it is a case such as this, by the social security stated at paragraph 27 that the said Article institution responsible for self-employed 10 'supplements the rule in Article 76 of persons. Regulation No 1408/71'.

15. If such an extension is denied, a worker who has paid contributions giving him a 17. As I have already pointed out, the right to receive family allowances as an Court has recognized that Article 76 is an 2 employed person would have the amount of anti-overlapping rule. Such a provision such allowances reduced solely because he achieves its purpose when it successfully had paid contributions as a self-employed avoids overlapping between the payment of person in another Member State and was two kinds of family allowances paid in receiving in that State family allowances of respect of two activities pursued by the a lower amount. The situation would be worker or by members of his family. Once even more paradoxical if it were to be the purpose for which the rule was laid compared with the situation in a case in down is achieved, it is not lawful to deduce which the activity pursued in the Member from the same provision other, unintended 3 State of residence did not give rise to the effects, which would be clearly excessive. actual payment of family allowances. In the In particular, I see no reason to accept the latter case, Article 76 would not enter argument that it is for the Member State of consideration and would not prevent the residence to accept the burden of paying the application of Article 73. Consequently, a additional benefits. That is all the more the self-employed person carrying on two acti­ case because in a situation in which, by vities would receive family allowances at the virtue of the second activity pursued in the higher level provided for in the case of country of residence, the country of employed persons. I must say that I would employment does not have to pay the family regard that difference of treatment as allowances paid by the institution completely unjustified. responsible for self-employed persons, by virtue of Article 76. I consider that it is in accordance with the intended scheme of

18. I therefore conclude by proposing that the Court should reply as follows to the question referred to it by the tribunal du travail, Dinant:

Articles 73 and 76 of Regulation No 1408/71 (Official Journal, English Special Edition 1971 (II), p. 416) must be interpreted as meaning that a worker pursuing an activity as an employed person in a Member State other than that in which he resides with the members of his family and in which he pursues an activity as a self-employed person, is entitled, if the amount of the family allowances actually received in the Member State of residence is lower than the amount of the allowances provided for under the legislation of the other Member State, to be paid the difference between the two amounts, such payment to be borne by the Member State in which he works as a self-employed person.