C-114/88
ECLI:EU:C:1989:278
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OPINION OF MR TESAURO —CASE C-114/88
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 29 June 1989 *
Mr President, respect of family allowances, may indi Members of the Court, viduals rely directly on the rights conferred by Article 51 of the Treaty?'
1. The tribunal des affaires de sécurité sociale, Lille, has referred the following questions to the Court for a preliminary ruling in order to resolve a dispute between Since a negative answer to the third Mr Delbar, a Belgian avocat whose question would render examination of the Chambers are in France and whose home first two superfluous, it is appropriate first (where his children also live) is in Belgium, to consider whether, at the present stage of and the Caisse d'allocations familiales, development of Community law, self- Roubaix-Tourcoing : employed workers may rely on Article 51 of the EEC Treaty in order to claim family allowances, regardless of where the members of their family reside. '(1) Should Article 51(b) of the Treaty be interpreted as meaning that the auth orities responsible for the payment of family benefits are, by virtue of that article, those of the Member State where the worker pursues his activities 2. In the proceedings before the national and, where applicable, pays his contri court, Mr Delbar, to whom the competent butions or those of the Member State authorities in France, relying on Articles where the parents or the children L 512.1 et seq. of the code de la sécurité entitling him to the allowances, or sociale, refuse to pay family benefits for his both, are resident? children residing in Belgium, claims that that national rule is unlawful.
(2) More specifically, if a national of a Member State has his professional establishment in one Member State where he pays his contributions but is resident (with his children) in another Article L 512.1 imposes as a precondition Member State, are the authorities for parents' entitlement to family benefits responsible for payment of family the requirement that the children should be allowances those of the former or those resident in France. According to Mr Delbar, of the latter Member State? the national provision in question is contrary to Article 51 of the EEC Treaty, and in particular paragraph (b) thereof, which provides for 'payment of benefits to (3) In the absence of a Community persons resident in the territories of directive applicable to the professions in Member States'.
* Original language: Italian.
DELBAR v CAISSE D'ALLOCATIONS FAMILIALES DE ROUBAIX-TOURCOING
3. The French Government and the not affect Article 73 concerning the Commission, which have submitted obser payment of family allowances; that vations, reject Mr Delbar's contention. provision, therefore, continues to apply only to employed workers;
4. I must say very clearly, but at the same (iv) that legal situation is not the result of time very regretfully, that I can but share an oversight on the part of the the position taken by the French Community legislature, but reflects a Government and the Commission. I have no specific intention on the part of the doubt that, as Community law stands at Council. The Commission, supported present, there is no foundation for Mr by the European Parliament and the Delbar's claim that he has discovered a legal Economic and Social Committee, had basis in the EEC Treaty or in the secondary proposed extending Article 73 to self- legislation to overcome the obstacle repre employed persons. The Council's refusal sented by the lack, of any obligation to pay to accept that proposal is linked, as is him family allowances by reason of the fact apparent inter alia from the last recital that his children reside in a country other in the preamble to the Commission's than that in which he works as a self- proposal to the Council of 5 February employed person. Indeed, the applicable 1988 (Official Journal C 52, 24.2.1988, legislation leaves no room for any doubt, p. 5), 1 with the problem of the lack of regarding either interpretation or possible a uniform approach to family illegality. allowances, which ultimately gave rise to the two well-known judgments of the Court in the first and second Pinna 2 cases. 5. In fact, there is no doubt that:
6. It is apparent from all the foregoing that (i) Article 51 of the EEC Treaty, as such, in 1981 the Community legislature's express applies only to employed workers; intention was not to extend the benefit of Article 73 of Regulation No 1408/71 to self-employed workers. Since the decision to extend or not to extend that benefit is within the Council's discretion, and (ii) the same must be said as regards Regu although in general terms I share the views lation No 1408/71, in its original expressed by the Commission and the version; European Parliament regarding the appro priateness of extending that benefit to self- employed workers, I do not think that the Court can do otherwise than give a negative (iii) the amendments made by the Council, answer to the third question submitted by by means of its Regulation (EEC) No the national court. 1390/81 of 12 May 1981 (Official Journal L 143, 29.5.1981, p. 1) based 1 — The proposal is designed above all to take account of the first Puma ludgmcnt, and at the same time to extend the on Article 235 of the EEC Treaty, benefit of Article 73 of Regulation No 1408/71 to self- extending a considerable number of employed workers
provisions in Regulation (EEC) No 2 — Sec the judgments of 15 January 1986 in Case 41/84 Puma 11986] ECR 1 and of 2 March 1989 in Case 359/87 Puma 1408/71 to self-employed persons, do [1989] ECR 585
OPINION OF MR TESAURO — CASE C-114/88
Since the only persons covered by Article 51 7. In view of the reply which I have just of the Treaty, which is a provision of formulated, I do not think that the Court primary legislation, are employed workers, need consider further the other questions the Council's express decision not to extend submitted by the national court. Since the scope of Article 73 by means of a Article 51 is inapplicable to self-employed secondary measure does not constitute an workers, I do not think that it is for the infringement of any legal principle which Court to provide abstract interpretative could be penalized by this Court. guidance which does not serve to resolve this particular case.
Accordingly, I propose that the Court should state in reply to the questions referred to it that as Community law stands at present Article 51 of the EEC Treaty does not require the Member States to pay family benefits where the members of a self-employed person's family reside in a country other than that in which he practises his profession.