C-186/90

'With effect from 1 January 1974, recipients of a pension under a compulsory general Background insurance scheme for invalidity, old-age and the survivors of employed persons . . . shall be entitled, for the persons referred to in 2. T h e order for reference gives particulars Article 21 of Law No 903 of 21 July as appropriate of the relevant provisions of 1965 . . . to the family allowances referred to in the Consolidated Law adopted by Pres- * Original language: Italian. idential Decree No 797 of 30 May 1955, 1 — In view of the date on which the main action was brought (26 April 1984, according to the documents annexed to the order for reference), I believe that the national court is 2 — Official Gazelle of lhe Italian Republic No 190 of 31 July seeking the interpretation of the aforementioned 1965. provisions of Regulation (EEC) N o 1408/71, in the 3 — Official Gazelle of the llalian Republic No 59 of 4 March version set out at Annex I to Regulation (EEC) No 1974. 2001/83 of the Council, of 2 June 1983 (Official Journal 4 — Official Gazette of the Italian Republic No 113 of 2 May 1983 L 230, p. 6). 1974.

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DURIGHELLO

'An institution of a Member State whose 3. The situation with which the main legislation makes the acquisition, retention proceedings are concerned is summarized in or recovery of the right to benefits condi- tional upon the completion of insurance 5 _ Official Gazette of the Italian Republic N o 112 of 14 May periods shall take into account, to the extent 1988. necessary, insurance periods completed 6 — Official Gazette of the Italian Republic No 61 of M March under the legislation of any Member States 1988.

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OPINION OF MR VAN GERVEN — CASE C-186/90

as though they had been completed under cease to apply simply because the the legislation which it administers.' Community rules made no provision for an allowance for a dependent spouse.

I am assuming that it was on that basis that the competent institution in Italy decided to award a pension to Mr Durighello. For its part INPS made the following contentions before the national court:

4. However, the subject of the main proceedings is not the pension awarded to M r Durighello, but his claim to family benefit in respect of his dependent spouse. — the only legal basis for Mr Durighello's As I have indicated above (para. 2), the pension entitlement is not national law national court has stated that the benefit in but Community law; accordingly, question became a separate social security reference must be made to that law in benefit in 1974. order to determine whether a right to family allowances for a dependent spouse subsists;

6. The problem raised by Mr Durighello under the (aggregation) provisions of the was not new to the Corte di Cassazione. In aforesaid Regulation. a judgment of 4 February 1988, the Labour Chamber of the court had held that a pensioner in a situation similar to that of Mr Durighello was not entitled to a family allowance for a dependent spouse, again on the ground that the sole basis for the 7. In the light of the two conflicting rulings, pension entitlement of the person concerned Mr Durighello's appeal was assigned to the was the Community legislation, which made Joint Chambers of the Corte di Cassazione. no provision for the benefit in question. The The order for reference states that the judgment stated further that under the appeal raises the problem of the relationship Italian legislation only 'recipients of an between Community and national legis- Italian pension' — that is, a pension lation where they both govern — either in acquired exclusively on the basis of contri- whole or in part -the same subject-matter butions paid in Italy, are entitled to the (in this case, family allowances for family allowance in respect of a spouse. pensioners), in addition to the related problem of whether, in the situation before the court, only the Community legislation applies — on the principle that it overrides 'conflicting' national law — or whether there is scope for the application of national provisions conferring entitlement to a social security benefit of the same kind as that contemplated in, but not specifically regulated by, a Community regulation.

The second plea must also be rejected on Reply to the question submitted the basis of the settled case-law of the Court. The Court has repeatedly ruled that

8. In its written observations submitted to the Court, the INPS submits two pleas in 'whereas it is not for the Court, in the law challenging the Court's jurisdiction. context of Article 177 of the Treaty, to rule First it claims, referring to the order in on the compatibility of a national law with Falciola,7 that the reference for a Community law, it does have jurisdiction preliminary ruling is not necessary in order to provide the national court with all to enable the national court to settle the the elements of interpretation under dispute before it, since the question Community law to enable it to assess that submitted bears no relation to the subject- compatibility for the purpose of deciding matter of the main action. According to the the case before it' 8 INPS, the provisions of Community law which the Court is asked to interpret concern allowances for the dependent children of pensioners, whereas the main action concerns a family allowance for a dependent spouse. The provisions cannot be 9. The question submitted concerns the case construed as extending to cover allowances of a pensioner whose entitlement to a for a dependent spouse. Secondly, the pension in the Member State in which he question referred essentially concerns the resides was calculated by that State's compatibility of the Italian legislation with competent institution taking into account, Community law, a matter on which the pursuant to Article 45(1) of Regulation Court cannot give a ruling. 1408/71, the insurance periods which he completed in other Member States. The national Court wishes to know whether the provisions of Chapter 8 of Title III of that Regulation, and in particular Articles 77 to 79, preclude that pensioner from deriving an entitlement to a family allowance for a Both pleas are plainly unfounded. As to the dependent spouse from the legislation of the first, the Court has consistently held that it Member State concerned. is for the national court to decide whether it 8 — Judgment in Case C-369/89 Averne [1991] ECR 1-2971, 7 — Orderin Casc C-286/88 Falciola [1990] ECR 1-191. paragraph 7.

11. However, the question hitherto Couched in those general terms, the defi- examined is not central to this case. The nition can include periodical benefits other Court is not asked to rule whether than those in respect of dependent children, Mr Durighello derives directly from Article in particular periodical benefits for a 77 and 79 entitlement to an allowance for a dependent spouse when the amount of such dependent spouse. The national court does benefits is calculated in relation to the not come to that question, though the way number of members of the family. in which the question submitted is framed indicates that it is of the opinion that a pensioner like Mr Durighello whose pension is calculated in accordance with the provisions of Article 45(1) of Regulation 1408/71 is also entitled to an allowance for his dependent spouse under Italian law alone. The national court wishes merely to know whether Articles 77 and 79 have the Nevertheless, there are several arguments effect of depriving a pensioner such as based on the wording of the regulation to Mr Durighello of that right. suggest that Articles 77 and 79 of Regu- lation 1408/71 do not concern allowances 9 — Article l(u)(i) of Regulation 1408/7! suits that family for a dependent spouse. Thus the heading to benefits means all benefits in kind or in cash intended to Chapter 8 of Title III expressly refers only meet family expenses under the legislation provided for in Article 4(l)(h), excluding the special childbirth allowances to 'dependent children', as do the headings mentioned in Annex II.

What applies to pension entitlement also applies to entitlement provided for under The Court has consistently held that the Italian legislation to an allowance for a rules on social security for migrant workers dependent spouse. That right, too, is based on the national legislation concerned. That legislation links it to pension entitlement. The same applies, as is clear from the terms in which the question submitted is couched, to the case of pensioners whose pension is calculated in the manner described. 'did not set up a common scheme of social security, but allowed different schemes to exist, creating different claims on different institutions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by Community law' (paragraph 13 of the Rossi Accordingly, the INPS is incorrect to assert judgment 1 0 ). that, because Mr Durighello's pension entitlement is calculated in accordance with the rules on aggregation contained in Regu- lation 1408/71, he may claim only social security benefits expressly provided for in that Regulation. That conclusion is based on This decision clearly shows that the social a false premise and is incompatible with security rights of a person such as the Regulation which did not set up a Mr Durighello do not derive primarily, Community system of benefits, but allowed much less exclusively, from Regulation the various national schemes to continue in 1408/71. Thus he derives his right to a existence. pension directly from Italian legislation, albeit 'supplemented' by Article 45(1). Under this provision the competent Italian institution may not object that Mr Durighello had not completed solely in Italy the requisite number of insurance periods prescribed by the Italian legislation, 13. Moreover, it is apparent from the Court's case-law on Article 51 of the EEC 10 — Judgment in Case 100/78 Rossi v Caisse de Compensations Treaty, on which Regulation 1408/71 is pour Allocations Familiales [ 1979] ECR 831. See further the judgment in Case 733/79 CCAF v Laterza [1980] based, that Mr Durighello cannot lose a ECR 1915, at paragraph 8, and in Case 807/79 Gravina v right acquired under Italian legislation to an Landesversicherungsanstalt Schwaben [1980] ECR 2205, at paragraph 7. allowance for his dependent spouse.

1 1— Judgment in Case 100/63 Kaahbeek v Sodate Verzeker- 12 — See also the aforementioned judgments in Laterza ingsbank [\964] ECR 565 at p. 574. (paragraph 8) and Cravina (paragraph 7).

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