C-188/90

DORIGUZZI v LANDESVERSICHERUNGSANSTALT SCHWABEN

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on January 1992 *

Mr President, under national law. The Court ruled as Members of the Court, follows :

1. The Eleventh Senate of the Bayerisches Landessozialgericht (which I shall 'Article 78(2)(b)(i) of Regulation No henceforth refer to as the court which made 1408/71 of the Council of 14 June 1971 the reference) has referred to the Court of must be interpreted as meaning that the Justice for a preliminary ruling two entitlement to benefits payable by the State questions concerning the calculation of the in whose territory the orphan to whom they supplementary benefit ('Unterschiedsbetrag') have been awarded resides does not remove for orphans which is referred to in the the entitlement to benefits greater in amount case-law of the Court in connection with previously acquired under the legislation of Article 78 of Regulation No 1408/71. 1 another Member State alone. Where the amount of the benefits actually received in the Member State of residence is less than that of the benefits provided for by the Article 78(2)(b)(i) of Regulation No legislation of the other Member State alone 1408/71 provides that benefits for the the orphan is entitled to supplementary orphan of a deceased employed person who benefits, payable by the competent was subject to the legislation of several institution of the latter State, equal to the Member States shall be granted: difference between the two amounts.'

'in accordance with the legislation of the Member State in whose territory the orphan The Court confirmed that ruling in resides provided that ... a right to one of D'Amario, 3Ventura 4and Atbanasopoulos. 5 the benefits referred to in paragraph 1 is acquired under the legislation of that State

The new decision did not put an end to the dispute because the plaintiffs were not Since 1 September 1983 the Italian satisfied with the way in which the insurance institution, the Istituto Nazionale supplementary benefits were calculated. The della Previdenza Sociale (INPS), has being German institution had taken all the paying the plaintiffs an orphan's pension payments made by the INPS based on the insurance of the deceased together — both the monthly amount of the father. The amount per child of the benefits orphan's pension and the monthly amount was between LIT 59 710 (from 1 September of the family supplements —• and compared 1983) and LIT 73 960 (from 1 November that sum with the benefits payable under 1985) per month. In addition, the INPS German legislation solely on the basis of the paid a fixed sum per month per child of LIT German insurance premiums. From 19 760 by way of 'family supplements'. 1 September 1983 the resulting supplementary benefit was DM 29.30 per child and per month, but that sum is being gradually reduced as the Italian orphan's pension increases, so that on 31 December The plaintiffs' application to LVA Schwaben 1985 it was only DM 19.10 per child per for supplementary benefits was rejected by a month. decision of that institution of 3 September 1985. It was based on the provision in Article 78(2)(b)(i) of Regulation No 1408/71, cited above. In view of the fact The plaintiffs consider that the that the plaintiffs lived in Italy and drew supplementary benefits must be calculated their entitlement to an orphan's pension without taking into account the family from Italian legislation, it was of the supplements of LIT 19 760 per child per opinion that the INPS was the sole month paid by the INPS. In their view the competent institution. family supplements do not form part of the

4. The court which made the reference is 2. In particular, are the monthly family inclined to dismiss the appeal for the supplements of LIT 19 760 per child following two reasons. In the first place, it paid by the Italian institution to be considers that the family supplements included?' 6 granted by the INPS are 'family allowances' ('Familienbeihilfen', 'allocations familiales'), which Article 78(1) of Regulation No 1408/71 expressly provides are covered by the rules contained in that article Examination of the questions concerning orphans' benefits. According to the court which made the reference they must therefore be taken into account when calculating the supplementary benefits to be paid by the German institution. 5. As regards the application of the rules contained in Article 78 of Regulation No 1408/71 to provisions of national legislation under which 'orphans' benefits' are payable, the term 'benefits', according to paragraph 1 It is also of the opinion that orphans living of that article, means: in Italy would be given more favourable treatment than those living in Germany if 6 — The Bayerisches Landessozialgericht (14th Senate) has family supplements were not taken into again referred to the Court of Justice, in Case C-218/91 Gobbis v LVA Schwaben, the question whether German account when calculating supplementary insurance institutions must take into account the family supplements (referred to by that Senate as 'assegni benefits, since orphans living in Germany familiari') payable under Italian legislation when calcu­ are precluded from receiving 'Kindergeld' in lating the supplementary Gravina benefits for orphans. Unlike the 11th Senate (which made the reference in this addition to an orphan's pension by case) the 14th Senate is of the opinion that such Paragraph 8(1)(1) of the Bundeskinder­ supplements should not be taken into account, because they are family allowances intended not specifically for geldgesetz (BKGG). orphans but for children in general.

The wording of that provision indicates unequivocally that orphans' benefits 6. The questions referred for a preliminary includes both 'orphans' pensions' and ruling arose because the benefits for 'family allowances' (and consequently orphans which must be compared for the 'supplementary or special allowances for purpose of calculating the supplementary orphans') which mean, according to Article 'Gravina' benefits are regulated in different 1(u)(ii) of Regulation No 1408/71, 'peri­ ways by the Italian and German legislation. odical cash benefits granted exclusively by reference to the number and, where appro­ 7 priate, the age of members of the family'. I would point out straight away that the parties to the main action and the court which made the reference, and also the Commission, according to the written observations it has submitted to the Court, agree that the 'family supplements' paid by As described at 2, above, the amounts paid the INPS pursuant to the Italian legislation in the Member State of residence (Italy) by do constitute such 'family allowances' the competent institution (the INPS) to the ('assegni familiari' in the Italian) as defined plaintiffs are of two kinds: in the first place, in Article 1(u)[ii) of Regulation No the INPS pays a variable amount by way of 1408/71. That is important, as the an orphan's pension, and in the second Commission points out, because if the place it pays a fixed family allowance within Italian 'family supplements' fall only within the meaning of Article 78(1) of Regulation the broad definition of 'family benefits' No 1408/71 (in conjunction with Article contained in Article 1(u)(i) of the regulation l(u)(ii) of the regulation). However, the legislation in the other Member State 7 — In a judgment of 16 March 1978 (Case 115/77 Laumann [1978] ECR 805) the Court declared, regarding the Community rules against the overlapping of benefits 8 — The Court drew a distinction in fact, in connection with contained in Article 79(3) of the regulation, that family Article 77(1) of Regulation No 1408/71, in a judgment of allowances are generated by an actual occupation and the 27 September 1988 (Case 313/86 Lenoir [1988] ECR ' direct and sole recipient is the worker himself, whereas the 5391) within the broad definition of 'Family benefits direct sole recipient of the orphan's pension is the orphan between 'Family allowances' and 'Other benefits' (such as himself (paragraph 7). See 10, below. school allowances) (para. 11).

(Germany) in which the plaintiffs are to the 'Kinderzuschuss'. The court which entitled to benefits provides for an orphan's made the reference also take that view, pension and in addition to that, depending which explains why in the first question it on times and circumstances, a 'Kinderzu­ refers to 'the' German institution, in this 9 10 schuss' or 'Kindergeld'. The 'Kinderzu­ case LVA Schwaben (that is to say the sole schuss' is an integral part of the orphan's institution competent in this matter). pension (within the meaning of Article 78(1) of Regulation No 1408/71) whereas the 'Kindergeld' is not part of it but is a 'family allowance' (within the meaning of that provision in conjunction with Article 1(u)(ii) of the regulation). In addition to that the 'Kinderzuschuss', as part of the orphan's 7. The differences between the Italian and pension, is paid out by an insurance German legislation which I have described institution (in this case LVA Schwaben), are the reason for that court's hesitation as whereas 'Kindergeld' is paid out by the regards the method of calculating the Bundesanstalt für Arbeit. In the case before supplementary 'Gravina' benefit. the court which made the reference it is not clear, however, which additional benefit (the 'Kinderzuschuss' or the 'Kindergeld') is payable to orphans such as the plaintiffs whose father died before 1 January 1984. From the observations submitted on behalf In the cases in which the Court of Justice of the plaintiffs and those of LVA has ruled on those supplementary benefits Schwaben 11 it appears that they are entitled up to now, the comparison to be made was to 'Kindergeld'. However, the Commission always between benefits of the same kind: in is of the opinion that although payment of Gravina, D'Amano and Ventura the amount the 'Kinderzuschuss' to orphans after paid in the Member State of residence 1 January 1984 is in principle covered by (Italy) as an orphan's pension was compared payments of 'Kindergeld', that does not with the orphan's pension to which the apply in the case of orphans with a surviving party was already entitled under the legis­ parent and those entitled to pensions who lation of another Member State (Germany); were already entitled before 1 January 1984 in Athanasopoulos the comparison was of the family allowances which could be paid also to orphans under the legislation of both the Member States concerned.

German law. What is to be compared is, on intended in the Member State of residence the Italian side, an orphan's pension and a to support the orphan in question and family supplement (which is a family actually paid out with the sum of all the allowance within the meaning of Article benefits intended for the support of the 78(1) of Regulation No 1408/71) and, on same orphan to which the orphan may be the German side, an orphan's pension entitled in the other Member State. including the 'Kinderzuschuss' which forms part of the pension. In that connection the court making the reference wishes to know whether, in order to calculate the 'Gravina' benefit, account must be taken of the family allowances paid by the Italian institution to the Doriguzzi children (in this case 'assegni familiari') despite the fact that under German legislation, at least in the opinion of the court making the reference, the Doriguzzi children are entitled only to orphans' pensions (payable by LVA Schwaben) including the 'Kinderzuschuss' but not 'Kindergeld' (payable by a different In my view that also means that when a German institution). comparison is made the general total of all such payments in both Member States must be considered. Were it otherwise and not all the payments in both Member States for orphans were compared in toto but only payments of the same nature (in other words, payments in the Member State of residence which have no counterpart in the other Member State were to be left out of the count), that would in my view be 8. I share the view of the court making the incompatible with the purpose of the reference, LVA Schwaben and the principle laid down in Gravina and similar Commission, that when calculating the cases. According to those decisions, orphans supplementary 'Gravina' benefit for orphans may not be deprived of any entitlement to it is necessary to take into account all greater payments to which they may be benefits actually paid by the Member State entitled under the legislation of a Member of residence in so far as they fall within the State other than the Member State of definition of benefits contained in Article residence, without granting them at the 78(1) of Regulation No 1408/71 —which is same time more entitlements, on the same not contested in this case (see No 5 footing as orphans resident in the other above) ·—• and are intended for the support Member State, than those which he may of orphans. I find support for that broad have in that Member State. That can only interpretation in the phrase 'allowances for be achieved if the institution in the other orphans' in Article 78(2) which indicates Member State (or the institutions, if in that that the purpose (and not so much the Member State more than one institution is nature or the title) of the allowance is competent) may deduct from the benefits decisive just as it is in the broad definition payable by it (or them) all payments already in Article 78(1) of what is meant by paid in the Member State of residence for 'benefits'. Consequently, the amount of the the support of the orphan, regardless of the supplementary benefits must be determined nature or title of the benefits in both by comparing the sum of all the benefits Member States, and also regardless of

which institution (or institutions) is (or are) 10. Finally, I would just mention the responsible for paying the benefits in both possible consequences of the Laumann Member States (provided always, however, judgment cited above (in footnote 7) as that they are benefits which fall within the regards this case. According to that description contained in Article 78(1) of decision, family allowances are distin­ Regulation No 1408/71). guished by the fact that they are paid directly and exclusively to the worker himself, whereas the sole recipient of an orphan's pension (or pensions) is the orphan (paragraph 7). The Court took the view that that difference as regards the recipient of the benefits was relevant to the interpre­ tation of the rule against overlapping of benefits contained in Article 79(3) of Regu­ lation No 1408/71. The suspension of benefits which that article requires in order to prevent the overlapping of benefits relates only, according to the Court, to benefits of 9. The Commission rightly points out that the same kind, implying that they exist in in any case a special comparison of benefits favour of one and the same recipient. That which are of the same nature would defeat is because the underlying purpose of the Gravina line of decisions, in view of the very different rules governing orphans' allowances in the Member States. It is apparent from the description given by the Commission of the various national rules that in some Member States only one (increased) family allowance is payable for orphans, whereas in other 'it would be contrary to the objectives of the Member States an orphan's pension is Community provisions against the over­ payable generally together with a family lapping of benefits in the field of social allowance. To compare only benefits of the security if the grant of a benefit to one same nature with each other would lead to dependant could be adversely affected by a arbitrary results: the amount received by the benefit paid to another dependant' orphan or the person responsible for him (paragraph 8). would then always depend on the manner in which orphans' allowances were governed in the relevant Member State, and only if they were comparable in both Member States would they be taken into account. That would lead to unjustifiable differences, oiphans receiving sometimes more and Should importance be attached in this case, sometimes less than the amount to which too, to that distinction as regards the they would be entitled under the legislation recipient and in particular the circumstance of the Member State other than the that an orphan's pension is received by the Member State of residence were they oiphan himself whereas family allowances resident there. The only approach which are paid to the person responsible for them avoids that is to compare all the allowances (in this case Mrs Doriguzzi), and more intended for the support of orphans within particularly can that serve as an argument the meaning of Article 78(1) which are against the global approach to calculating available in the Member States concerned. the supplementary benefits referred to

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