C-394/93

Bundesanstalt für Arbeit,

on the interpretation of Article 1(1) of Council Regulation (EEC) N o 3427/89 of 30 October 1989 amending Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) N o 574/72 laying down the procedure for implementing Regulation (EEC) N o 1408/71 (OJ 1989 L 331, p. 1),

T H E COURT (Sixth Chamber),

composed of: C. N . Kakouris, President of the Chamber, G. Hirsch, G. F. Man- cini, F. A. Schockweiler and J. L. Murray (Rapporteur), Judges,

* Language of the case: German.

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— the Commission of the European Communities, by Dimitrios Gouloussis, Legal Adviser, and Horstpeter Kreppel, a national civil servant seconded to the Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Alonso-Pérez, the German Government, represented by Bernd Kloke, Regierungsrat at the Federal Ministry of Economic Affairs, acting as Agent, the Spanish Government, represented by Gloria Calvo Díaz and the Commission, represented by Dimitrios Gouloussis and Horstpeter Kreppel, at the hearing on 17 November 1994,

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JUDGMENT OF 23. 11. 1995 — CASE C-394/93

after hearing the Opinion of the Advocate General at the sitting on 13 December 1994,

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ALONSO-PÉREZ ν BUNDESANSTALT FUR ARBEIT

the preceding six months, Paragraph 9(2) of the Bundeskindergeldgesetz (Federal Law on Child Benefit) limiting the retroactive effect of such applications to that period.

5 By decision of 12 July 1989 the Arbeitsamt (Employment Office) Koblenz granted him kindergeld backdated to October 1988.

6 On 30 October 1989 the Council adopted Regulation N o 3427/89, cited above, Article 1(1) of which, applicable with effect from 15 January 1986, amended Arti­ cle 73 of Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6). Article 73 of Regulation N o 1408/71 is presently worded as follows: 'An employed or self-employed person subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI.'

7 After the adoption of that regulation, on 27 May 1991 Mr Alonso-Pérez claimed payment of arrears of family allowances from 1 January 1986 to 30 September 1988. The Bundesanstalt dismissed that application by decision of 29 August 1991 and by a decision on his administrative appeal of 25 October 1991. The action brought before the Sozialgericht (Social Court) Koblenz was also dismissed by judgment of 15 October 1992. According to the documents before the Court, those decisions were based on the fact that Paragraph 9(2) of the Bundeskin- dergeldgesetz limited the retroactive effect of applications for children's allowances to a period of six months.

1 1 Taking the view that the outcome of the dispute before it depended on the inter- pretation of Article 73 of Regulation N o 1408/71 as amended by Regulation N o 3427/89, the Landessozialgericht Rheinland-Pfalz decided to stay the proceedings and submit the following question to the Court for a preliminary ruling:

'Does Article 1(1) of Council Regulation (EEC) N o 3427/89 of 30 October 1989 amending Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) N o 574/72 laying down the procedure for implementing Regulation (EEC) N o 1408/71 provide a basis for entitlement to children's allowance in respect of periods prior to the

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ALONSO-PÉREZ ν BUNDESANSTALT FÜR ARBEIT

application for children's allowance and in particular, with effect from January 1986, in respect of children of employed persons living in another Member State, in the case where the application for children's allowance was made on or before 16 November 1991?'

1 2 In substance the national court seeks to ascertain whether Article 73 of Regulation N o 1408/71, as amended by Regulation N o 3427/89, prevents a national provision limiting the retroactive effect of applications for family allowances to a period of six months from being applied to an application by a Spanish national for payment as from 15 January 1986 of family allowances in respect of the members of his family resident in Spain.

'Before 1 January 1973 the Council shall, on a proposal from the Commission, re-examine the whole problem of payment of family benefits to members of fam­ ilies who are not residing in the territory of the competent State, in order to reach a uniform solution for all Member States.'

17 That derogating regime established by Article 73(2), which concerned migrant workers employed in France whose families resided in other Member States, was declared invalid by the Court of Justice in its judgment of 15 January 1986 in Case 41/84 Pinna ν Caisse d'allocation familiales de la Savoie [1986] ECR 1, hereinafter 'Pinna I') because it was discriminatory in nature. Nevertheless, on grounds of overriding considerations of legal certainty, the Court held that the invalidity of Article 73(2) of Regulation N o 1408/71 could not be relied on in order to support claims regarding benefits for periods prior to the date of the judgment, except as regards employed persons who had already brought legal proceedings or made an equivalent claim prior to that date.

18 In a second judgment given on 2 March 1989 in Case 359/87 Pinna v Caisse d'allocation familiales de la Savoie [1989] ECR 585, hereinafter 'Pinna II') the Court had to clarify the consequences of its judgment in Pinna I. It held that until such time as the Council had adopted new rules which were in conformity with Article 51 of the EEC Treaty, the fact that Article 73(2) of Regulation N o 1408/71 had been declared invalid meant that the system for the payment of family benefits laid down in Article 73(1) of that regulation was of general application.

22 Accordingly, it follows that Spanish nationals who worked in a Member State other than Spain, but whose families resided in Spain, were entitled to family ben­ efits in the Member State in which they had been working since 1 January 1986, the date of accession of the Kingdom of Spain to the European Economic Com­ munity. Nevertheless, they can rely on that entitlement with retroactive effect only from 15 January 1986, the date of the judgment in Pinna I, which was in fact adopted by Article 3 of Regulation N o 3427/89 as the date from which that regu­ lation applied.

23 While the question of the availability of entitlement to family benefits is therefore expressly governed by Article 3 of Regulation N o 3427/89, the question whether a Member State may apply its national provisions which limit the retroactive effect of applications for family allowances to a period of six months still remains.

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JUDGMENT OF 23. 11. 1995 — CASE C-394/93

24 I n that regard, b o t h the Spanish G o v e r n m e n t and M r Alonso-Pérez accept that Regulation N o 3427/89 does n o t govern the question of the retroactive effect of applications for family allowances.

25 M r Alonso-Pérez nevertheless suggests that w h a t he calls a 'legal v a c u u m ' should be filled b y having recourse to Article 94(6) of Regulation N o 1408/71.

30 Finally, it must be stated that a provision such as that at issue in the main proceed- ings does not render impossible the exercise of the rights conferred by Regulation N o 3427/89. It merely limits the retroactive effect of applications for the benefit in question (see the judgments in Case C-338/91 Steenhorst-Neerings ν Bestuur van de Bedrifsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475, paragraph 21, and Case C-410/92 Johnson ν Chief Adjudication Officer [1994] ECR I-5483).

31 Consequently, Community law does not preclude the application of a provision which, like Paragraph 9(2) of the Bundeskindergeldgesetz, also applies to applica­ tions for family allowances based solely on domestic law.

32 It follows from the foregoing that Regulation N o 1408/71, as amended by Regu­ lation N o 3427/89, does not prevent a national provision limiting the retroactive effect of applications for family allowances to a period of six months from being applied to an application by a Spanish national for payment as from 15 January 1986 of family benefits in respect of the members of his family resident in Spain.

Costs

33 The costs incurred by the German and Spanish Governments and by the Commis­ sion of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

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Schockweiler Murray

Delivered in open court in Luxembourg on 23 November 1995.

R. Grass C. N . Kakouris

Registrar President of the Sixth Chamber

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