C-266/95

O P I N I O N OF MR FENNELLY — CASE C-266/95

O P I N I O N O F ADVOCATE GENERAL FENNELLY delivered o n 6 M a r c h 1997 *

I - 3282

MERINO GARCÍA v BUNDESANSTALT FÜR ARBEIT

(ii) any person who is compulsorily insured (iv) any person who is voluntarily insured for one or more of the contingencies for one or more of the contingencies covered by the branches of social secu- covered by the branches dealt with in rity dealt with in this Regulation, under this Regulation, under a social security a social security scheme for all residents scheme of a Member State for employed or for the whole working population, if or self-employed persons or for all resi- such person: dents or for certain categories of resi- dents:

— can be identified as an employed or self-employed person by virtue of the manner in which such scheme is — if such person carries out an activity administered or financed, as an employed or self-employed person,

or,

or

'An employed or self-employed person sub- ject to the legislation of a Member State shall be entitled, in respect of the members of his (a) "employed person" means any person family who are residing in another Member compulsorily insured against unemploy- State, to the family benefits provided for by ment or any person who, as a result of the legislation of the former State, as if they such insurance, obtains cash benefits were residing in that State ..." (emphasis under sickness insurance or comparable added). benefits; [emphasis added]

(b) "self-employed person" means any per- son pursuing self-employment who is Pursuant to Article 3 of the 1989 Regulation, bound: this amended version of Article 73 of the Regulation has been applicable 'with effect from 15 January 1986'. 2

— to join, or pay contributions in respect of, an old-age insurance within a scheme for self-employed persons, 5. Annex I to the Regulation also deals, as its title indicates, with 'Persons Covered by the Regulation'. Point I concerns 'Employed persons and/or self-employed persons or

2 — Council Regulation (EEC) N o 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons and their fami- lies moving within the Community, OJ 1981 L 143, p. 1 (hereinafter 'the 1981 Regulation'), which extended the — to join a scheme within the frame- regime established for employed persons by the original text work of compulsory pension insur- of the Regulation to self-employed persons, had initially excluded Article 73. ance.'

7. By virtue of the first sentence of Para- 4 — BGBl I, p. 582. 5 — Sec Paragraph 104(1), second sentence. N o 1, AFG. graph 104(1), in conjunction with the first 6 — Sec Paragraph 104(1), third sentence, AFG. sentence of Paragraph 168(1), of the Arbeits- 7 — RGBl I, p. 509, in the version published on 15 December förderungsgesetz (Law on the Promotion of 1924 (RGBl I, p. 799). 8 — This provision was replaced — but only after the periods in dispute in the main proceedings arose — b y Paragraph 192 of the Socialgcsetzbuch (Code of Social Law) of 20 Decem- ber 1988 (BGBl I, p. 2477), which provides for the mainte- nance of compulsory insurance during unpaid leave for one 3 — BGBl I, p. 265. month.

I - 3285

O P I N I O N OF MR FENNELLY — CASE C-266/95

Hence, unpaid leave affects entitlement to Regulation and that the rule contained in child allowance only if it comprises at least a point I, C of Annex I to the Regulation was full calendar month. inapplicable because it conflicted with the principle of the freedom of movement of Community nationals by affecting more migrant workers than German nationals. The defendant contended that the Regulation referred to national legal rules whose appli- C — The facts and proceedings before the cation was not discriminatory when com- national court pared with the situation of German workers, who, if they take extended unpaid leave, also lose the right to child allowance whenever their children are no longer normally resi- dent in Germany.

I - 3286

MERINO GARCÍA v BUNDESANSTALT FÜR ARBEIT

11. However, the national court doubts 2) If subsection I C of Annex I to Regu- whether the rule at issue infringes lation N o 1408/71 is invalid, is the Article 48(2) of the Treaty where the affected consequence thereof that an "employed employed person could have retained his person" within the meaning of right to child allowance without undue diffi- Article 73 of Regulation 1408/71 covers culty. Thus, if paid and unpaid leave were any person who has been given unpaid combined, an absence from Germany of leave of absence by his employer on approximately three months would have no the basis of a voluntary agreement, or detrimental effect on the right to child allow- are there restrictions in that respect ance. Indeed, the right to child allowance (e. g. as regards the duration of the leave could, for example, also be retained, if an of absence)?' agreement were made to 'stretch' (eine 'Streckung') the wages and extend the period of paid leave. Furthermore, the rules in ques- tion represent, in the view of the national court, a reasonable and practicable classifica- II — Observations submitted to the Court tion, being modelled not only on the AFG but also on similar time-limits found in Ger- man statutory-sickness and pensions- insurance law.

13. Written and oral observations were sub- mitted on behalf of the plaintiff, the Federal Republic of Germany, the Kingdom of Spain, the Council and the Commission.

12. In the light of these considerations, the national court decided to refer the following questions to the Court: III — Analysis

reference, the national court also expressly movement for workers; to this end, it shall questions the compatibility of the result make arrangements to secure for migrant obtained from applying the Annex I rule, workers and their dependents: whereby certain economically active persons are excluded from entitlement to child ben- efit, with the requirements of Article 48(2) of the Treaty. Thus, even if the validity of the rule as such were upheld, the issue of the compatibility with the Treaty of the applica- (a) aggregation, for the purpose of acquiring tion of the B K G G would nevertheless have and retaining the right to benefit and of to be addressed. In this respect, it is note- calculating the amount of benefit, of all worthy that the rule in point I, C, (a) of periods taken into account under the Annex I merely defines, for the purposes of laws of the several countries; the grant of family benefits by a German institution, the meaning to be attributed to the expression 'employed person', and, con- sequently, the scope of the fictional residence principle. Accordingly, I do not think that its validity may be regarded in isolation from the question of the compatibility of Para- (b) payment of benefits to persons resident graph 2(5) of the B K G G with Article 48 of in the territories of Member States.' the Treaty, because it is the B K G G provision that establishes the German domicile or nor- mal residence requirement.

It has consistently been held that Article 51 provides for the coordination, rather than A — The scope and application of point I, the harmonization, of the legislation of the C of Annex I Member States. n Thus, the "... substantive and procedural differences between the social security systems of individual Member States, and hence in the rights of persons working in the Member States, are unaf- fected by Article 51 of the Treaty'. 12 Never- (i) Introduction theless, although Member States are free to determine the conditions of eligibility for social security benefits, those conditions must respect 'the principle of equal treat- ment [which] prohibits not only overt dis- 15. Article 51 of the Treaty empowers the crimination based on nationality but all Council to enact by unanimity: covert forms of discrimination which, by

16. Article 1(a) of the Regulation contains four ostensibly distinct definitions of the (ii) The autonomous application of expression 'employed person', which Article l(a)(i) together delineate the personal scope of the Regulation by reference to Article 2. , 4 Article l(a)(ii), second indent, alone makes specific reference to Annex I. This is one of two indents which, on their face, are expressly stated to be alternatives. 15 On a literal reading of the text, it is unclear whether a person who 'can be identified as 17. I shall, firstly, outline the textual

. . all ben- efits in kind or in cash intended to meet family expenses ance or comparable benefits'. This presents a under the legislation provided for in Article 4(l)(h), exclud- ing special childbirth allowances mentioned in Annex II'. choice of intellectual approaches which is a This has consistently been interpreted as covering a benefit paradigm of the contrast between the textual 'if it is granted to recipients without any individual and dis- cretionary assessment of personal needs on the basis of a and the purposive approaches frequently legally defined position and if it concerns one of the risks expressly Usted in Article 4(1) of [the Regulation]'; see, for example, Joined Cases C-245/94 and C-312/94 Hoever ami Zachów v Land Nordrhein-Westfalen [1996] ECR 1-4895 (hereinafter 'Hoever and Zachów'), paragraph 18 of the

used. Moreover, similar words arc used in other language ven in Case 388/87 Bestuur van de Nieuwe Algemene Bed- versions of the text. rijfsvereniging v Warmerdam-Steggerda [1989] ECR 1203.

19. The recent case-law of the Court dem- onstrates that the various alternative defini- 18. This was the approach adopted by the tions of the expressions 'employed person' Commission in its written observations. The and 'self-employed person' contained in Commission, supported by the Council, Article 1 (a) of the Regulation may not — at contended that, since the plaintiff remained least in so far as the application of Article 73 compulsorily insured in Germany under the of the Regulation is concerned — be con- RVO for three weeks following the com- strued in isolation from the specific provi- mencement of his unpaid leave in both of the sions of Annex I, which, it must be recalled, relevant years, he fell within the definition of is entided 'Persons Covered by the Regu- 'employed person' in Article l(a)(i) of the lation'. In particular, the Court has stressed Regulation during those parts of the leave, the need to ensure that the effet utile of the since the definition of an 'employed person' lex specialis found in Annex I calls for a com- under Article l(a)(i) is not subject to any bined reading of Article l(a)(ii) and point I, qualification comparable to that contained in C, (a) of that Annex, when applying the second indent of Article l(a)(ii). As the Article 73. plaintiff's three weeks of additional RVO insurance extended until 9 February 1986 and 1 February 1987 respectively, he would, therefore, be regarded as having satisfied the requirements of Paragraph 9(1) of the B K G G , and hence would be entitled to the 20. In effect, the definition of 'employed allowance for the entire duration of his person' is arrived at by reference to the unpaid leave. It is clear, however, as the specific, possibly narrower, range of compulsory or other insurance to which

an individual is subject in a particular case. regulation' 27 is of particular significance for In Hoever and Zachów 21 one of the ques- the present reference. Thus, the Court had tions referred concerned whether, 'where an no hesitation in holding that, before a employed person is subject to the legislation worker may be regarded (in Germany) as an of a Member State and lives with his or her 'employed person' under Article 73 of the family in another Member State, that per- Regulation, the criteria of point I, C of that son's spouse is entitled, under Article 73 [of Annex must be satisfied. 2S the Regulation], to receive a benefit such as child-raising allowance in the State of employment'. 22 The plaintiffs in the main proceedings (Ms Hoever and Ms Zachów) maintained that, as a family benefit, child- raising allowance should be paid 'to the spouse, residing abroad, of a person employed in Germany'. 2 3 In their appeal they had not, as was stated by the Court, disputed that 'they [were] not persons cov- ered by Regulation N o 1408/71 .

As other hand, Mr Hoever and Mr Zachów do the plaintiffs had taken out a voluntary pen- fulfil those criteria [and that] they are there- sion insurance (Mr Piosa Pereira being also fore covered by [the Regulation] and may apparently insured voluntarily against sick- consequently be regarded as employed per- ness), they both satisfied the definition of a sons within the meaning of Article 73 of that 'self-employed person' for the purposes of Article l(a)(i) of the Regulation. 30 The Court had to decide whether Article 73 of the Regulation should be interpreted as 21 — Judgment was given on 10 October 1996 prior to the oral covering only those applicants falling within hearing in the present case ([1996] ECR 1-4895). 22 — Sec paragraph 28 of the judgment. the definition of a 'self-employed person' 23 — Hoever and Zachów, paragraph 9 of the judgment. that results from a combined reading of 24 — Sec paragraph 29 of the judgment At paragraph 54 of his Opinion, Advocate General Jacobs referred to 'a possible argument that Mrs Hoever, who at the material rime was herself employed part-time in Germany, is entitled to invoke Article 73 in her own right'.

I - 3291

O P I N I O N O F MR F E N N E L L Y — CASE C-266/95

Article l(a)(ii) and Point I, C of Annex I to Annex I for German-granting institutions, the Regulation. and, secondly, the legislative history of point I, C, (b) of Annex 1. 35 'The coherence of the legislation', he felt, precluded the spe- cific scope ratione personae assigned by Annex I to the Regulation to the payment of family benefits by German authorities from being undermined by permitting 'access to such rights by another route'. 36

basis for purposes of the payment of family allowances. 35 — It was inserted by Article 56 of the 1981 Regulation and, as the final recital in the preamble to that Regulation demon- 32 — Sec paragraph 24 of the Opinion. strates, 'the legislature, felt it "necessary to stipulate (. . .) 33 — H e refers to the Opinion of Advocate General Gand in what tnc terms 'employed person' and 'self-employed per- Case 19/68 De Cicco v Landesversicherungsanstalt Schwa- son', introduced in [the Regulation], mean when the person ben [1968] ECR 473, describing the sphere of application of concerned is insured under a social security scheme which (what was then) the basic regulation, namely Regulation applies to all residents" .

I - 3292

MERINO GARClA v BUNDESANSTALT FÜR ARBEIT

other definitions of "self-employed person" B — The validity of the rule in point /, C, (a) set out in Article 1(a) in order to qualify for of Annex I German social security benefits, that would be tantamount to depriving the provision in the annex of all effectiveness'. 40

41 — See paragraph 25 of the judgment. 40 — Ibid., paragraph 32 of the judgment (emphasis added). 42 — Sec paragraph 21 of the judgment.

I - 3293

O P I N I O N O F MR FENNELLY — CASE C-266/95

case is, thus, readily distinguishable from States' set out in Annex V, and, more par- Pinna. The applicant is fully entitled to ben- ticularly, point B, (6) thereof in respect of efit pursuant to the B K G G in respect of his Germany. 45 The Court recognized in Pinna children residing in Spain, while he lives and that 'substantive and procedural differences works in Germany. In so far as he lost that between the social security systems of the benefit for the two relevant periods of individual Member States, and hence in the unpaid leave, this was the result of the rights of persons working in the Member BKGG, not Annex I to the Regulation. States, are unaffected by Article 51 of the Treaty'. 46 Accordingly, I think that the cur- rent text of point I, C, (a) of Annex I to the Regulation, which obviously constitutes a genuine — though clearly not an especially comprehensive — coordination measure, comes within the scope of the measures envisaged by Article 51 of the Treaty, and is not, at least on that basis, incompatible with that Article.

I - 3294

MERINO GARCÍA v BUNDESANSTALT FÜR ARBEIT

workers'. 47 As the Council aptly submitted that contained in the BKGG, because of its in the present case, the fact that claimants inherent tendency to disadvantage migrant like the plaintiff are not granted child ben- workers, is incompatible with Article 48 of efits does not result — at least not directly the Treaty. The Court's judgment in Pinna — from the application of the impugned rule stressed that the principle of equal treatment of Annex I but, rather, from the relevant of national and non-national workers, which provisions of the BKGG. Point I, C, (a) lies at the heart of Article 48, prohibits 'not merely defines the employed persons subject only overt discrimination based on national- to German legislation who may benefit from ity but all covert forms of discrimination fictional residence, the conduit for whose which, by applying other distinguishing cri- application is provided by Article 73. It is teria, in fact achieve the same result'. 49 Ger- not, therefore, in any way, causally con- many submits that the relevant provisions of nected with the BKGG residence require- the BKGG affect adversely both Germans ment. The 'disadvantage' affecting claimants and non-nationals whose children fail to sat- like the plaintiff flows directly from the pro- isfy the residence requirement. Indeed, the visions of the BKGG. denial of the benefit to Mr Stöber, a German national, in Stöber and Piosa Pereira illus- trates that the contention is not purely hypo- thetical. However, I am satisfied that the BKGG gives rise to covert discrimination. The national court has itself recognized that 'just as in the [Pinna] case, the problem of C — The BKGG and Article 48 of the Treaty children residing outside Germany arises essentially for migrant workers'. 5 0 However, irrespective of the statistical evidence, the

49 — Paragraph 23 of the judgment. The Court has recently for- mulated this principle in a case concerning a territorially restricted 'funeral payment' as follows: *... conditions 47 — Case 20/85 RovicUo v Landesversicherungsanstalt Schwa- imposed by national law must be regarded as indirectly dis- ben [1988] ECR 2805, paragraph 16 o f the judgment. criminatory where, although applicable irrespective of Point 15 permitted the German authorities only to take nationality, they affect especially migrant workers'; see Case account, for the purposes of determining occupational C-237/94 O'Flynn v Adjudication Officer [1996] invalidity pensions, of activities carried out that were sub- ECR 1-2617, paragraph 18 of the judgment (emphasis ject to compulsory insurance under German legislation. added). Thus, migrant workers, like Mr Roviello, who possessed a 50 — Indeed, in Stöber and Piosa Pereira, Advocate General La higher qualification from activities effected in another Member Sute (to wit, work as a tiler where such work Pergola referred (see footnote 30 to his Opinion) to certain could have led to a trade qualification in Italy) than that statistics regarding family allowances, which were repro- which he was able to claim Dased on his German activities duced in the report for the hearing in Case C-228/88 (he had also worked as a tiler in Germany, but this did not Bronzino [1990] ECR 1-531, at p. 1-536. They tended to entitle him to be regarded as a skilled worker under Ger- show that more than 17% of children of nationals of other man law), were disadvantaged. Member States residing in Germany and entitled to German family allowances lived abroad, whereas German citizens 48 — Stöber and Piosa Pereira, paragraph 37 of the Opinion. At whose children lived abroad accounted for only 0.3% of the hearing, counsel for Germany referred briefly to new those entitled to the allowance. In O'Flynn v Adjudication national rules which came into effect at the beginning of Officer, the Court held that it is not necessary to find that 1996. As regards the new regime, sec footnote 32 to my the impugned provision affects in practice 'a substantially Opinion of 24 October 1996 in Case C-59/95 Bastos Mon- higher proportion of migrant workers'; loc. cit., para- ana v Bundesanstalt für Arbeit [1997] ECR 1-1071. graph 21 of the judgment.

31. However, I do not think that the BKGG residence requirement can be justified. The national court expressed the view that the German measures represented a reasonable Accordingly, that law treats nationals who and practical classification and, moreover, have not exercised their right to free move- that their adverse consequences for workers ment and migrant workers differently, to the taking unpaid leave could readily be avoided. detriment of the latter, since it is primarily I cannot accept this view. Indeed, it seems to the latter's children who do not reside in the me that, if a national rule can be avoided territory of the Member State granting the with relative ease, the justification, if any, for benefits in question.' its application in the first place must, at least, be open to question. What is more, the mere fact that it may be avoided does not detract 51 — Sec the Opinion of Advocate General La Pergola in Stöber from the fact that, for the most part, it is and Piosa Pereira, paragraph 44, and paragraph 38 of the non-nationals who will be required to judgment in that case. The rationale, though sometimes explained by the Court in terms of obstacles to the exercise attempt to negotiate avoidance measures, of freedom of movement (see, for example, Bronzino, para- graph 12 of the judgment), remains essentially that such as the artificial device of wage- expressed by Advocate General Mancini in his Opinion in stretching agreements, with their employers, Pinna: 'the operation of the "residence" parameter differs according to the worker's nationality. In other words, the while workers whose children are resident in family unit of a person working in his country of origin is generally united whereas the migrant worker's family is Germany may take indefinite periods of generally separated'; Ioc. cit., [1986] ECR 1, at p. 11. See unpaid leave without losing their entitlement also paragraph 24 of the judgment in that case. 52 — Paragraphs 37 and 38 of the judgment. to the allowance.

'The practical function of the family allow- ance, its raison d'être we might say, is to pro- vide financial support to a worker for the expense he incurs in maintaining his own children. This function is, therefore, not, as 34. In the light of the above considerations, such, logically connected in any way with I am satisfied that there is no objective justi- the place of residence of those children, as it fication for applying a residence require- might be in the case of social security ben- ment, such as that contained in the BKGG, efits granted in the territory or serving some to child-benefit claims brought by Commu- other purpose, for which that factor might nity nationals who, like the plaintiff, have justifiably be taken into account. Indeed [...] exercised (and who are continuing to exer- it is when a worker's family is not living in cise) their Community-law rights under the same country as he is that the expense he Article 48 of the Treaty to take up and pur- must incur to maintain them is, presumably, sue paid employment in Germany. greater ... [and yet] it is in precisely that situ- ation that the full amount of benefit due to the family unit is unjustifiably limited by German legislation.'

D — The second question

33. In so far as Germany, at the hearing, sought to justify the BKGG as a child ben- efit operating as a generalized social benefit that takes account of the living conditions 35. The second question takes as its starting and subsistence needs of children resident in point an answer to the first question that

53 — Paragraph 47 of the Opinion. 54 — Paragraph 39 of the judgment.

point I, C, (a) is invalid. For the reasons demands of the claimant. Accordingly, I expressed above (see paragraphs 25 to 28), I think that they must bear in mind that most do not think that the subparagraph in ques- claimants will not necessarily be familiar tion is invalid. Nevertheless, it does not fol- with the relevant legislative provisions of low that the right of migrant workers resid- either the Member State of their employment ing in Germany to claim child benefit is or that of the residence of their children. In unlimited. The Court recognized in Stöber sum, the exercise by a claimant of rights and Piosa Pereira that Germany was entitled granted directly under Article 48 of the to apply the rules which 'are essential for the Treaty must not be rendered ineffective by purpose, in particular, of ensuring that ben- unreasonable administrative or evidential efits are in fact used for the upkeep of demands. dependent children and avoiding overlapping payments [and which] have been adopted by the Community legislator as regards the periods in question'. 55 It is clear that the Court had particularly in mind the provi- sions of Articles 73 and 75 of the Regulation. The reference does not provide any infor- mation in respect of whether family benefits are paid in Spain in respect of the plaintiff's children. It is clear from Article 75 of the Regulation that, if child benefit is paid (Article 75(1)), or payable but not yet claimed (Article 75(2)), in Spain, a claimant like the plaintiff is only entitled to claim from the relevant German institution any excess of the amount of the German over the comparable Spanish benefit. In view of the obvious difficulties faced by a granting insti- tution, such as the German Kindergeldkasse in the present case, in recovering benefits paid but not in fact due, I think that the claimant must bear the prima facie onus of 36. Finally, the right of a migrant worker establishing that he is not in receipt of nor claiming the right to equal treatment in entitled to receive child benefit in the Mem- respect of family benefits paid in his Member ber State where his children are resident. State of employment cannot be regarded as However, in view particularly of the obliga- unlimited in the case of unpaid leave. N o tion of cooperation between competent mere indefinite understanding with an authorities imposed by Article 84 of the employer should be allowed to have the Regulation, it follows that the appropriate effect of obliging the taxpayers of the Mem- authorities in the Member State of residence ber State of employment to bear the cost of of the worker may not make excessive providing family benefits to persons whose connection with that Member State may be little more than a fiction. The Council in its written observations refers to the acceptabil- ity of short periods of unpaid leave. At the hearing, counsel for the plaintiff cited by 55 — Paragraph 40 of the judgment. analogy Article 6 of Council Directive

68/360/EEC. 56 The plaintiff contended that, Court agreed with Advocate General Dar- since interruptions in residence for up to six mon that 'there is no necessary link between months can have no effect on the residence the right to employment benefit in the Mem- permit granted under that directive, unpaid ber State of origin and the right to stay in the leave for up to a similar period should like- host Member State'. 5S A migrant worker, wise have no effect on the right of the seeking employment, is in a different posi- worker to benefit from the equal treatment tion from one, like the plaintiff, who is in guaranteed by Article 48 of the Treaty. employment but seeking family benefit for his children resident in another Member State. In the first case, the facts are placed under review at any particular moment when the right to continued residence is chal- lenged. In the second, there is a need for a transparent and objective set of rules known in advance. O n the other hand, as regards a child-benefit applicant in the plaintiff's situ- ation, I think it is appropriate to take as the point of reference the German rules applied in this case and to say that such an applicant should not be deprived of benefit for a period during which he remained insured, albeit only for health benefit, in Germany. In my opinion, as long as a Community national, who has exercised his right to take up employment in another Member State, maintains a genuine and continuous employ- 37. I am not convinced that there is a useful ment relationship in the Member State where analogy between the exercise of rights of that employment was obtained, he remains residence guaranteed by Articles 48 and 52 of protected by Article 48. The onus of estab- the Treaty, on the one hand, and the right to lishing the continued subsistence of a genu- receive a social welfare benefit from a host ine and continuous employment relationship Member State on the other. The latter should be borne by the worker taking implies potential financial liability for the unpaid leave. However, in the final analysis, host Member State, not associated with the it must be for the national court, which alone former. In Antonissen, where the Treaty basis can be apprised of all the relevant facts, of the right of residence enjoyed by Com- finally to determine in each individual case munity nationals seeking employment in whether such a relationship subsists. other Member States was confirmed, 57 the

Point I, C, (a) of Annex I to Council Regulation (EEC) N o 1408/71 on the appli- cation of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community is not incompat- ible with Articles 48 and 51 of the Treaty. However, a national rule requiring, as a prerequisite to entitlement to child allowance, that the claimant's children be domiciled or normally resident in the Member State where the allowance is claimed, may not be applied in respect of workers who come within the scope of Article 48 of the Treaty and who, though on.unpaid leave, maintain a genuine and continuous employment relationship in that Member State, in so far as its applica- tion leads to a situation where such workers have no right to child allowance in respect of full calendar months included within extended periods of unpaid leave in circumstances where other workers whose children are resident in that Member State do have such a right. The competent authorities of the Member State where the claim is made are entitled to apply by analogy the Community-law rules that are essential to ensure, in particular, that the allowance claimed is in fact used for the upkeep of dependent children and to avoid the occurrence of overlapping pay- ments.

I - 3300