CELEX: 61979CJ0807
Migrant workers
orphans' pensions

1 BY ORDER OF 25 OCTOBER 1979 , WHICH WAS RECEIVED AT THE COURT ON 28 NOVEMBER 1979 , THE SOZIALGERICHT AUGSBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 78 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THOSE QUESTIONS HAVE BEEN PUT IN THE CONTEXT OF A DISPUTE BETWEEN THE LEGITIMATE CHILDREN OF AN ITALIAN NATIONAL , WHO DIED ON 6 JULY 1973 IN THE FEDERAL REPUBLIC OF GERMANY WHERE HE HAD COMPLETED 141 MONTHS OF CONTRIBUTIONS UNDER THE GERMAN INVALIDITY AND OLD-AGE INSURANCE SCHEMES AFTER PREVIOUSLY COMPLETING 42 MONTHS UNDER THE ITALIAN SCHEME , AND THE COMPETENT GERMAN INSTITUTION WHICH , ON THE MOTHER ' S TRANSFERRING THE FAMILY RESIDENCE TO ITALY IN MAY 1974 , CEASED TO PAY THEM THE ORPHAN ' S PENSIONS WHICH THEY HAD BEEN AWARDED UNDER GERMAN LAW ALONE AND WHICH HAD BEEN PAID TO THEM IN THE FEDERAL REPUBLIC OF GERMANY WHILST THEY WERE STILL RESIDENT THERE AFTER THEIR FATHER ' S DEATH .
THE INSTITUTION , THE DEFENDANT IN THE MAIN ACTION , REFUSED TO CONTINUE TO PAY THE SAID PENSIONS ONCE THEY HAD LEFT TO RESIDE IN ITALY ON THE GROUND THAT UNDER ARTICLE 78 OF REGULATION NO 1408/71 THE GRANTING OF SUCH PENSIONS WAS THE RESPONSIBILITY OF THE INSTITUTION OF THE STATE IN WHOSE TERRITORY THE ORPHANS RESIDE .
3 THE SAID ARTICLE , AS AMENDED BY REGULATION ( EEC ) NO 2864/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 31 DECEMBER ), P . 15 ( ORIGINAL REFERENCE L 306 , P . 1 ) PROVIDES THAT THE SAID PENSION SHALL BE GRANTED . . .
' ' ( I ) IN ACCORDANCE WITH THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE ORPHAN RESIDES PROVIDED THAT , TAKING INTO ACCOUNT , WHERE APPROPRIATE , THE PROVISIONS OF ARTICLE 79 ( 1 ) ( A ) A RIGHT TO ONE OF THE BENEFITS REFERRED TO IN PARAGRAPH ( 1 ) IS ACQUIRED UNDER THE LEGISLATION OF THAT STATE . . . ' ' .
4 IN VIEW OF THIS PROVISION AND THE FACTS OF THE CASE - INVOLVING A REFUSAL TO CONTINUE PAYMENT TO ORPHANS WHO HAVE TRANSFERRED THEIR RESIDENCE TO A MEMBER STATE WHERE THEY ARE IN A POSITION TO ENJOY OTHER BENEFITS OF THE SAME KIND - THE SOZIALGERICHT AUGSBURG REFERRED TO THE COURT THE FOLLOWING QUESTIONS :
' ' 1 . IN THE EVENT OF THE RESIDENCE OF ORPHANS BEING TRANSFERRED TO ANOTHER MEMBER STATE DOES ARTICLE 78 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 HAVE THE EFFECT OF ENABLING THE COMPETENT INSTITUTION OF A MEMBER STATE TO WITHDRAW BENEFITS , WITHIN THE MEANING OF ARTICLE 78 ( 1 ) OF THE REGULATION , WHICH HAVE ALREADY BEEN DULY     AWARDED IN THAT MEMBER STATE IF , WHEN THE BENEFITS WERE AWARDED FOR THE FIRST TIME PURSUANT TO ARTICLE 78 ( 2 ) OF THE REGULATION , THE INSTITUTION OF THAT OTHER MEMBER STATE WAS THE COMPETENT INSTITUTION?
2 . IF SUCH IS THE CASE , IS WITHDRAWAL JUSTIFIED EVEN WHERE ENTITLEMENT TO BENEFITS WITHIN THE MEANING OF ARTICLE 78 ( 1 ) OF REGULATION NO 1408/71 IS CONFERRED BY NATIONAL LAW ALONE?
' '
5 THOSE TWO QUESTIONS TOGETHER RAISE THE ISSUE , IN REGARD TO ARTICLE 78 ( 2 ) ( B ) ( I ), OF THE EFFECT OF A TRANSFER OF RESIDENCE FROM ONE MEMBER STATE TO ANOTHER OF ORPHANS WHO ARE IN RECEIPT OF BENEFITS DERIVED FROM A DECEASED WORKER WHO WAS SUBJECT TO THE LEGISLATION OF THE TWO MEMBER STATES OF RESIDENCE .
6 IN ORDER TO SETTLE THE ISSUE , IT IS IMPORTANT TO PLACE THE PROVISION OF WHICH THE INTERPRETATION IS SOUGHT IN THE CONTEXT OF ARTICLE 51 OF THE TREATY WHICH REQUIRES THE COUNCIL TO ADOPT SUCH MEASURES IN THE FIELD OF SOCIAL SECURITY AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS . THE AIM OF ARTICLE 51 WOULD NOT BE ACHIEVED IF , AS A RESULT OF THE EXERCISE OF THEIR RIGHT TO FREEDOM OF MOVEMENT , WORKERS WERE TO LOSE THE SOCIAL SECURITY ADVANTAGES GUARANTEED TO THEM , IN ANY EVENT , BY THE LEGISLATION OF A SINGLE MEMBER STATE .
7 THE REGULATIONS ON SOCIAL SECURITY FOR MIGRANT WORKERS 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 RELATING , IN PARTICULAR , TO THE LIFTING OF CONDITIONS OF RESIDENCE . IN ITS JUDGMENT OF 6 MARCH 1979 IN CASE 100/78 ROSSI V CAISSE DE COMPENSATION POUR ALLOCATIONS FAMILIALES ( 1979 ) ECR 831 THE COURT STATED , MOREOVER , THAT ' ' THE COMMUNITY RULES COULD NOT , IN THE ABSENCE OF AN EXPRESS EXCEPTION CONSISTENT WITH THE AIMS OF THE TREATY , BE APPLIED IN SUCH A WAY AS TO DEPRIVE A MIGRANT WORKER OR HIS DEPENDANTS OF THE BENEFIT OF A PART OF THE LEGISLATION OF A MEMBER STATE ' ' . NOR MAY THOSE RULES BRING ABOUT A REDUCTION IN THE BENEFITS AWARDED BY VIRTUE OF THAT LEGISLATION . REGULATION NO 1408/71 , IN LAYING DOWN RULES     FOR THE CO-ORDINATION OF THE VARIOUS NATIONAL LAWS , IS INSPIRED IN FACT BY THE FUNDAMENTAL PRINCIPLE THAT THE SAID RULES MUST GUARANTEE WORKERS MOVING WITHIN THE COMMUNITY THE ENTIRETY OF BENEFITS ACQUIRED IN THE DIFFERENT MEMBER STATES UP TO THE LIMIT OF THE GREATEST AMOUNT OF THOSE BENEFITS .
8 IN ACCORDANCE WITH THOSE PRINCIPLES , THEREFORE , THE PROVISIONS OF ARTICLE 78 ( 2 ) OF REGULATION NO 1408/71 MAY NOT BE INTERPRETED IN SUCH A WAY THAT , BY THE SUBSTITUTION OF BENEFITS PROVIDED BY THE NEW STATE OF RESIDENCE FOR THE BENEFITS PREVIOUSLY ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ALONE , THE ORPHANS OF A DECEASED WORKER WHO WAS SUBJECT TO THE LEGISLATION OF MORE THAN ONE MEMBER STATE ARE PREVENTED FROM RECEIVING THE GREATEST AMOUNT OF THOSE BENEFITS . WHERE , THEREFORE , THE RESIDENCE OF THE ORPHANS IS TRANSFERRED TO THE TERRITORY OF A MEMBER STATE WHERE AN ENTITLEMENT TO BENEFITS IS ACQUIRED BY THEM UNDER THE LEGISLATION OF THAT STATE , IT IS NECESSARY TO COMPARE THE AMOUNT OF THE BENEFITS ACTUALLY RECEIVED WITH THE ACTUAL AMOUNT OF THE BENEFITS WHICH THEY WOULD HAVE CONTINUED TO RECEIVE IN THE OTHER MEMBER STATE AND , IF THE AMOUNT OF THE NEW BENEFITS IS LESS THAN THAT OF THE BENEFITS PREVIOUSLY ACQUIRED , TO ACKNOWLEDGE THE ORPHANS TO BE ENTITLED , AS AGAINST THE COMPETENT INSTITUTION OF THE OTHER MEMBER STATE WHERE THE ENTITLEMENT TO THE GREATER AMOUNT WAS ACQUIRED , TO SUPPLEMENTARY BENEFITS EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS .
9 THAT ANSWER ALLOWS THE ISSUE RAISED BY THE TWO QUESTIONS SUBMITTED BY THE SOZIALGERICHT AUGSBURG TO BE RESOLVED .
Decision on costs
10 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE ITALIAN GOVERNMENT , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE SOZIALGERICHT AUGSBURG BY ORDER OF 25 OCTOBER 1979 , HEREBY RULES :
ARTICLE 78 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 MUST BE INTERPRETED AS MEANING THAT THE ENTITLEMENT TO BENEFITS PAYABLE BY THE STATE IN WHOSE TERRITORY THE ORPHAN TO WHOM THEY HAVE BEEN AWARDED RESIDES DOES NOT REMOVE THE ENTITLEMENT TO BENEFITS GREATER IN AMOUNT PREVIOUSLY ACQUIRED UNDER THE LEGISLATION OF 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 LEGISLATION OF THE OTHER MEMBER STATE ALONE THE ORPHAN IS ENTITLED TO SUPPLEMENTARY BENEFITS , PAYABLE BY THE COMPETENT INSTITUTION OF THE LATTER STATE , EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS .