CELEX: 61987CJ0269
Reference for a preliminary ruling
Regulation Nº 1408/71
Orphan's pension

Grounds
1 By an order of 7 July 1987, received at the Court on 8 September 1987, the Bayerisches Landessozialgericht ( Bavarian Higher Social Court ) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 44 ( 3 ) and Article 48 ( 1 ) of Council Regulation No 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 codified in Council Regulation No 2001/83 of 2 June 1983, Official Journal 1983, L 230, p . 6 ).
2 That question was raised in proceedings between the son of a migrant worker who died on 30 August 1974 in the Federal Republic of Germany and the Landesversicherungsanstalt ( Regional Insurance Office ) Schwaben, hereinafter referred to as "the Landesversicherungsanstalt", which refused to continue to pay him the full orphan' s pension when he transferred his residence to Italy in July 1975 .
3 The Landesversicherungsanstalt based its decision on Article 78 ( 2 ) ( b ) ( i ) of Regulation No 1408/71, according to which where, as in this case, the deceased insured person was subject to the legislation of several Member States, the competent authorities of the Member State in which the orphan resides are obliged to pay orphans' benefits .
4 However, the Italian authorities refused to pay the pension in question in view of Article 48 ( 1 ) of Regulation No 1408/71, according to which the competent institution of a Member State is not bound to award benefits if the total length of the periods of insurance or residence completed under the legislation of that Member State does not amount to one year and if under that legislation no right to benefit is acquired by virtue only of those periods .
5 Taking the view that as a result of that refusal the German authorities were under an obligation to pay him the full orphan' s pension from 1975 onwards, Mr Ventura brought an action, first before the Sozialgericht ( Social Court ) Augsburg and subsequently before the Bayerisches Landessozialgericht, for the annulment of the decision taken by the Landesversicherungsanstalt in 1975 .
6 However, since the Landesversicherungsanstalt claimed that the Italian authorities' decision was unfounded, on the ground that the application of Article 48 ( 1 ), on which the decision was based, was formally excluded as regards orphans' pensions by Article 44 ( 3 ) of Regulation No 1408/71, the Bayerisches Landessozialgericht decided to refer the following question to the Court for a preliminary ruling :
"Must Article 44 ( 3 ) of Regulation ( EEC ) No 1408/71 of the Council of 14 June 1971 be interpreted as meaning that orphans' benefits within the meaning of Article 79 of the regulation must be provided to an orphan residing in Italy without application of Article 48 ( 1 ) of the regulation if the insured person has in fact completed in Italy alone an insurance period of less than 12 months ( Article 48 ( 1 ) of Regulation No 1408/71 ) but meets the qualifying period requirement and other requirements of Italian law once regard is had to periods completed in other Member States?"
7 Reference is made to the Report for the Hearing for a fuller account of the facts and the relevant legal provisions, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
8 Article 48 ( 1 ) of Regulation No 1408/71, which covers cases in which the total length of the periods of insurance or residence completed under the legislation of a Member State does not amount to one year, forms part of Chapter 3 of the regulation "Old-age and death ( pensions )".
9 Article 44, which is the first article in Chapter 3 of the regulation, provides that Chapter 3 does not apply to orphans' pensions granted in accordance with the provisions of Chapter 8 .
10 It follows that the provisions of Chapter 3 of the regulation, which include Article 48 ( 1 ), do not apply to orphans' pensions unless express reference is made to them in the provisions of Chapter 8, which deals with benefits payable to orphans, in particular orphans' pensions other than those granted under insurance schemes for accidents at work and occupational diseases .
11 Since Chapter 8 makes no reference to Article 48 ( 1 ), the latter provision does not apply to the orphans' benefits referred to in the question on which a preliminary ruling is requested .
12 That interpretation ought to enable the national court to decide the case before it in so far as it appears from the wording of the question that the doubt underlying it relates not to the interpretation of Article 78 ( 2 ) ( b ) ( i ) and Article 79 ( 1 ) ( a ) of Regulation No 1408/71, under which the Member State in which the orphan resides must pay the orphan' s pension where, as in this case, the deceased insured person was subject to the legislation inter alia of that Member State, but to the interpretation of Article 48 ( 1 ) of that regulation, which, if it applied in this case, would release the authorities of the Member State in which the orphan resides from the obligation set out in the provisions mentioned above .
13 However, in addition to that interpretation some guidance derived from the case-law of the Court may be useful to the national court .
14 In the first place, according to the interpretation of the provisions of Chapter 8 of Regulation No 1408/71 given by the Court in its judgments of 9 July 1980 in Case 807/79 Gravina (( 1980 )) ECR 2205 and of November 1983 in Case 320/82 D' Amario (( 1983 )) ECR 3811, which the defendant in the main proceedings sought to apply by a new decision of 2 March 1984, where a deceased father was subject to the legislation of more than one Member State, entitlement to an orphan' s pension acquired under the legislation of the Member State which is competent according to those provisions does not extinguish entitlement to higher orphans' benefits under the legislation of another Member State alone . Where the amount of the benefits which were actually received or should have been received in the first Member State is less than that of the benefits provided for by the legislation of the other Member State alone, the orphan is entitled to a supplement from the competent institution of the latter State equal to the difference between the two amounts .
15 Secondly, as the Court has consistently held, in particular in the judgment of 27 March 1980 in Joined Cases 66, 127 and 128/79 Amministrazione delle finanze v Meridionale Industria Salumi (( 1980 )) ECR 1237, the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the EEC Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force . It follows that the rule as thus interpreted may, and must, be applied even to legal relationships arising and established before the judgment ruling on the request for interpretation .
16 It follows from the foregoing that the orphan' s pension must be paid by the authorities of the Member State in which the person concerned resides and the supplementary pension must be paid by the authorities of the Member State in which the orphan acquired pension rights as from the date on which the orphan took up residence in the territory of the former State .
17 Having regard to the wording of the preliminary question, it should be stated in reply to the national court that Article 44 ( 3 ) of Regulation No 1408/71 must be interpreted as meaning that orphans' pensions are governed solely by the provisions of Chapter 8 thereof, supplemented, if necessary, by the provisions of the other chapters to which Chapter 8 expressly refers .
Decision on costs
Costs
18 The costs incurred by the Government of the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings 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 ( Third Chamber ),
in answer to the question referred to it by the Bayerisches Landessozialgericht, by order of 7 July 1987, hereby rules :
Article 44 ( 3 ) of Regulation No 1408/71 must be interpreted as meaning that orphans' pensions are governed solely by the provisions of Chapter 8 thereof, supplemented, if necessary, by the provisions of the other chapters to which Chapter 8 expressly refers .