CELEX: 61982CJ0149
Social security
Family benefits after divorce

1 BY DECISION OF 5 MAY 1982 , WHICH WAS RECEIVED AT THE COURT ON 13 MAY 1982 , THE SOCIAL SECURITY COMMISSIONER REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS ON THE INTERPRETATION OF ARTICLES 1 ( F ), 73 AND 76 OF REGULATION 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 ) AND OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 , AS WELL AS ON THE VALIDITY OF THE LATTER ARTICLE .
2 THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF PROCEEDINGS PENDING BEFORE THE SOCIAL SECURITY COMMISSIONER BETWEEN STEPHANIE ROBARDS , A BRITISH NATIONAL RESIDING IN THE UNITED KINGDOM , AND THE INSURANCE OFFICER CONCERNING MRS ROBARDS ' S ENTITLEMENT TO FAMILY BENEFITS UNDER UNITED KINGDOM LEGISLATION IN RESPECT OF THE TWO OF HER CHILDREN OF WHOM SHE HAS CUSTODY .
3 MRS ROBARDS WAS MARRIED TO MR HUGH ROBARDS . THERE WERE THREE CHILDREN OF THE MARRIAGE . THE FAMILY LIVED IN IRELAND . IN 1978 THE SPOUSES SEPARATED AND MRS ROBARDS , ACCOMPANIED BY HER TWO YOUNGER CHILDREN , RETURNED TO THE UNITED KINGDOM WHERE SHE HAS BEEN AND CONTINUES TO BE IN PAID EMPLOYMENT . THE ELDEST CHILD REMAINED IN IRELAND WHERE MR ROBARDS CONTINUED TO RESIDE AND TO WORK . THE MARRIAGE WAS DISSOLVED BY A DECREE ABSOLUTE OF DIVORCE OF THE HIGH COURT IN ENGLAND DATED 3 JUNE 1982 . CUSTODY OF THE TWO YOUNGER CHILDREN WAS AWARDED TO THE MOTHER AND CUSTODY OF THE ELDEST TO THE FATHER WHO WAS , IN ADDITION , ORDERED TO PAY A SUM BY WAY OF MAINTENANCE FOR THE TWO YOUNGER CHILDREN .
4 ON HER RETURN TO THE UNITED KINGDOM MRS ROBARDS RECEIVED UNITED KINGDOM CHILD BENEFIT . AFTER THE DIVORCE MR ROBARDS CLAIMED PAYMENT OF CHILDREN ' S ALLOWANCES UNDER IRISH LEGISLATION WHICH WERE GRANTED TO HIM AS FROM 1 JULY 1980 . AS REGARDS THE TWO YOUNGER CHILDREN , RESIDING IN THE UNITED KINGDOM , THE ALLOWANCES WERE GRANTED PURSUANT TO ARTICLE 73 ( 1 ) OF REGULATION NO 1408/71 . FOLLOWING THAT DECISION , THE INSURANCE OFFICER WITHHELD UNITED KINGDOM CHILD BENEFIT FROM MRS ROBARDS . IN RESPECT OF THE TWO YOUNGER CHILDREN , THAT DECISION WAS BASED ON ARTICLE 73 ( 1 ) OF REGULATION NO 1408/71 AND ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 . HOWEVER , HE SUBSEQUENTLY CONCEDED THAT , BY VIRTUE OF THE PRINCIPLE LAID DOWN IN THE JUDGMENT OF THE COURT OF 19 FEBRUARY 1981 IN CASE 104/80 BEEK V BUNDESANSTALT FUR ARBEIT ( 1981 ) ECR 503 , THE PAYMENT OF THE UNITED KINGDOM BENEFIT SHOULD ONLY BE SUSPENDED UP TO THE AMOUNT OF THE IRISH ALLOWANCES PAID TO MR ROBARDS .
5 MRS ROBARDS APPEALED AGAINST THE DECISION TO SUSPEND PAYMENT OF UNITED KINGDOM BENEFIT IN RESPECT OF HER TWO YOUNGER CHILDREN .
6 WHEN THE MATTER WAS BROUGHT BEFORE THE SOCIAL SECURITY COMMISSIONER HE TOOK THE VIEW THAT MRS ROBARDS ' S RIGHT TO RECEIVE UNITED KINGDOM CHILD BENEFIT RAISED QUESTIONS OF COMMUNITY LAW . HE THEREFORE DECIDED TO STAY THE PROCEEDINGS AND TO REFER TO THE COURT A SERIES OF QUESTIONS RELATING TO THE PROVISIONS OF REGULATIONS NOS 1408/71 AND 574/72 AS TO FAMILY BENEFITS AND ALLOWANCES AND CONCERNING IN PARTICULAR :
( 1 ) THE INTERPRETATION OF THE TERM ' MEMBER OF THE FAMILY '  AS USED IN THE PROVISIONS OF REGULATION NO 1408/71 RELATING TO FAMILY BENEFITS ;
( 2)THE APPLICATION TO FAMILY BENEFITS PAYABLE UNDER ARTICLE 73 OF REGULATION NO 1408/71 OF RULES AGAINST THE OVERLAPPING OF BENEFITS CONTAINED IN
( A ) ARTICLE 76 OF REGULATION NO 1408/71 , AND
( B ) ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 ;
( 3)THE INTERPRETATION OF ARTICLE 73 OF REGULATION NO 1408/71 FOR THE PURPOSES OF THE APPLICATION OF THE RULE AGAINST THE OVERLAPPING OF BENEFITS CONTAINED IN ARTICLE 10 OF REGULATION NO 574/72 ;
( 4)THE VALIDITY OF ARTICLE 10 OF REGULATION NO 574/72 IN SO FAR AS IT OPERATES TO DEPRIVE A WORKER OF FAMILY BENEFITS TO WHICH HE WOULD BE ENTITLED UNDER NATIONAL LAW ALONE .
THE COMMUNITY REGULATIONS REFERRED TO IN THE QUESTIONS
7 BY VIRTUE OF ARTICLE 73 ( 1 ) OF REGULATION NO 1408/71 , FAMILY BENEFITS PROVIDED FOR BY THE LEGISLATION OF A MEMBER STATE ARE PAYABLE TO A WORKER ' ' FOR MEMBERS OF HIS FAMILY RESIDING IN THE TERRITORY OF ANOTHER MEMBER STATE , AS THOUGH THEY WERE RESIDING IN THE TERRITORY OF THE FIRST STATE ' ' . HOWEVER , THE RULE OF PRIORITY IN THE CASE OF OVERLAPPING BENEFITS LAID DOWN BY ARTICLE 76 OF REGULATION NO 1408/71 SUSPENDS THE RIGHT TO BENEFITS PAYABLE UNDER ARTICLE 73 ' ' IF , BY REASON OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY . . . BENEFITS . . . ARE ALSO PAYABLE UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE MEMBERS OF THE FAMILY ARE RESIDING ' ' . ON THE OTHER HAND , ARTICLE 10 ( 1 ) OF REGULATION NO 574/72 PROVIDES :
' ' ENTITLEMENT TO FAMILY BENEFITS OR FAMILY ALLOWANCES DUE UNDER THE LEGISLATION OF A MEMBER STATE , ACCORDING TO WHICH ACQUISITION OF THE RIGHT TO THOSE BENEFITS OR ALLOWANCES IS NOT SUBJECT TO CONDITIONS OF INSURANCE OR EMPLOYMENT , SHALL BE SUSPENDED WHEN DURING THE SAME PERIOD AND FOR THE SAME MEMBER OF THE FAMILY :
( A ) BENEFITS ARE DUE IN PURSUANCE OF ARTICLE 73 OR ARTICLE 74 OF ( REGULATION NO 1408/71 ). IF , HOWEVER , THE SPOUSE OF THE WORKER OR UNEMPLOYED WORKER REFERRED TO IN THOSE ARTICLES EXERCISES A PROFESSIONAL OR TRADE ACTIVITY IN THE TERRITORY OF THE SAID MEMBER STATE , THE RIGHT TO FAMILY BENEFITS OR FAMILY ALLOWANCES DUE IN PURSUANCE OF THE SAID ARTICLES SHALL BE SUSPENDED ; AND ONLY THOSE FAMILY BENEFITS OR FAMILY ALLOWANCES OF THE MEMBER STATE IN WHOSE TERRITORY THE MEMBER OF THE FAMILY IS RESIDING SHALL BE PAID , THE COST TO BE BORNE BY THAT MEMBER STATE .
( B ). . . ' '
8 IT IS CLEAR FROM THE SOCIAL SECURITY COMMISSIONER ' S DECISION MAKING THE REFERENCE TO THE COURT THAT , AS REGARDS THE RIGHT TO RECEIVE CHILD BENEFIT , IT IS NOT NECESSARY UNDER UNITED KINGDOM LEGISLATION THAT THE CLAIMANT SHOULD BE A WORKER OR BE ENGAGED IN ANY PROFESSIONAL OR TRADE ACTIVITY , SINCE THAT BENEFIT IS PAID TO THE PERSON WHO IS RESPONSIBLE FOR A CHILD IRRESPECTIVE OF     CONDITIONS OF INSURANCE OR EMPLOYMENT . THE FACT THAT SUCH BENEFIT IS PAYABLE CANNOT THEREFORE HAVE THE EFFECT OF CAUSING THE BENEFITS PAYABLE IN PURSUANCE OF ARTICLE 73 OF REGULATION NO 1408/71 TO BE SUSPENDED UNDER ARTICLE 76 OF THAT REGULATION . ON THE OTHER HAND , THE QUESTION REMAINS WHETHER UNDER ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 ENTITLEMENT TO THE AFORESAID BENEFIT MIGHT BE SUSPENDED IF , IN RESPECT OF THE SAME CHILDREN , BENEFITS WERE PAYABLE IN PURSUANCE OF ARTICLE 73 OF REGULATION NO 1408/71 AND THE DEROGATION PROVIDED FOR IN THE SECOND SENTENCE OF ARTICLE 10 ( 1 ) ( A ) WERE INAPPLICABLE .
9 IN THAT CONTEXT , THE QUESTIONS SUBMITTED BY THE SOCIAL SECURITY COMMISSIONER SEEK IN ESSENCE TO ASCERTAIN WHETHER THE FACT THAT FAMILY BENEFITS ARE PAYABLE IN PURSUANCE OF ARTICLE 73 OF REGULATION NO 1408/71 TO A WORKER IN RESPECT OF CHILDREN LIVING WITH THE DIVORCED SPOUSE , WHO WORKS IN ANOTHER MEMBER STATE , HAS THE EFFECT , BY VIRTUE OF THE RULES AGAINST THE OVERLAPPING OF BENEFITS LAID DOWN BY ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 , OF SUSPENDING FAMILY BENEFITS PAYABLE UNDER THE NATIONAL LEGISLATION OF THAT OTHER MEMBER STATE .
THE FIRST SENTENCE OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72
10 THE FIRST SENTENCE OF ARTICLE 10 ( 1 ) OF REGULATION NO 574/72 , WHICH CONTAINS THAT PROVISION FOR SUSPENSION , REFERS TO ARTICLE 73 OF REGULATION NO 1408/71 . THE EXPRESSION ' ' MEMBER OF THE FAMILY ' ' , MENTIONED IN THAT LATTER PROVISION , IS DEFINED BY ARTICLE 1 ( F ) OF THE LATTER REGULATION . THAT DEFINITION PRINCIPALLY REFERS TO THE NATIONAL LEGISLATION UNDER WHICH BENEFITS ARE PROVIDED .
11 SINCE THE GRANT OF FAMILY BENEFITS UNDER ARTICLE 73 OF REGULATION NO 1408/71 IS SUBJECT TO THE INTERPRETATION AND THE APPLICATION OF NATIONAL LEGISLATION , THE COMPETENT INSTITUTION OF ANOTHER MEMBER STATE IS NOT IN A POSITION TO DETERMINE WHETHER THE CONDITIONS FOR GRANTING SUCH BENEFITS ARE ALL SATISFIED . FOR THE PURPOSES OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 , THAT INSTITUTION MAY THEREFORE CONFINE ITSELF TO RECORDING THE FACT THAT THE COMPETENT INSTITUTION OF ANOTHER MEMBER STATE HAS , PURSUANT TO ARTICLE 73 OF REGULATION NO 1408/71 , GRANTED TO A WORKER , IN RESPECT OF THE SAME CHILD , FAMILY BENEFITS UNDER ITS OWN LEGISLATION .
12 THE REPLY TO BE GIVEN TO THE SOCIAL SECURITY COMMISSIONER MUST THEREFORE BE THAT THE PROVISION FOR SUSPENSION CONTAINED IN THE FIRST SENTENCE OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 MUST BE INTERPRETED AS MEANING THAT IT APPLIES WHENEVER THE INSTITUTION OF ANOTHER MEMBER STATE HAS IN FACT GRANTED FAMILY BENEFITS TO A WORKER IN RESPECT OF THE SAME CHILD , IN PURSUANCE OF ARTICLE 73 OF REGULATION NO 1408/71 , WITHOUT ITS BEING NECESSARY TO EXAMINE WHETHER ALL THE CONDITIONS FOR THE GRANT OF THOSE BENEFITS ARE SATISFIED UNDER THE LEGISLATION OF THAT OTHER MEMBER STATE .
13 IN THOSE CIRCUMSTANCES IT IS NO LONGER NECESSARY TO ANSWER THE QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 73 OF REGULATION NO 1408/71 AND OF THE TERM ' ' MEMBER OF THE FAMILY ' ' .
THE SECOND SENTENCE OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72
14 THE QUESTIONS SUBMITTED BY THE SOCIAL SECURITY COMMISSIONER THEN SEEK TO ASCERTAIN WHETHER THE DEROGATION PROVIDED FOR BY THE SECOND SENTENCE OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 COVERS THE CASE OF A DIVORCED SPOUSE .
15 THE PROVISION IN QUESTION , LIKE ARTICLE 76 OF REGULATION NO 1408/71 WHICH IS ALSO CONCERNED WITH AN INSTANCE OF THE OVERLAPPING OF FAMILY BENEFITS , SEEKS TO GIVE PRIORITY TO THE BENEFITS OF THE MEMBER STATE IN THE TERRITORY OF WHICH THE CHILDREN RESIDE AND IN WHICH ONE OF THE RECIPIENTS IN QUESTION PURSUES A PROFESSIONAL OR TRADE ACTIVITY . THE PROBLEM OF OVERLAPPING BENEFITS WHICH THE PROVISION IN QUESTION IS INTENDED TO RESOLVE IS NOT TO BE ANSWERED DIFFERENTLY ACCORDING TO WHETHER OR NOT THE MARRIAGE BOND STILL EXISTS BETWEEN THE TWO PARENTS WHO MIGHT , DEPENDING ON THE CASE , BE ENTITLED TO BENEFITS IN RESPECT OF THE SAME CHILD . IN VIEW OF THE PURPOSE OF THAT PROVISION , IT SHOULD NOT BE INTERPRETED IN A RESTRICTIVE MANNER .
16 THE INSURANCE OFFICER CONTENDED THAT THE CONCEPT ' ' SPOUSE ' '  SHOULD NOT BE INTERPRETED BROADLY SO AS TO COVER A DIVORCED SPOUSE , SINCE THIS COULD GIVE RISE TO DIFFICULTIES WERE THE DIVORCED SPOUSE TO REMARRY , AS SEVERAL MEMBER STATES MIGHT THEN BE IN A POSITION TO APPLY ARTICLE 73 OF REGULATION NO 1408/71 WITH THE RESULT THAT THERE MIGHT BE AN OVERLAPPING OF BENEFITS .
17 IN THE COUNCIL ' S VIEW THE INTENTION OF THE LEGISLATURE WAS TO COVER NOT MERELY THE DIVORCED SPOUSE BUT ANY PERSON , OTHER THAN A SPOUSE , HAVING THE LEGAL CUSTODY OF A CHILD , THE EXEPTIONAL CASES IN WHICH THAT PERSON IS NOT A SPOUSE BEING , BY AN OVERSIGHT , NOT EXPRESSLY MENTIONED BY THE PROVISION IN QUESTION .
18 MRS ROBARDS CLAIMED THAT A WIDE INTERPRETATION OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 IS NOT SUFFICIENT TO RESOLVE ALL THE DIFFICULTIES WHICH MIGHT EXIST IN THE CASE OF DIVORCE AS REGARDS FAMILY BENEFITS , FOR EXAMPLE IN THE CASE OF UNEMPLOYMENT . SHE SUGGESTED THAT THE REPLY TO BE GIVEN TO THE QUESTIONS SUBMITTED SHOULD BE THAT ARTICLES 73 AND 76 OF REGULATION NO 1408/71 AND ARTICLE 10 OF REGULATION NO 574/72 CANNOT IN ANY EVENT HAVE THE EFFECT OF DEPRIVING THE MEMBERS OF AN AUTONOMOUS FAMILY UNIT , OF WHICH THE WORKER DOES NOT FORM PART , OF BENEFITS TO WHICH THEY ARE ENTITLED UNDER THE LEGISLATION OF THE MEMBER STATE IN WHICH THEY RESIDE .
19 HOWEVER , THE TASK ASSIGNED TO THE COURT BY ARTICLE 177 OF THE EEC TREATY IS NOT THAT OF DELIVERING OPINIONS ON GENERAL OR HYPOTHETICAL QUESTIONS BUT OF ASSISTING IN THE ADMINISTRATION OF JUSTICE IN THE MEMBER STATES . IN THIS CASE , THEREFORE , THE INTERPRETATION OF THE PROVISION IN QUESTION SHOULD BE CONFINED TO THE CASE WHICH IS BEFORE THE NATIONAL COURT , NAMELY THAT OF A DIVORCED SPOUSE WHO HAS NOT REMARRIED AND IS CARRYING ON A PROFESSIONAL OR TRADE ACTIVITY . IT WOULD BE FOR THE COMMISSION AND THE COUNCIL TO TAKE THE NECESSARY MEASURES IN ORDER TO AMEND THE PROVISION IN QUESTION IF IT APPEARED THAT SUCH AN AMENDMENT WERE NECESSARY IN ORDER TO ENABLE OTHER CASES TO BE SATISFACTORILY RESOLVED .
20 THE REPLY TO BE GIVEN THEREFORE TO THE SOCIAL SECURITY COMMISSIONER IS THAT THE SECOND SENTENCE OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 MUST BE INTERPRETED AS MEANING THAT IT APPLIES TO A DIVORCED SPOUSE .
21 IN VIEW OF THAT REPLY THERE IS NO NEED TO ANSWER THE FOURTH QUESTION RELATING TO THE VALIDITY OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 WHICH WAS SUBMITTED IN THE EVENT OF THAT PROVISION ' S HAVING THE EFFECT OF DEPRIVING THE DIVORCED SPOUSE OF ENTITLEMENT TO FAMILY BENEFITS TO WHICH THAT SPOUSE WOULD BE ENTITLED UNDER NATIONAL LAW ALONE .
Decision on costs
COSTS
22 THE COSTS INCURRED BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS 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 QUESTIONS REFERRED TO IT BY THE SOCIAL SECURITY COMMISSIONER BY DECISION OF 5 MAY 1982 , HEREBY RULES :
1 . THE PROVISION FOR SUSPENSION CONTAINED IN THE FIRST SENTENCE OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 MUST BE INTERPRETED AS MEANING THAT IT APPLIES WHENEVER THE INSTITUTION OF ANOTHER MEMBER STATE HAS IN FACT GRANTED FAMILY BENEFITS TO A WORKER IN RESPECT OF THE SAME CHILD , IN PURSUANCE OF ARTICLE 73 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 , WITHOUT ITS BEING NECESSARY TO EXAMINE WHETHER ALL THE CONDITIONS FOR THE GRANT OF THOSE BENEFITS ARE SATISFIED UNDER THE LEGISLATION OF THAT OTHER MEMBER STATE .
2 . THE SECOND SENTENCE OF ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 MUST BE INTERPRETED AS MEANING THAT IT APPLIES TO A DIVORCED SPOUSE .