Opinion of the Advocate General — ECLI:EU:C:1997:435
Date: 1997-09-25
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment
1. Social security for migrant workers — Orphans' benefits — Benefits payable by the State in
which the recipient resides — Entitlement to benefits having come to an end by reason of an
age-limit — Acquisition, through application of the rule on aggregation, of entitlement to
benefits in another Member State — None
(Council Regulations Nos 1408/71, Art. 78(2)(b), and 2001/83)
2. Sodai security for migrant workers — Community rules — Replacing social security conven­
tions concluded between Member States — Limit — Replaced because more advantageous for
the person concerned — Subsequent calling into question — Not permissible
(EC Treaty, Arts 48 and 51; Council Regulation No 1408/71)
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SUMMARY — CASE C-113/96
1. On a proper construction of Article
78(2)(b) of Regulation No 1408/71, as
amended and updated by Regulation No
2001/83, Article 78(2)(b)(ii) does not
become applicable in circumstances
where a right to orphans' pension, which
initially arose under Article 78(2)(b)(i) in
the Member State in which the recipient
resides, has been lost by reason of the
attainment of an age-limit, while in
another Member State, whose legislation
was also applicable to the insured person,
a right to orphans' pension would run
beyond that date on application of the
rule on aggregation laid down in Article
79 of the regulation.
2. Articles 48 and 51 of the Treaty preclude
the loss of social security advantages for
workers which would result from the
inapplicability, following the entry into
force of Regulation No 1408/71, of a
bilateral social security convention. How­
ever, that principle cannot apply in so far
as, when the benefits are set under the
regulation for the first time, a comparison
has already been made of the advantages
resulting from the regulation and the con­
vention, respectively, whose outcome was
that it was more advantageous to apply
the regulation than the convention.
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