61977C0134
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 16 MARCH (
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)
Mr President,
Members of the Court,
1.
The Tribunal du Travail, Brussels, by a decision of 25 October 1977 submitted to the Court of Justice a request for an interpretation of Article 76 of Regulation No 1408/71 of the Council of 14 June 1971. That provision is as follows:
‘Entitlement to family benefits or family allowances under Articles 73 and 74 shall be suspended if, by reason of the pursuit of a professional or trade activity, family benefits or family allowances are also payable under the legislation of the Member State in whose territory the members of the family are residing.’
The plaintiff in the main action, Mr Ragazzoni, is employed in Belgium and has requested family allowances for his three dependent children who remain in Italy with their mother. The competent Belgian institution rejected his claim on the basis of the said Article 76 since the plaintiffs wife is also employed in Italy and thus, according to the institution, is entitled to claim family allowances in Italy for the children. It was argued against this view that, since the Italian legislation in force at the time when the dispute arose did not confer upon a mother the status of head of household unless she was separated from or abandoned by her husband, it excluded the right of the mother herself to receive family allowances for the children and continued to regard them as dependent on their father who was working abroad. I should like to observe that these arrangements, which are based upon Articles 1 and 3 of the Decree of the President of the Republic No 797 of 30 May 1955, have been accepted as an element of fact by the Belgian court in drafting the question submitted to the Court of Justice. I should like to add that, as the Tribunal du Travail, Brussels, has properly remarked, Mr Ragazzoni could not claim the payment of family allowances in Italy within the meaning of the said legislation, whereby family allowances are payable ‘to heads of household who are in the paid employment of other persons in the territory of the Republic’. Accordingly in this situation, on the basis of the Italian legislation in force until December of last year, the family allowances for the children of Mr and Mrs Ragazzoni, although paid by the competent Belgian institution, could in no wise be claimed in Italy.
2.
Let us now consider the purpose and meaning of Article 76 of Regulation No 1408/71. I think it is important to make three points in this connexion:
(a)
This article must be read in the context of Chapter VII of the regulation (‘Family benefits and family allowances for employed and unemployed persons’) and in conjunction above all with Article 73 which lays down that a worker subject to the legislation of a Member State other than France is entitled to the family benefits provided for by the legislation of the first Member State 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. It is clear that this provision embodies the principle to be applied whenever members of the family of a worker reside in a Member State other than that in which the work is performed. It should be noted that in the present case Article 73 fully corresponds to the position of Mr Ragazzoni whilst it cannot be applied to the situation of Mrs Ragazzoni who neither claims nor could claim family allowances for her husband, who is the sole member of the family abroad and who is clearly not dependent on her.
Article 76 constitutes an exception from Article 73; or more precisely it contains, as is expressly stated in the title, ‘rules of priority in cases of overlapping entitlement to family benefits or family allowances in pursuance of Articles 73 and 74 by reason of the pursuit of a professional or trade activity in the country of residence of the members of the family’.
(b)
I consider unfounded the argument advanced in the present case by the Belgian Government to the effect that Article 76 confers the sole power to grant family allowances on the State where the family of the migrant worker resides in every case in which a member of the family pursues a professional or trade activity in that State. This view is belied both by the title of Article 76, which I have just quoted, and which establishes that the article is in the nature of a provision against overlapping benefits, and by the circumstance that pursuit of a professional or trade activity in the State in whose territory the members of the family are residing is not by itself sufficient to bring about the suspension of the right conferred under Article 73 but that it is necessary in addition that the family allowances should be payable under the legislation of the latter State. I should further like to observe that the priority of the principle emerging from Article 73 is also reflected in the wording of Article 76 and in particular in the application of the concept of ‘suspension’ of the entitlement provided for in Article 73.
(c)
Likewise I consider unfounded the argument submitted in the present case by the Italian Government to the effect that Article 76 applies only if family benefits or allowances are payable, in the State where the members of the family reside, by reason of the pursuit of a professional or trade activity by the same migrant worker who is entitled to such benefits or allowances in another Member State. Let us disregard the rarity of the situation where one and the same person is employed simultaneously in two separate Member States and is able in both countries to acquire the right to payment of family allowances; it nevertheless remains that when Article 76 refers to ‘pursuit of a professional or trade activity’ without specifying by whom, in a context in which reference is made to the members of the family of the worker, it is certainly intended to cover the much more probable case of pursuit of a professional or trade activity by a member of the family of the worker. This view was also taken by the Administrative Commission on Social Security for Migrant Workers in an interpretative declaration given at point 3 of the minutes of the 143rd meeting of the Commission.
3.
At this point it is sufficient in order to reply to the question submitted by the Tribunal du Travail, Brussels, to emphasize the meaning of the second of the two conditions prescribed by Article 76 for the suspension of entitlement to family benefits or family allowances. I have already pointed out that the first of these conditions is that a member of the family unit should pursue a professional or trade activity in the Member State where the family resides. The second condition is that the family benefits or family allowances should be ‘payable’ under the legislation of that State. I do not consider it possible to concur in the plaintiff's view that the word ‘payable’ is to be understood as equivalent to ‘paid’; the condition in question is not so wide as to require the actual payment of the family benefits or family allowances. On the contrary I consider that, in order to hold that the family allowances are payable, the legislation of the State where the members of the family are residing must recognize the right to payment of the allowances to the person who works in that State, and, for the person concerned to be able to assert that right, all the conditions must in fact have been fulfilled.
4.
If this interpretation is correct I consider that it also helps to solve the problem created by the enactment in Italy of new rules concerning the right of the wife to receive family allowances for the children. I refer in particular to Article 9 of Law No 903 of 9 December 1977, which entered into force on 18 December 1977, in pursuance of which family allowances may as an alternative be paid to a working wife but in any case such allowances must be paid to the parent with whom the child resides if claims are submitted by both parents.
As this provision was enacted some three years after Mr Ragazzoni was first employed in Belgium and above all as the situation to which the Tribunal du Travail, Brussels, refers relates specifically to the Italian legislation preceding the said Law No 903 of 1977 it is possible for the purposes of this case to disregard the recent change in the law in Italy. Nevertheless I wish to observe that, on the basis of the provision referred to, the right to payment of family allowances arises, in the case of a woman married to a husband who works abroad and who in his turn is entitled to dependent child allowances, only where the employed wife, or perhaps both parents, submit a claim; no right whatever will arise if the claim for allowances is submitted by the father alone. Accordingly in the second case, for the purposes of Article 76 of Regulation No 1408/71 the family allowances are not payable to the employed mother within the meaning of the said Article 9 of Law No 903 of 1977.
5.
I accordingly suggest that the Court of Justice should reply to the question submitted by the Tribunal du Travail, Brussels, in terms of the following statement:
The suspension of the entitlement to family allowances for which provision is made in Article 76 of Regulation No 1408/71 is not applicable where the father works abroad in a Member State, whilst the mother is employed in the country where the other members of the family reside and has not in accordance with the legislation of the latter country acquired the right to the payment of family allowances, either because only the father is acknowledged as having the status of head of household or, in any case, because the conditions for conferring upon the mother the right to payment of the allowances have not been fulfilled.
(
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)	Translated from the Italian.