1.

On 6 March 1981 Mrs Johanna W. H. Kromhout, a Netherlands national, divorced Mr Thomas Beelitz, a German national. Mr and Mrs Beelitz, who lived together in Germany, had separated in January 1980 and Mrs Kromhout returned to the Netherlands in order to settle there with the two children of the marriage who were born on 18 May 1973 and 3 December 1979 respectively. From the second quarter of 1980 onwards Mrs Kromhout obtained family allowances in respect of her two children under the Netherlands Algemene Kinderbijslagwet [General Law on Family Allowances] and, in particular, Articles 6 and 7 thereof which lay down conditions relating to residence as regards the recipient and relating to age as regards the children. For his part, Mr Beelitz, who continued to live and work in the Federal Republic of Germany, received family allowances there in respect of the same children for the same period under Article 73 of Regulation (EEC) No 1408/71 of 14 June 1971 which provides that: ‘an employed person subject to the legislation of a Member State other than France shall be entitled to the family benefit 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’, even though the German Bundeskindergeldgesetz [Federal Law on Child Allowances] excludes in principle from its field of application children not residing in the Federal Republic of Germany. In the divorce proceedings, Mr Beelitz was ordered to pay maintenance to his former wife and to make a contribution towards the cost of providing for and bringing up the two children of some HFL 200 per child per month. It is uncertain whether that sum was fixed having regard to other family allowances or family benefits. In any event, as from the second quarter of 1982, Mrs Kromhout was refused payment of the full family allowances by the Raad van Arbeid [Labour Council], Leiden, the competent authority for the award and payment of such benefits. In its decision, which was notified on 7 October 1982, the Raad van Arbeid refers to the provisions of Article 6 of the Algemene Kinderbijslagwet in conjunction with those of Article 73 of Regulation No 1408/71 and of Article 10 of Regulation (EEC) No 574/72 of 21 March 1972. Article 6 (1) of the Algemene Kinderbijslagwet provides that: ‘(1) Any person who has reached the age of 15 shall be insured for the purposes of this law provided that he or she (a) is resident in the Netherlands; (b) is not so resident but is liable to income tax by virtue of an occupation pursued as an employed person in the Netherlands.’ The first sentence of Article 10 (1) (a) of Regulation No 574/72 provides that: ‘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, employment or self-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 74 of the regulation ... ’. The Raad van Arbeid decided that as from the second quarter of 1982 Mrs Kromhout was to be ‘entitled to family allowances under Netherlands law in respect of her two children only in so far as those allowances exceed the family allowances under German law’. In one of the grounds for its decision the Raad van Arbeid stated that the Netherlands family allowances were higher than the German family allowances. As regards the preceding period, Mrs Kromhout was not required to repay the sums which she had already received, on the ground that she could not reasonably have known that the amount paid to her was excessive. Since Mr Beelitz did not pay over to Mrs Kromhout the allowances which he received, the competent Netherlands authority attempted to secure from its German counterpart payment direct to the Netherlands of the allowances paid in the Federal Republic of Germany. That request was turned down on the ground that payment to a person other than the recipient was impossible since Mr Beelitz was complying with the maintenance obligations imposed on him by a judicial decision. On 15 November 1982 Mrs Kromhout brought an action challenging that decision before the Raad van Beroep [Social Security Court], The Hague, for a declaration that she was entitled to the full Netherlands family allowances in respect of her two children. That court was the first to put certain questions to the parties concerning the scope ratione personae of Community Regulations Nos 1408/71 and 574/72. Having regard to the fact that Mrs Kromhout was entitled in her own right to family allowances under the Algemene Kinderbijslagwet and that she was not a person covered by the relevant Community regulations, the Raad van Beroep sought guidance on the scope of those regulations and on whether they could affect a right acquired under national legislation alone. In the light of the observations submitted by the parties in the course of the main proceedings, the national court referred to the Court of Justice the following four questions for a preliminary ruling: ‘(1) Is it sufficient for the application of the first sentence of Article 10 (1) (a) of Regulation (EEC) No 574/72 that the child in respect of whom family allowances are paid (as a member of the family) is a person covered by the relevant regulations, or must all those who are entitled to family allowances pursuant to national law or to whom family allowances are paid be persons covered by those regulations? (2) If the answer to Question 1 is that it is not necessary for all those who are entitled to family allowances or to whom family allowances are paid to be persons covered by the relevant regulations, does it follow that under the first sentence of Article 10 (1) (a) of Regulation (EEC) No 574/72 family allowances due exclusively under national law to an insured person who is not a person covered by those regulations can or may be suspended? (3) May family allowances that are due exclusively under national law in respect of a member of the family who, by virtue of another legal system, is a person covered by the relevant regulations be suspended by the application of the first sentence of Article 10 (1) (a) of Regulation (EEC) No 574/72? (4) Is Article 10 (1) of Regulation (EEC) No 574/72 applicable in relation to legislation such as the Netherlands Algemene Kinderbijslagwet, under which the right to family allowances is subject to the condition of insurance, if such insurance exists by virtue of residence alone?’ In other words the Raad van Beroep is asking the Court: (1) whether, in order to apply the rule against overlapping benefits which was referred to earlier, not only the person for whom the benefits are paid (in this case the child) but also all the recipients to whom the benefits are or may be paid (in this case both parents) must fall within the scope of the relevant Community regulations (Question No 1); (2) if that second condition is unnecessary, whether the rule against overlapping benefits is valid as against: (a) a recipient who has acquired entitlement under national legislation alone and who is not a person covered by those regulations (Question No 2); (b) a recipient who has acquired entitlement under national legislation alone, but by virtue of a member of the family who is a person covered by those regulations (Question No 3); (3) finally, how are the ‘conditions of insurance’ referred to in Article 10 to be interpreted (Question No 4)?