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.