Judgment of the Court (Second Chamber) of 5 December 1989. - Patrick Delbar v Caisse d'allocations familiales de Roubaix-Tourcoing. - Reference for a preliminary ruling: Tribunal des affaires de sécurité sociale de Lille - France. - Social security - Family allowances for self-employed persons. - Case C-114/88.



European Court reports 1989 Page 04067



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Social security for migrant workers - Family benefits - Self-employed person subject to the legislation of a Member State - Members of his family residing in another Member State - Entitlement to the benefits provided for by the legislation to which the self-employed person is subject - Basis - Article 73 of Regulation No 1408/71, as amended, to the exclusion of Article 51 of the Treaty

( EEC Treaty, Article 51; Regulation No 1408/71 of the Council, Article 1(u)(ii ) and Article 73, as amended by Regulation No 3427/89 )

Summary

Since it relates only to employed persons, Article 51 of the Treaty does not require a Member State on whose territory a self-employed person works to pay family allowances within the meaning of Article 1(u)(ii ) of Regulation No 1408/71 if the members of the person' s family reside in another Member State .

However, with effect from 15 January 1986, in accordance with Article 73 of Regulation No 1408/71 as amended by Regulation No 3427/89, a self-employed person subject to the legislation of a Member State is entitled, in respect of members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State .

Parties

In Case C-114/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal des affaires de sécurité sociale ( Social Security Court ), Lille, France, for a preliminary ruling in the proceedings pending before that court between

Patrick Delbar

and

Caisse d' allocations familiales de Roubaix-Tourcoing,

on the interpretation of Article 51 of the EEC Treaty,

THE COURT ( Second Chamber )

composed of : F . A . Schockweiler, President of Chamber, G . F . Mancini and T . F . O' Higgins, Judges,

Advocate General : G . Tesauro

Registrar : B . Pastor, Administrator

after considering the observations submitted on behalf of

Patrick Delbar, the applicant in the main proceedings, by M . Veroone, of the Lille Bar,

the Union pour le recouvrement des cotisations de sécurité sociale et d' allocations de famille (" Urssaf "), Roubaix-Tourcoing, a party joined in the main proceedings, in the written procedure only, by its director,

the French Government, in the written procedure only, by Edwige Belliard, Deputy Director of Legal Affairs of the Ministry for Foreign Affairs,

the Commission of the European Communities by its Legal Adviser D . Gouloussis,

having regard to the Report for the Hearing and further to the hearing on 29 June 1989,

after hearing the Opinion of the Advocate General, delivered at the sitting on 29 June 1989,

gives the following

Judgment

Grounds

1 By judgment of 18 February 1988, which was received at the Court Registry on 11 April 1988, the tribunal des affaires de sécurité sociale ( Social Security Court ), Lille, submitted three questions for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of Article 51 of the EEC Treaty .

2 The questions were raised in proceedings brought by Patrick Delbar against the commission de recours gracieux ( Appeals Board ) of the Caisse d' allocations familiales ( Family Allowances Fund ) for Roubaix-Tourcoing, concerning the rejection by the latter of his application for the payment of family allowances under the French scheme as from April 1984 .

3 The plaintiff in the main proceedings, Patrick Delbar, an avocat ( lawyer ) of Belgian nationality and a member of the Lille Bar, has his chambers in France and consequently pays contributions to the Caisse d' allocations familiales for Roubaix-Tourcoing, even though he resides with his family in Belgium .

4 Until April 1984, his wife was employed in Belgium and therefore received family allowances for her children . When his wife stopped working, Mr Delbar requested the Caisse d' allocations familiales for Roubaix-Tourcoing to pay French family allowances . The Caisse rejected his application on the ground, inter alia, that Articles L 512.1 et seq . of the code de la sécurité sociale ( French Social Security Code ) made parents' entitlement to family allowances subject to the condition that their children reside in France .

5 Mr Delbar considers that the national provisions in question are contrary to Article 51 of the EEC Treaty, in particular Article 51(b ), which provides for the "payment of benefits to persons resident in the territories of Member States ". He therefore appealed against the Caisse' s decision to the tribunal des affaires de sécurité sociale, Lille, which considered that the dispute raised a problem of interpretation of Community law and stayed the proceedings in order to obtain a preliminary ruling from the Court of Justice on the following questions :

"( 1)Should Article 51(b ) of the Treaty be interpreted as meaning that the authorities responsible for the payment of family benefits are, by virtue of that article, those of the Member State where the worker pursues his activities and, where applicable, pays his contributions or those of the Member State where the parents or the children entitling him to the allowances, or both, are resident?

( 2)More specifically, if a national of a Member State has his professional establishment in one Member State where he pays his contributions, but is resident ( with his children ) in another Member State, are the authorities responsible for the payment of family allowances those of the former or those of the latter Member State?

( 3)In the absence of a Community directive applicable to the professions in respect of family allowances, may individuals rely directly on the rights conferred by Article 51 of the Treaty?"

6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case before the national court, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

7 It is apparent from the documents forwarded by the national court and from the observations submitted to the Court that the national court seeks to determine whether Article 51 of the EEC Treaty imposes on a Member State on whose territory a self-employed person carries on his professional activity the obligation to pay family allowances within the meaning of Article 1(u)(ii ) of Regulation ( EEC ) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community ( as amended, Official Journal 1983, L 230, p . 8 ), even though the members of that person' s family reside in a different Member State .

8 In order to answer that question, it must be stated that according to its wording Article 51 of the EEC Treaty applies only to employed persons . Whilst is it true that the scope of Regulation No 1408/71, which was adopted by the Council on the basis, inter alia, of Article 51 of the Treaty, was extended to include self-employed persons by Council Regulation No 1390/81 of 12 May 1981 ( Official Journal 1981, L 143, p . 1 ), which in turn was adopted on the basis, inter alia, of Articles 51 and 235 of the Treaty, the scope of Article 73 of Regulation No 1408/71 concerning the payment of family benefits was not amended in that respect and it is still applicable only to employed persons .

9 However, it emerged after the hearing that Regulation No 1408/71 was further amended by Council Regulation No 3427/89 of 30 October 1989 ( Official Journal 1989, L 331, p . 1 ), which was adopted on the basis of Articles 51 and 235 of the Treaty . Article 1 of Regulation No 3427/89 amended Article 73 of Regulation No 1408/71 to the effect that a "self-employed person subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI ".

10 Annex VI does not concern French family allowances . It must also be noted that Article 3 of Regulation No 3427/89 provides that that regulation is to apply as from 15 January 1986 .

11 The reply to the question submitted by the national court must therefore be that Article 51 of the EEC Treaty, properly construed, does not require a Member State on whose territory a self-employed person works to pay family allowances within the meaning of Article 1(u)(ii ) of Regulation No 1408/71 if the members of the person' s family reside in another Member State . However, with effect from 15 January 1986, in accordance with Article 73 of Regulation No 1408/71 as amended by Regulation No 3427/89, a self-employed person subject to the legislation of a Member State is entitled, in respect of members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State .

Decision on costs

Costs

12 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court .

Operative part

On those grounds,

THE COURT ( Second Chamber ),

in reply to the questions submitted to it by the tribunal des affaires de sécurité sociale, Lille, by judgment of 18 February 1988, hereby rules :

Article 51 of the EEC Treaty, properly construed, does not require a Member State on whose territory a self-employed person works to pay family allowances within the meaning of Article 1(u)(ii ) of Regulation No 1408/71 if the members of the person' s family reside in another Member State . However, with effect from 15 January 1986, in accordance with Article 73 of Regulation No 1408/71 as amended by Regulation No 3427/89, a self-employed person subject to the legislation of a Member State is entitled, in respect of members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State .