5.

The considerations examined so far lead one to reject the Belgian Government's submission: in fact the interpretation on which it relies is clearly not compatible either with the spirit and the aims of Regulation No 1408/71 or with the principles which may be inferred from Articles 48 to 51 of the EEC Treaty (and in particular with the principle whereby the worker cannot receive, as a result of the rules against the overlapping of benefits contained in the abovementioned regulation, less favourable treatment than that which is accorded to him by the domestic law of a particular Member State). There remain then two possible interpretations of the rule in question. According to the first interpretation Article 79 (3) does not affect the applicability of any more favourable national rules providing for the payment of supplementary sums when the amount of family allowances paid in another Member State is less than that paid in the State which is responsible for paying the pension. According to the second interpretation, however, Community law governs completely and independently (that is, of the national provisions involved) a case where there is overlapping of benefits accompanied by a disparity in the size of the family allowances in the two countries, and recognizes the worker's right to receive, from the institution obliged to pay him the pension, by way of a supplement, the difference between the two sums. In the present case both of the interpretations lead us to recognize the worker's right to receive a supplementary allowance from the Belgian institution. But, in general terms, it must be borne in mind that the right to the supplementary payment will be recognized or excluded depending on whether the law of the State paying the higher allowances entitles the worker to the supplement. The Belgian legislation provides for this supplementary allowance, but in other countries a specific provision of this type may not exist, with the result that the worker will be entitled to the supplementary payment only if Community law is considered the direct source of such entitlement. It is clear that the interpretation suggested by the Commission would give rise to cases in which, precisely through the application of Article 79 (3), the worker would be unable to preserve the rights acquired in the State in which he has worked and would thus come to receive less favourable treatment. Such an conclusion does not seem to me to accord with the purposes of Article 79 (3) interpreted in the light of the general principles referred to above. The function of Article 79 (3) is, in fact, to eliminate the risk of a full, cumulative application of two national schemes: but to achieve this result I do not think it necessary to go so far as to sacrifice accrued rights which are compatible with the application of the rule against overlapping. On the contrary, general principles require that a compromise be achieved between the need to avoid overlapping and the need to ensure respect for accrued rights. The principle of equality of treatment of workers who have had to satisfy the same conditions in order to obtain the pension also supports this view. That principle would indeed be endangered if it were to be accepted that a worker may be subjected to less favourable treatment, in the field of social security, than other workers who have performed the same work in the State paying the pension, solely because the regulations of another Member State provide for the payment of allowances of the same type and for the same reason, but at a lower rate. If, then, it is on these lines that the Community rules on overlapping must be construed, I do not think it possible to adhere to a proposition which reduces Article 79 (3) to a rule of conflict of laws and which does not take account of the need to ensure in every case the most favourable treatment of the worker and the protection of accrued rights. Therefore, I am of the opinion that it is preferable to adopt an interpretation which allows Article 79 (3) to remain consonant with general principles: that is to say, one which attributes to the provision in question the function of suspending totally payment by the institution which grants the father his pension of the family allowances for dependent children, only when the allowances are equal to, or less than, those provided in the country in which the mother works; but of suspending them partially when the former allowances are greater than the latter.