1.

Felice Salzano, a wage-earning Italian worker employed in Germany since 1979, married with three children, applied to the Kindergeldkasse [Child Allowance Department, hereinafter referred to as “the Kindergeldkasse”] of the Bundesanstalt für Arbeit [Federal Employment Office, hereinafter referred to as “the Bundesanstalt”] for the grant of family allowances for his three children residing in Italy with their mother. That option is available to him under Article 73 (1) of Regulation No 1408/71 of 14 June 1971, ( 2 ) under which the entitlement to family benefits is determined by the legislation of the country of employment, irrespective of the family's place of residence. He was, however, denied the benefit of that provision by the German institution in question, on the ground that his wife had, from 1 May to 31 December 1979, been working in Italy, where she could have asserted her right to family allowances. It was, the Bundesanstalt contended, irrelevant in that connection that she had neither requested nor consequently received family allowances in Italy, since they remained payable to her in pursuance of Italian legislation. In that regard, the Bundesanstalt bases itself on Article 76 of Regulation No 1408/71, mentioned above, which provides as follows: “Entitlement for 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.” Following the rejection of his claim by the Kindergeldkasse, Felice Salzano brought proceedings before the Sozialgericht München [Social Court, Munich] seeking payment, in respect of the period under consideration, of the difference between the level of family allowances in the Federal Republic of Germany and that of the same benefits in Italy. In order to resolve the dispute which was thus brought before it, the German court submitted the following question: “Is Article 76 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 to be interpreted as meaning that entitlement to family allowances must be suspended (if so, to what extent), in the country in which one of the parents is employed, also in the case where the other parent resides with the children in another Member State (country of residence) and is employed there, but does not receive any family allowances for the children because there is no application by one parent and/or waiver by the other parent as required by domestic law so that it is not clear whether and to what extent the parent in the country of residence of the children is entitled to family allowances?” The grounds of the order making the reference, together with the observations which were submitted, disclose the two aspects of the problem of interpretation which has been raised: First, it is a matter of determining the conditions in which family allowances may be regarded as “payable” in the State of residence, within the meaning of the aforesaid Article 76; Secondly, on the assumption that allowances arę “payable” within the meaning of that provision, the Court is asked to specify the level up to which the payment of family allowances in the State of employment must be “suspended”.