Opinion of Mr Advocate General Tesauro delivered on 29 June 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



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The tribunal des affaires de sécurité sociale, Lille, has referred the following questions to the Court for a preliminary ruling in order to resolve a dispute between Mr Delbar, a Belgian avocat whose Chambers are in France and whose home ( where his children also live ) is in Belgium, and the Caisse d' allocations familiales, Roubaix-Tourcoing :

"( 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 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?"

Since a negative answer to the third question would render examination of the first two superfluous, it is appropriate first to consider whether, at the present stage of development of Community law, self-employed workers may rely on Article 51 of the EEC Treaty in order to claim family allowances, regardless of where the members of their family reside .

2 . In the proceedings before the national court, Mr Delbar, to whom the competent authorities in France, relying on Articles L 512.1 et seq . of the code de la sécurité sociale, refuse to pay family benefits for his children residing in Belgium, claims that that national rule is unlawful .

Article L 512.1 imposes as a precondition for parents' entitlement to family benefits the requirement that the children should be resident in France . According to Mr Delbar, the national provision in question is contrary to Article 51 of the EEC Treaty, and in particular paragraph ( b ) thereof, which provides for "payment of benefits to persons resident in the territories of Member States ".

3 . The French Government and the Commission, which have submitted observations, reject Mr Delbar' s contention .

4 . I must say very clearly, but at the same time very regretfully, that I can but share the position taken by the French Government and the Commission . I have no doubt that, as Community law stands at present, there is no foundation for Mr Delbar' s claim that he has discovered a legal basis in the EEC Treaty or in the secondary legislation to overcome the obstacle represented by the lack of any obligation to pay him family allowances by reason of the fact that his children reside in a country other than that in which he works as a self-employed person . Indeed, the applicable legislation leaves no room for any doubt, regarding either interpretation or possible illegality .

5 . In fact, there is no doubt that :

( i ) Article 51 of the EEC Treaty, as such, applies only to employed workers;

( ii ) the same must be said as regards Regulation No 1408/71, in its original version;

( iii ) the amendments made by the Council, by means of its Regulation ( EEC ) No 1390/81 of 12 May 1981 ( Official Journal L 143, 29.5.1981, p . 1 ) based on Article 235 of the EEC Treaty, extending a considerable number of provisions in Regulation ( EEC ) No 1408/71 to self-employed persons, do not affect Article 73 concerning the payment of family allowances; that provision, therefore, continues to apply only to employed workers;

( iv ) that legal situation is not the result of an oversight on the part of the Community legislature, but reflects a specific intention on the part of the Council . The Commission, supported by the European Parliament and the Economic and Social Committee, had proposed extending Article 73 to self-employed persons . The Council' s refusal to accept that proposal is linked, as is apparent inter alia from the last recital in the preamble to the Commission' s proposal to the Council of 5 February 1988 ( Official Journal C 52, 24.2.1988, p . 5 ), ( 1 ) with the problem of the lack of a uniform approach to family allowances, which ultimately gave rise to the two well-known judgments of the Court in the first and second Pinna cases . ( 2 )

6 . It is apparent from all the foregoing that in 1981 the Community legislature' s express intention was not to extend the benefit of Article 73 of Regulation No 1408/71 to self-employed workers . Since the decision to extend or not to extend that benefit is within the Council' s discretion, and although in general terms I share the views expressed by the Commission and the European Parliament regarding the appropriateness of extending that benefit to self-employed workers, I do not think that the Court can do otherwise than give a negative answer to the third question submitted by the national court .

Since the only persons covered by Article 51 of the Treaty, which is a provision of primary legislation, are employed workers, the Council' s express decision not to extend the scope of Article 73 by means of a secondary measure does not constitute an infringement of any legal principle which could be penalized by this Court .

7 . In view of the reply which I have just formulated, I do not think that the Court need consider further the other questions submitted by the national court . Since Article 51 is inapplicable to self-employed workers, I do not think that it is for the Court to provide abstract interpretative guidance which does not serve to resolve this particular case .

Accordingly, I propose that the Court should state in reply to the questions referred to it that as Community law stands at present Article 51 of the EEC Treaty does not require the Member States to pay family benefits where the members of a self-employed person' s family reside in a country other than that in which he practises his profession .

(*) Original language : Italian .

( 1 ) The proposal is designed above all to take account of the first Pinna judgment, and at the same time to extend the benefit of Article 73 of Regulation No 1408/71 to self-employed workers .

( 2 ) See the judgments of 15 January 1986 in Case 41/84 Pinna (( 1986 )) ECR 1 and of 2 March 1989 in Case 359/87 Pinna (( 1989 )) ECR 585 .