2.

Let us first recall the system as provided for in the original version of Article 42. Where — as is the case in Belgium — the legislation of the relevant country provided, in the event of the wage-earner's death, for the payment of family allowances for his children, such allowances also covered children who were permanently resident or were being brought up in the territory of another Member State. It was thus accepted that Mrs Beninato was entitled to the right which is now disputed. However, although this principle is simple, its implementing procedures laid down in Article 69 of Regulation No 4 were so complex that they often remained a dead letter. This is why the Council thought it necessary to adopt a new scheme of responsibility for family allowances, both for those in receipt of pensions and for their orphans. As regards the latter, when the death of the worker does not entitle his dependants to a pension in respect of an industrial accident or occupational disease, the new wording of Article 42 (6) distinguishes between two cases : — if the deceased worker came under the legislation of a single Member State and if the orphan permanently resides in the territory of another Member State, family allowances are due in accordance with the legislation of the former State as though the orphan permanently resided in that country; — if, on the other hand, the deceased worker came under the legislation of several Member States and if the orphan permanently resides in the territory of one of those States, family allowances are due in accordance with the legislation of that Member State. In the case which gave rise to this reference for a preliminary ruling Mr Beninato worked in Belgium and in Italy, although in the latter country the duration of his employment was not sufficient to be taken into account. Must he nevertheless be considered to have come under the legislation of two Member States? If so, as his orphan permanently resides in Italy, the allowances would be payable in accordance with the legislation of that country, which means in fact that Mrs Beninato would not be entitled to anything. If not, the allowances would be payable by Belgium, as was decided by the Conseil de prud'hommes at first instance. If I followed current usage and the letter of the text, I should be forced to consider that a worker came under legislation by the mere fact that it was applicable to him, without needing to discover whether or not he satisfied the conditions entitling him to the rights and benefits which it was intended to confer. Moreover, the use of the words ‘came under’ is rather significant. The result of this in the present case would be that Mr Beninato would have been subject to two systems of legislation, Belgian and Italian, and that his widow would have no right to any allowance. However, there are good reasons for setting aside the literal interpretation in this instance. First, the effect of the present wording of Article 42 is to deprive the worker's dependant of benefits which he would have received under the previous system; this appears contrary to the spirit and purpose of Regulation No 1/64 the aim of which was to establish a simple and more flexible system, rather than a more rigid one. Secondly, it is also contrary to the general line of interpretation which you have applied to the regulation on the basis of Articles 48 to 51 of the Treaty. The Commission has rightly reminded us of your pronouncement in the judgment in Nonnenmacher of 9 June 1964 (Case 92/63 [1964] ECR 281) that in case of doubt, the measures taken in implementation of these Articles must be construed so as to avoid placing migrant workers in a less favourable legal position. The only solution which is in accordance with the spirit and objectives of the Treaty and the regulation is to accept that where an insurance period is not taken into account for the grant of a proportion of a pension under Article 28 (2) of Regulation No 4, it has not been completed in the State in question within the meaning of Article 42 (6). This is the solution which is accepted by the majority of the members of the Administrative Commission provided for in Article 43 and it is that which the Commission is proposing for the general review of Regulation No 3. If this is accepted the phrase used in the article in dispute must be interpreted to mean that a worker ‘came under the legislation’ only where he has satisfied the conditions under which his dependants may acquire the right in question. Of course, this interpretation does not necessarily apply to the numerous articles Regulation No 3 in which the same phrase occurs. Unlike many terms used in the regulation this phrase had not been defined in Article 1 and it may thus be interpreted in each case in relation to its context. No doubt in most cases it would be necessary to regard it as not implying the conditions of acquisition of a right must be satisfied. The solution which I propose to you must therefore be limited to the context of Article 42 (6), which is in any case the only article upon which you are asked to pronounce.