6.

A matter which is more debatable is the impact on the payment of the allowances and on the respective legal positions which the Insurance Officer attributes to divorce, once again in connection with the application of Article 10 of Regulation No 574/72. The essential problem raised by the Social Security Commissioner, which has been fully discussed in the written observations and at the hearing, specifically concerns the interpretation of the expression “spouse” used in subparagraph (a) of Article 10 (1) of that regulation. What is needed in fact is to establish whether that problem extends also to situations where the marriage has been dissolved. Various interpretations of the concept of “spouse” have been put forward. According to the Insurance Officer, the question is to be resolved on the basis of the law applied by the social security institution which seeks to rely upon Article 10. Under United Kingdom law, only persons whose marriage subsists are regarded as spouses; thus a divorcee is a former spouse and not a spouse. Another argument advanced by the Insurance Officer concerns the effects of the possible remarriage of a divorced parent. In such a case, he contends, the total amount to be paid might exceed the highest level of the benefits in question in each Member State, since the family allowances payable under the legislation of the Member States of the two parents and of the new spouse would be added together. By contrast with that interpretation of the expression “spouse”, which I would describe as restrictive, the Commission and the Council expressly ask the Court to interpret it widely. The Commission submits that, in the interpretation of Community social security legislation, emphasis should be placed on the position of the worker as regards his professional or trade activity rather than on his status familiae. The Council points out that there is a lacuna in the regulation. It therefore proposes that the Court should fill that lacuna by regarding as a “spouse” any person having legal custody of and residing with the children in respect of whom the benefits are payable. The view of the Insurance Officer is to be rejected. In the first place it overlooks the fact that the reference made in the regulation to national legislation concerns the definition of “member of the family” and not that of “spouse”. In addition, the argument relating to the possibility of the divorced spouse's remarriage is without merit. Suppose in fact that having demonstrated that the stepchildren are dependent on him or her, the new spouse becomes entitled to allowances for the stepchildren and secures the application of Article 73 (1) of Regulation No 1408/71; that entitlement would nevertheless be “suspended” by the operation of Article 10 of Regulation No 574/72 or of Article 76 of Regulation No 1408/71 in favour of the member of the family engaged in a professional or trade activity. As regards any allowances received by the spouse to whom custody has not been granted, I consider that those would be suspended by virtue of the general principle common to the social security systems of the Member States (and at the Community level laid down in Article 12 of Regulation No 1408/71) prohibiting overlapping entitlement to allowances on the part of different beneficiaries in respect of the same member of the family. Consequently, I consider that the question may be resolved without going beyond the logic of the system and the scope of Article 10 and without the need for recourse to more or less liberal interpretations. I have already said that the regulation does not refer to national legislation as regards the definition of a “spouse”. I think it is logical to ascertain whether a “useful” interpretation of the expression may be derived from Community legislation. Indeed, if the provisions of Article 10 (1) (a) are considered as a whole, it is clear that the term “spouse”, which appears in the second sentence, refers in fact to the person envisaged in the first sentence, namely the person entitled to the family benefits and family allowances. There is no apparent reason why the status /amiliae of the person entitled should not be of importance in the first part of the provision when it is important in the second part. Furthermore, the interpretation which I regard as most correct is supported by an argument of a systematic nature. I have pointed out that Article 10 prevents the overlapping of family benefits payable under legislation under which entitlement is not subject to conditions of insurance or employment. Article 76, which by contrast applies where the entitlement to allowances arises by reason of the carrying on of a professional or trade activity, takes no account of the status /amiliae of the parents. Why therefore discriminate between two substantially identical situations? If the question relating to the expression “spouse” is dealt with in the manner which I have suggested, it becomes apparent — it seems to me — that the claimant is entitled to receive the allowances for the children of whom she has custody in the United Kingdom and to have her former husband's entitlement suspended. As regards the Council's proposal that any person having custody of and residing with the children in respect of whom the benefits are payable should be regarded as a “spouse”, I do not consider it acceptable in the context of the proceedings before this Court. It is a matter for legislature. That does not mean that it is not valid as a matter of legal policy. In fact, in view of the object of the allowance, which is to supplement remuneration on the basis of family responsibilities, and in view of the fact that the allowances are paid for the benefit of the children, to give preference to the person having custody of them (who may indeed be a person other than either of the parents) ensures more direct enjoyment of those allowances. And this, may I say, is consonant with the approach on which the legislation of the Member States regarding family allowances appears to be based.