2.

However, having arrived at that conclusion I do not wish to leave matters there. Instead I should like to consider the questions themselves which have been submitted, in case doubts are entertained regarding my conclusions or in case it must be accepted that the appellants' father or stepfather have moved between the Member Sutes in question. In this connexion it appears to me logical to treat first of all the question whether, since the relevant allowances are not of the same kind, suspension is entirely excluded, because if this question is answered in the affirmative consideration of the other questions becomes superfluous. It is clear that the allowances in question are by no means of the same kind. The Iulian Government indeed made this point in its observations in connexion with the definitions contained in Article 1 of Regulation No 1408/71. Thus it is clear that with regard to family allowances at least two persons are concerned: the member of the family himself does not have a claim and the person entitled is characterized by the existence of a further legal relationship, generally that arising from employment. In the case of orphans' pensions only the orphans are entitled and they are not dependent on an existing legal relationship based on employment. In fact orphans' pensions constitute survivors' pensions and, but for the express provision in Article 44 (3), it would have been necessary to consider them in the context of Chapter III (old-age and death (pensions)). Article 79 in fact appears to disregard the foregoing factor and the fact that, as the Commission has emphasized, it is impossible to discern any logical reason based on social policy for the prohibition on the overlapping of family benefits and orphans' pensions. It clearly concerns allowances for orphans as such as well as in their capacity of members of a family. As is clear from the wording, the acquisition of a right by children to family benefits or family allowances under the legislation of a Member State by virtue of the pursuit of a professional or trade activity entails the suspension of rights under Article 77, that is rights to family allowances for pensioners and to supplements to such pensions in respect of children, and rights under Article 78, that is rights to family allowances and special or supplementary allowances for orphans and orphans' pensions. Nevertheless, the matter cannot rest there. The endeavour must instead be made to find an interpretation which avoids internal contradictions within the system, permits the proper expression of the spirit and objective of the provisions and observes important principles which are to be inferred from the Treaty. Viewed in this light it is impossible not to accord a certain weight to the observation of the Italian Government that the principle that the right to benefit is retained upon transfer of residence to another Member State may be traced back to Article 51. The Iulian Government is also justified in maintaining that in the decisions of the Court concerning social security for migrant workers it is possible to discern the constant endeavour to prevent the loss of rights. In this connexion it must be borne in mind that orphans who remain in a Member State are entitled to several overlapping rights to benefits whilst, on a literal interpretation of Article 79, such orphans would suffer a loss of rights because of the movement of another person to a different place, which is especially serious since the right in question is financed from insurance contributions. Furthermore, I consider relevant the statement of the Italian Government that, in accordance with the provisions of Article 12, in principle overlapping is excluded only where there are a number of benefits of the same kind and where one person acquires the right to a number of overlapping benefits. In this connexion the observation of the Commission are helpful. It considers that the interpretation is conditioned by the fact that Article 79 (3) governs only one instance of overlapping (overlapping with benefits by reason of the pursuit of a professional or trade activity) and that another instance (overlapping with benefits on the basis of residence) is covered by Article 10 (1) (b) of Regulation No 574/72 fixing the procedure for implementing Regulation No 1408/71, as amended by Regulation No 878/73 (Official Journal L 86 of 31 March 1973, p. 1). That provision is as follows : ‘Entitlement to family benefits’ or family allowances due under the legislation of one Member State only, according to which acquisition of the right to those benefits or allowances is not subject to conditions of insurance or employment, shall be suspended when, during the same period and for the same member of the family: (a) … (b) benefits are due in pursuance of Article 77 or 78. of the Regulation. If, however, a pensioner who is entitled to benefits under Article 77 of the Regulation, his spouse or the person looking after the orphans to whom benefits are due under Article 78 of the Regulation, exercises a professional or trade activity in the territory of the said Member Sute, entitlement to family allowances due in pursuance of Article 77 or 78 of the Regulation under the legislation of another Member State shall be suspended; where this is the case, the person concerned shall be entitled to the family benefits or family allowances of the Member Sute in whose territory the children reside, the cost to be borne by that Member Sute, and, where appropriate, to benefits other than the family allowances referred to in Article 77 or 78 of the Regulation, the cost to be borne by the competent Sute as defined by those Articles'. It is to be inferred from the foregoing that when the specified conditions obtain, that is, entitlement in the Sute of residence which is not dependent on conditions pertaining to insurance or employment and the pursuit of a professional or trade activity in the territory of such Sute by the person having custody of the orphan, rights under Article 78 are indeed suspended, but not rights to benefits which are not classified as family allowances, that is, including orphans' pensions. It is thus quite in order that orphans' pensions in the Sute responsible tor payment under Article 78 should overlap with family allowances in the Sute of residence. It seems to me quite plain that, on the basis of the foregoing the same must apply to Article 79 (3) and that this is the only interpretation which corresponds to the spirit and objective of that provision. Accordingly, in connexion with the question of the Landessozialgericht, it is clear that in Article 79 (3) of Regulation No 1408/71 it was intended to exclude only the overlapping of benefits of the tame kind.