CELEX: C1998/234/01
Language: en
Date: 1998-07-25 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 7 May 1998 in Case C-113/96 (reference for a preliminary ruling from the Bundessozialgericht): Manuela Gómez Rodríguez and Gregorio Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz (Social security for migrant workers - Orphans' benefits)

25.7.98               EN                  Official Journal of the European Communities                                     C 234/1
                                                                  I
                                                            (Information)
                                              COURT OF JUSTICE
                                                        COURT OF JUSTICE
               JUDGMENT OF THE COURT                                  Registrar, has given a judgment on 7 May 1998, in which
                                                                      it has ruled:
                       (Fifth Chamber)
                        of 7 May 1998
                                                                      1. On a proper construction of Article 78(2)(b) of
in Case C-113/96 (reference for a preliminary ruling from                 Regulation (EEC) No 1408/71 of the Council of
the Bundessozialgericht): Manuela Gómez Rodríguez and                     14 June 1971 on the application of social security
Gregorio Gómez Rodríguez v Landesversicherungsanstalt                     schemes to employed persons, to self-employed
                       Rheinprovinz (1)                                   persons and to members of their families moving
                                                                          within the Community, as amended and updated by
 (Social security for migrant workers Ð Orphans' benefits)
                                                                          Council Regulation (EEC) No 2001/83 of 2 June
                        (98/C 234/01)                                     1983, Article 78(2)(b)(ii) does not become applicable
                                                                          in circumstances where a right to orphans' pension,
                                                                          which initially arose under Article 78(2)(b)(i) in the
               (Language of the case: German)                             Member State in which the recipient resides, has been
                                                                          lost by reason of the attainment of an age-limit, while
                                                                          in another Member State, whose legislation was also
                                                                          applicable to the insured person, a right to orphans'
  (Provisional translation; the definitive translation will be            pension would run beyond that date on application of
          published in the European Court Reports)                        the rule on aggregation laid down in Article 79 of the
                                                                          regulation.
In Case C-113/96: reference to the Court under Article 177
of the EC Treaty from the Bundessozialgericht, Germany,               2. Articles 48 and 51 of the EC Treaty preclude the loss
for a preliminary ruling in the proceedings pending before                of social security advantages for workers which would
that court between Manuela Gómez Rodríguez and                            result from the inapplicability, following the entry into
Gregorio Gómez Rodríguez and Landesversicherungsan-                       force of Regulation No 1408/71, of a bilateral social
stalt Rheinprovinz, on the interpretation of Articles 6 and               security convention. However, that principle cannot
78 of Regulation (EEC) No 1408/71 of the Council of                       apply in so far as, when the benefits are set under the
14 June 1971 on the application of social security schemes                regulation for the first time, a comparison has already
to employed persons, to self-employed persons and to                      been made of the advantages resulting from the
members of their families moving within the Community,                    regulation and the convention, respectively, whose
as amended and updated by Council Regulation (EEC)                        outcome was that it was more advantageous to apply
No 2001/83 of 2 June 1983 (OJ L 230 of 22.8.1983, p. 6),                  the regulation than the convention.
and of Articles 48 and 51 of the EC Treaty, the Court
(Fifth Chamber), composed of: C. Gulmann, (Rapporteur),               (1) OJ C 158 of 1.6.1996.
President of the Chamber, J. C. Moitinho de Almeida,
D. A. O. Edward, J.-P. Puissochet and P. Jann, Judges;
G. Cosmas, Advocate General; H. von Holstein, Deputy