CELEX: 62010CC0225
Language: en
Date: 2011-06-09
Title: Opinion of Mr Advocate General Mengozzi delivered on 9 June 2011. # Juan Pérez Garcia and Others v Familienkasse Nürnberg. # Reference for a preliminary ruling: Sozialgericht Nürnberg - Germany. # Social security - Regulation (EEC) No 1408/71 - Articles 77 and 78 - Pensioners entitled under the legislation of several Member States - Handicapped children - Family benefits for dependent children - Right to benefits in the former Member State of employment - Existence of a right to benefits in the Member State of residence - Failure to make a request - Choice of payment of an invalidity benefit incompatible with benefits for dependent children - Concept of ‘benefit for dependent children’ - Maintenance of rights acquired in the former Member State of employment. # Case C-225/10.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 9 June 2011 (1)
      
      Case C‑225/10
      Juan Pérez García
      José Arias Neira 
      Fernando Barrera Castro
      Dolores Verdún Espinosa, successor to José Bernal Fernández
      v
      Familienkasse Nürnberg
      (Reference for a preliminary ruling from the Sozialgericht Nürnberg, Germany)
      (Regulation (EEC) No 1408/71 – Family allowances – Benefits for handicapped children dependent on persons who draw a pension under the legislation of more than one Member State
         – Benefits for orphans of workers subject to the legislation of more than one Member State – Right to payment of family allowances by a State in which an occupation was carried on – Family allowances of the State of residence incompatible with another cash benefit for which the person concerned has opted)
      
      1.        The questions referred for a preliminary ruling by the national court concern the interpretation of Articles 77 and 78 of
         Regulation (EEC) No 1408/71 (2) (‘the regulation’). These provisions, on which the Court has already ruled on various occasions, were amended completely
         by the provision that replaced Regulation No 1408/71, that is to say, Regulation (EC) No 883/2004. (3) However, the new provisions are irrelevant to the present case.
      
      2.        The subject-matter of the dispute to be resolved by the national court is the purported right of certain Spanish pensioners,
         residing in Spain but who in the past have worked in Germany, to the allowances for dependent children (Kindergeld) provided for in German law. The German authorities have refused to pay these benefits on the ground that the applicants
         in the main proceedings may apply for higher Spanish cash benefits (prestaciones por hijo a cargo).
      
      I –  Legal context
      A –    European Union law
      3.        Article 1(u) of the regulation contains the two following definitions:
      
      ‘(i)      the term family benefits means all benefits in kind or in cash intended to meet family expenses …, excluding the special childbirth or adoption allowances
         referred to in Annex II;
      
      (ii)      family allowances means periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members
         of the family’.
      
      4.        Articles 77 and 78 of the regulation, about which the national court questions the Court, are contained in Title III, Chapter
         8, entitled ‘Benefits for dependent children of pensioners and for orphans’.
      
      5.        Article 77 provides:
      
      ‘1.      The term “benefits”, for the purposes of this Article, shall mean family allowances for persons receiving pensions for old
         age, invalidity or an accident at work or occupational disease, and increases or supplements to such pensions in respect of
         the children of such pensioners, with the exception of supplements granted under insurance schemes for accidents at work and
         occupational diseases.
      
      2.      Benefits shall be granted in accordance with the following rules, irrespective of the Member State in whose territory the
         pensioner or the children are residing:
      
      …
      (b)      to a pensioner who draws pensions under the legislation of more than one Member State:
      (i)      in accordance with the legislation of whichever of these States he resides in provided that, taking into account, where appropriate,
         the provisions of Article 79(1)(a), a right to one of the benefits referred to in paragraph 1 is acquired under the legislation
         of that State.’
      
      6.        Article 78 provides as follows:
      
      ‘1.      The term “benefits”, for the purposes of this Article, means family allowances and, where appropriate, supplementary or special
         allowances for orphans.
      
      2.      Orphans’ benefits shall be granted in accordance with the following rules, irrespective of the Member State in whose territory
         the orphan or the natural or legal person actually maintaining him is resident:
      
      …
      (b)      for the orphan of a deceased employed or self-employed person who was subject to the legislation of several Member States:
      (i)      in accordance with the legislation of the Member State in whose territory the orphan resides provided that, taking into account,
         where appropriate, the provisions of Article 79(1)(a), a right to one of the benefits referred to in paragraph 1 is acquired
         under the legislation of that State;
      
      …
      However, the legislation of the Member State applicable in respect of provisions of the benefits referred to in Article 77
         for a pensioner’s children shall remain applicable after the death of the said pensioner in respect of the provisions of the
         benefits to his orphans’.
      
      7.        Article 5 of the regulation provides that ‘[t]he Member States shall specify … the benefits referred to in Articles 77 and
         78 in declarations to be notified and published …’
      
      8.        Article 76 of the regulation is not directly relevant in the present case since it refers to active workers and not pensioners.
         It was, however, cited in the observations submitted and will have to be examined during the discussion of the questions referred.
         In the version thereof currently in force, which was also applicable at the time of the facts of the main proceedings, that
         article provides as follows:
      
      ‘1.      Where, during the same period, for the same family member and by reason of carrying on an occupation, family benefits are
         provided for by the legislation of the Member State in whose territory the members of the family are residing, entitlement
         to the family benefits due in accordance with the legislation of another Member State, if appropriate under Article 73 or
         74, shall be suspended up to the amount provided for in the legislation of the first Member State.
      
      2.      If an application for benefits is not made in the Member States in whose territory the members of the family are residing,
         the competent institution of the other Member State may apply the provisions of paragraph 1 as if benefits were granted in
         the first Member State’.
      
      9.        The most recent version of the declaration by Germany pursuant to Article 5 of the regulation (4) refers to Kindergeld as a family allowance falling within the scope of Articles 77 and 78 of the regulation.
      
      10.      Similarly, the most recent declaration by the Kingdom of Spain (5) includes the benefits provided for in Royal Legislative Decree No 1/1994, to which the applicants in Spain are entitled according
         to the national court, among those to which Articles 77 and 78 are applicable.
      
      B –    German law
      11.      The allowances for dependent children (Kindergeld) (6) are provided for in German law for all children up until the age of 18. Where particular conditions are satisfied (continuing
         education without significant income, etc.), these allowances can be paid up to the age of 21 or even 25.
      
      12.      In the case of handicapped children incapable of supporting themselves, the allowances for handicapped children are paid in
         principle regardless of age.
      
      13.      The amount of the allowances for dependent children is updated periodically. By way of illustration, in respect of the year
         2010 that amount varied between EUR 184 a month (for the first child) and EUR 215 a month (for the fourth child and any further
         children). Apparently, the family allowances are not incompatible with possible other benefits for handicapped persons.
      
      C –    Spanish law
      14.      The allowances for dependent children provided for in Spanish law and to which the order for reference refers, which are governed
         by Real decreto legislativo No 1/94, (7) are paid on the basis of a system which differs in part from the German system. In particular, allowances for dependent children
         are normally paid only if the family’s income is below a minimum threshold defined by law.
      
      15.      However, in the case of handicapped children there are no income limits in either Spain or Germany. Nor, furthermore, if the
         degree of incapacity is over 65% are there any age limits. In respect of a child over the age of 18 suffering from 65% incapacity,
         the monthly amount paid in 2010 was EUR 339.70. In the case of incapacity of 75% or over, it was EUR 509.60.
      
      16.      However, Spanish legislation provides that the right to allowances for dependent children ceases when a handicapped person
         is paid other benefits including, in particular, an invalidity pension within the meaning of Law No 13/1982 on the social
         integration of handicapped persons. (8)
      
      II –  Facts, the proceedings before the national court and the questions referred
      17.      The applicants in the main proceedings are Spanish nationals residing in Spain. They are pensioners (9) who have in the past worked in Germany, thereby acquiring a right to a pension under German law. In other words, they receive
         a German pension which was granted to them without their having to have aggregated periods of employment completed in various
         Member States. The applicants have in common the fact that they have handicapped children of full age dependent on them.
      
      18.      According to the information provided by the referring court, in Spain the applicants’ children draw invalidity pensions under
         Law No 13/1982. Consequently, under Spanish law allowances for dependent children may not be paid.
      
      19.      For some time, the applicants drew the German family allowances for their dependent handicapped children. Later, however,
         payment of this allowance was suspended: according to the German authorities, the applicants have an ‘acquired’ right to Spanish
         family allowances under Article 77(2)(b)(i) of the regulation. Therefore, because they have this right in the State of residence,
         in accordance with that provision of European Union law the German family allowances are no longer payable. The fact that
         the applicants chose to draw in Spain benefits provided there as an alternative to Spanish family allowances does not alter
         the fact that they could, if they wished, choose to receive, instead of those alternative allowances, the family allowances
         sensu stricto.
      
      20.      In order to resolve the dispute the national court referred the following questions to the Court for a preliminary ruling:
      
      ‘1.       Is Article 77(2)(b)(i) of Regulation (EEC) No 1408/71 to be interpreted as meaning that family allowances need not be granted
         by the former State of employment to persons who receive pensions for old age, invalidity or an accident at work or occupational
         disease under the legislation of more than one Member State and whose pension entitlement is based on the legislation of the
         former State of employment (national pension entitlement) if provision is made in the State of residence for a comparable,
         higher benefit, which is, however, incompatible with another benefit for which the person concerned, having been given the
         choice, has opted?
      
      2.      Is Article 78(2)(b)(i) of Regulation (EEC) No 1408/71 to be interpreted as meaning that family allowances for orphans of a
         deceased employed or self-employed person who was subject to the legislation of several Member States and who enjoyed a notional
         entitlement to an orphan’s pension based on the legislation of the former State of employment (potential national pension
         entitlement) need not be granted by the former State of employment if provision is made in the State of residence for a comparable,
         higher benefit, which is, however, incompatible with another benefit for which the person concerned, having been given a choice,
         has opted?
      
      3.      Does the same apply to a benefit under Article 77 or Article 78 of Regulation (EEC) No 1408/71 for which provision is generally
         made in the children’s State of residence, but for which the person concerned, as someone who is not being given a choice,
         cannot opt?’
      
      III –  Preliminary observations
      21.      The questions raised by the referring court are based on the assumption that both the allowances for dependent children provided
         for in Spanish Real Decreto Legislativo No 1/94 and the family allowances provided for in German law fall within the scope
         of Article 77 (and Article 78) of the regulation. However, in the light also of the observations submitted in writing and
         orally at the hearing, it is necessary as a preliminary point to determine whether this is the case. It would no longer be
         necessary to reply to the questions referred by the national court if the benefits did not fall within the ambit of Article
         77.
      
      22.      As we saw when setting out the legislative context, the two notions of family benefits and family allowances are clearly distinct for the purpose of the regulation. In particular, under Article 1(u) ‘family benefits’ are intended
         to ‘meet family expenses’. Consequently, the payment thereof is linked to social conditions or the income of the potential
         beneficiaries. ‘Family allowances’, by contrast, are cash benefits granted ‘exclusively by reference to the number and, where
         appropriate, the age of members of the family’.
      
      23.      The specific feature of Article 77 of the regulation lies in the fact that the ‘benefits’ to which it refers are exclusively
         ‘family allowances’. The Court has repeatedly held that the notion of ‘family allowances’ within the meaning of Article 77
         coincides with that contained in Article 1(u). (10) In particular, the Court has found that the fact that Article 77 of the regulation applies only to family allowances is justified
         by the fact that only benefits linked to the number or age of the children can be regarded as payable also by a State that
         is not the State in which the beneficiaries reside. By contrast, other benefits, such as family benefits, intended to meet
         specific family expenses, ‘are in most cases closely linked with the social environment and therefore with the place where
         the persons concerned reside’. (11)
      
      24.      It is therefore necessary to determine whether the allowances for dependent children provided for in Spanish law and the family
         allowances provided for in German law are ‘family allowances’ within the meaning of the regulation.
      
      25.      As regards the Spanish benefit, the basic mechanism provides, as has been noted above, for family allowances for dependent
         children to be granted only to families whose income is below a minimum threshold. For this reason, those allowances depart
         from the typical model of family allowances provided for in Community law: they are granted not only on the basis of conditions
         linked to the number and age of the children but of another element too, that is to say, the income of the family.
      
      26.      In the case of severely handicapped children, however, Spanish law provides that the income-related conditions are no longer
         relevant and that no account is to be taken of the children’s age. On the other hand, the degree of incapacity affects the
         amounts paid.
      
      27.      As regards Germany, the ‘normal’ mechanism of family allowances certainly falls within the model of the regulation. Only the
         number and age of the children are relevant and the family’s income has no role to play. However, the German system also operates
         differently in the case of handicapped children in that it takes no account of age.
      
      28.      Therefore, as we have seen neither the Spanish system nor the German system provides, in the case of handicapped children of full age, for a system which is completely coherent with the definition of ‘family allowances’ contained in the regulation. In both
         cases, it is precisely the incapacity which triggers the right to the allowances for handicapped children of full age, a right
         which, in principle, would not otherwise exist. In other words, both Spanish and German law grant the benefit having regard
         to an additional element (incapacity) in relation to the other two (age and number of children) which, according to the regulation,
         are the only ones that can determine the right to a benefit that can be defined as a ‘family allowance’. Moreover, in the case of the Spanish
         allowance the fact that account is also taken of the degree of incapacity in determining the amount of the allowance for dependent children introduces a further element of differentiation.
      
      29.      However, it should be noted that, as I indicated earlier, in their respective declarations pursuant to Article 5 of the regulation
         both the Kingdom of Spain and the Federal Republic of Germany included the allowances for dependent children provided for
         in Spanish law and the family allowances provided for in German law, respectively, among the benefits to which Articles 77
         and 78 of the regulation are applicable.
      
      30.      In this respect, the Court has held that although the fact that a benefit has not been included in the declaration pursuant
         to Article 5 of the regulation is not sufficient to rule out that possibility that it could be among those covered by Article
         77, the benefits that are included in such a declaration, by contrast, automatically fall within the ambit of Article 77. In other words, a State may not, once having included a benefit in its declaration, seek to withdraw from its obligations
         by claiming that that benefit does not satisfy the conditions laid down by the regulation to be covered by Article 77. (12)
      
      31.      It follows, therefore, that generally speaking both the Kingdom of Spain and the Federal Republic of Germany are obliged to
         grant, respectively, allowances for dependent children and family allowances paid to handicapped children of full age as ‘family
         allowances’ within the meaning of Article 77 of the regulation.
      
      32.      At the hearing the Commission stressed the need for the Spanish benefits to be assessed on the basis of their objective characteristics
         without considering their designation or the fact that they were notified pursuant to Article 5. That view cannot be upheld.
      
      33.      Firstly, as we have seen, both the Member States have granted a right to the benefits under discussion here. That fact does
         not determine per se which of the two States must pay them. It simply means that the rules laid down in Articles 77 and 78
         must be applied in the situations concerning the two States in question in order to determine which State is to pay the benefits.
         This applies in the relations between Spain and Germany both in the case of residents in Spain who have worked in Germany
         (as in this case) and in the opposite case.
      
      34.      Secondly, the Commission’s view entails the risk of rendering almost redundant Article 5 of the regulation and the notification
         obligation laid down therein. It is true that the concept of ‘family allowances’ within the meaning of the regulation is one
         of European Union law which is set out in detail in Article 1 of the regulation. It is also true, however, that according
         to case-law, as we have seen above, (13) this notion specifically includes, on the one hand, the benefits that the Member States have declared pursuant to Article
         5 and, on the other, other benefits which, although not declared, have the characteristics set out in Article 1(u) in relation to ‘family allowances’.
      
      35.      Adopting the Commission’s interpretation would also risk fragmenting, in an unacceptable manner, the framework of the benefits
         payable for dependent children. In the present case, for example, the German family allowances too would, in all probability,
         have to be excluded from the scope of Articles 77 and 78 of the regulation when paid to the families of handicapped persons
         of full age. (14) The question could arise as to which of the ‘family allowances’ granted and declared by the various Member States pursuant
         to Article 5 definitely fell within the definition of Article 1(u) if they were examined in the manner advocated by the Commission.
      
      36.      I would add that the Kingdom of Spain itself did not, either in its written observations or at the hearing, challenge the
         fact that the benefits provided for in Real decreto legislativo 1/94 fall within the scope of Articles 77 and 78 of the regulation.
         Furthermore, it should be pointed out that, although in the present case this classification is irrelevant in relation to
         Spain, in other cases it could conversely require that Member State to pay benefits that would not be payable otherwise if
         they did not fall within the ambit of Articles 77 and 78.
      
      37.      Finally, it may also be observed that there is no lack of Court decisions in which, albeit implicitly, both the benefits under
         discussion here have been regarded as falling within the scope of Articles 77 and 78 of the regulation. (15)
      
      38.      For all these reasons, I consider that for the purpose of answering the questions referred in the present case, it is possible
         to consider that the two benefits, both the Spanish and the German, fall within the scope of Article 77. Moreover, that is
         the conclusion which the referring court also implicitly reached on the basis of its examination of the relevant provisions
         of national law.
      
      IV –  The first and second questions 
      39.      The first and second questions are couched in almost identical terms and refer to two provisions (Articles 77 and 78 of the
         regulation) that, apart from the fact that they deal respectively with retired workers and workers’ orphans, are almost identical.
         Therefore, these two questions should be examined together.
      
      40.      By these questions the referring court asks whether, in circumstances such as those of the main proceedings, the administration
         of a Member State may lawfully refuse to pay family allowances to a former worker (or his orphans) residing abroad, when he
         has a right to the family allowances in the State of residence but does not draw them because he has opted to receive, (16) from the State of residence, an alternative benefit which is incompatible with them.
      
      41.      Below I shall examine the first question, relating to Article 77: given that Articles 77 and 78 are similar, the conclusions
         drawn will also be applicable to the second article and thus to the second question.
      
      42.      This question is raised because, under Article 77 of the regulation, when a pensioner has a right to benefits under the law
         of several Member States, it is in principle for the State of residence to pay family allowances. However, this is subject
         to the right thereto being ‘acquired’ for the purpose of the latter State’s legislation. In essence, the referring court asks
         whether, in the present case, it may not be considered that the right to family allowances in Spain has been ‘acquired’, even
         though the allowances have not been drawn, for the applicants in the main proceedings could obtain the payment if they gave
         up the alternative benefits for which they have opted.
      
      43.      At first sight the question does not appear to pose any great problems in view of the wording of the provision. It could be
         held that, for the right to be regarded as ‘acquired’ within the meaning of Article 77 of the regulation, it is enough for
         a potential beneficiary to be able to obtain the benefit by applying for it. On this view, the fact that no application was
         made, like the fact that the beneficiary opted for an alternative benefit, would be irrelevant. In both cases the fact that
         the family allowances were not obtained would be the consequence of an act of will on the part of the beneficiary and the
         right would in any event be ‘acquired’.
      
      44.      However, it should be recalled that the Court has repeatedly held, in relation to Article 76(1) of the regulation, that a
         benefit is not ‘payable’ (17) if, although he has a right thereto, the beneficiary does not receive it because, for example, he has not submitted an application. (18) The present Article 76(2), which provides on the contrary that failure to submit an application for benefits to which there
         is a right permits the Member State to act as if the State to which the application should have been submitted had paid the
         benefits, was added subsequently by the legislator (19) also as a response to this approach by the Court.
      
      45.      Moreover, the Court has recently made it clear that, although it is clearly no longer applicable to Article 76(1) of the regulation
         following the intervention of the legislature, that case-law nevertheless remains valid in relation to similar provisions
         which have not been amended in that field. (20)
      
      46.      Consequently, on the basis of the cited judgments of the Court the first two questions referred by the national court must
         be answered to the effect that the applicants in the main proceedings, who have opted in Spain for another benefit as an alternative
         to family allowances, have no ‘acquired’ right to family allowances in that Member State.
      
      47.      However, there are two arguments that could be used to show that the abovementioned case-law is not applicable to Article
         77(1) of the regulation.
      
      48.      Firstly, it is possible to cite the lexical differences between Articles 76 and 77. As we have seen, Article 76 speaks of
         ‘payable’ benefits, (21) whilst the Article 77, in the relevant part, refers to an ‘acquired’ right. This difference is also to be found in the same
         form in the various language versions of the provision. It could, therefore, be argued that the Court’s case-law relating
         to Article 76 cannot be applied to the following article because it refers to a different situation. On this view, the legislature’s
         choice of amending only Article 76 and not Article 77 too could be explained by the fact that the legislature did not consider
         it necessary to take steps in relation to the second provision.
      
      49.      Secondly, it is possible, in the alternative, to propose, in the case of Article 77 too, the application by analogy of Article
         76(2) which, as we have seen, permits a Member State to act as if a benefit were actually paid in another State, provided
         that that did not happen merely because no application was submitted. This is the solution that has been suggested by the
         German Government, in particular, in its written observations, invoking in particular the comparable nature of the two situations
         governed by the two articles and arguing for a teleological interpretation of the paragraph added to Article 76 in 1989, in
         the light of the will of the legislature.
      
      50.      Even though I understand and, in part, share the concerns underling the two arguments above, the latter are, in my view, unconvincing,
         in particular in the light of the Court’s settled case-law.
      
      51.      So far as the first argument is concerned, the lexical differences between the two provisions under examination are not clear
         enough to allow them to be distinguished, one from the other, for the purpose of applying the principles of case-law. It must
         be observed that, in interpreting Article 76 of the regulation, the Court did not dwell long on lexical subtleties and essentially
         interpreted the provision in very pragmatic terms, concentrating solely on whether or not the benefit was drawn by the party concerned. (22) Moreover, in interpreting the provision the Court has not failed to emphasise the importance of placing on it an interpretation
         favourable to giving effect to freedom of movement for workers. (23) I further note that the German Government appears to have excluded the possibility of drawing such a distinction and proposed
         instead the second alternative, that is to say, the application by analogy of Article 76(2).
      
      52.      However, I consider that this second alternative likewise cannot be accepted. In the light of the above case-law, Article
         76(2) must, to all intents and purposes, be regarded as a clause that limits a right to a benefit provided for in the regulation.
         As such it must be interpreted restrictively. (24) Moreover, the Court has recently rejected the application by analogy of such a provision in a situation that was in many
         respects similar to the present case. (25)
      
      53.      Therefore, in concluding my examination of the first and second questions I propose that the Court answer them by declaring
         that, in a situation such as that in the main proceedings, a benefit payable under Article 77 or 78 of the regulation may
         not be refused by the authorities of a Member State in which the beneficiaries have acquired a pension entitlement based on
         national legislation, if provision is made in the State of residence for a comparable, higher benefit, which is, however,
         incompatible with another benefit for which the person concerned, having been given the choice, has opted.
      
      V –  The third question 
      54.      By Question 3 the referring court asks whether the answer given to the first two questions must be different if the family
         allowances in the State of residence, although granted in principle, cannot actually be obtained because the alternative benefit
         incompatible therewith is obligatory, and therefore potential beneficiaries do not even have the opportunity of opting for family benefits in its place.
      
      55.      The question is asked, albeit not explicitly, supposing the Court should find that, in a situation such as that set out in
         the first and second questions (the right to choose between family allowances and other benefits with the party concerned
         choosing the latter), the State in which the occupation was carried on (in this case Germany) may refuse to pay the family
         allowances.
      
      56.      Since I propose that the Court reply to the contrary to the first two questions referred, the answer to be given to the third
         follows automatically from that proposed for the first two. If the right to German family allowances does not cease where
         Spanish family allowances are not drawn owing to the choice of the potential beneficiaries, a fortiori that right cannot cease where that choice does not exist. In that case, it cannot even be said that there exists a right to
         draw family allowances in Spain. The referring court itself pointed out that, in its view, in that situation German family
         allowances should continue to be paid.
      
      57.      I propose, therefore, that the Court should answer the third question by declaring that what was stated in reply to the first
         two questions also applies when the payment of family allowances in the State of residence, although provided for in theory,
         cannot be effected even if the beneficiaries have chosen to draw them.
      
      VI –  Conclusion
      58.      In the light of the foregoing considerations, I propose that the Court give the following answer to the questions submitted
         by the Sozialgericht Nürnberg:
      
      (1)      A benefit payable under Article 77 or 78 of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security
         schemes to employed persons, to self-employed persons and to members of their families moving within the Community may not
         be refused by the authorities of a Member State in which the beneficiaries have acquired a pension entitlement based on national
         legislation, if provision is made in the State of residence for a comparable, higher benefit, which is, however, incompatible
         with another benefit for which the person concerned, having been given the choice, has opted.
      
      (2)      This also applies when payment of family allowances in the State of residence, although provided for in theory, cannot be
         effected even if the beneficiaries have chosen to draw them.
      
      1 –	Original language:  Italian.
      
      2 –	Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons,
         to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II),
         p. 416). The title cited is that of the consolidated version thereof.
      
      3 –	Regulation (EC) of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems
         (OJ 2004 L 200, p. 1).
      
      4 –	OJ 2003 C 210, p. 1.
      
      5 –	OJ 2005 C 79, p. 9.
      
      6 –	Now governed by the Federal Law on allowances for dependent children (Bundeskindergeldgesetz) of 11 October 1995, as subsequently
         amended.
      
      7 –	Royal Legislative Decree 20.6.1994, No 1/1994, approving the consolidated version of the General Law on Social Security
         (BOE 29 June 1994, No 154).
      
      8 –	Ley 7.4.1982, No 13/1982, de Integración Social de los Minusválidos (BOE 30 April 1982, No 103).
      
      9 –	One is the widow of a pensioner who has since died.
      
      10 –	Case 313/86 Lenoir [1988] ECR 5391, paragraph 10; Case C‑33/99 Fahmi and Esmoris Cerdeiro-Pinedo Amado [2001] ECR I‑2415, paragraphs 33 to 34; and Case C‑43/99 Leclere and Deaconescu [2001] ECR I‑4265, paragraphs 41 to 42.
      
      11 –	Lenoir, cited in footnote 10, paragraph 16.
      
      12 –	Case C‑251/89 Athanasopoulos and Others [1991] ECR I‑2797, paragraph 28.
      
      13 –	See the preceding footnote.
      
      14 –	With consequences, it should be emphasised, opposite to those hoped for by the Commission. The German family allowances
         would probably no longer be payable at that time.
      
      15 –	See, for example, Case C‑471/99 Martínez Domínguez and Others [2002] ECR I‑7835.
      
      16 –	The existence of the possibility of choosing between family allowances and an alternative benefit incompatible with them is an essential element of the first two questions.
         The referring court asks the third question, supposing that no such possibility exists.
      
      17 –	This case-law was established on the basis of the original wording of Article 76 of the regulation which speaks of ‘payable’
         benefits with reference to both those of the State of employment and those of the State of residence. The original text of
         Article 76 provided as follows: ‘Entitlement to family benefits or family allowances under Articles 73 and 74 shall be suspended
         if, by reason of the pursuit of a professional or trade activity, family benefits or family allowances are also payable under
         the legislation of the Member State in whose territory the members of the family are residing’.
      
      18 –	Case 191/83 Salzano [1984] ECR 3741, paragraph 10; Case 153/84 Ferraioli [1986] ECR 1401, paragraph 14; Case C‑117/89 Kracht [1990] ECR I‑2781, paragraph 11.
      
      19 –	By Council Regulation (EEC) No 3427/89 of 30 October 1989 amending Regulation (EEC) No 1408/71 on the application of social
         security schemes to employed persons, to self-employed persons and to members of their families moving within the Community
         and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1989 L 331, p. 1).
      
      20 –	Case C‑16/09 Schwemmer ([2010] ECR I-0000, paragraph 57. In that case the Court applied the abovementioned case-law to interpret Article 10 of Regulation
         (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application
         of social security schemes to employed persons and their families moving within the Community (OJ English Special Edition
         1972 (I), p. 159).
      
      21 –	See footnote 17 above.
      
      22 –	Advocate General Darmon had expressed himself explicitly in such terms in his observations in Salzano, cited in footnote 18, point 7.
      
      23 –	See, for example, Ferraioli, cited in footnote 18, paragraphs 16 and 17, and Schwemmer, cited in footnote 20, paragraph 58.
      
      24 –	See Case C‑215/99 Jauch [2001] ECR I‑1901, paragraph 21.
      
      25 –	Schwemmer, cited in footnote 20, paragraph 57.