CELEX: C1995/137/14
Language: en
Date: 1995-06-03 00:00:00
Title: Reference for a preliminary ruling from the Sozialgericht Nürnberg by order of that court of 16 January 1995 in the case of Francisco Bastos Moriana and Others v. Bundesanstalt für Arbeit, Kindergeldstelle (Case C-59/95)

No C 137/8              EN                 Official Journal of the European Communities                                        3 . 6 . 95
court; the Commission cannot disregard that criminal                  Reference for a preliminary ruling from the Sozialgericht
court's findings of fact.                                             Niirnberg by order of that court of 16 January 1995 in the
                                                                      case    of   Francisco       Bastos     Moriana    and     Others
There is no legal basis for imposing a penalty. The German                    v. Bundesanstalt fur Arbeit, Kindergeldstelle
 Government gave the Commission the notifications                                             ( Case C-59/95 )
prescribed by Articles 3 and 5 ( 2 ) of Regulation ( EEC )                                      ( 95/C 137/14 )
No 595/91 ; that Regulation contains no further obligation
to make the notifications by a specified date at the latest.
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of the Sozialgericht
On point 4
                                                                      Niirnberg ( Social Court, Nuremberg ) of 16 January 1995 ,
                                                                      which was received at the Court Registry on 7 March 1995 ,
The Commission's complaint that the German authorities                for a preliminary ruling in the case of Francisco Bastos
did not apply Article 47 ( 4 ) of Regulation ( EEC )                  Moriana and Others v. Bundesanstalt fur Arbeit,
No 3665/87 correctly is unfounded . The Hauptzollamt                  Kindergeldstelle, on the following questions :
 ( Principal Customs Office ) had to presume in the
circumstances that the Siidfleisch firm had done everything
within its power to produce the Lebanon arrival certificate           1 . Must Article 77 ( 2 ) ( b ) in conjunction with Article 79 ( 1 )
in time; if they had suggested that Siidfleisch intended to               of Regulation ( EEC ) No 1408/71 (*) be interpreted as
cause delay, that might have entailed the illegality of the               meaning that family allowances for dependent children
decision, which had to be taken in accordance with respect                of pensioners who have acquired entitlement to a
for the rule of law ( in particular the principle of equal                pension in a Member State not only on the basis of the
treatment in Article 3 of the German Basic Law).                          legislation of that Member State but also on the basis of
                                                                          the coordinating provisions of European social law are
                                                                          to be paid by the Member State in which the pensioners
In the exercise of its discretion with respect to the extension           do not reside as a benefit supplement equal to the
of a time limit, the Principal Customs Office was not able to             difference between the amount of the benefits provided
allege that Siidfleisch had produced the — objectively                    for in that Member State and the benefits paid or
falsified — information on the arrival at the destination with
                                                                          provided for by the State of residence ?
fraudulent intent or gross negligence; that view was
confirmed by the Staatsanwaltschaft ( Public Attorney's
Office ) and the customs investigators . Where — as in the            2 . Must Article 78 (2 ) ( b ) in conjunction with Article 79 ( 1 )
present case — EC law leaves a discretion to the Member                   of Regulation ( EEC ) No 1408/71 be interpreted as
States , it is not open to the Commission to make the exercise            meaning that family allowances for orphans of a
of that discretion subject to its own views .                             deceased worker or self-employed person who was
                                                                          subject to the legislation of several Member States, if
                                                                          entitlement to an orphan's pension in a Member State
On point 5                                                                whose law applied does not exist solely on the basis of
                                                                          the legislation of that Member State or on the basis of
The German authorities did not infringe any legal obligation              the coordinating provisions of European social law, are
which could give rise to a financial charge, and in particular            to be paid by the Member State in which the orphans do
not their obligation under Article 5 of the EC Treaty in                  not reside as a benefit supplement equal to the difference
conjunction with Article 8 of Regulation ( EEC ) No 729/70                between the amount of the benefits provided for in that
to recover sums wrongly paid . On the basis of the findings               Member State and the benefits paid or provided for by
                                                                          the State of residence ?
made by the German authorities, it is to be presumed that
the goods in question reached the South African market first
and were traded there; that corresponding certificates of             3 . If the replies to questions 1 and 2 are in the affirmative
fitness for consumption were subsequently issued in                       and there is entitlement to family allowances, must the
Zimbabwe is irrelevant, in so far as those certificates give no           amount of the benefit supplement be reduced according
indication as to the route actually taken by the goods and                to the ratio between the periods of insurance in the
may later have abusively been allocated to consignments of                Member State and the periods of insurance of the same
meat other than those for which they were issued .                        kind in the State of residence (or another Member
                                                                          State )?
On point 6
                                                                     4 . Is entitlement to benefit supplement precluded by the
                                                                          fact that a pension benefit granted under a social
The applicant refers to the pending Case C-41 /94 ( 3 ) for               insurance agreement has not been converted in
reasons .
                                                                          accordance with Article 94 ( 5 ) of Regulation ( EEC )
                                                                          No 1408/71 ?
(M OJ No L 352 , 31 . 12 . 1994 , p . 82 .
( 2 ) OJ No C 189 , 13 . 7 . 1993 , p. 7 .
( ? ) OJ No C 90, 26 . 3 . 1994 , p . 6 .                             (M OJ No L 149 , 5 . 7. 1971 , p . 2 .