Alfredo Martínez Domínguez, Joaquín Benítez Urbano, Agapito Mateos Cruz and Carmen Calvo Fernández v Bundesanstalt für Arbeit, Kindergeldkasse.
Date: 2002-09-24
21 At paragraph 32 of the judgment in Gómez Rodríguez, cited above, the Court stated, in regard to Article 78(2)(b) of the Regulation, that, where entitlement to benefits which arose in the State of residence is lost because an age-limit has been reached, the competent institution of another Member State is not required to grant benefits to the persons concerned, unless they have acquired their entitlement there solely on the basis of the periods of insurance completed in that State.
22 As regards both Article 77(2)(b) and Article 78(2)(b) of the Regulation, that interpretation followed from the judgment in Bastos Moriana and Others, cited above, given in cases concerning not only benefits of an amount greater than those granted in the State of residence but also a dependent child allowance granted for a longer period by the legislation of the Member State in which the application was made, that is to say on account of a higher age-limit than that laid down by the legislation of the Member State of residence (see Bastos Moriana and Others, cited above, paragraph 5, and Opinion of Advocate General Fennelly in that case, paragraphs 23 and 24).  Thus, the expression `benefit supplement' used in that judgment covered both the question of payment of the difference in amount between the benefits paid in the Member State of residence and those awarded in another Member State and the question of payment in full of a benefit by the competent institution of the Member State in which the application was made, beyond the age-limit laid down by the legislation of the Member State of residence.
23 It should be recalled in that regard that the rules laid down in Articles 77 and 78 are designed to determine the Member State whose legislation governs the grant of benefits for dependent children of pensioners and for orphans, which are then granted, in principle, in accordance with the legislation of that Member State alone (Bastos Moriana and Others, cited above, paragraph 15), in conformity with the principle, laid down in Article 13(1) of the Regulation, that the legislation of a single Member State is applicable.
24 As the Court has pointed out on a number of occasions, the Member States retain sole competence to determine the level and the duration of the benefits granted by them (judgment in Gómez Rodríguez, cited above, paragraph 28).
28 In the fourth case before the referring court the entitlement to an orphan's pension was therefore maintained in Germany under the principle laid down in paragraph 29 of the judgment in Case C-227/89 Rönfeldt [1991] ECR I-323 and paragraphs 38 to 45 of the judgment in Gómez Rodríguez, cited above, according to which entitlement to a more favourable benefit under a social-security convention cannot be lost owing to the entry into force of the Regulation.
29 In those circumstances the national concerned has an established right to continued application of that convention after entry into force of the Regulation (see judgment of 5 February 2002 in Case C-277/99 Kaske [2002] ECR I-0000, paragraph 26).
30 In other words, if, as regards a social security advantage, a national of a Member State can benefit from a right under a convention entered into between two Member States, and if that convention is more favourable to him than a Community regulation which became applicable to him subsequently, the right derived by him under the convention is acquired by him once and for all. Accordingly, with regard to a specific benefit, where periods of insurance or employment which form the basis of the worker's rights were completed, at least partially, during a period when only the bilateral convention was applicable, the worker's overall situation must be assessed by reference to the provisions of that convention if it is favourable to him (judgment in Kaske, cited above, paragraphs 31 and 32).
31 It is for the national court to assess whether a claimant has an established right under a social-security convention to a more favourable benefit.  If so, that right must be assimilated to a benefit entitlement acquired solely under the national legislation of the Member State in which the application was made, as may be inferred from paragraph 27 of the judgment in Rönfeldt, cited above.