Juan Pérez Garcia and Others v Familienkasse Nürnberg.
Date: 2011-10-20
31. Consequently, the ‘family allowances’ for which Articles 77 and 78 provide payment, are solely those benefits that match that definition, to the exclusion of any other family benefit for dependent children (see, to that effect, Case 313/86 Lenoir  [1988] ECR I-5391, paragraphs 10 and 11; Case C‑33/99 Fahmi and Esmoris Cerdeiro-Pinedo Amado [2001] ECR I‑2415, paragraphs 33 to 35; and Case C‑43/99 Leclere and Deaconescu  [2001] ECR I‑4265, paragraphs 41 and 42).
36. As the Court has already held, although the fact that certain benefits for dependent children of pensioners granted under a national law or regulation were not mentioned in the declaration referred to in Article 5 of Regulation No 1408/71 cannot, by itself, establish that those benefits do not constitute benefits for the purposes of Articles 77 and 78 of that regulation, it must on the other hand be stated that where such benefits were mentioned in that declaration they are to be regarded as benefits covered by those provisions (see, to that effect, Case C‑251/89 Athanasopoulos and Others  [1991] ECR I‑2797, paragraph 28).
39. It should be recalled in that regard that, under Articles 77(2)(b)(i) and 78(2)(b)(i) of Regulation No 1408/71, where a pensioner or a deceased worker has been subject to the laws of more than one Member State, the allowances in question are to be paid in accordance with those of the State in whose territory the pensioner, or the orphan of the deceased worker, resides. The Member State of residence is accordingly specified by the provisions of Regulation No 1408/71 as having sole competence to grant the family allowances in question (see, to that effect, Case C‑59/95 Bastos Moriana and Others  [1997] ECR I‑1071, paragraphs 15 and 18).
44. According to similarly established case-law of the Court, the recognition of such a right requires that the interested person should fulfil all the conditions, as to both form and substance, imposed by the national legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits (see, by analogy, Ragazzoni , paragraphs 8 and 9; Salzano , paragraphs 7 and 10; Case 153/84 Ferraioli [1986] ECR 1401, paragraph 14; Case C-117/89 Kracht  [1990] ECR I-2781, paragraph 11; and Case C-119/91 McMenamin  [1992] ECR I‑6393 paragraph 26).
50. However, that fact does not deprive the case-law of its usefulness in interpreting Articles 77 and 78 of Regulation No 1408/71. Indeed, unlike the previous version of Article 76 of Regulation No 1408/71, which concerns cases of overlapping entitlements to family benefits where such benefits are due because professional activity has been carried out in the Member State of residence of family members and under the legislation of the other Member State, those Articles 77 and 78 concerning the right to family allowances of pensioners and orphans of deceased workers were not supplemented by Regulation No 3427/89, which none the less amended in several respects the version then in force of Regulation No 1408/71 on the grant of family benefits (see, to that effect, Case C‑16/09 Schwemmer [2010] ECR I-0000, paragraph 57).
51. Furthermore, and above all, the European Union legislation on the coordination of national social security legislations, taking account in particular of its underlying objectives, cannot, except in the case of an express exception in conformity with those objectives, be applied in such a way as to deprive a migrant worker, or those claiming under him, of benefits granted under the legislation of a single Member State on the basis solely of the insurance periods completed under that legislation (see, to that effect, in particular, Case 9/67 Colditz [1967] ECR 229, 234; Case 100/78 Rossi  [1979] ECR 831, paragraph 14; Schwemmer , paragraph 58 and the case-law cited, and Case C-388/09 da Silva Martins  [2011] ECR I-0000, paragraph 75).
52. Accordingly, as regards Articles 77(2)(b)(i) and 78(2)(b)(i) of Regulation No 1408/71, the Court has already held that those provisions cannot be interpreted in such as way as to deprive the worker, or the orphan of a deceased worker, of entitlement to more favourable benefits, by the substitution of benefits granted in the Member State of the new residence for benefits previously acquired solely by reason of the legislation of another Member State (see, to that effect, in particular Case 733/79 Laterza  [1980] ECR-1915, paragraphs 9 and 10; Case 807/79 Gravina [1980] ECR-2205, paragraph 8; Case 320/82 D’Amario  [1983] ECR-3811, paragraph 5; Case 269/87 Ventura [1988] ECR-6411, paragraph 14; and Bastos Moriana and Others , paragraph 16).