1 By order of 4 July 1991, received at the Court on 21 August 1991, the Bayerisches Landessozialgericht (Bavarian Higher Social Court) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 78 of 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 as consolidated in Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, hereinafter referred to as "Regulation No 1408/71").
2 That question was raised in proceedings between Miriam Gobbis (hereinafter "the appellant") and the Landesversicherungsanstalt Schwaben (Regional Insurance Office, Swabia, hereinafter "the respondent") concerning the amount of benefit supplement paid to the appellant.
3 The appellant is the daughter of Sergio Gobbis, an employed person who died on 9 November 1984 and had completed periods of insurance in both the Federal Republic of Germany and in Italy. As long as the appellant resided in Germany, the respondent granted her an orphan' s pension. Following her return to Italy, that pension was stopped on the ground that payment of orphans' benefits devolved thenceforth on the competent Italian institution.
4 The relevant Italian legislation provides that the orphan of a deceased worker is entitled to a pension equal to 20% of the pension to which the deceased person was entitled on the day of his death. It further provides that the surviving spouse of a deceased worker is entitled to a pension equal to 60% of the pension to which the worker was entitled on the day of his death. However, the survivors' pension may not be less than a certain minimum fixed by the Italian legislation; if the amount of the survivors' pension fails to reach that level, it is increased until it reaches the minimum, even where there is no child, orphan or otherwise. If the orphan lives with the surviving spouse, the orphan' s pension and the survivor' s pension ° increased where necessary to the minimum level prescribed by law ° are paid to the surviving spouse; that total amount will be referred to hereinafter as "the total survivor' s pension". The Italian legislation also provides that any person with a dependent child, regardless of whether the child is an orphan or not, is entitled to a family supplement until the day on which the child reaches the age of 18 years.
5 When the appellant returned to Italy, the Istituto Nazionale della Previdenza Sociale (Italian Social Insurance Institution, hereinafter "the INPS") paid the appellant' s mother an amount which comprised the pension due to the surviving spouse, the pension payable to the orphan and the family supplement. Since the aggregate amount of the survivor' s pension and the orphan' s pension failed to reach the statutory minimum, the total survivor' s pension paid to the appellant' s mother was increased until it represented the statutory minimum pension. When the applicant reached the age of 18 years, payment of the family supplement ceased. However, the amount paid by way of survivor' s pension and orphan' s pension remained unchanged.
6 On 12 September 1989, the respondent granted the appellant a supplementary payment equal to the difference between the orphan' s pension calculated under German legislation and the total which, according to its calculations, the INPS was liable to pay by way of orphan' s benefits. The latter, in the view of the respondent, was equal to the sum of the family supplement plus 25% of the aggregate of the survivor' s pension and the orphan' s pension.
7 The appellant took the view that the family supplement was not a constituent element of the orphan' s pension but an independent benefit granted for children generally, whether or not they are orphans, and therefore claimed before the national court that the supplement paid by the respondent ought to have been calculated without reference to the family supplement.
8 Furthermore, the national court expressed doubts regarding the fact that an amount equal to 25% of the total survivor' s pension paid to the appellant' s mother was taken into account in calculating the orphan' s benefits due under the Italian legislation, since the mother would rightfully have received pension in an identical amount even if she had not had an orphan child. Moreover, even if it is assumed that part of the total survivor' s pension, increased to the level of the minimum pension, should be regarded as an orphan' s benefit, the national court questions whether that fraction amounts to 25% of the minimal pension, to 20% of the deceased insured person' s pension ° not counting the increase ° or to some other amount.
9 In those circumstances, the national court decided to stay proceedings pending a preliminary ruling from the Court of Justice on the following question: "Is Community law to be interpreted as meaning that, on granting the amount of the difference between the orphan' s pension payable under Italian law and the one payable under German law, the German Pensions Insurance Institution (a) may take into account the orphan' s proportion of the Italian (total) survivor' s pension even where the widow and the orphan are granted a minimum survivor' s pension which would also be payable to the widow alone ° irrespective of the orphan? If so, is the supplementary amount included in the total survivor' s pension to bring it up to the minimum pension also to be taken into consideration for the purposes of the part representing the orphan' s pension and, if so, in what amount? (b) may take into account the family supplement (assegno familiare) granted under Italian law?"
10 Reference is made to the Report for the Hearing for a fuller account of the facts and legal background of the main proceedings, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
11 In order to reply to the question submitted by the national court, it is appropriate, first of all, to note that Article 78(2)(b)(i) of Regulation No 1408/71 provides that benefits for orphans of a deceased employed or self-employed person who was subject to the legislation of several Member States shall be granted "in accordance with the legislation of the Member State in whose territory the orphan resides provided that ... a right to one of the benefits referred to in paragraph 1 is acquired under the legislation of that State ...".
12 It must further be recalled that, according to settled case-law (see, most recently, the judgment in Case C-188/90 Doriguzzi-Zordanin [1992] ECR I-2039, paragraph 14), benefits under Regulation No 1408/71 in respect of the orphaned child of a migrant worker must be calculated in such a way that, where the amount of the benefits actually received in the Member State of residence is lower than that of the benefits provided for under the legislation of another Member State, the orphan is entitled to receive from the competent institution of the latter State a benefit supplement equal to the difference between the two amounts.
13 It follows from that case-law that an orphaned child of a migrant worker cannot be deprived of an entitlement to higher benefits available to him under the legislation of a Member State other than that in which he resides. However, he cannot be allowed rights greater than those he would be able to claim under the legislation of that other Member State if he were resident there. Such a result can be brought about only if the institution of the latter Member State can set off against the benefits it must provide all the benefits paid in the other Member State of residence for the maintenance of the orphan, regardless of their nature or designation (see Case C-188/90, paragraph 15).
14 It should further be noted that, in accordance with Article 78(1) of Regulation No 1408/71, benefits for orphans of employed persons and self-employed persons include "family allowances and, where appropriate, supplementary or special allowances for orphans and orphans' pensions except those granted under insurance schemes for accidents at work and occupational diseases".
15 In view of the fact that systems of assistance for orphans vary considerably from one Member State to another and in order to avoid arbitrary differences according to the national systems applicable, the Court has held that the term "benefits" for orphans in Article 78(1) of Regulation No 1408/71 must be interpreted as referring to all benefits intended under the applicable national system for the maintenance of orphans, whatever the character and designation of those benefits may be (see Case C-188/90, paragraph 16).
16 Consequently, the amount of the benefit supplement for orphans must be calculated by comparing all the benefits intended for the maintenance of the orphan in question, actually provided in the Member State of residence, with all the benefits intended for the maintenance of the said orphan which he would be entitled to if resident in the other Member State (see Case C-188/90, paragraph 17).
17 It follows that all the benefits intended for the maintenance of the orphan which have already been actually provided in the Member State of residence, regardless of their nature or designation and whatever the competent institution, must be taken into account for the purposes of calculating the benefit supplement which, in the other Member State, is intended for the maintenance of the orphan and to which he would be entitled if resident in the latter Member State.
18 So far as concerns the first limb of the question referred by the national court, it should be pointed out that, under the applicable Italian legislation, the orphaned child of a deceased worker is entitled to a pension equal to 20% of the pension to which the worker would have been entitled on the day of his death. That portion of the total survivor' s pension paid to the orphan' s mother must consequently be regarded as a benefit for orphans within the meaning of Article 78(1) of Regulation No 1408/71 and therefore taken into consideration when calculating the benefit supplement which the German insurance office is liable to pay by virtue of Article 78(2)(b)(i) of that regulation.
19 However, it must be clearly understood that the increase, provided for by the applicable Italian legislation in order to raise the survivor' s pension to the statutory minimum level, is granted to the surviving spouse of the migrant worker independently of the existence of dependent children, regardless of whether or not they are orphans. It follows that the increase does not constitute a benefit intended for the maintenance of orphans within the meaning of Article 78(1) of Regulation No 1408/71 and that, consequently, it must not be taken into account when calculating the benefit supplement which the competent German institution is liable to pay pursuant to Article 78(2)(b)(i) of the regulation.
20 So far as concerns the second limb of the question referred by the national court, it must be noted that the supplementary family allowance provided for by the applicable Italian legislation constitutes a family allowance within the meaning of Article 78(1) of Regulation No 1408/71, in that it is granted solely on the basis of the number and age of the children for whom the recipient of the benefit is responsible and is thus intended for the maintenance of children, inter alia orphans. Accordingly, the supplementary family allowance must be taken into account when calculating the benefit supplement which the competent German institution is liable to pay pursuant to Article 78(2)(b)(i) of Regulation No 1408/71.
21 It follows from all the foregoing observations that it should be stated in reply to the question submitted by the Bayerisches Landessozialgericht that Article 78(2)(b)(i) of Regulation No 1408/71 must be interpreted as meaning that, for the purposes of calculating a supplementary benefit payable under that provision, the competent institution must take into account the complementary family allowance and that portion of the total survivor' s pension, paid to the surviving spouse of a migrant worker, which, according to the legislation of the Member State in which the orphan is resident, is intended for the maintenance of that orphan. However, the increase provided for by the legislation of the Member State of residence in order to raise the survivor' s pension to the minimum statutory level applicable in that State shall not be taken into consideration by the competent institution for the purposes of that calculation, in so far as the surviving spouse of the migrant worker is entitled to that increase, independently of the existence of dependent children, regardless of whether or not they are orphans.