1 BY ORDER OF 4 FEBRUARY 1976 , WHICH REACHED THE COURT ON 23 FEBRUARY , THE COUR DE CASSATION OF BELGIUM HAS REFERRED A QUESTION UNDER ARTICLE 177 OF THE EEC TREATY ON THE VALIDITY OF ARTICLE 42 ( 2 ) OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JO NO 30 OF 16 . 12 . 1958 , P . 561 ), AS AMENDED BY ARTICLE 1 OF REGULATION NO 1/64/EEC OF THE COUNCIL OF 18 DECEMBER 1963 ( JO NO 1 OF 8 . 1 . 1964 , P . 1 ), NOW REPEALED , AND IN PARTICULAR ON THE COMPATIBILITY OF THE SAID ARTICLE 42 ( 2 ) WITH ARTICLES 3 , 48 , 51 AND 117 OF THE EEC TREATY .
2 THIS QUESTION HAS BEEN RAISED IN RELATION TO A DISPUTE CONCERNING THE RIGHT OF AN ITALIAN NATIONAL TO FAMILY ALLOWANCES . HE IS THE APPELLANT IN THE MAIN ACTION . HE WORKED FIRST IN ITALY FROM 1938 TO 1945 AND THEN IN BELGIUM FROM 1946 TO 1960 . HE BECAME DISABLED DURING THIS LATTER TIME , AND HE IS ENTITLED TO TWO INVALIDITY PENSIONS , ONE UNDER BELGIAN LEGISLATION AND THE OTHER UNDER ITALIAN LEGISLATION .
3 ARTICLE 42 ( 1 ) OF REGULATION NO 3 AS AMENDED BY REGULATION NO 1/64 PROVIDES THAT : ' BENEFICIARIES OF A PENSION DUE IN PURSUANCE OF THE LEGISLATION OF ONE MEMBER STATE ONLY , AND WHO PERMANENTLY RESIDE IN THE TERRITORY OF ANOTHER MEMBER STATE ARE ENTITLED TO FAMILY ALLOWANCES IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION OF THE COUNTRY LIABLE FOR PAYMENT OF THE PENSION AS THOUGH THEY WERE PERMANENTLY RESIDENT IN THAT COUNTRY . '
4 AS REGARDS BENEFICIARIES OF PENSIONS DUE UNDER THE LEGISLATION OF SEVERAL MEMBER STATES , ARTICLE 42 ( 2 ) PROVIDES THAT THEY ' ARE ENTITLED TO FAMILY ALLOWANCES IN ACCORDANCE WITH THE LEGISLATION ( A ) OF THE COUNTRY OF THEIR PERMANENT RESIDENCE , IF THEY PERMANENTLY RESIDE IN THE TERRITORY OF A MEMBER STATE WHERE THERE IS ONE OF THE INSTITUTIONS LIABLE FOR THE PAYMENT OF THEIR PENSION ; ( B ) OF THE MEMBER STATE IN WHICH THEY HAVE COMPLETED THE LONGEST OLD-AGE INSURANCE PERIOD , IF THEY ARE PERMANENTLY RESIDENT IN THE TERRITORY OF A MEMBER STATE WHERE THERE IS NO INSTITUTION LIABLE FOR THE PAYMENT OF THEIR PENSIONS , AS THOUGH THEY WERE PERMANENTLY RESIDENT IN THE TERRITORY OF THE FORMER STATE . IF THE LEGISLATION APPLICABLE IN PURSUANCE OF THIS PARAGRAPH DOES NOT PROVIDE FOR FAMILY ALLOWANCES FOR BENEFICIARIES OF PENSIONS , SUPPLEMENTS OR INCREASES IN PENSIONS FOR CHILDREN PROVIDED FOR BY THIS LEGISLATION SHALL BE ASSIMILATED TO FAMILY ALLOWANCES AND PAID IN FULL IN DEROGATION FROM THE PROVISIONS OF ARTICLE 28 ( 1 ) ( B ), SECOND SENTENCE OF THIS REGULATION ' .
5 SINCE THE APPELLANT IN THE MAIN ACTION DID NOT RECEIVE PAYMENT OF THE ITALIAN INVALIDITY PENSION UNTIL 1969 , THE RESPONDENT IN THE MAIN ACTION ACTED ON THE BASIS THAT THE SAID APPELLANT WAS ENTITLED ONLY TO A BELGIAN PENSION AND PAID HIM BELGIAN FAMILY ALLOWANCES PURSUANT TO ARTICLE 42 ( 1 ) FOR THE PERIOD FROM 1 FEBRUARY 1964 TO 31 MARCH 1969 .
6 WHEN THE APPELLANT IN THE MAIN ACTION WAS GRANTED HIS ITALIAN PENSION , THE RESPONDENT IN THE MAIN ACTION , ON THE BASIS OF ARTICLE 42 ( 2 ) OF REGULATION NO 3 , ASKED HIM FOR REPAYMENT OF THE FAMILY ALLOWANCES WHICH IT HAD PAID TO HIM DURING THE AFOREMENTIONED PERIOD .
7 ACCORDING TO THE PROVISIONS OF THE LAST SUBPARAGRAPH OF ARTICLE 42 ( 2 ), THE APPELLANT IN THE MAIN ACTION IS ENTITLED TO THE ITALIAN PENSION SUPPLEMENTS FOR CHILDREN CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 28 OF REGULATION NO 3 , BUT WITHOUT APPORTIONMENT .
8 SINCE THE SAID SUPPLEMENTS DID NOT APPEAR TO BE SO HIGH AS THE BELGIAN FAMILY ALLOWANCES , THE APPELLANT IN THE MAIN ACTION HAS CONTESTED THE VALIDITY OF THE NEW ARTICLE 42 ( 2 ) OF REGULATION NO 3 .
9 HE ARGUES THAT THIS PROVISION IS INCOMPATIBLE WITH ARTICLES 3 , 48 , 51 AND 117 OF THE EEC TREATY , IN THAT THE EFFECT OF IT IS TO CREATE INEQUALITIES BETWEEN WORKERS , WHICH CONSTITUTE AN OBSTACLE TO THE FREE MOVEMENT OF PERSONS WITHIN THE COMMUNITY .
10 IT IS ARGUED THAT THE EFFECT OF THE SAID ARTICLE 42 ( 2 ) IS THAT BY COMPARISON WITH AN ITALIAN WORKER WHO HAS ONLY WORKED IN BELGIUM , A WORKER WHO HAS WORKED IN ITALY AND IN BELGIUM IS PLACED AT A DISADVANTAGE BECAUSE UPON RETURNING DISABLED TO THEIR COUNTRY OF ORIGIN , THE FIRST RECEIVES THE BELGIAN FAMILY ALLOWANCES , AND THE SECOND ONLY RECEIVES THE ITALIAN PENSION SUPPLEMENT FOR CHILDREN .
11 ARTICLE 3 OF THE EEC TREATY PROVIDES THAT THE ACTIVITIES OF THE COMMUNITY SHALL INCLUDE INTER ALIA THE ABOLITION OF OBSTACLES TO FREEDOM OF MOVEMENT FOR PERSONS .
12 ARTICLE 48 PROVIDES THAT FREEDOM OF MOVEMENT FOR PERSONS SHALL BE SECURED WITHIN THE COMMUNITY .
13 ARTICLE 51 IS WORDED AS FOLLOWS : ' THE COUNCIL SHALL , ACTING UNANIMOUSLY ON A PROPOSAL FROM THE COMMISSION , ADOPT SUCH MEASURES IN THE FIELD OF SOCIAL SECURITY AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS ; TO THIS END IT SHALL MAKE ARRANGEMENTS TO SECURE FOR MIGRANT WORKERS AND THEIR DEPENDANTS : ( A ) AGGREGATION , FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT , OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES ; ( B ) PAYMENT OF BENEFITS TO PERSONS RESIDENT IN THE TERRITORIES OF MEMBER STATES . '
14 THE WORDING OF THE FIRST PARAGRAPH OF ARTICLE 117 IS AS FOLLOWS : ' MEMBER STATES AGREE UPON THE NEED TO PROMOTE IMPROVED WORKING CONDITIONS AND AN IMPROVED STANDARD OF LIVING FOR WORKERS , SO AS TO MAKE POSSIBLE THEIR HARMONIZATION WHILE THE IMPROVEMENT IS BEING MAINTAINED . '
15 IT IS SETTLED THAT BELGIAN LEGISLATION ALONE DOES NOT GIVE ANY RIGHT TO BELGIAN FAMILY ALLOWANCES TO A WORKER WHO , HAVING WORKED IN BELGIUM , BECOMES DISABLED AND LEAVES BELGIUM TO RETURN TO HIS COUNTRY OF ORIGIN .
16 THE PROVISIONS AT ISSUE HAVE THE EFFECT OF ENSURING THAT THE PERIOD OF WORK IN BELGIUM SHALL BE TAKEN INTO ACCOUNT WITHOUT APPORTIONMENT WHEN THE AMOUNT OF THE ITALIAN PENSION SUPPLEMENT FOR CHILDREN IS CALCULATED .
17 AS APPEARS FROM THE FIRST RECITAL TO REGULATION NO 1/64 , ARTICLE 42 OF REGULATION NO 3 IN ITS EARLIER FORM HAD PROVED TOO COMPLICATED TO APPLY . THE PURPOSE OF THE NEW ARTICLE 42 WAS , THEREFORE , TO SIMPLIFY THE SYSTEM FOR CO-ORDINATING FAMILY ALLOWANCES , AND TO ENSURE , SO FAR AS POSSIBLE , THAT MIGRANT WORKERS RECEIVE THE PAYMENTS TO WHICH THEY WOULD HAVE BEEN ENTITLED IF THEY HAD WORKED IN ONLY ONE MEMBER STATE .
18 ALTHOUGH THE MEASURES TAKEN BY THE COUNCIL PURSUANT TO ARTICLE 51 MUST NOT HAVE THE EFFECT OF DEPRIVING A MIGRANT WORKER OF A RIGHT ACQUIRED BY VIRTUE ONLY OF THE LEGISLATION OF THE MEMBER STATE IN WHICH HE HAS WORKED , NONE OF THE AFOREMENTIONED PROVISIONS OF THE TREATY RESTRICTS THE FREEDOM CONFERRED ON THE COUNCIL BY ARTICLE 51 TO CHOOSE ANY MEANS WHICH , VIEWED OBJECTIVELY , ARE JUSTIFIED , EVEN IF THE PROVISIONS ADOPTED DO NOT RESULT IN THE ELIMINATION OF ALL POSSIBILITY OF INEQUALITY BETWEEN WORKERS ARISING BY REASON OF DISPARITIES BETWEEN THE NATIONAL SCHEMES IN QUESTION .
19 IT APPEARS FROM WHAT HAS BEEN SAID ABOVE THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THE PROVISIONS AT ISSUE .