OPINION OF MR CAPOTORTI — CASE 134/77 RAGAZZONI v ASSUBEL

Mr President,

Members of the Court,

1. The Tribunal du Travail, Brussels, by a decision of 25 October 1977 submitted to the Court of Justice a request for an interpretation of Article 76 of Regulation No 1408/71 of the Council of 14 June 1971. That provision is as follows:

2. Let us now consider the purpose and meaning of Article 76 of Regulation No 1408/71. I think it is important to make three points in this connexion:

3. At this point it is sufficient in order to reply to the question submitted by the Tribunal du Travail, Brussels, to emphasize the meaning of the second of the two conditions prescribed by Article 76 for the suspension of entitlement to family benefits or family allowances. I have already pointed out that the first of these conditions is that a member of the family unit should pursue a professional or trade activity in the Member State where the family resides. The second condition is that the family benefits or family allowances should be payable under the legislation of that State. I do not consider it possible to concur in the plaintiff's view that the word payable is to be understood as equivalent to paid; the condition in question is not so wide as to require the actual payment of the family benefits or family allowances. On the contrary I consider that, in order to hold that the family allowances are payable, the legislation of the State where the members of the family are residing must recognize the right to payment of the allowances to the person who works in that State, and, for the person concerned to be able to assert that right, all the conditions must in fact have been fulfilled.

4. If this interpretation is correct I consider that it also helps to solve the problem created by the enactment in Italy of new rules concerning the right of the wife to receive family allowances for the children. I refer in particular to Article 9 of Law No 903 of 9 December 1977, which entered into force on 18 December 1977, in pursuance of which family allowances may as an alternative be paid to a working wife but in any case such allowances must be paid to the parent with whom the child resides if claims are submitted by both parents.

5. I accordingly suggest that the Court of Justice should reply to the question submitted by the Tribunal du Travail, Brussels, in terms of the following statement:

1 Translated from the Italian.