JUDGMENT OF 20. 4. 1978 — CASE 134/77 RAGAZZONI v ASSUBEL

In Case 134/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail (Labour Tribunal), Brussels, for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Summary of the written observations submitted pursuant to Article. 20 of the Protocol on the Statute of the Court

III — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Summary of the written observations submitted pursuant to Article. 20 of the Protocol on the Statute of the Court

1. Article 76 of Regulation No 1408/71 constitutes an exception to the rule in accordance with which family allowances should be granted in the country in which the migrant worker is employed (cf. twelfth recital in the preamble to the regulation and Articles 73 (1) and 75 (1) (a) thereof);

2. The actual wording of Article 76 establishes that is applies only if the conditions for the acquisition of the right have been fulfilled and the family benefits have actually been paid in the country of origin, which is not the fact in the present case.

3. The judgment of the Court of 17 June 1970 in Case 3/70 (Beninato (nee Di Bella) [1970] ECR 415) has established that Community regulations in the matter of social security for migrant workers are not to be interpreted in such a way as to deprive those concerned of benefits to which they are entitled by reason of their place of permanent residence and that a person must not be regarded as having come under the legislation of another Member State unless he has in fact satisfied all the conditions under which he may acquire a right.

III —. Oral procedure

1. By a judgment of 25 October 1977, which was received at the Court Registry on 8 November 1977, the Tribunal du Travail, Brussels, pursuant to Article 177 of the EEC Treaty, requested a preliminary ruling on the interpretation of Article 76 of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416).

2. The question has been raised within the framework of a dispute between the Belgian Fund Assubel and an Italian worker employed in Belgium, whose wife resides with their three children in Italy where she pursues a professional or trade activity.

3. The Belgian institution has rejected the claim of the Italian worker for the payment in Belgium of family allowances.

4. The institution relied upon Article 76 of Regulation No 1408/71 which establishes rules of priority in cases of overlapping entitlement to family allowances and which provides that entitlement to family benefits or family allowances under Articles 73 and 74 shall be suspended if, by reason of the pursuit of a professional or trade activity, family benefits or family allowances are also payable under the legislation of the Member State in whose territory the members of the family are residing.

5. The Fund infers from the foregoing that that provision lays down a rule of legislative nature and must be understood as taking priority as a Community provision which is applicable whenever a professional or trade activity is pursued in the territory of the Member State in which the members of the family reside.

6. In this case Article 76 is an exception to the principle laid down by Article 73 whereby a worker subject to the legislation of a Member State other than France is entitled to the family allowances provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State as though they were residing on the territory of the first Member State.

7. The objection which may be raised to that view is that, apart from the fact that Article 76 is only intended to limit the possibility of overlapping benefits, pursuit of a professional or trade activity in the State in whose territory the members of the family are residing is not sufficient for the suspension of the entitlement conferred by Article 73 since it is necessary in addition that the family benefits should be payable under the legislation of that Member State.

8. For family allowances to be regarded as payable under the legislation of the Member State in whose territory the members of the family are residing the law of such State of residence must recognize the right to the payment of allowances in favour of the person in that family who works in such State.

9. The person concerned must thus fulfil all the conditions required by the domestic legislation of that State in order to exercise that right.

10. It is not disputed that in the situation in which the dispute arose and on the basis of the provisions in force in Italy at the time, Italian legislation, in that it did not confer the status of head of household upon a mother who was neither separated from nor abandoned by her husband, precluded the right of the former to receive family allowances for her children.

11. It follows that the family benefits or allowances were not payable under the legislation of the Member State in whose territory the members of the family were residing.

12. The reply to the question must accordingly be that the suspension, under Article 76 of Regulation No 1408/71, of the entitlement to family benefits or allowances in pursuance of Article 73 of that regulation is not applicable when the father works abroad in a Member State whilst the mother is employed in the country in which the other members of the family reside and has not acquired under the legislation of the said country of residence a right to family allowances either because only the father is acknowledged to have the status of head of household or because the conditions for awarding to the mother the right to payment of the allowances have not been fulfilled.

13. The costs incurred by the Belgian Government, the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

14. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds, THE COURT in answer to the question referred to it by the Tribunal du Travail, Brussels, by a judgment of 25 October 1977, hereby rules: