Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The preliminary question which is submitted to you in the present case concerns the interpretation of one of the rules against the overlapping of benefits contained in Regulation No 1408/71, relating to social security for migrant workers: namely a provision of Article 79 (3) included in the chapter which deals in particular with family allowances for dependent children of pensioners.

2. In order to understand the purport of Article 79 (3) of Regulation No 1408/71, it is necessary first of all to take account of the rules governing the award of benefits for dependent children of pensioners (Article 77 (2)). When, as in the present case, the pension is due under the legislation of one Member State only, the benefits are granted in accordance with the legislation of the Member State responsible for the pension (subparagraph (a)). But Article 79 (3) provides that, where entitlement to family benefits or family allowances in respect of the children arises under the legislation of another Member State by virtue of the pursuit of a professional or trade activity, the right to benefits due under paragraph (2) and under Articles 77 and 78 shall be suspended.

3. The second question submitted by the Tribunal of Charleroi is based on the assumption that the attitude of the Italian Social Security Institution is no longer justifiable at the present time in view of the principles of equal rights for men and women. Of course, this assumption has been rendered obsolete as a result of the above-mentioned amendment to the Italian legislation, an amendment which should now permit Mrs Rossi — if she were to make a further application to the Istituto — to obtain the family allowances for the children. But precisely for this reason — apart from the fact that the argument is of general interest — I believe that it is appropriate to answer the court's second question also.

4. In favour of the argument advanced by the Belgian Government it would be possible to rely on a literal construction of the provision in question. Article 79 (3) speaks of suspension without qualification, so that it would seem logical to deduce from that that it v/as intended to refer only to total suspension. That is to say, the regulation provides for the application of one or other of the two laws involved, regardless of any consequences that might ensue to the detriment of the rights acquired by the worker, and does not permit the combined application, so to speak, of the two sets of legislation for the purpose of protecting such rights.

5. The considerations examined so far lead one to reject the Belgian Government's submission: in fact the interpretation on which it relies is clearly not compatible either with the spirit and the aims of Regulation No 1408/71 or with the principles which may be inferred from Articles 48 to 51 of the EEC Treaty (and in particular with the principle whereby the worker cannot receive, as a result of the rules against the overlapping of benefits contained in the abovementioned regulation, less favourable treatment than that which is accorded to him by the domestic law of a particular Member State).

6. I conclude, therefore, by proposing that in answer to the two questions submitted by the Tribunal du Travail, Charleroi, in this judgment of 19 April 1978, the Court should rule as follows:

1 Translated from the Italian.