JUDGMENT OF 12. 6. 1980 — CASE 733/79 CCAF ν LATERZA

In Case 733/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail [Labour Tribunal] de Charleroi, for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Isssues

I — Facts and written procedure

II — Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Mr Cosimo Laterza, an Italian national, having been employed in Italy from 1950 to 1955, was employed as a miner in Belgium from December 1955 to December 1969 when he ceased to work as a miner because of invalidity. The Fonds National de Retraite des Ouvriers Mineurs [National Pension Fund for Miners] (hereinafter referred to as the Pension Fund) by a decision of 12 May 1970 awarded him an invalidity pension under Belgian law alone; in the case in point under the régime spécial des ouvriers mineurs [the special scheme for miners].

2. Mr Laterza refused to repay the sums claimed by the Family Allowances Fund and the latter sued him before the Tribunal du Travail de Charleroi, which, by a judgment of 11 October 1979, asked the Court to rule whether Article 77 (2) (b) (i) of Regulation (EEC) No 1408/71

3. A certified copy of the judgment making the reference was received at the Court on 17 October 1979.

II —. Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

III —. Oral procedure

1. By a judgment of 11 October 1979 the Tribunal du Travail de Charleroi referred to the Court, pursuant to Article 177 of the EEC Treaty, a question on the interpretation of Article 77 (2) (b) (i) of Regulation (EEC) 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. This question was raised in an action relating to the decision of the competent Belgian social security institution not to acknowledge that an Italian worker in receipt of a Belgian invalidity pension and residing in Italy was entitled, as from 1 October 1972, to Belgian allowances for dependent children and to order him to repay the allowances paid from the said date to 31 October 1975.

3. The file forwarded by the national court shows that the worker in question, after working in Italy from 1950 to 1955 and in Belgium from 1955 to 1969, was on 1 June 1970 awarded an invalidity pension under Belgian legislation alone and until 1 October 1972 received the allowances for dependent children provided for by that legislation. Mr Laterza's entitlement to these allowances was governed up to the aforesaid date by Article 42 (1) of Regulation No 3 under the provisions whereof 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. Paragraph (3) of the said article goes on to say that the provisions of paragraph (1) apply irrespective of the Member State in whose territory the children reside.

4. After the Belgian social security institution had on 11 June 1970 laid the file relating to this invalidity provision before the competent Italian authorities and requested them to take over the responsibility for a proportion of the invalidity pension in pursuance of the Community law provisions relating to aggregation and apportionment, the Italian social security institution, on 27 December 1976, awarded the worker, on the basis of Article 40 (3) of Regulation No 1408/71, a proportional pension and also the family allowances provided for by Italian legislation as from the entry into force of the said regulation, that is to say from 1 October 1972.

5. On the basis of the grant of those benefits the Belgian institution reduced the amount of the invalidity pension paid up, to 1 October 1972 by the amount of the said proportional pension, decided to stop payment of the allowances for dependent children provided for under Belgian legislation as from that date, and at the same time sought repayment from Mr Laterza of the allowances paid up to 31 October 1975 (namely BFR 104189), the date when the payment of those benefits had been suspended pending the decision of the Italian authorities on the award of a proportional pension. In support of its decision the Belgian social security institution referred to the provision of Article 17 (2) (b) (i) of Regulation No 1408/71 according to which family allowances for persons receiving pensions for old age, invalidity or an accident at work or occupational disease are to be granted irrespective of the Member State in whose territory the pensioner or the children are residing:

6. Mr Laterza challenges the basis of this decision. Since the amount of the allowances for dependent children provided for by Italian legislation is less than that of the Belgian allowances, he points out that the above-mentioned decision leads in this case to his rights to family benefits being reduced and maintains that the provisions in question cannot be interpreted and applied in such a way as to take away from the insured person his right to the greatest amount of benefits payable to him under the law of a Member State, the objectives of Article 51 of the Treaty and of Regulation No 1408/71 being disregarded.

7. It is in the context of this dispute that the Tribunal du Travail de Charleroi has asked the Court to rule whether Article 77 (2) (b) (i) of Regulation No 1408/71

8. As the Court stated in its judgment of 6 March 1979 (Case 100/78, Claudino Rossi ν Caisse de Compensation pour Allocations Familiales des Régions de Charleroi et Namur [1979] ECR 831) the regulations on social security for migrant workers did not set up a common scheme of social security, but allowed different schemes to exist, creating different claims on different institutions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by Community law. In the same case the Court also stated that the Community rules could not, in the absence of an express exception consistent with the aims of the Treaty, be applied in such a way as to deprive a migrant worker or his dependants of the benefit of a part of the legislation of a Member State or to lead to a reduction in the benefits payable by virtue of that legislation supplemented by Community law. In laying down and developing the rules for coordinating national laws Regulation No 1408/71 is in fact guided by the fundamental principle stated in the seventh and eight recitals of the preamble to the regulation, that the aforesaid rules must guarantee to workers who move within the Community all the benefits which have accrued to them in the various Member States whilst limiting them to the greatest amount of such benefits.

9. In accordance with these principles the provisions of Article 77 (2) (b) (i) of Regulation No 1408/71 cannot be applied in such a way as to deprive the worker, by substituting the benefits provided by one Member State for the benefits payable by another Member State, of the most favourable benefits. The guiding principles of Regulation No 1408/71 require on the other hand that where, in the case covered by Article 77 (2) (b) (i), the amount of the benefits provided by the Member State in which the worker is residing is less than that of the benefits awarded by the other State responsible for paying them the worker continues to be entitled to the greatest amount and receives from the competent social security institution of this latter Member State a supplement to the benefits equal to the difference between the two amounts.

10. For these reasons the answer should be given to the question referred to the Court that Article 77 (2) (b) (i) of Regulation No 1408/71 must be interpreted as meaning that entitlement to family benefits from the State in whose territory the recipient of an invalidity pension resides does not take away the right to higher benefits awarded previously by another Member State. If the amount of family benefits actually received by the worker in the Member State in which he resides is less than the amount of the benefits provided for by the legislation of the other Member State, he is entitled to a supplement to the benefits from the competent institution of the latter Member State equal to the difference between the two amounts.

11. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (First Chamber) in answer to the question referred to it by the Tribunal du Travail de Charleroi, by judgment of 11 October 1979, hereby rules: