Opinion of Mr Advocate General Darmon
Mr President,
Members of the Court,
1. Felice Salzano, a wage-earning Italian worker employed in Germany since 1979, married with three children, applied to the Kindergeldkasse [Child Allowance Department, hereinafter referred to as the Kindergeldkasse] of the Bundesanstalt für Arbeit [Federal Employment Office, hereinafter referred to as the Bundesanstalt] for the grant of family allowances for his three children residing in Italy with their mother. That option is available to him under Article 73 (1) of Regulation No 1408/71 of 14 June 1971, under which the entitlement to family benefits is determined by the legislation of the country of employment, irrespective of the family's place of residence.
2. Before considering those two points in turn, it is necessary for the purposes of my argument to outline the state of the relevant national legislation.
3. Now that those preliminary remarks have been made, it is possible to set forth in brief the parties' interpretations regarding the first point referred to above.
4. In the first place, the Court took the view that
5. In the second place, the Court took the view in the Ragazzoni judgment that family allowances Avere not payable in the Member State of residence unless the law of that State recognized the right to the payment of allowances in favour of the person in [the] family who works in such State.
6. Finally, the decisions of the Court on the application of the anti-duplication provisions in relation to family benefits show that the determining factor for suspension is the actual payment of benefits in the other Member State. Thus the Court has ruled that the anti-duplication rule in Article 79 (3), which is analogous to the one in Article 76 but which relates to benefits for dependent children of pensioners and for orphans has a purpose, and is applicable, only if entitlement to benefits actually arises and is acquired according to the legislation of the State in which the professional or trade activity is pursued.
7. In the result, it is apparent from the above passages from the decisions of the Court that the purpose of Article 76 is to avoid any overlapping of benefits which have actually been acquired, in order to prevent any unjust enrichment of which a worker or of those entitled under him might take advantage as a result of the interplay between the legislation of the State of employment and that of the State of residence. However, such is not the case here, inasmuch as the wife of Felice Salzano has not taken any of the formal steps which are required if such benefits are to be paid. Without an application from her and a formal waiver from her husband, the family allowances may not be regarded as due within the meaning of the aforementioned provision, as Mr Advocate General Capotorti has already pointed out. That interpretation has, admittedly, the effect of giving the migrant worker in the Member State of employment, and his wife working in the State of residence, the right to choose whichever national legislation is more favourable; that option is a consequence both of Italian and of German legislation. In that connection I can do no more than remind the Court that the Community rules on the subject are designed merely to coordinate, not to harmonize, the social legislation of Member States.
8. The above reply should enable the German court to resolve the dispute before it. It is thus only in the alternative that I shall consider the second aspect of the question submitted to the Court, the substance of which I shall now repeat; on the assumption that family allowances are actually paid in the Member State of residence, should the suspension of the allowances previously disbursed in the Member State of employment be total or only partial, and in the latter case, up to what amount?
9. In conclusion, I propose that the Court should rule:
1 Translated from the French.
2 Official Journal English Special Edition 1971 (II), p. 416.
3 Bundeskindergeldgesetz [Federal Law on Child Allowances], Paragraph 2 (5), Bundesgesetzblatt I of 6, 2, 1975.
4 Gazzetta Ufficiale of 17.12.1977, No 343, p. 9041.
5 See in particular Case 134/77, Ragazzoni v Assųbel, [1978] ECR 963, at paragraph 10.
6 Case 134/77, Ragazzoni, memioned above; Case 100/78, Rossi v Caisse de Compensation pour Allocations Familiales, [1979] ECR 831.
7 Case 149/82, Robardsv Insurance Of/icer, (1983), ECR 171, at paragraph II.
8 Case 104/80, Bceck v Bundesanstalt /itr Alicit, [1981] ECR503, at paragraph 7.
9 Case 134/77, Ragazzoni, cited above, at paragraphs 8 and 9.
10 Ragazzoni, paragraph 9.
11 Ragazzoni, paragraph 12.
12 Case 100/78, Rossi, cited above, paragraph 9.
13 Case 149/82, Robaras, cited above, paragraph 12.
14 Case 134/77, Ragazzoni, cited above, at p. 975, and Case 100/78, Rossi, at p. 848.
15 Sec for example Case 100/78, Roili, cited above, paragraph 13.
16 Case 242/83, Caiac de Compensation v Patteri; judgment of 12.7.1984, [1984] ECR3171.
17 Sec in particular Case 100/78, Roni, cited above, paragraph 17; Case 733/79, CCAľ v Laterza, [1980] ECR 1915, paragraphs 8 and 9; Case 104/80, Becck, cited above, paragraph 12; Case 320/82, D'Amnrio v Landeweritcbeningtanltalt Schwaben, judgment of 24 November 1983, [1983] ECR 3811, paragraph 7; and lastly, Case 242/83, Patteri, cited above, paragraph 10.
18 Case 733/79, Laterza, cited above, paragraph 8; also, Case 101/83, Brusie v Raad van Arbeid, judgment of 17.5.1984, [1984] ECR 2223, at paragraph 30.
19 Case 320/82, D'Amario, cited above, paragraphs 4 to 7.