Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The French Cour de cassation [Court of Cassation] asks the Court to interpret, in connection with proceedings pending between Pietro Pinna and the Caisse d'allocations familiales de la Savoie [Family Allowances Fund, Savoie], Article 73 (2) 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). That article provides that: A worker subject to French legislation shall be entitled, in respect of members of his family residing in the territory of a Member State other than France, to the family allowances provided for by the legislation of the Member State in whose territory those members of the family reside; the worker must satisfy the conditions regarding employment on which French legislation bases entitlement to such benefits. In particular the court making the reference wishes to know whether the provision is still valid and effective and how the concept of residence referred to therein is to be interpreted.

2. Pietro Pinna, an Italian national, works and resides, together with his family, in France, where he receives French family benefits. In Autumn 1977 his wife and two children travelled to Italy, his son, the elder of the two children, returning to France on 31 December 1977, his wife and daughter on 31 March 1978. In view of that stay in Italy the Caisse d'allocations familiales de la Savoie (hereinafter referred to as the Fund) refused to pay Mr Pinna the benefits payable for his son in respect of the period from 1 October to 31 December 1977 and for his daughter in respect of the period from 1 October 1977 to 31 March 1978. The Fund considered, in fact, that, as a result of Article 73 (2) of Regulation No 1408/71 (quoted above), the family allowances had to be paid by the Italian social security institution (Istituto Nazionale della Previdenza Sociale) at the place where the two children had resided in Italy (L'Aquila).

3. In order to appreciate fully the scope of the two questions it is necessary to consider the legislation to which they refer in greater depth. Article 40 of Regulation No 3 of the Council of the EEC of 25 September 1958 concerning social security for migrant workers (Journal Officiel No 30, p. 561) provided that: A wage-earner or assimilated worker who is employed in the territory of one Member State, and has children who are permanently resident or are being brought up in the territory of another Member State, shall be entitled, in respect of such children, to family allowances according to the provisions of the legislation of the former State, up to the amount of the allowances granted under the legislation of the latter State. However, 13 years later Regulation No 1408/71 recast that provision by eliminating the restriction of family allowances to the amount granted under the legislation of the Member State in which the members of the worker's family are resident and by extending the worker's entitlement to cover the whole range of family benefits. Indeed, as I have already pointed out, Article 73 (1) of Regulation No 1408/71 provides that: A worker subject to the legislation of a Member State other than France shall be entitled to the family benefits 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 in the territory of the first State.

4. Following the order adopted in the questions referred for a preliminary ruling I shall deal first with the question of the validity of Article 73 (2) of Regulation No 1408/71 by reference to the principle of nondiscrimination expressed in Articles 7, 48 and 51 of the Treaty. The Council, the Commission and the Fund consider that the answer should be in the affirmative (the provision is valid). In contrast, the Italian and Greek Governments and the appellant in the main proceedings contend that, contrary to the Treaty, Article 73 (2) discriminates against nationals of other Member States working in France and should therefore be declared invalid.

5. Before considering the arguments summarized above it is worth setting out the principles against which Article 73 (2) must be tested, namely those governing the free movement of labour and social security. Indeed the fifth recital in the preamble to Regulation No 1408/71 states that a primary objective of the legislation is to contribute towards the improvement of ... [the] standard of living and conditions of employment, by guaranteeing ... firstly equality of treatment for all nationals of Member States under the various national legislations and secondly social security benefits for workers and their dependants regardless of their place of employment or of residence.

6. On the basis of the principles mentioned and of the interpretation given by the Court I consider that I can show that the arguments to the effect that the provision at issue is valid are unfounded. My reasons for that conclusion are as follows.

7. Consequently, there can be no doubt as to the tendency of Article 73 (2) to operate to the disadvantage of Community workers employed in France with members of their family residing elsewhere. So it remains to be established whether the choice made by the legislature comes into the category of means which, viewed objectively, are justified for implementing Article 51 of the Treaty, in accordance with the Triches judgment. Let me say straight away that, in my opinion, the answer to that question must be in the negative.

8. There remain the other two questions put by the court making the reference, namely the present effectiveness of the contested provision and the interpretation of the concept of residence used therein. In point of fact those questions are superseded by the conclusion which I have just reached, but Advocates General are required to deal with each case in full and it is not my intention to shirk that duty.

9. I shall conclude with a few words on the concept of residence. The French Government and the Fund contend that in order to define it reference must be made to the law of the competent State. The remainder of those who submitted observations (with the exception of the Council, which did not state its view on the matter) consider that the concept of residence — which is employed in, inter alia, Article 51 of the Treaty, which Regulation No 1408/71 is intended to implement — is a Community concept.

10. For all the above reasons I propose that the Court should answer the questions referred to it by the French Cour de cassation by judgment No 218 of 11 January 1984 in connection with the proceedings between Pietro Pinna and the Caisse d'allocations familiales de la Savoie as follows:

1 Translated from the Iulian.