Opinion of Mr Advocate General Van Gerven

Mr President,

Members of the Court,

1. The Bayerische Landessozialgericht (Bavarian Higher Social Court) has referred the following question to the Court for a preliminary ruling:

Background

2. The background to this question can be summarized as follows:

3. Mr Ventura brought an unsuccessful action before the Sozialgericht (Social Court) Augsburg for the annulment of the Landesversicherungsanstalt's decision. He appealed to the Bayerisches Landessozialgericht, which referred to the Court for a preliminary ruling the question set out above.

The non-applicability of Article 48 (1) of Regulation No 1408/71

4. The question put by the national court is concerned with the applicability to orphans' pensions (dealt with in Articles 78 and 79 of Regulation No 1408/71) of Article 48 (1) of that regulation. Article 48 (1) precludes any entitlement to benefit from a given Member State

5. The answer to this question is to be found in Article 44 (3) of Regulation No 1408/71, to which the national court refers in its question. That provision reads as follows:

6. Admittedly, there is in Chapter 8 and in particular in Article 79 (1) a reference to Article 45, which also forms part of Chapter 3, but that does not, in my view, detract from the plain, general scope of Article 44 (3). The reference is intended solely to avoid having to repeat the description of a particular calculation method. It is therefore a drafting device intended to avoid repetition and can have no substantive effects.

7. It appears to me that the reason why Article 48 (1) is not stated to be applicable to orphans' pensions is connected with the rule set out in Article 78 (2) (b). Of the various national bodies of social security legislation which are potentially applicable, that article designates only one as being applicable to orphans' pensions rather than, as in the case of old-age and invalidity pensions, appointing the legislation of various Member States, in particular in proportion to the duration of the insurance periods completed in each of those States. Where a system of apportionment exists, as in the case of old-age and invalidity pensions, the rule set out in Article 48 (1) is designed to exclude minimal benefits arising under the legislation of one (or more) Member States. Such a rule is unnecessary in a system of the type applicable to orphans' pensions in which the designation of a single corpus of legislation automatically precludes minimal benefits.

8. It seems, as the Landesversicherungsanstalt states in its written observations, that it was a deliberate decision on the part of the Council to opt for the solution whereby the legislation of only one Member State is to apply in the case of orphans' pensions. That solution was adopted for the first time, in the case of family allowances for orphans, in Article 42 (2) (a) of Council Regulation No 1/64 of 1 February 1964 and subsequently also, in the case of orphans' pensions, in Article 78 (2) (b) (i) of Council Regulation No 1408/71. That decision was taken with a view to simplifying the system, as the first recital in the preamble to Regulation No 1/64 (Journal officiel 1964, p. 1) indicates:

9. Admittedly, in its subsequent decisions on Article 51 of the EEC Treaty, in particular its judgment of 9 July 1980 in Case 807/79 (Gravina [1980] ECR 2205, at p. 2218, paragraph 6), the Court held that the insurance institution of another Member State, other than the only Member State designated, was under a duty to provide supplementary benefits — a duty which the Landesversicherungsanstalt has acknowledged and carried out in this case since 2 December 1980 (see also Section 14, infra) — and this has somewhat restricted the scope of the simplification which the Council sought to pursue, as the Italian Government observes in its written observations. As a result, two or possibly more institutions are once again involved in the payment of benefits. The reason for the designation of an additional insurance institution lies in the need to take account of vested rights; however, in view of the clear wording of Article 44 (3) and the underlying policy decision discussed in Sections 7 and 8 above, that fact cannot cause Article 48 (1) to apply (judgment of 12 June 1986 in Case 302/84 Ten Holder [1986] ECR 1821, paragraph 22).

10. The foregoing observations suffice to answer the preliminary question raised by the national court. Nevertheless, it seems worthwhile to dwell briefly on two of the arguments raised, the first by the Italian Government, the second by Mr Ventura.

Conformity with Article 51 of the EEC Treaty

11. The Italian Government argues in its written observations that Articles 78 and 79 of Regulation No 1408/71 conflict with the objectives and wording of Article 51 of the EEC Treaty. Its reasoning relates in particular to Article 78 (2) (b) (i), discussed above, as a result of which in this case the only legislation which is in principle applicable is that of the Member State in whose territory the orphan resides (où réside l'orphelin) that is to say in this instance the legislation of Italy.

12. Although the preliminary question raised by the national court is concerned solely with the interpretation of articles of Regulation No 1408/71, it seems that one must not rule out a priori the possibility that the Court may consider an important legal question relating to the validity of part of the regulation where that question is closely linked with the question raised by the national court or contained in it implicitly so that the Court's answer may have an impact on the proceedings pending before the national court (see the judgments of 15 October 1980 in Case 145/79 Roquette Frères [1980] ECR 2917, paragraph 7, of 2 June 1976 in Case 125/75 Milch-, Fett- und Eierkontor [1976] ECR 771, paragraph 7, and of 1 December 1965 in Case 16/65 Schwarze [1965] ECR 877). In this case, if Article 78 (2) (b) (i) were invalid Italian legislation would no longer be the applicable legislation and that would certainly have such an effect.

13. Nevertheless, I would suggest that that approach should not be taken here. As can be seen from Article 78 of the regulation, the fact that the Council decided to opt for the legislation of the State in which the orphan resides as, in principle, the only applicable legislation — unlike in the case of the provisions governing, in particular, old-age pensions (see Section 7 above) — seems to me to be a choice (motivated, as I pointed out in Section 7 above, by the aim of simplification) which falls within

Conflicts of competence between insurance institutions

14. Secondly, I would briefly dwell on an argument developed by Mr Ventura and also referred to by the Commission during the hearing, because it has to do with what is at stake in practice in this case. Mr Ventura complains that he has been the victim of a conflict of competence between the national insurance institutions of the two Member States. Indeed, since 1 August 1980 Mr Ventura has been receiving only DM 80 supplementary benefit from the German insurance institution in accordance with the Court's judgment in Gravina to which I have already referred and which has been confirmed (see Section 9 above) on several occasions (for that matter, it is remarkable that the German insurance institution has not complied retroactively with that judgment of the Court, even though it is an interpretative judgment). As a result of that situation, Mr Ventura claims that the German social security institution, the Landesversicherungsanstalt Schwaben, as the institution with secondary responsibility under Article 78 (2) (b) (it) of Regulation No 1408/71, should have continued to provide the whole benefit, given that the Italian social security institution, the INPS, did not consider itself to be competent.

15. On that view, the social security institution of one Member State could, on the basis of its own interpretation of Article 78 (2) (b) (i), cause the alternative rule of the provision set out in Article 78 (2) (b) (ii) to apply. That argument cannot be accepted (see the judgment of 12 June 1986 in Case 302/84 Ten Holder [1986] ECR 1821, paragraph 21). In the event of a dispute between national social security institutions with regard to the interpretation of a provision of Community law, they must apply the relevant provisions : that is to say, as regards the procedure to be followed, Article 81 (a) of Regulation No 1408/71 and, as regards provisional measures, Article 114 of Regulation No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 (Official Journal 1972, L 74, p. 1). That article reads as follows:

Proposed reply to the preliminary question

16. In view of the findings set out in Sections 4 to 9 with regard to the non-applicability of Article 48 (1) of Regulation No 1408/71 to orphans' pensions referred to in Article 78 of that regulation — findings which do not detract from the Italian Government's observations with regard to the validity of Article 78 or from Mr Ventura's observations with regard to the conflict between the national social security institutions — I concur with the reply suggested by the Commission in its written observations and consider that the question referred by the Bayerische Landessozialgericht should be answered in the following terms:

1 Translated from the Dutch.