Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. The tribunal des affaires de sécurité sociale, Lille, has referred the following questions to the Court for a preliminary ruling in order to resolve a dispute between Mr Delbar, a Belgian avocat whose Chambers are in France and whose home (where his children also live) is in Belgium, and the Caisse d'allocations familiales, Roubaix-Tourcoing :

2. In the proceedings before the national court, Mr Delbar, to whom the competent authorities in France, relying on Articles L 512.1 et seq. of the code de la sécurité sociale, refuse to pay family benefits for his children residing in Belgium, claims that that national rule is unlawful.

3. The French Government and the Commission, which have submitted observations, reject Mr Delbar's contention.

4. I must say very clearly, but at the same time very regretfully, that I can but share the position taken by the French Government and the Commission. I have no doubt that, as Community law stands at present, there is no foundation for Mr Delbar's claim that he has discovered a legal basis in the EEC Treaty or in the secondary legislation to overcome the obstacle represented by the lack, of any obligation to pay him family allowances by reason of the fact that his children reside in a country other than that in which he works as a self-employed person. Indeed, the applicable legislation leaves no room for any doubt, regarding either interpretation or possible illegality.

5. In fact, there is no doubt that:

6. It is apparent from all the foregoing that in 1981 the Community legislature's express intention was not to extend the benefit of Article 73 of Regulation No 1408/71 to self-employed workers. Since the decision to extend or not to extend that benefit is within the Council's discretion, and although in general terms I share the views expressed by the Commission and the European Parliament regarding the appropriateness of extending that benefit to self-employed workers, I do not think that the Court can do otherwise than give a negative answer to the third question submitted by the national court.

7. In view of the reply which I have just formulated, I do not think that the Court need consider further the other questions submitted by the national court. Since Article 51 is inapplicable to self-employed workers, I do not think that it is for the Court to provide abstract interpretative guidance which does not serve to resolve this particular case.

1 Original language: Italian.

2 The proposal is designed above all to take account of the first Puma ludgmcnt, and at the same time to extend the benefit of Article 73 of Regulation No 1408/71 to self-employed workers

3 Sec the judgments of 15 January 1986 in Case 41/84 Puma 11986] ECR 1 and of 2 March 1989 in Case 359/87 Puma [1989] ECR 585