Judgment of the Court (Second Chamber) 17 June 1989

In Case 24/88 REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal du travail (Labour Tribunal), Dinant, Belgium, for a preliminary ruling in the proceedings pending before that court between

THE COURT (Second Chamber) composed of: T. F. O'Higgins, President of Chamber, G. F. Mancini and F. A. Schockweiler, Judges, Advocate General: G. Tesauro Registrar: D. Louterman, Principal Administrator

after considering the observations submitted on behalf of: the Office national d'allocations familiales pour travailleurs salariés, the plaintiff in the main proceedings, represented by L. Demine, of the Charleroi Bar, the Belgian Government, represented by J.-L. Dehaene, Minister for Social Affairs and Institutional Reforms, the French Government, represented by E. Belliard and Claude Chavance, acting as Agent, the Netherlands Government, represented by E. F. Jacobs, Secretary-General of the Ministry of Foreign Affairs, acting as Agent, the Commission of the European Communities, represented by its Legal Adviser, D. Gouloussis, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 14 February 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 14 March 1989,

gives the following

Judgment

Costs

1. By a judgment of 8 January 1988, which was received at the Court on 21 January 1988, the tribunal du travail, Dinant, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 73 and 76 of Regulation 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. Those questions arose in proceedings for the annulment of a decision of the Office national d'allocations familiales pour travailleurs salariés (hereinafter referred to as the Office) to recover the amounts paid by way of family allowances up to that time to the plaintiff in the main proceedings.

3. The plaintiff, Mr Georges, of Belgian nationality, worked during the period in question (1 May 1977 to 30 June 1982) as an employed person in France, although his wife and two children resided in Belgium.

4. Until 15 May 1982, Mr Georges received family allowances paid in Belgium by the Office under Belgian legislation and Article 73(2) of Regulation No 1408/71, according to which 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 such Member State.

5. As a result of a check carried out in 1982, it emerged that during the period in question Mr Georges had engaged in a secondary activity as a self-employed person in Belgium and had, on that basis, received family allowances from the competent Belgian institution, the Caisse d'assurances sociales des travailleurs indépendants de Belgique (Belgian Social Insurance Fund for Self-employed Persons).

6. The Office considered that the pursuit of those two activities fulfilled the conditions for the application of Article 76 of Regulation No 1408/71, according to which entitlement to family allowances under Article 73 is to be suspended if, by reason of the pursuit of a professional or trade activity, family allowances are also payable under the legislation of the Member State in whose territory the members of the family are residing. On the basis of that provision, the Office decided, on 19 May 1982, first that family allowances should be paid from the Belgian social security scheme for self-employed persons and, secondly, that Mr Georges was to repay the amounts unduly paid by way of family allowances, namely BFR 381789, corresponding to the difference between the family allowances paid to employed persons and those paid to self-employed persons.

7. Mr Georges brought an action against that decision before the tribunal du travail, Dinant, which considered that the dispute raised a question concerning the interpretation of Community law and decided to stay proceedings until the Court of Justice had given a preliminary ruling on the following question:

8. Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

9. In order to answer the national court's question, it should be observed, as the Court has emphasized on several occasions, that the regulations adopted by the Council in the field of social security for migrant workers must be interpreted in the light of the objective which Article 51 of the EEC Treaty seeks to achieve, namely to provide freedom of movement for workers.

10. It is not possible, therefore, without disregarding that principle, to apply the provisions of Article 76 of Regulation No 1408/71 so as to deprive the worker of the benefit of the more favourable allowances by substituting the allowances payable in one Member State for the allowances payable in another Member State.

11. In line with that reasoning the Court held in its judgment of 23 April 1986 in Case 153/84 Ferraioli v Deutsche Bundespost [1986] ECR 1401 that the principles underlying Regulation No 1408/71 require that if the amount of the family allowances actually received in the Member State of residence is less than the amount of allowances provided for by the legislation of another Member State, the worker is entitled to a supplement to the allowances from the competent institution of the latter State equal to the difference between the two amounts.

12. That line of cases is also applicable to situations in which the worker is engaging simultaneously in a secondary activity as a self-employed person in the Member State in which his family resides and in an activity as an employed person in the territory of another Member State.

13. The answer to the question submitted to the Court must therefore be that Article 76 of Regulation No 1408/71 of the Council must be interpreted as meaning that the right to family allowances payable by the Member State of employment under Article 73 of that regulation is suspended only up to the amount of allowances of the same kind actually paid in the Member State in whose territory the worker's family resides. If the amount of the family allowances actually received in the Member State of residence is lower than the amount of the allowances provided for under the legislation of the other Member State, the worker is entitled to a supplementary allowance equal to the difference between the two amounts, the cost of which is to be borne by the competent institution in the other Member State.

14. The costs incurred by the Belgian, French and Netherlands Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Second Chamber), in answer to the question submitted to it by the tribunal du travail, Dinant, by order of 8 January 1988, hereby rules:

1 Language of the case: French.