Opinion of Mr Advocate General Van Gerven

Mr President,

Members of the Court,

1. The Bundessozialgericht (Federal Social Court) has asked the Court of Justice for a preliminary ruling on the interpretation of Articles 73(1) and 76 of Regulation (EEC) No 1408/71, as amended and updated by-Regulation (EEC) No 2001/83. Those provisions are worded as follows:

Background

2. Mr Kracht is an employed person covered by the German Bundeskindergeldgesetz (Law on Child Allowances). His wife resides in Italy with their two children, Marco and Lukas Oliver. She works for a bank in Milan.

3. Mrs Kracht's attitude must be viewed in relation to the application for family allowances previously submitted by Mr Kracht in respect of their two sons to the Bundesanstalt für Arbeit and rejected by the latter. Mr Kracht brought an action against that rejection before the Sozialgericht (Social Court) Oldenburg, which annulled the Bundesanstalt's decision and ordered it (1) to pay family allowances in respect of both children until the end of 1983, after deduction of the allowances paid by the Italian institution, and (2) to pay the full amount of the family allowance in respect of Marco as from 1 January 1984 and in respect of Lukas Oliver from 1 January 1984 to 30 June 1985, and again as from September 1986. The Bundesanstalt did not appeal either against the first part of the Sozialgericht's decision or against the order to pay family allowances in respect of Lukas Oliver from 1 January 1984 to 30 June 1985. However, the Bundesanstalt did appeal, in the first instance to the Landessozialgericht (Higher Social Court) Niedersachsen and subsequently to the Bundessozialgericht, against the order to pay family allowances in respect of Marco as from 1 January 1984 and in respect of Lukas Oliver as from September 1986. The Bundessozialgericht referred the following questions to the Court for a preliminary ruling:

The Court's case-law

4. In its judgments in Salzano and Ferraioli, the Court considered the situation of a family in which the spouses were employed in different Member States and the children resided with the mother. In both of those cases, the mother had not applied for family allowances from the competent institution of her country of residence. In its judgment in Ferraioli — which in that respect is taken almost word for word from the operative part of the judgment in Salzano —the Court held as follows:

First question

5. In its first question the Bundessozialgericht seeks to ascertain whether the entitlement to family allowances which is provided for under the legislation of the Member State in which one of the parents is employed, in this case, German legislation, is suspended where the allowances are no longer payable under the legislation of the Member State in which the members of the family reside, in this case Italian legislation, on the ground that they are not (or no longer) applied for. That question is manifestly inspired by the fact that Mrs Kracht did not apply for family allowances from the competent Italian institution in respect of Lukas Oliver as from September 1986, when he resumed his studies, although she was aware that she was entitled to benefits from the Italian institution inasmuch as she had previously applied for and received such benefits.

Second question

6. In its second question the Bundessozialgericht wishes to ascertain whether the entitlement to family allowances provided for under the legislation of the Member State in which one of the parents is employed, namely German legislation, is suspended where the allowances are no longer payable under the legislation of the Member State in which the members of the family reside, namely Italian legislation, on the ground that as from an arbitrarily determined date they are no longer applied for. In this question the national court manifestly wishes to draw attention to the fact that the grant of family benefits in Italy depended purely and simply on Mrs Kracht's attitude, namely her failure to accomplish the requisite formalities as from a date freely determined by her. She accomplished those formalities in connection with the family allowances for Marco in 1983, but not in 1984.

The amendment of Article 76 of Regulation No 1408/71

7. At the hearing, reference was made to the fact that by Regulation (EEC) No 3427/89 of 30 October 1989 the Council has amended Article 76 of Regulation No 1408/71, which now reads as follows:

Conclusion

8. To summarize, I propose that the Court should answer the questions submitted for a preliminary ruling as follows:

1 Original language: Dutch.

2 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 (OJ, English Special Edition 1971 (II), p. 416).

3 Council Regulation (EEC) No 2001/83 of 2 June 1983 amending and updating Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and also amending, and updating Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ L 230, 22.8.1983, p. 6, Annex I).

4 Judgment in Case 191/83 Salzano v Bundesanstalt für Arbeit [1984] ECR 3741

5 Judgment in Case 153/84 Ferraioli v Deutsche Bundespost [1986] ECR 1401

6 Previously, in its judgment in Case 134/77 Ragazzoni v Assubel [1978] ECR 963, the Court had staled that the suspension referred to in Article 76 of Regulation No 1408/71 can only take effect if the spouse fulfils in the Member State in which the members of the family reside all the conditions required by the domestic legislation of that State in order to exercise that right (paragraph 9, emphasis added); however, the Court did not make it clear whether that meant conditions both of substance and of form.

7 See inter alta the Court's answer to the second question in Ferraioli

8 Council Regulation (EEC) No 3427/89 of 30 Occober 1989 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed fiersons, to self-employed persons and to members of their amilies moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ L 331, 16.11.1989, p. 1).

9 Judgment in Case 41/84 Pinna v Caisse d'allocations familiales de la Savoie [1986] ECR 1.