Opinion of Mr Advocate General
Mr President,
Members of the Court,
1. The Corte Suprema di Cassazione (Supreme Court of Cassation — Joint Civil Chambers) has referred to the Court a question concerning the interpretation of several provisions of Chapter 8 (Benefits for dependent children of pensioners and for orphans) of Title III of 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.
Background
2. The order for reference gives particulars as appropriate of the relevant provisions of the Italian legislation governing the award of benefits for dependent spouses. For the sake of clarity I shall summarize these provisions briefly here, although they are already outlined in the Report for the Hearing.
3. The situation with which the main proceedings are concerned is summarized in the order for reference. Mr Durighello, who lives in Italy, is the holder of a right to an old-age pension. Having been employed in three Member States (Italy, France and Germany) he receives a pro rata pension from the competent institutions in the States in which he worked and paid contributions. He acquired entitlement to the pension paid by the competent institution in Italy by aggregation of the insurance periods completed in each country, pursuant to the provisions of Chapter 3, of Title III, Old age and death (pensions) of Regulation 1408/71.
4. However, the subject of the main proceedings is not the pension awarded to Mr Durighello, but his claim to family benefit in respect of his dependent spouse. As I have indicated above (para. 2), the national court has stated that the benefit in question became a separate social security benefit in 1974.
5. Mr Durighello then appealed to the Corte di Cassazione, arguing that Regulation 1408/71 was not the only legislation applicable to his case, since it merely supplemented Italian law, which did not cease to apply simply because the Community rules made no provision for an allowance for a dependent spouse.
6. The problem raised by Mr Durighello was not new to the Corte di Cassazione. In a judgment of 4 February 1988, the Labour Chamber of the court had held that a pensioner in a situation similar to that of Mr Durighello was not entitled to a family allowance for a dependent spouse, again on the ground that the sole basis for the pension entitlement of the person concerned was the Community legislation, which made no provision for the benefit in question. The judgment stated further that under the Italian legislation only recipients of an Italian pension — that is, a pension acquired exclusively on the basis of contributions paid in Italy, are entitled to the family allowance in respect of a spouse.
7. In the light of the two conflicting rulings, Mr Durighello's appeal was assigned to the Joint Chambers of the Corte di Cassazione. The order for reference states that the appeal raises the problem of the relationship between Community and national legislation where they both govern — either in whole or in part -the same subject-matter (in this case, family allowances for pensioners), in addition to the related problem of whether, in the situation before the court, only the Community legislation applies — on the principle that it overrides conflicting national law — or whether there is scope for the application of national provisions conferring entitlement to a social security benefit of the same kind as that contemplated in, but not specifically regulated by, a Community regulation.
Reply to the question submitted
8. In its written observations submitted to the Court, the INPS submits two pleas in law challenging the Court's jurisdiction. First it claims, referring to the order in Falciola, that the reference for a preliminary ruling is not necessary in order to enable the national court to settle the dispute before it, since the question submitted bears no relation to the subject-matter of the main action. According to the INPS, the provisions of Community law which the Court is asked to interpret concern allowances for the dependent children of pensioners, whereas the main action concerns a family allowance for a dependent spouse. The provisions cannot be construed as extending to cover allowances for a dependent spouse. Secondly, the question referred essentially concerns the compatibility of the Italian legislation with Community law, a matter on which the Court cannot give a ruling.
9. The question submitted concerns the case of a pensioner whose entitlement to a pension in the Member State in which he resides was calculated by that State's competent institution taking into account, pursuant to Article 45(1) of Regulation 1408/71, the insurance periods which he completed in other Member States. The national Court wishes to know whether the provisions of Chapter 8 of Title III of that Regulation, and in particular Articles 77 to 79, preclude that pensioner from deriving an entitlement to a family allowance for a dependent spouse from the legislation of the Member State concerned.
10. The national court and the parties to the main action are assuming that Articles 77 to 79 of Regulation 1408/71 concern solely family allowances for dependent children, and not for a dependent spouse; however, this is not free from doubt. The term family allowances (in French: allocations familiales; in Italian: assegni familiari) is defined as follows in Article l(u)(ii) of Regulation 1408/71:
11. However, the question hitherto examined is not central to this case. The Court is not asked to rule whether Mr Durighello derives directly from Article 77 and 79 entitlement to an allowance for a dependent spouse. The national court does not come to that question, though the way in which the question submitted is framed indicates that it is of the opinion that a pensioner like Mr Durighello whose pension is calculated in accordance with the provisions of Article 45(1) of Regulation 1408/71 is also entitled to an allowance for his dependent spouse under Italian law alone. The national court wishes merely to know whether Articles 77 and 79 have the effect of depriving a pensioner such as Mr Durighello of that right.
12. Like the Commission I consider that Community law affords no warrant for a refusal such as that by the INPS to pay Mr Durighello an allowance for his dependent spouse when he is entitled to it under Italian law.
13. Moreover, it is apparent from the Court's case-law on Article 51 of the EEC Treaty, on which Regulation 1408/71 is based, that Mr Durighello cannot lose a right acquired under Italian legislation to an allowance for his dependent spouse.
Conclusion
14. I therefore propose that the Court give the following answer to the question submitted :
1 Original language: Italian.
2 In view of the date on which the main action was brought (26 April 1984, according to the documents annexed to the order for reference), I believe that the national court is seeking the interpretation of the aforementioned provisions of Regulation (EEC) No 1408/71, in the version set out at Annex I to Regulation (EEC) No 2001/83 of the Council, of 2 June 1983 (Official Journal 1983 L 230, p. 6).
3 Official Gazelle of lhe Italian Republic No 190 of 31 July 1965.
4 Official Gazelle of the llalian Republic No 59 of 4 March 1974.
5 Official Gazette of the Italian Republic No 113 of 2 May 1974.
6 Official Gazette of the Italian Republic No 112 of 14 May 1988.
7 Official Gazette of the Italian Republic No 61 of 14 March 1988.
8 Orderin Casc C-286/88 Falciola [1990] ECR I-191.
9 Judgment in Case C-369/89 Averne [1991] ECR I-2971, paragraph 7.
10 Article l(u)(i) of Regulation 1408/7! suits that family benefits means all benefits in kind or in cash intended to meet family expenses under the legislation provided for in Article 4(l)(h), excluding the special childbirth allowances mentioned in Annex II.
11 Judgment in Case 100/78 Rossi v Caisse de Compensations pour Allocations Familiales [ 1979] ECR 831. See further the judgment in Case 733/79 CCAF v Laterza [1980] ECR 1915, at paragraph 8, and in Case 807/79 Gravina v Landesversicherungsanstalt Schwaben [1980] ECR 2205, at paragraph 7.
12 Judgment in Case 100/63 Kaahbeek v Sodate Verzekeringsbank [\964] ECR 565 at p. 574.
13 See also the aforementioned judgments in Laterza (paragraph 8) and Cravina (paragraph 7).