Opinion of Mr Advocate General Van Gerven delivered on January 1992

1 Original language: Dutch.

2 Council Regulation No 1408/71 on the application of social security schemes to employed persons, to selfemployed persons and to members of their families moving witnin Community, in the version contained in Annex I to Council Regulation No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

3 Case 807/79 [1980] ECR 2205.

4 Case 320/82 [1983] ECR 3811.

5 Case 269/87 [1988] ECR 6411, para. 14.

6 Case C-251/89 [1991] ECR I-2797, first paragraph of the operative part.

7 The Bayerisches Landessozialgericht (14th Senate) has again referred to the Court of Justice, in Case C-218/91 Gobbis v LVA Schwaben, the question whether German insurance institutions must take into account the family supplements (referred to by that Senate as assegni familiari) payable under Italian legislation when calculating the supplementary Gravina benefits for orphans. Unlike the 11th Senate (which made the reference in this case) the 14th Senate is of the opinion that such supplements should not be taken into account, because they are family allowances intended not specifically for orphans but for children in general.

8 In a judgment of 16 March 1978 (Case 115/77 Laumann [1978] ECR 805) the Court declared, regarding the Community rules against the overlapping of benefits contained in Article 79(3) of the regulation, that family allowances are generated by an actual occupation and the direct and sole recipient is the worker himself, whereas the direct sole recipient of the orphan's pension is the orphan himself (paragraph 7). See 10, below.

9 The Court drew a distinction in fact, in connection with Article 77(1) of Regulation No 1408/71, in a judgment of 27 September 1988 (Case 313/86 Lenoir [1988] ECR 5391) within the broad definition of Family benefits between Family allowances and Other benefits (such as school allowances) (para. 11).

10 Sec Paragraph 1269 of the Reichsversicherungsordnung (RVO).

11 See Paragraph 1 ci scq. of the Bundeskindergeldgesetz (BKGG).

12 In its written observations LVA Schwaben points out that whether the Bundesanstalt für Arbeit must pay the plaintiffs Kindergeld to supplement the family allowances paid in Italy depends on whether the residence requirement laid down in lite BKGG is applicable to beneficiaries entided under a migrant worker. In a judgment delivered since then, Athanasopoulos (sec footnote 5), the Court made it clear, however, that the supplementary benefit is payable even if the legislation of the relevant Member State makes the payment of family allowances dependant on the condition mat the beneficiary or his children reside in the territory of that State.

13 It is in fact of the opinion that in this case, pursuant to Paragraph 8(1) of the BKGG, Kindergeld is not payable.