Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The Eleventh Senate of the Bayerisches Landessozialgericht (which I shall henceforth refer to as the court which made the reference) has referred to the Court of Justice for a preliminary ruling two questions concerning the calculation of the supplementary benefit (Unterschiedsbetrag) for orphans which is referred to in the case-law of the Court in connection with Article 78 of Regulation No 1408/71.
Background to the reference
2. The questions referred for a preliminary ruling arose in the course of a dispute which occurred in the context of those decisions. The parties are Mario and Marzio Doriguzzi-Zordanin (which I will refer to as the plaintiffs in the main proceedings, or the Doriguzzi orphans) on the one hand and the German insurance institution Landesversicherungsanstalt Schwaben (LVA Schwaben) on the other.
3. On 16 July 1986 the plaintiffs in the main action appealed to the Sozialgericht Augsburg seeking an order that LVA Schwaben recognize their entitlement to supplementary benefits.
4. The court which made the reference is inclined to dismiss the appeal for the following two reasons. In the first place, it considers that the family supplements granted by the INPS are family allowances (Familienbeihilfen, allocations familiales), which Article 78(1) of Regulation No 1408/71 expressly provides are covered by the rules contained in that article concerning orphans' benefits. According to the court which made the reference they must therefore be taken into account when calculating the supplementary benefits to be paid by the German institution.
Examination of the questions
5. As regards the application of the rules contained in Article 78 of Regulation No 1408/71 to provisions of national legislation under which orphans benefits' are payable, the term benefits, according to paragraph 1 of that article, means:
6. The questions referred for a preliminary ruling arose because the benefits for orphans which must be compared for the purpose of calculating the supplementary Gravina benefits are regulated in different ways by the Italian and German legislation.
7. The differences between the Italian and German legislation which I have described are the reason for that court's hesitation as regards the method of calculating the supplementary Gravina benefit.
8. I share the view of the court making the reference, LVA Schwaben and the Commission, that when calculating the supplementary Gravina benefit for orphans it is necessary to take into account all benefits actually paid by the Member State of residence in so far as they fall within the definition of benefits contained in Article 78(1) of Regulation No 1408/71 —which is not contested in this case (see No 5 above) — and are intended for the support of orphans. I find support for that broad interpretation in the phrase allowances for orphans in Article 78(2) which indicates that the purpose (and not so much the nature or the title) of the allowance is decisive just as it is in the broad definition in Article 78(1) of what is meant by benefits. Consequently, the amount of the supplementary benefits must be determined by comparing the sum of all the benefits intended in the Member State of residence to support the orphan in question and actually paid out with the sum of all the benefits intended for the support of the same orphan to which the orphan may be entitled in the other Member State.
9. The Commission rightly points out that in any case a special comparison of benefits which are of the same nature would defeat the underlying purpose of the Gravina line of decisions, in view of the very different rules governing orphans' allowances in the Member States. It is apparent from the description given by the Commission of the various national rules that in some Member States only one (increased) family allowance is payable for orphans, whereas in other Member States an orphan's pension is payable generally together with a family allowance. To compare only benefits of the same nature with each other would lead to arbitrary results: the amount received by the orphan or the person responsible for him would then always depend on the manner in which orphans' allowances were governed in the relevant Member State, and only if they were comparable in both Member States would they be taken into account. That would lead to unjustifiable differences, oiphans receiving sometimes more and sometimes less than the amount to which they would be entitled under the legislation of the Member State other than the Member State of residence were they resident there. The only approach which avoids that is to compare all the allowances intended for the support of orphans within the meaning of Article 78(1) which are available in the Member States concerned.
10. Finally, I would just mention the possible consequences of the Laumann judgment cited above (in footnote 7) as regards this case. According to that decision, family allowances are distinguished by the fact that they are paid directly and exclusively to the worker himself, whereas the sole recipient of an orphan's pension (or pensions) is the orphan (paragraph 7). The Court took the view that that difference as regards the recipient of the benefits was relevant to the interpretation of the rule against overlapping of benefits contained in Article 79(3) of Regulation No 1408/71. The suspension of benefits which that article requires in order to prevent the overlapping of benefits relates only, according to the Court, to benefits of the same kind, implying that they exist in favour of one and the same recipient. That is because
Reply proposed
11. In conclusion, I propose that the Court reply to the questions referred for a preliminary ruling as follows:
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.