Report for the Hearing in Case C-15/90

I — Facts and written procedure

1. National legislation

Under the Child Benefit Act 1975, child benefit is payable to a person who is responsible for one or more children. Unless certain conditions are met, such benefit is due only in respect of children who are present in Great Britain.

Unemployment benefit, as provided for under the Social Security Act 1975, is payable only to persons who have paid class 1 contributions as employed persons, or have been credited with such contributions. The conditions governing payment of such contributions applicable to the present case (prior to their amendment in 1988) were as follows :

It should be noted that the payment of class 2 contributions (self-employed persons) does not entitle a person who subsequently becomes unemployed to receive unemployment benefit even if he satisfies the remaining conditions of entitlement: it entitles him only to receive other benefits such as sickness benefit, provided that he satisfies the remaining conditions governing entitlement to those benefits.

2. Community law

Under Article 1 of 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 (Official Journal, English Special Edition 1971 (II), p. 416), as amended by Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 (Official Journal 1981 L 143, p. 1), the version applicable in this case:

Under Article 73(1) of the same regulation, also in the version applicable in the present case :

Finally, under Annex I(I)(J) of the same regulation:

3. The main proceedings and the questions referred for a preliminary ruling

Mr Middleburgh, a British citizen, worked in Ireland between January 1981 and August 1982, when he was made redundant. In October 1983, he returned to the United Kingdom, leaving behind in Ireland his child Aaron, born of a relationship in that State with an Irish citizen.

Following his return to the United Kingdom, Mr Middleburgh was employed in hospitals from 15 November 1983 to 13 April 1984. Between 16 April 1984 and 29 April 1984 he was unemployed. Between 30 April 1984 and 29 July 1984 he was self-employed.

The Adjudication Officer refused to award Mr Middleburgh child benefit from 16 April 1984 on the ground that his son was not in Great Britain, and he appealed against that decision. The Social Security Appeal Tribunal and thereafter the Commissioner, Mr Commissioner Rice, ruled that the appellant was not entitled to child benefit for the period 30 April 1984 to 29 July 1984.

Mr Middleburgh appealed against the decision of the Commissioner to the Court of Appeal, which stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

4. Procedure before the Court

The order of the Court of Appeal referring those questions to the Court was received at the Court Registry on 19 January 1990.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the appellant in the main proceedings, represented by Richard Drabble, Barrister; by the Chief Adjudication Officer, represented by David Pannick, Barrister; and by the Commission of the European Communities, represented by Karen Banks and Nicholas Khan, members of its Legal Department, acting as Agents.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations submitted to the Court

1. The appellant in the main proceedings submits first that he should not be penalized in terms of financial treatment by the relevant UK authorities for the fact that his movements have temporarily separated him from his family. If in 1981 he had taken up employment, not in Ireland but in the United Kingdom, and had there formed a new attachment, he would unambiguously have been entitled to child benefit for the period in question upon his return to his home base away from his new family.

2. According to the Chief Adjudication Officer, Article 73(1) applied only to employed persons, as was accepted, moreover, by the Court of Justice in its judgment of 5 December 1989 in Case C-114/88 Delbar v Caisse dAllocations Familiales de Roubaix-Tourcoing [1989] ECR 4067. Only since 15 January 1986 has that provision also applied to self-employed persons, by virtue of Regulation No 3427/89 of 30 October 1989 (Official Journal 1989 L 331, p. 1).

3. According to the Commission, Article 73(1) did not apply to self-employed persons during the period in question. This, in its view, follows from the judgment of 5 December 1989 in Delbar, cited above.

1 Language of the case: English.