Opinion of Advocate General

Mr President,

Members of the Court,

1. The 14th 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 orphans' benefits pursuant to Regulation No 1408/71.

Background to the reference

2. In order to appreciate the scope of the questions which have been referred a short explanation of the relevant Italian legislation and of the facts of the main case is necessary. Under Article 22 of Italian Law No 903 of 21 July 1965 the orphan of a deceased worker is entitled to a pension equal to 20% of the pension to which the deceased person was entitled on the day of his death. The surviving spouse of a deceased worker is entitled to a survivor's pension equal to 60% of the deceased person's pension. However, the survivor's pension may not be less than a certain minimum guaranteed by the Italian legislation. If the orphan lives with the surviving spouse, the orphan's pension and the survivor's pension (increased to the aforementioned minimum amount where necessary) are paid concurrently to the spouse; that total amount will be referred to hereinafter as the total survivor's pension.

3. Miriam Gobbis, the appellant in the main proceedings, was born in Lüdenscheid in August 1969. She is the daughter of an employed person who died in November 1984 and who had completed periods of insurance in Italy and Germany. As long as the appellant resided in Germany, the Landesversicherungsanstalt Schwaben (the LVA), the respondent in the main proceedings, paid her an orphan's pension. When she returned to Italy, the LVA stopped payment of the benefit with effect from 1 April 1985 on the ground that the Italian authorities were thenceforth responsible for payment of the orphan's benefits. At the same time, it declared that it was prepared to pay the difference between the orphan's benefits provided for under the German legislation and those which the appellant would actually receive under the Italian legislation.

4. The court considered that the case raised questions concerning the interpretation of Community law and therefore referred the following questions to the Court of Justice for a preliminary ruling:

The inclusion in the calculation of a family supplement payable under the legislation of the Member State of residence.

5. I shall first consider the second question referred because in my view it has been answered in the recent Doriguzzi judgment, which in its turn provides useful guidance on the answer to the first question. In Doriguzzi the same court of reference as in this case (but on that occasion the 11th Senate) asked the Court of Justice whether, inter alia, the family supplements paid by the INPS should be deducted when calculating the Gravina supplement. In its judgment the Court referred to Gravina (see section 1 of this Opinion), but went on to say that the orphan of a migrant worker

6. All benefits which are already actually received in the Member State of residence — in this case Italy — for the upkeep of the orphan, regardless of their nature or description or the organ responsible for payment, are thus to be included in the calculation of the Gravina supplement. In malting that calculation there must also be included all payments which are intended in the other Member State — in this case Germany — for the upkeep of the orphan and to which the orphan would be entitled if he or she resided in the latter Member State.

The inclusion of an orphan's portion of a survivor's pension paid to the surviving spouse

7. The answer to be given to the first question is less apparent. The question falls into two parts. The first asks whether for the purposes of calculating the Gravina supplement the German social insurance institution may also take into account the orphan's portion of the total Italian survivor's pension if the widow and the orphan are paid a single survivor's pension increased to the amount of the statutory minimum pension, the amount of which would still be payable to the widow alone were the orphan to be left out of account. The second part of the question asks whether, if the answer to the first part is yes, for the purposes of calculating the Gravina supplement account must be taken in the case of the orphan's portion also of the increase in the total survivor's pension to the statutory minimum, and if so, in what amount.

8. As regards the first part of the question the appellant did not, at the time of the LVA's decision, challenge the inclusion of the statutory minimum pension in the calculation. Now, however, she argues that the minimum pension payable under the Italian legislation is neither in whole nor in part a benefit for orphans within the meaning of Article 78 of Regulation No 1408/71. She maintains that the pension is a benefit covered by Article 50 of the regulation, so that in accordance with Article 44(3) of the regulation it is not permissible to include the orphan's portion of such a pension for the purposes of calculating the Gravina supplement.

9. As regards the special circumstance referred to in the second part of the first question, however, I cannot agree with the German Government and must rather follow the view taken by the other commentators referred to above. I agree that the whole of the increase which is intended to bring the total survivor's pension up to the level of the Italian statutory minimum pension should not be regarded as orphans' benefit within the meaning of Article 78. As the Italian Government has emphasized, it is a form of social assistance which is granted regardless of whether the surviving spouse has dependent children. As such it is therefore not, in the words of the judgment in Doriguzzi, a prestation destinée, d'après le régime national applicable, à l'entretien des orphelins. That is also apparently the conclusion to which the German and Italian authorities came as a result of consulations in Rome in November 1988.

10. I suggest that the Court of Justice answer the questions which have been referred as follows:

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

2 Case C-188/90 [1992] ECR I-2039, para. 14; the principle was first laid down in Cravina, Case 807/79 [1980] ECR 2205, para. 8.

3 Gravina, para. 7 in fine.

4 Dońguzzi, para. 15.

5 Dońguzzi, para. 15.

6 Dońguzzi para. 17; cf. also my Opinion in that case, not yet published, section 8.

7 I see no reason to doubt that the definition of family allowances in Article l(u)(ii) of Regulation No 1408/71 — which according to Article 1 is applicable for the purpose of this regulation —applies for the purposes of Article 78. As regards the similar use of the term family allowance in Article 77 (regarding benefits for dependent children of pensioners) the Court decided in Lenoir that the term corresponds to the definition of the family allowances referred to in Article l(n)(ii) of the ... regulation, which defines family allowances according to the exclusive criterion of the number and, where appropriate, the age of the members of the family, Case 313/86 [1988] ECR 5391, para. 10.

8 In Dongtizzi both the Bayerisches Sozialgcnchl, 11th Senate (the court of reference in this case) ana the parties to the main proceedings, as well as the Commission, agreed that the assegno familiare was a family allowance within the meaning of that definition: see my Opinion in that case, section 5.

9 That article concerns the award of a supplement to a benefit payable in respect of old age or death (pensions) where the amount of the benefit payable under the legislation of the various Member Stales is lower than the minimum laid down by the legislation of the Member State in which the recipient resides.

10 According to which increases in or supplements to pensions in respect of children or to orphans' pensions granted in accordance with the provisions of Chapter 8 (Article 77 to 79) arc excluded from the provisions of Chapter 3, covering such benefits in respect of old age and death.

11 The minutes of that meeting are annexed to the written observations of the Italian Government. The relevant passage, point 3, states that the authorities of both countries agree that the INPS must notify the German social insurance institution of the amounts payable to the orphan and to the surviving spouse separately, without including them in the minimum pension.