Report for the Hearing in Case C-119/91

I — Facts and procedure

1. Legal background

(a) Community law

Article 13 of Council Regulation (EEC) No 1408/71, in the version annexed to Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) provides:

Article 73(1) of the same version of Regulation No 1408/71 provided:

That Article 73 was amended as follows by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1), with effect from 15 January 1986:

Finally, Article 76 of Regulation No 1408/71, in the version annexed to Regulation No 2001/83 in force until 1 August 1989, provided:

Following the judgment of the Court in Case 377/85 Burchell v Adjudication Officer [1987] ECR 3329, Article 76 was amended as follows, with effect from 2 August 1989, by Council Regulation (EEC) No 2332/89 of 18 July 1989 amending Regulation (EEC) No 1408/71:

For information, it may be pointed out that Article 76 was amended with effect from 1 May 1990, by Regulation No 3427/89.

Article 10(1) of Regulation No 574/72, as amended by Article 2 of Regulation No 1660/85 (which came into force on 20 June 1985), provides:

That article was also amended by Regulation No 2332/89 as follows, with effect from 2 August 1989:

(b) National legislation

2. Background to the case

Mrs McMenamin, the respondent in the main proceedings, is a married woman who lived with her husband in County Donegal in Ireland. Mrs McMenamin has four children who reside with them. She is a teacher in a school in Londonderry in Northern Ireland in the United Kingdom. Every morning on a normal working day she crosses the border between Ireland and the United Kingdom to go to her school and every evening she returns across the border to her home. Her husband is employed by the Revenue Commissioners in the Republic of Ireland.

The Adjudication Officer, the appellant in the main proceedings, has responsibility for making decisions on claims for child benefit under the Social Security (Northern Ireland) Acts from 1975 to 1988.

On 1 December 1986, Mrs McMenamin claimed child benefit in Northern Ireland under the Child Benefit (Northern Ireland) Order 1975, as amended. The Adjudication Officer decided that Mrs McMenamin was entitled only to a supplement from 2 December 1985, namely the amount necessary to bring the child benefit payable to her under the corresponding Irish legislation up to the level of child benefit payable under the 1975 Order. Mrs McMenamin appealed to the Social Security Appeal Tribunal which upheld the Adjudication Officer's decision. Mrs McMenamin then appealed to the Social Security Commissioner.

The Adjudication Officer accepted that a claim made by Mrs McMenamin in Ireland on 16 July 1979 under the corresponding Irish legislation should be treated as a valid claim for child benefit in Northern Ireland, and consequently the Social Security Commissioner, by an interim decision dated 26 April 1989, awarded a child benefit supplement to Mrs McMenamin from 17 July 1978 (that is, one year before the date of the claim) until 19 June 1985 (the day before the entry into force of Article 10 of Regulation (EEC) No 574/72, as amended by Article 2 of Regulation (EEC) No 1660/85).

In his final decision given on 2 November 1989, the Social Security Commissioner decided that as from 20 June 1985 Mrs McMenamin was entitled to receive the full amount of child benefit due under the United Kingdom regulations.

The Adjudication Officer appealed against that decision only to the Court of Appeal in Northern Ireland, the effect of the Social Security Commissioner's decision being to throw the full charge of the relevant child benefit onto the public funds of the United Kingdom.

The Social Security Commissioner decided that, for the period commencing 20 June 1985,

The Adjudication Officer appealed by way of case stated from the decision of the Social Security Commissioner to the Court of Appeal in Northern Ireland, the questions put to the Court of Appeal by the Social Security Commissioner being these:

3. The questions referred to the Court of Justice

The Court of Appeal in Northern Ireland, by an order of 11 April 1991, asked the Court of Justice of the European Communities for a preliminary ruling on the following questions:

4. Procedure before the Court

The order for reference was received at the Court Registry on 25 April 1991.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted:

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

5. The Adjudication Officer, the appellant in the main proceedings, suggests the following replies to the two questions: (i) the person entitled to benefit under Article 73 of Regulation No 1408/71 cannot be the person entitled to the family benefits or family allowances under Article 10 of Regulation No 574/72 and (ii) Article 10 operates to suspend payment by the State of employment where family benefits are paid by the State of residence where one person with whom the child resides is employed.

6. The German Government begins by pointing out that in this case there are the following overlapping entitlements to child benefit:

7. The Commission observes at the outset that the problem arising in the present case is whether the amendment of Article 10 of Regulation (EEC) No 574/72 effected by Article 2 of Regulation (EEC) No 1660/85 results in the transfer of liability to pay family benefits or allowances from Ireland to the United Kingdom. Prior to the said amendment, the Commission considers that Article 10 suspended Mrs McMenamin's right to family allowances payable by the United Kingdom under Article 73. The Commission adds that the reply to the questions asked will have no bearing on the amount of benefit received by the McMenamin family: either the United Kingdom will pay the whole of the child benefit, or Ireland will pay the child benefit and the amount will be topped up by the United Kingdom in order to bring the amount of benefit received up to the level of child benefit in the United Kingdom.

III — Oral procedure

At the hearing, the Commission's representative stated that the Commission concurred with the Adjudication Officer's views with regard to the reply to the first question. More specifically, the Commission now considers that the person entitled to family benefits referred to in Article 10(1)(b)(i) of Regulation No 574/72 is not the recipient of benefits within the meaning of Article 73 of Regulation No 1408/71. The Commission is of the view that, for reasons of the overall coherence of the rules for the coordination of social security schemes, it is not desirable to depart from the principle laid down in Article 13 of Regulation No 1408/71 that a person is subject to the legislation of a single Member State.

1 Language of the case: English.