Theo Dammer v VZW Securex Kinderbijslagfonds and Rijksdienst voor Kinderbijslag der Werknemers. (Social Security For Migrant Workers ) [1989] EUECJ R-168/88 (14 December 1989)

Judgment 1 By judgment dated 10 June 1988, which was received at the Court on 16 June 1988, the Arbeidsrechtbank, Antwerp, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of various provisions of Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community and Council Regulation ( EEC ) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation ( EEC ) No 1408/71 ( Official Journal, English Special Edition 1972 ( I ), p . 159 ), as amended, with a view to determining which Member State should award family benefits in respect of a child whose parents work in two different Member States, neither of which is their State of residence . 2 Those questions were raised in the context of proceedings concerning the refusal of the competent Belgian authorities to award Mr Theo Dammer family benefits in respect of his child . 3 Mr and Mrs Dammer reside in the Netherlands with their child, born on 17 July 1985 . Mr Dammer is employed in Belgium and his wife is employed in the Federal Republic of Germany . 4 Mr Dammer applied to VZW Securex Kinderbijslagfonds, a family allowance fund, Ghent, and the Rijksdienst voor Kinderbijslag der Werknemers ( National office for family allowances for employed persons ), Brussels, for a childbirth allowance on 29 May 1985 and for family benefits on 21 October 1985 . Those applications have not been granted because Mrs Dammer, following an application submitted to the German authorities on 2 September 1987, has received German family benefits in respect of the child with effect from March 1987 . 5 The Arbeidsrechtbank, Antwerp, to which Mr Dammer appealed against that refusal on the part of the Belgian authorities, found, first, that childbirth allowances are excluded from the scope of Regulation No 1408/71 by Article 1(u)(i ) thereof . 6 As far as the family benefits were concerned, the national court considered that the case raised a question of interpretation of Community law and decided to stay the proceedings until the Court had given a preliminary ruling on the following questions : "In the event that the parents of a child who are employed in two different Member States, in which they are not resident, are each entitled in accordance with Article 73(1 ) of Council Regulation No 1408/71 to family benefits in respect of that one child : 1 . Does the phrase 'as though they were residing in the territory of the first State' in Article 73(1 ) of Regulation No 1408/71 mean that those entitled to family allowances, in this case the family of the parents/employed persons, may, since both parents also satisfy the conditions laid down by the national legislation of their respective countries of employment, choose between the two countries of employment for the purpose of the grant of family benefits and are therefore entitled to the grant of family benefits by the Member State which provides the highest amount of benefit? 2 . If that is not the case : ( a ) Must the first sentence of Article 12(1 ) of Regulation No 1408/71, which does not allow several benefits of the same kind to be enjoyed for one and the same period of insurance, be understood as meaning that the rule against the overlapping of such family benefits applies only as from the date of actual payment ( as a result of a subsequent application for the grant ) of those benefits in a specific Member State? ( b ) Must the first sentence of Article 12(1 ) of Regulation No 1408/71 be understood as meaning that the rule against the overlapping of benefits of the same kind for one and the same period is restricted to the amount of the lowest benefit so that, in the event of overlapping, the difference between the amounts involved must be granted by the Member State which provides the highest family allowances?" 7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court . 8 Before the questions raised by the national court are considered, it must be pointed out first of all that the main proceedings indeed concern a case of overlapping benefits prohibited by Community law . 9 Article 12(1 ) of Regulation No 1408/71 provides : "Prevention of overlapping of benefits 1 . This regulation can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance . ...". 10 It follows from the wording of that provision that overlapping occurs not only when one person is entitled to two different family benefits at the same time, but also when two different persons - in this case two parents - are entitled to such benefits in respect of the same child . 11 That interpretation is clear, first, from the very words of the provision in question, which does not refer to "the right of a worker to benefits" but uses the more general expression "the right to ... benefits ". 12 Furthermore, the spirit of the provisions of Regulation No 1408/71 governing the overlapping of family benefits and the solutions therein provided for in the event of overlapping also demonstrate that the aim of the provision in question is to prevent not only the direct recipient of a family benefit, namely the worker, but also the indirect recipients thereof, that is to say the members of the worker' s family, from receiving two benefits of the same kind at the same time . 13 Next, as regards the way in which cases of overlapping must be resolved, it must be pointed out that, according to Article 76 of the same regulation, which contains "rules of priority in cases of overlapping entitlement to family benefits or family allowances in pursuance of the provisions of Articles 73 and 74 by reason of the pursuit of a professional or trade activity in the country of residence of the members of the family", "entitlement to family benefits or family allowances under the provisions of Articles 73 and 74 shall be suspended if, by reason of the pursuit of a professional or trade activity, family benefits or family allowances are also payable under the legislation of the Member State in whose territory the members of the family are residing ". 14 The solution provided for in that provision, namely that priority is to be given to the State in which the member of the family in respect of whom the family benefit is awarded, in this case the child, resides, is applicable not only when the same parent pursues a professional or trade activity in two Member States at the same time, but also when the two parents each pursue a professional or trade activity in different Member States at the same time . 15 Article 10(1)(a ) of Regulation No 574/72, the implementing regulation, therefore rightly provides for a solution in the event of overlapping entitlement to benefits "for the same member of the family", and the same provision, in its amended version ( now Article 10(1)(b)(i ) - Council Regulation ( EEC ) No 1660/85 of 13 June 1985 amending Regulation No 1408/71 and Regulation No 574/72 ( Official Journal 1985, L 160, p . 1 ) ), also rightly gives priority, where both parents, even if unmarried, enjoy overlapping entitlements, to the State in which the child resides . 16 It is clear from the abovementioned provisions that under the Community rules prohibited overlapping is considered to occur when two parents work in two different Member States and are each entitled, in their State of employment, to family benefits for the same member of the family, and that problem is resolved by a rule determining priority, as between the two sets of national legislation concerned, in the event that that member of the family resides in one of the two States of employment . However, if the member of the family resides in a third Member State, the Community legislation provides no solution . 17 It is because of that lacuna in the Community rules that the national court has sought a preliminary ruling . 18 The questions of the national court are designed, essentially, to determine the consequences which follow from the prohibition of overlapping where a Community worker is entitled, in his or her Member State of employment, to family benefits in respect of members of his or her family residing in another Member State when family benefits are already paid in respect of the same members of family to his or her spouse in a third Member State where the spouse is employed . 19 It must be pointed out first of all that the rule laid down in Article 76 of Regulation No 1408/71, to the effect that entitlement to family benefits is suspended in the country of employment when such benefits are also payable under the legislation of the country of residence of the members of the family, gives no guidance as to how the problem arising in the case before the national court is to be resolved . There does not appear to be any rule of priority to be observed where family benefits in two countries of employment, neither of which is the country of residence of the members of the family, overlap . 20 Since no guidance is to be found in the provisions of the regulation, consideration must therefore be given to the principles underlying Article 51 of the EEC Treaty, on which Regulation No 1408/71 is based . 21 According to the Court' s previous decisions, in particular its judgment of 21 October 1975 in Case 24/75 Petroni v ONPTS (( 1975 )) ECR 1149, paragraph 13, the aim of Articles 48 to 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the legislation of a single Member State . In paragraph 7 of its judgment of 9 July 1980 in Case 807/79 Gravina and Others v Landesversicherungsanstalt Schwaben (( 1980 )) ECR 2205, the Court accordingly concluded that the application of Community rules may not bring about a reduction in the benefits awarded by virtue of such legislation . 22 Those rulings must be understood as meaning that no provision of Regulation No 1408/71 can deprive a person of a right which, independently of the application of Community law, the legislation of a Member State confers upon him . 23 On the basis of that interpretation of Article 51 of the EEC Treaty, the Court has already held, in paragraph 10 of its judgment of 12 June 1980 in Case 733/79 Caisse de compensation des allocations familiales des régions de Charleroi et de Namur v Laterza (( 1980 )) ECR 1915, that entitlement to family benefits from the State in whose territory the recipient of an invalidity pension resides does not take away the right to higher benefits awarded previously by another Member State . It went on to state that if the amount of the family benefits actually received by the worker in the Member State in which he resides is less than the amount of the benefits provided for by the legislation of the other Member State, he is entitled to a supplement to the benefits from the competent institution of the latter Member State equal to the difference between the two amounts . 24 The problem of overlapping benefits raised in the present case must be resolved in a similar manner, in accordance with the aim of Article 51 of the EEC Treaty and in the light of the previous decisions of the Court . 25 The answer to the national court' s questions must therefore be that Articles 12 and 73 of Council Regulation No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community must be interpreted as meaning that a worker' s right to family benefits in the Member State of employment in respect of members of his family residing in a second Member State, when family benefits are already being paid in respect of the same members of family to his or her spouse in a third Member State in which that spouse is employed, may be exercised where the amount of family benefits actually received in the third Member State is lower than the amount of benefit in the first Member State, in which case the worker is entitled to an additional benefit, payable by the competent institution of the first State, equal to the difference between the two amounts . Costs 26 The costs incurred by the Belgian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court . On those grounds, THE COURT ( Sixth Chamber ), in answer to the questions submitted to it by the Arbeidsrechtbank, Antwerp, by judgment of 10 June 1988, hereby rules : Articles 12 and 73 of Council Regulation ( EEC ) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community must be interpreted as meaning that a worker' s right to family benefits in the Member State of employment in respect of members of his family residing in a second Member State, when family benefits are already being paid in respect of the same members of family to his or her spouse in a third Member State in which that spouse is employed, may be exercised where the amount of family benefits actually received in the third Member State is lower than the amount of benefit in the first Member State, in which case the worker is entitled to an additional benefit, payable by the competent institution of the first State, equal to the difference between the two amounts . © European Communities, 2001 All rights reserved BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII