22 The referring court is of the opinion that the notion of ‘benefits provided for’ in Article 76(1) of Regulation No 1408/71 does not cover the case of benefits that have not been applied for. Article 76(2) is a special rule covering the specific case in which the potential recipient of benefits has refrained from making an application for benefits, as is apparent not least from the drafting history of the provision. By inserting paragraph 2 into Article 76 of Regulation No 1408/71, the EU legislature intended to respond to the previous case-law of the Court of Justice (judgments in Salzano, C‑191/83, EU:C:1984:343; Ferraioli, C‑153/84, EU:C:1986:168; and Kracht, C‑117/89, EU:C:1990:279), according to which, if an application for benefits has not been made in the Member State of residence of the members of a migrant worker’s family, the entitlement to family benefits in that worker’s Member State of employment is not to be suspended.

44      According to similarly established case-law of the Court, the recognition of such a right requires that the interested person should fulfil all the conditions, as to both form and substance, imposed by the national legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits (see, by analogy, Ragazzoni, paragraphs 8 and 9; Salzano, paragraphs 7 and 10; Case 153/84 Ferraioli [1986] ECR 1401, paragraph 14; Case C-117/89 Kracht [1990] ECR I-2781, paragraph 11; and Case C-119/91 McMenamin [1992] ECR I‑6393 paragraph 26).

41      With respect to family benefits, Article 73 of Regulation No 1408/71 provides that a worker subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State (see Case C-153/03 Weide [2005] ECR I-6017, paragraph 20, and Bosmann, paragraph 17). That provision is designed to make it easier for migrant workers to draw family allowances in the State where they are employed, in cases where their family has not moved with them (see Case C‑117/89 Kracht [1990] ECR I‑2781, paragraph 15) and in particular to prevent a Member State from being able to make the grant or the amount of family benefits dependent on members of the worker’s family being resident in the Member State paying the benefit (see to that effect, in particular, Case C-543/03 Dodl and Oberhollenzer [2005] ECR I‑5049, paragraph 46, and case-law cited).

26 Under the consistent case-law of the Court, and as now embodied in Article 2(1) of Council Regulation (EEC) No 1249/92 of 30 April 1992 amending Regulation No 1408/71 and Regulation No 574/72 (OJ 1992 L 136, p. 28), the suspension of rights acquired in pursuance of Article 73 is only partial if the benefits paid by the State of employment are higher than those paid by the State of residence. In such a case the worker is entitled to a supplementary allowance equal to the difference between the two amounts, the cost of which is to be borne by the competent institution of the State of employment (judgment in Case 24/88 Georges v ONAFTS [1989] ECR 1905). Moreover, rights due in pursuance of Article 73 are to be suspended only if allowances are actually paid in the State of residence (judgment in Case C-117/89 Kracht v Bundesanstalt fuer Arbeit [1990] ECR I-2781).