Avis juridique important

Judgment of the Court of 28 November 1991. - Giacomo Durighello v Istituto Nazionale Della Previdenza Sociale. - Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. - Social security - Benefit for a pensioner's dependent spouse. - Case C-186/90. European Court reports 1991 Page I-05773

Summary Parties Grounds Decision on costs Operative part

++++

1. Preliminary rulings - Jurisdiction of the Court - Limits - Manifestly irrelevant question

(EEC Treaty, Article 177)

2. Social security for migrant workers - Community rules - Interpretation in the light of the Treaty objectives - Family benefits within the meaning of Regulation 1408/71 confined to child benefit - Refusal to grant to a person entitled to an old-age pension under Article 45 of Regulation 1408/71 a dependent-spouse allowance available under the national system of family allowances - Loss of a social security benefit available under national legislation - Not permissible

(EEC Treaty, Arts 48 to 51; Council Regulation No 1408/71, Arts 45 and 77 to 79)

1. A request from a national court for a preliminary ruling may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or to the subject matter of the main action.

2. The fact that a migrant worker receives a pension as a result of the application of the provisions of Article 45 of Regulation No 1408/71 on the taking into account of periods of insurance or residence completed under the legislation of several Member States, and not by virtue of national legislation alone, cannot, without jeopardizing the attainment of the objectives set out in Articles 48 to 51 of the Treaty, prevent him from receiving allowances available to pensioners under national law.

Consequently, Articles 77 to 79 of Regulation No 1408/71, which cover only benefits for dependent children of pensioners and for orphans, cannot be interpreted as precluding a Member State' s legislation which provides for family allowances for a pensioner' s dependent spouse from applying to a person in receipt of an old-age pension under that Regulation.

In Case C-186/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Corte Suprema di Cassazione (Supreme Court of Cassation) for a preliminary ruling in the proceedings pending before that court between

Giacomo Durighello

and

Istituto Nazionale della Previdenza Sociale

on the interpretation of Articles 77 to 79 of Regulation 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community, as codified by Council Regulation No 2001/83 of 2 June 1983 (Official Journal 1983 L 230, p. 6),

THE COURT,

composed of: O. Due, President, R. Joliet, F.A. Schockweiler and F. Grévisse, (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida and G.C. Rodríguez Iglesias, Judges,

Advocate General: W. Van Gerven,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

the Istituto Nazionale della Previdenza Sociale, by Giuseppe Li Marzi, Giacomo Giordano and Giuseppe Pabiani (advocates authorized to practise before the courts of cassation)

the Commission of the European Communities, by Maria Patakia and Guido Berardis, members of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Commission at the hearing on 4 July 1991,

after hearing the Opinion of the Advocate General at the sitting on 17 September 1991,

gives the following

Judgment

1 By order of 12 January 1990, which was received at the Court on 8 June 1990, the Corte Suprema di Cassazione referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 77 to 79 of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community, as codified by Council Regulation (EEC) 2001/83 of 2 June 1983 (Official Journal 1983 L 230, p. 6).

2 That question arose in proceedings between Mr Durighello and the Istituto Nazionale della Previdenza Sociale (National Social Welfare Institution, hereinafter: "INPS") on the question of family allowances for a dependent spouse provided for by Italian legislation.

3 The order for reference indicates that Mr Durighello, an Italian national, worked in turn in three Member States (Italy, France and Germany), and now resides in Italy where he receives a pension. His application for the allowances at issue was rejected on the grounds that his entitlement to the abovementioned pension was based on Regulation No 1408/71 - he had not completed enough insurance periods in Italy to qualify for an autonomous pension under Italian legislation - and that regulation made no provision for family allowances to be paid in respect of the dependent spouse of a pensioner.

4 After failing in actions brought against that decision before the Pretore di Udine (Magistrate' s Court, Udine) and the Tribunale di Udine (District Court, Udine), Mr Durighello appealed to the Corte di Cassazione, which decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

"In the situation described above, do the provisions of Chapter 8 of Title III, and in particular Articles 77 to 79 of Regulation (EEC) No 1408/71 of the Council (as subsequently amended and supplemented) preclude the application to a person residing in Italy in receipt of an old-age pension calculated and granted under Chapter 3 of Title III of that Regulation (' aggregation' of periods of employment and periods of insurance completed in Italy, France and Germany) of the Italian legislation entitling (from 1 January 1974 until the date of the entry into force of Decree Law No 69 of 1988) a pensioner to family allowances for his dependent spouse as well."

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant provisions and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

6 In its question the national court is essentially seeking to ascertain whether Articles 77 to 79 of Regulation 1408/71 must be interpreted as precluding the legislation of a Member State which provides for allowances for a pensioner' s dependent spouse from applying to a person in receipt of a pension under Regulation 1408/71.

Jurisdiction

7 The INPS maintains that the request for a preliminary ruling is inadmissible. On the one hand, it is pointless, in its view, for the Court to provide the interpretation of Articles 77 to 79 requested, since the provisions in question concern only family allowances for dependant children, and not allowances such as those at issue in the main proceedings. Moreover, the request seeks to ask the Court to rule on the compatibility of Italian legislation with Community law for which the Court does not have jurisdiction.

10 As to the second point, the Court has held that, whereas it is not for the Court, in the context of Article 177 of the Treaty, to rule on the compatibility of a national law with Community law, it does have jurisdiction to provide the national court with all the elements of interpretation under Community law to enable it to assess that compatibility for the purpose of deciding the case before it (see, inter alia, the judgment in Case 369/89 Piageme v BVBA Peeters [1991] ECR I-2971, at paragraph 7).

Substance

11 The INPS observes that Articles 77 to 79 of Regulation No 1408/71 must be interpreted as referring only to family allowances for dependent children. Consequently, a person in Mr Durighello' s situation is not entitled to family allowances for a dependent spouse.

12 That reasoning cannot be accepted.

13 The aforementioned Articles 77 to 79 do not, it is true, refer to allowances for a dependent spouse. The wording of both Articles, and their respective headings, indicate that they cover only allowances for dependent children and orphans. That interpretation is confirmed by the fact that the provisions in question appear in Chapter 8 of Title III of Regulation 1408/71, under the heading "Benefits for dependent children of pensioners and for orphans".

17 It follows that Articles 77 to 79 of Regulation 1408/71 cannot be interpreted so as to deprive a migrant worker in a situation such as that at issue in the main action of benefits which he could have claimed if the legislation of a single Member State had been applicable to him.

18 Accordingly, the reply to be given to the question submitted must be that Articles 77 to 79 of Regulation 1408/71 of the Council, of 14 June 1971, on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as codified in Regulation (EEC) No 2001/83 of the Council of 2 June 1983, cannot be interpreted as precluding a Member State' s legislation which provides for family allowances for a pensioner' s dependent spouse from applying in the case of a person in receipt of an old-age pension pursuant to Regulation 1408/71.

Costs

19 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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,

in answer to the question referred to it by the Corte Suprema di Cassazione, by order of 12 January 1990, hereby rules:

Articles 77 to 79 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their family moving within the Community, as codified in Regulation (EEC) No 2001/83 of the Council of 2 June 1983, cannot be interpreted as precluding a Member State' s legislation which provides for family allowances for a pensioner' s dependent spouse from applying in the case of a person in receipt of an old-age pension pursuant to Regulation 1408/71.