1BY AN ORDER OF 1 SEPTEMBER 1977 , RECEIVED AT THE COURT REGISTRY ON 27 SEPTEMBER 1977 , THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN- WESTFALEN IN ESSEN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A SERIES OF QUESTIONS ON THE INTERPRETATION OF ARTICLE 79 ( 3 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2THE FILE ESTABLISHES THAT , FOLLOWING THE DIVORCE OF THEIR PARENTS IN THE FEDERAL REPUBLIC OF GERMANY AND THE REMARRIAGE OF THEIR MOTHER TO A BELGIAN NATIONAL , THE APPELLANTS IN THE MAIN ACTION , WHO ARE MINORS OF GERMAN NATIONALITY , NOW LIVE IN BELGIUM IN THE HOME OF THEIR MOTHER AND STEPFATHER .
THE APPELLANTS IN THE MAIN ACTION ARE CONTESTING BEFORE THE COURT MAKING THE REFERENCE THE DECISION OF THE COMPETENT GERMAN SOCIAL SECURITY INSTITUTION TO GRANT THEM , IN RESPECT OF THE DEATH OF THEIR FATHER , THE RIGHT TO PAYMENT OF AN ORPHANS ' PENSION WHILST SUSPENDING THAT RIGHT ON THE GROUND THAT THEIR STEPFATHER RECEIVES FAMILY ALLOWANCES FOR THEM UNDER THE BELGIAN SYSTEM .
THE COMPETENT GERMAN INSTITUTION BASED ITS DECISION TO SUSPEND THE PENSION ON THE PROVISIONS OF ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 , WHICH STATES THAT THE RIGHT TO ORPHANS ' BENEFITS DUE IN PARTICULAR UNDER THE PROVISIONS OF ARTICLE 78 SHALL BE SUSPENDED ' ' IF THE CHILDREN BECOME ENTITLED TO FAMILY BENEFITS OR FAMILY ALLOWANCES UNDER THE LEGISLATION OF A MEMBER STATE BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY . IN SUCH A CASE , THE PERSONS CONCERNED SHALL BE CONSIDERED AS MEMBERS OF THE FAMILY OF A WORKER ' ' .
3IN ITS FIRST QUESTION THE NATIONAL COURT ASKS WHETHER , HAVING REGARD TO ARTICLE 79 ( 3 ) OF THE REGULATION , THE RIGHT TO A GERMAN ORPHANS ' PENSION IS SUSPENDED IN ITS ENTIRETY OR ONLY IN SO FAR AS THE GERMAN ORPHANS ' PENSION AND THE BELGIAN FAMILY ALLOWANCES TOGETHER EXCEED THE SUM OF THE SAID PENSION AND THE GERMAN DEPENDENT CHILD ALLOWANCES .
BY THE SECOND QUESTION THE NATIONAL COURT WISHES TO ESTABLISH WHETHER ARTICLE 79 ( 3 ) MUST BE UNDERSTOOD IN THE SENSE THAT RIGHTS TO BENEFITS ACQUIRED UNDER ARTICLES 77 , 78 AND 79 ( 2 ) OF THE REGULATION ARE TO BE SUSPENDED IN ORDER TO AVOID DUPLICATION OF BENEFITS ONLY WHERE RIGHTS OF THE SAME KIND HAVE BEEN GRANTED IN ANOTHER MEMBER STATE .
PERSONS COVERED BY THE REGULATION
4THE COMMISSION HAS QUESTIONED WHETHER REGULATION NO 1408/71 IS APPLICABLE TO THE PRESENT CASE SINCE NEITHER THE FATHER , THE MOTHER NOR THE STEPFATHER OF THE APPELLANTS HAS MOVED FROM ONE MEMBER STATE TO ANOTHER IN CONNEXION WITH WORK .
5AS IN THE CASE OF THE EARLIER REGULATION NO 3 , THE PERSONS COVERED BY REGULATION NO 1408/71 , AS IS INDICATED BY ITS HEADING , INCLUDE NOT ONLY EMPLOYED PERSONS BUT ALSO THEIR FAMILIES MOVING WITHIN THE COMMUNITY .
THUS PURSUANT TO ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 WHICH DEFINES THE PERSONS COVERED BY THE REGULATION THE PROVISIONS OF THE LATTER SHALL APPLY TO THE SURVIVORS OF WORKERS WHO ARE OR HAVE BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES .
THE GENERAL TERMS IN WHICH THOSE PROVISIONS ARE COUCHED SHOW THAT THE APPLICATION OF THE REGULATION IS NOT LIMITED TO WORKERS OR THEIR SURVIVORS WHO HAVE HAD EMPLOYMENT IN SEVERAL MEMBER STATES OR WHO ARE , OR HAVE BEEN , EMPLOYED IN ONE STATE WHILST RESIDING OR HAVING RESIDED IN ANOTHER .
THUS THE REGULATION ALSO APPLIES WHEN THE RESIDENCE IN ANOTHER MEMBER STATE WAS THAT NOT OF THE WORKER HIMSELF BUT OF A SURVIVOR OF HIS .
THE QUESTIONS SUBMITTED
6THE SECOND QUESTION SHOULD BE ANSWERED FIRST SINCE , IF THE REPLY IS IN THE AFFIRMATIVE , THE TWO PARTS OF THE FIRST QUESTION BECOME DEVOID OF PURPOSE .
7ARTICLE 78 OF THE REGULATION , WHICH COVERS ORPHANS ' BENEFITS , PROVIDES IN PARAGRAPH ( 1 ) THAT THE TERM ' ' BENEFITS ' ' MEANS ' ' FAMILY ALLOWANCES AND , WHERE APPROPRIATE , SUPPLEMENTARY OR SPECIAL ALLOWANCES FOR ORPHANS AND ORPHANS ' PENSIONS . . . ' ' .
WHILST THE ABOVE-MENTIONED ARTICLE , THE PURPOSE OF WHICH IS TO DEFINE THE LEGISLATION UNDER WHICH ORPHANS ' BENEFITS MUST BE GRANTED , INCLUDES FAMILY ALLOWANCES AND ORPHANS ' PENSIONS , THOSE TWO TYPES OF BENEFIT ARE OF A CLEARLY DIFFERENT KIND , AND THIS IS FURTHERMORE RECOGNIZED IN ARTICLE 4 ( 1 ) OF THE REGULATION , WHICH DRAWS AN EXPRESS DISTINCTION BETWEEN SURVIVORS ' BENEFITS AND FAMILY BENEFITS .
ON THE ONE HAND , ACCORDING TO ARTICLE 1 ( U ) ( II ) OF THE REGULATION THE TERM ' ' FAMILY ALLOWANCES ' ' MEANS ' ' PERIODICAL CASH BENEFITS GRANTED EXCLUSIVELY BY REFERENCE TO THE NUMBER AND , WHERE APPROPRIATE , THE AGE OF MEMBERS OF THE FAMILY ' ' .
IN THE SYSTEM ESTABLISHED BY REGULATION NO 1408/71 FAMILY ALLOWANCES ARE GENERATED BY AN ACTUAL OCCUPATION ( EVEN IF THE WORKER IS NO LONGER ENGAGED IN SUCH OCCUPATION ) AND THE DIRECT AND SOLE RECIPIENT IS THE WORKER HIMSELF .
ON THE OTHER HAND , THE DIRECT AND SOLE RECIPIENT OF THE ORPHANS ' PENSION IS THE ORPHAN HIMSELF AND THE PENSION , LIKE OTHER SURVIVORS ' BENEFITS , CONSTITUTES THE PROJECTION IN TIME OF A PRIOR OCCUPATION , PURSUIT OF WHICH CEASED ON THE DEATH OF THE WORKER .
THE PROVISIONS OF ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED IN THE LIGHT OF THESE CONSIDERATIONS .
8WHERE ARTICLE 79 ( 3 ) PROVIDES THAT IF CHILDREN BECOME ENTITLED TO FAMILY BENEFITS OR FAMILY ALLOWANCES UNDER THE LEGISLATION OF A MEMBER STATE BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY ' ' THE RIGHT TO BENEFITS DUE UNDER . . . ARTICLE 78 SHALL BE SUSPENDED ' ' , IT SETS OUT A COMMUNITY RULE AGAINST THE OVERLAPPING OF BENEFITS WHICH MUST BE INTERPRETED WITHIN THE FRAMEWORK OF THE SYSTEM OF THE REGULATION AND OF ITS OBJECTIVES .
AS HAS BEEN STATED , THE BENEFITS REFERRED TO IN ARTICLE 78 COVER NOT ONLY ORPHANS ' PENSIONS BUT ALSO FAMILY ALLOWANCES , ENTITLEMENT TO THE LATTER CATEGORY OF BENEFITS BEING ACQUIRED BY REASON OF THE EXISTENCE OF A DEPENDENT CHILD AND ARISING BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY .
IT WOULD BE CONTRARY TO THE OBJECTIVES OF THE COMMUNITY PROVISIONS AGAINST THE OVERLAPPING OF BENEFITS IN THE FIELD OF SOCIAL SECURITY IF THE GRANT OF A BENEFIT TO ONE DEPENDANT COULD BE ADVERSELY AFFECTED BY A BENEFIT PAID TO ANOTHER DEPENDANT .
CONSEQUENTLY , ARTICLE 79 ( 3 ) WHICH PROVIDES THAT ' ' THE RIGHT TO BENEFITS DUE UNDER ' ' ARTICLE 78 SHALL BE SUSPENDED ' ' IF THE CHILDREN BECOME ENTITLED TO FAMILY BENEFITS OR FAMILY ALLOWANCES ' ' MUST BE INTERPRETED TO MEAN THAT THE ' ' RIGHT TO BENEFITS ' ' MUST EXIST IN FAVOUR OF ONE AND THE SAME RECIPIENT .
THAT INTERPRETATION IS IN ACCORDANCE WITH ALL THE OTHER PROVISIONS AGAINST THE OVERLAPPING OF BENEFITS CONTAINED IN THE COMMUNITY RULES ON SOCIAL SECURITY , AND IN PARTICULAR WITH ARTICLE 12 OF REGULATION NO 1408/71 , WHICH REFER EXCLUSIVELY TO BENEFITS OF THE SAME KIND .
FURTHERMORE , THE FILE ESTABLISHES THAT IF THE ORPHANS IN QUESTION HAD REMAINED IN THE FEDERAL REPUBLIC OF GERMANY IN THE CUSTODY OF A STEPFATHER RESIDING THERE , BOTH THE ORPHANS ' PENSIONS ON THE ONE HAND AND THE FAMILY ALLOWANCES ON THE OTHER WOULD HAVE BEEN GRANTED BY THE NATIONAL INSTITUTIONS .
9IT IS CLEAR FROM THE FOREGOING THAT THE REPLY TO THE SECOND QUESTION SUBMITTED MUST BE THAT THE RIGHT TO THE BENEFITS REFERRED TO IN ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 IS TO BE SUSPENDED , PURSUANT TO THE PROVISIONS OF THAT PARAGRAPH , IN ORDER TO PREVENT DUPLICATION OF BENEFITS ONLY IN SO FAR AS THAT RIGHT OVERLAPS RIGHTS TO BENEFITS OF THE SAME KIND ACQUIRED BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY .
10THE FIRST QUESTION HAS THUS BECOME OF PURPOSE .
COSTS
11THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN BY AN ORDER OF 1 SEPTEMBER 1977 , HEREBY RULES :
THE RIGHT TO THE BENEFITS REFERRED TO IN ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL IS TO BE SUSPENDED , PURSUANT TO THE PROVISIONS OF THAT PARAGRAPH , IN ORDER TO PREVENT DUPLICATION OF BENEFITS ONLY IN SO FAR AS THAT RIGHT OVERLAPS RIGHTS TO BENEFITS OF THE SAME KIND ACQUIRED BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY .
