1BY A JUDGMENT OF 19 APRIL 1978 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 27 APRIL 1978 , THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), CHARLEROI , SUBMITTED FOR A PRELIMINARY RULING , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , CERTAIN QUESTIONS CONCERNING 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 AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2THESE QUESTIONS HAVE BEEN RAISED WITHIN THE CONTEXT OF AN ACTION BETWEEN THE DEFENDANT , THE CAISSE DE COMPENSATION POUR ALLOCATIONS FAMILIALES DES REGIONS DE CHARLEROI ET NAMUR ( COMPENSATION FUND FOR FAMILY ALLOWANCES FOR THE REGIONS OF CHARLEROI AND NAMUR ), AND THE PLAINTIFF , AN ITALIAN WORKER , THE FATHER OF TWO CHILDREN AND THE RECIPIENT OF A BELGIAN PENSION PAYABLE BY THE FONDS DES MALADIES PROFESSIONNELLES ( OCCUPATIONAL DISEASES FUND ) SINCE 11 DECEMBER 1967 , ON THE BASIS OF A PERMANENT 100 % INCAPACITY FOR WORK .
3THE PLAINTIFF DREW FAMILY ALLOWANCES IN BELGIUM PAID BY THE DEFENDANT UNTIL 28 FEBRUARY 1973 , ON WHICH DATE HE RETURNED TO ITALY WITH ALL HIS FAMILY .
4ON THAT DATE THE BELGIAN INSTITUTION SUSPENDED PAYMENT OF THE FAMILY ALLOWANCES ON THE GROUND THAT , AS THE WORKER ' S WIFE WAS PURSUING A PROFESSIONAL OR TRADE ACTIVITY IN ITALY , SHE WAS ENTITLED TO FAMILY ALLOWANCES , BY VIRTUE OF THE ITALIAN LEGISLATION .
5IN FACT , HOWEVER , THE PLAINTIFF WAS REFUSED PAYMENT OF THE FAMILY ALLOWANCES BY A DECISION , DATED 13 APRIL 1976 , OF THE I.N.P.S . ( NATIONAL SOCIAL SECURITY INSTITUTION ), BOLOGNA , ON THE GROUND THAT , ACCORDING TO THE ITALIAN LEGISLATION APPLICABLE AT THE TIME , THE STATUS OF HEAD OF HOUSEHOLD , AS REGARDS ENTITLEMENT TO FAMILY ALLOWANCES , BELONGS TO THE FATHER AND CANNOT BE TRANSFERRED TO ANOTHER PERSON BECAUSE THE FATHER IS NEITHER AN INVALID NOR UNEMPLOYED .
6IN THESE CIRCUMSTANCES THE TRIBUNAL DU TRAVAIL , CHARLEROI , SUBMITTED TWO QUESTIONS , THE FIRST OF WHICH IS AS FOLLOWS :
' ' IS ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL OF THE EEC MADE INAPPLICABLE BY THE FACT THAT ITALIAN LEGISLATION DOES NOT , FOR THE PURPOSE OF GRANTING FAMILY ALLOWANCES , ALLOW THE CAPACITY OF HEAD OF HOUSEHOLD TO BE TRANSFERRED TO THE WIFE WHEN THE HUSBAND IS RECEIVING A PENSION ( FONDS DES MALADIES PROFESSIONNELLES ) FROM ANOTHER MEMBER STATE?
IN OTHER WORDS , MUST THE BELGIAN INSTITUTION ASSUME RESPONSIBILITY FOR PAYING FAMILY ALLOWANCES EVEN IF A RIGHT EXISTS IN ITALY BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY BY A MEMBER OF THE FAMILY OF THE PERSON RECEIVING A PENSION BUT SUCH RIGHT IS IMPERFECT OWING TO A PARTICULAR FEATURE OF ITALIAN LEGISLATION?
' ' .
7ACCORDING TO ARTICLE 77 OF REGULATION NO 1408/71 A PENSIONER IS ENTITLED TO THE FAMILY ALLOWANCES PROVIDED BY THE LEGISLATION OF THE MEMBER STATE RESPONSIBLE FOR THE PENSION , IRRESPECTIVE OF THE MEMBER STATE IN WHOSE TERRITORY THE PENSIONER OR THE CHILDREN ARE RESIDING .
8ARTICLE 79 ( 3 ) OF THE SAME REGULATION PROVIDES THAT THE ENTITLEMENT TO FAMILY BENEFITS OR ALLOWANCES UNDER THE LEGISLATION OF A MEMBER STATE BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY SHALL SUSPEND THE RIGHT TO BENEFITS DUE UNDER ARTICLE 77 .
9THIS RULE AGAINST THE OVERLAPPING OF BENEFITS HAS A PURPOSE , AND IS APPLICABLE , ONLY IF ENTITLEMENT TO BENEFITS ACTUALLY ARISES AND IS ACQUIRED ACCORDING TO THE LEGISLATION OF THE STATE IN WHICH THE PROFESSIONAL OR TRADE ACTIVITY IS PURSUED .
10THEREFORE , THE ANSWER TO THE FIRST QUESTION SHOULD BE THAT , UNDER ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL , THE SUSPENSION OF THE ENTITLEMENT TO FAMILY ALLOWANCES IN RESPECT OF THE DEPENDENT CHILDREN OF A FATHER WHO IS IN RECEIPT OF A PENSION UNDER THE LEGISLATION OF A MEMBER STATE IS NOT APPLICABLE IF THE MOTHER HAS NOT ACTUALLY BECOME ENTITLED TO THOSE SAME ALLOWANCES UNDER THE LEGISLATION OF ANOTHER MEMBER STATE BY VIRTUE OF HER PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY , EITHER BECAUSE ONLY THE FATHER IS ACKNOWLEDGED TO HAVE THE STATUS OF HEAD OF HOUSEHOLD OR BECAUSE THE CONDITIONS FOR AWARDING TO THE MOTHER THE RIGHT TO PAYMENT OF THE ALLOWANCES HAVE NOT BEEN FULFILLED .
11THE SECOND QUESTION SUBMITTED BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , IS AS FOLLOWS :
' ' ASSUMING THAT THE ITALIAN AUTHORITY ' S ATTITUDE IS NO LONGER JUSTIFIABLE AT THE PRESENT TIME IN VIEW OF THE PRINCIPLES OF EQUAL RIGHTS FOR MEN AND WOMEN , SHOULD NOT THE BELGIAN INSTITUTION AWARD THE DIFFERENCE BETWEEN THE AMOUNT OF THE ITALIAN FAMILY ALLOWANCES IN ORDER TO PROTECT RIGHTS ACQUIRED UNDER THE LEGISLATION OF THE COUNTRY OF LAST EMPLOYMENT AND THUS PREVENT UNEQUAL TREATMENT OF WORKERS WHO HAVE HAD TO SATISFY THE SAME CONDITIONS TO OBTAIN THE PENSION?
' ' .
12SINCE THE ANSWER TO THIS QUESTION IS NOT EXPRESSLY DETERMINED BY THE REGULATIONS DEALING WITH SOCIAL SECURITY FOR MIGRANT WORKERS , IT CAN BE FOUND ONLY THROUGH THE INTERPRETATION OF THOSE REGULATIONS IN THE LIGHT OF THE AIMS PURSUED BY THE PROVISIONS OF THE TREATY ( ARTICLES 48 TO 51 ) UNDER WHICH THEY WERE MADE .
13THE REGULATIONS DID NOT SET UP A COMMON SCHEME OF SOCIAL SECURITY , BUT ALLOWED DIFFERENT SCHEMES TO EXIST , CREATING DIFFERENT CLAIMS ON DIFFERENT INSTITUTIONS AGAINST WHICH THE CLAIMANT POSSESSES DIRECT RIGHTS BY VIRTUE EITHER OF NATIONAL LAW ALONE OR OF NATIONAL LAW SUPPLEMENTED , WHERE NECESSARY , BY COMMUNITY LAW .
14THE COMMUNITY RULES COULD NOT , IN THE ABSENCE OF AN EXPRESS EXCEPTION CONSISTENT WITH THE AIMS OF THE TREATY , BE APPLIED IN SUCH A WAY AS TO DEPRIVE A MIGRANT WORKER OR HIS DEPENDANTS OF THE BENEFIT OF A PART OF THE LEGISLATION OF A MEMBER STATE .
15ONE SUCH EXCEPTION IS ESTABLISHED BY ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 WHICH PROVIDES THAT ENTITLEMENT TO BENEFITS FOR DEPENDENT CHILDREN OF PENSIONERS 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 .
16THAT RULE , DESIGNED TO PREVENT THE OVERLAPPING OF FAMILY ALLOWANCES , IS APPLICABLE ONLY TO THE EXTENT TO WHICH IS DOES NOT , WITHOUT CAUSE , DEPRIVE THE PERSONS CONCERNED OF THE BENEFIT OF A PART OF THE LEGISLATION OF A MEMBER STATE .
17WHEN THE AMOUNT OF THE ALLOWANCES OF WHICH PAYMENT IS SUSPENDED IS GREATER THAN THAT OF THE ALLOWANCES RECEIVED BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY , IT IS THEREFORE APPROPRIATE THAT THE RULE AGAINST OVERLAPPING OF BENEFITS CONTAINED IN ARTICLE 79 ( 3 ) SHOULD BE APPLIED ONLY PARTIALLY AND THAT THE DIFFERENCE BETWEEN THESE AMOUNTS SHOULD BE GRANTED IN THE FORM OF A SUPPLEMENT .
18THEREFORE , THE ANSWER TO THE SECOND QUESTION SHOULD BE THAT THE RULE CONTAINED IN ARTICLE 79 ( 3 ) APPLIES ONLY TO THE EXTENT OF THE AMOUNT ACTUALLY PAID BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY .
COSTS
19THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , THE GOVERNMENT OF THE KINGDOM OF BELGIUM AND THE GOVERNMENT OF THE ITALIAN REPUBLIC , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
20AS 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 ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , BY JUDGMENT OF 19 APRIL 1978 , HEREBY RULES :
1 . UNDER ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL , THE SUSPENSION OF THE ENTITLEMENT TO FAMILY ALLOWANCES IN RESPECT OF THE DEPENDENT CHILDREN OF A FATHER WHO IS IN RECEIPT OF A PENSION UNDER THE LEGISLATION OF A MEMBER STATE IS NOT APPLICABLE IF THE MOTHER HAS NOT ACTUALLY BECOME ENTITLED TO THOSE SAME ALLOWANCES UNDER THE LEGISLATION OF ANOTHER MEMBER STATE BY VIRTUE OF HER PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY , EITHER BECAUSE ONLY THE FATHER IS ACKNOWLEDGED TO HAVE THE STATUS OF HEAD OF HOUSEHOLD OR BECAUSE THE CONDITIONS FOR AWARDING TO THE MOTHER THE RIGHT TO PAYMENT OF THE ALLOWANCES HAVE NOT BEEN FULFILLED .
2 . ARTICLE 79 ( 3 ) IS APPLICABLE ONLY TO THE EXTENT OF THE AMOUNT ACTUALLY PAID BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY .
