1 BY JUDGMENT OF 3 OCTOBER 1983 , WHICH WAS RECEIVED AT THE COURT ON 25 OCTOBER 1983 , THE COUR DE CASSATION DU ROYAUME DE BELGIQUE ( COURT OF CASSATION OF THE KINGDOM OF BELGIUM ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 51 OF THE EEC TREATY AND ARTICLE 77 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 ) AND , IN THE ALTERNATIVE , ON THE VALIDITY OF ARTICLE 77 ( 2 ) ( B ) ( I ) OF THE AFORESAID REGULATION .
2 THE QUESTIONS WERE RAISED IN PROCEEDINGS RELATING TO A DECISION TAKEN BY THE COMPETENT BELGIAN SOCIAL SECURITY INSTITUTION NOT TO ALLOW AN ITALIAN WORKER , WHO WAS IN RECEIPT OF AN INVALIDITY PENSION BOTH IN BELGIUM AND IN ITALY AND WHO WAS RESIDENT IN ITALY , A SUPPLEMENT TO FAMILY ALLOWANCES AS FROM 9 AUGUST 1979 IN RESPECT OF DEPENDENT CHILDREN , EQUAL TO THE DIFFERENCE BETWEEN THE BELGIAN ALLOWANCES AND THE LESSER AMOUNT OF THE ITALIAN ALLOWANCES .
3 IT APPEARS FROM THE DOCUMENTS FORWARDED BY THE NATIONAL COURT THAT THE WORKER IN QUESTION , WHO WAS EMPLOYED IN BELGIUM FROM 28 JUNE 1956 TO 31 JULY 1971 , RECEIVED FAMILY ALLOWANCES IN RESPECT OF HIS DEPENDENT CHILDREN UNDER BELGIAN LEGISLATION UNTIL HE RETURNED TO ITALY PERMANENTLY ON 9 AUGUST 1979 . AFTER THAT DATE , THE BELGIAN SOCIAL SECURITY INSTITUTION REFUSED TO PAY HIM THE DIFFERENCE BETWEEN THE AMOUNT OF THE BELGIAN FAMILY ALLOWANCES WHICH HE HAD RECEIVED UNTIL THEN AND THE LESSER AMOUNT OF FAMILY ALLOWANCES WHICH HE SUBSEQUENTLY RECEIVED IN ITALY . IN SUPPORT OF ITS DECISION , THE BELGIAN SOCIAL SECURITY INSTITUTION REFERRED TO ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 , ACCORDING TO WHICH A WORKER WHO DRAWS AN INVALIDITY PENSION UNDER THE LEGISLATION OF MORE THAN ONE MEMBER STATE IS TO BE GRANTED , IRRESPECTIVE OF THE MEMBER STATE IN WHOSE TERRITORY THE PENSIONER OR THE CHILDREN ARE RESIDING , FAMILY ALLOWANCES ' ' IN ACCORDANCE WITH THE LEGISLATION OF WHICHEVER OF THESE STATES HE RESIDES IN PROVIDED THAT . . . A RIGHT TO ONE OF THE BENEFITS REFERRED TO IN PARAGRAPH ( 1 ) IS ACQUIRED UNDER THE LEGISLATION OF THAT STATE ' ' .
4 THE BELGIAN SOCIAL SECURITY INSTITUTION DID NOT CONSIDER THAT THE ISSUE HAD ALREADY BEEN RESOLVED BY VIRTUE OF THE COURT ' S INTERPRETATION OF THAT PROVISION IN ITS JUDGMENT OF 12 JUNE 1980 ( CASE 733/79 , LATERZA , ( 1980 ) ECR 1915 ). ACCORDING TO THE BELGIAN SOCIAL SECURITY INSTITUTION , ARTICLE 51 OF THE EEC TREATY CONFERS POWERS ON THE COUNCIL SOLELY FOR THE PURPOSE OF AGGREGATING INSURANCE PERIODS AND ENSURING THE ACTUAL PAYMENT OF BENEFITS TO PERSONS RESIDING IN THE TERRITORY OF THE MEMBER STATES , AND IN VIEW OF THOSE LIMITS ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 CAN CONSTITUTE NOTHING MORE THAN A RENVOI RULE FOR THE DESIGNATION OF THE APPLICABLE NATIONAL LAW . IT THEREFORE CONSIDERED THAT IF ARTICLE 77 ( 2 ) ( B ) ( I ) HAD TO BE CONSTRUED AS GIVING RISE TO A RIGHT NOT PROVIDED FOR IN ANY NATIONAL LEGISLATION IT WOULD NOT BE COVERED BY ARTICLE 51 OF THE EEC TREATY .
5 MR PATTERI CONTESTED THAT RESTRICTIVE INTERPRETATION OF ARTICLE 51 OF THE EEC TREATY AND OF REGULATION NO 1408/71 , WHICH WOULD CAUSE HIM TO FORFEIT THE HIGHER FAMILY ALLOWANCES THAT HE WOULD HAVE RECEIVED HAD HE CONTINUED TO RESIDE IN BELGIUM .
6 IN APPEAL PROCEEDINGS AGAINST THE JUDGMENT OF THE COUR D ' APPEL ( COURT OF APPEAL ), MONS , WHICH HAD FOUND IN FAVOUR OF MR PATTERI , THE COUR DE CASSATION CONSIDERED THAT THE ARGUMENT PUT FORWARD RAISED QUESTIONS OF COMMUNITY LAW WHICH DID NOT APPEAR TO HAVE BEEN SUBMITTED PREVIOUSLY TO THE COURT OF JUSTICE . CONSEQUENTLY , THE COUR DE CASSATION SUBMITTED THE FOLLOWING QUESTIONS :
' ' 1 . DOES ARTICLE 51 OF THE TREATY OF ROME AUTHORIZE THE COUNCIL OF MINISTERS ONLY TO ADOPT SUCH MEASURES AS ARE NECESSARY TO SECURE FOR MIGRANT WORKERS THE ACTUAL PAYMENT OF SOCIAL SECURITY BENEFITS , THE SAID BENEFITS CONTINUING TO BE GOVERNED , AS REGARDS THE PRINCIPLE AND THE AMOUNT THEREOF , EXCLUSIVELY BY SEPARATE BODIES OF RULES GIVING RISE TO SEPARATE CLAIMS AGAINST SEPARATE INSTITUTIONS , AND IS IT THEREFORE APPROPRIATE TO INTERPRET THE PROVISIONS OF REGULATION NO 1408/71 , AND IN PARTICULAR ARTICLE 77 THEREOF , AS CONFERRING A DIRECT RIGHT UPON INDIVIDUALS ONLY TO THE EXTENT NECESSARY TO SECURE THE ACTUAL PAYMENT OF BENEFITS , THE PRINCIPLE AND THE AMOUNT OF WHICH CONTINUE TO BE GOVERNED EXCLUSIVELY BY THE VARIOUS NATIONAL LAWS , SO THAT THE SAID PROVISION CANNOT CREATE FOR MIGRANT WORKERS DIRECT ENTITLEMENT TO PAYMENT BY THE AUTHORITIES OF A MEMBER STATE OF FAMILY ALLOWANCES WHICH ARE NOT PAYABLE UNDER THE NATIONAL LAW OF THAT MEMBER STATE?
2.IF IT IS NECESSARY TO INTERPRET ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 AS MEANING THAT ENTITLEMENT TO THE PAYMENT OF FAMILY BENEFITS BY THE MEMBER STATE IN WHOSE TERRITORY THE RECIPIENT OF AN INVALIDITY PENSION RESIDES DOES NOT TAKE AWAY A PREVIOUSLY ACQUIRED RIGHT TO HIGHER BENEFITS PAYABLE BY ANOTHER MEMBER STATE , OR AT LEAST TO A SUPPLEMENT EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS , ESTABLISHING FOR THE RECIPIENT A RIGHT WHICH WAS NOT CREATED BY THE LEGISLATION OF EITHER MEMBER STATE , IS REGULATION NO 1408/71 VALID IN THE LIGHT OF ARTICLE 51 OF THE TREATY OF ROME?
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7 AS BOTH THE BELGIAN SOCIAL SECURITY INSTITUTION AND THE COMMISSION OF THE EUROPEAN COMMUNITIES POINT OUT , THE TWO SEPARATE QUESTIONS SUBMITTED TO THE COURT CONCERN , IN REALITY , ONLY ONE ISSUE : THAT OF THE INTERPRETATION OF ARTICLE 51 OF THE EEC TREATY . IN FACT , THE VALIDITY OF ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 CAN BE CALLED IN QUESTION ONLY IF ARTICLE 51 OF THE EEC TREATY HAS THE RESTRICTIVE SCOPE ATTRIBUTED TO IT BY THE BELGIAN SOCIAL SECURITY INSTITUTION .
8 IT IS APPARENT FROM THE VERY WORDING OF ARTICLE 51 THAT THE TWO MEASURES MENTIONED , NAMELY ( A ) AGGREGATION , FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT , OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES AND ( B ) PAYMENT OF BENEFITS TO PERSONS RESIDENT IN THE TERRITORIES OF MEMBER STATES , ARE MERELY TWO POSSIBLE MEASURES AMONG SEVERAL WHICH IT IS THE RESPONSIBILITY OF THE COUNCIL TO ADOPT IN ORDER TO PROMOTE THE FREE MOVEMENT OF WORKERS . AS HAS BEEN CONSISTENTLY HELD BY THE COURT ( JUDGMENTS OF 19 . 3 . 1964 IN CASE 75/63 , HOEKSTRA ( NEE UNGER ), ( 1964 ) ECR 177 ), OF 9 . 6 . 1964 IN CASE 92/63 ( NONNENMACHER , ( 1964 ) ECR 281 AND OF 15 . 7 . 1964 IN CASE 100/63 KALSBEEK ( NEE VAN DER VEEN ), ( 1964 ) ECR 565 ), THE FUNDAMENTAL AIM OF ARTICLE 51 OF THE EEC TREATY IS TO SECURE THE FREE MOVEMENT OF WORKERS . CONSEQUENTLY , THE RESTRICTIVE INTERPRETATION OF ARTICLE 51 ADVOCATED BY THE BELGIAN SOCIAL SECURITY INSTITUTION CANNOT BE ACCEPTED .
9 AS THE COURT HAS EMPHASIZED ON SEVERAL OCCASIONS , THE AIM OF ARTICLE 51 OF THE EEC TREATY INFLUENCES THE INTERPRETATION OF THE REGULATIONS ADOPTED BY THE COUNCIL IN THE FIELD OF SOCIAL SECURITY FOR MIGRANT WORKERS .
10 WHOLLY IN CONFORMITY WITH THE ABOVE PRINCIPLES , THE COURT CONSIDERED IN ITS JUDGMENT OF 12 JUNE 1980 IN LATERZA THAT ' ' THE PROVISIONS OF ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 CANNOT BE APPLIED IN SUCH A WAY AS TO DEPRIVE THE WORKER , BY SUBSTITUTING THE BENEFITS PROVIDED BY ONE MEMBER STATE FOR THE BENEFITS PAYABLE BY ANOTHER , OF THE MOST FAVOURABLE BENEFITS ' ' . SINCE THAT INTERPRETATION FOLLOWED NECESSARILY FROM THE OBJECTIVE OF ARTICLE 51 OF THE EEC TREATY , THE VALIDITY OF ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 AS THUS CONSTRUED CANNOT BE CALLED IN QUESTION BY REFERENCE TO THE SAID ARTICLE 51 .
11 FOR THOSE REASONS , IT MUST BE STATED IN REPLY TO THE QUESTIONS SUBMITTED , IN THE FIRST PLACE , THAT WHERE , IN THE CASE REFERRED TO IN ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 , THE AMOUNT OF BENEFITS PAID BY THE STATE OF RESIDENCE IS LOWER THAN THAT OF THE BENEFITS GRANTED BY ANOTHER MEMBER STATE WHICH IS RESPONSIBLE FOR PAYMENT , THE WORKER RETAINS THE RIGHT TO THE HIGHER AMOUNT OF BENEFITS AND IS ENTITLED TO RECEIVE AN ADDITIONAL BENEFIT , PAID BY THE COMPETENT SOCIAL SECURITY INSTITUTION OF THAT STATE , EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS ; AND , IN THE SECOND PLACE , THAT CONSIDERATION OF THE QUESTIONS REFERRED TO THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 .
COSTS
12 THE COSTS INCURRED BY THE COUNCIL OF THE EUROPEAN COMMUNITIES , THE COMMISSION OF THE EUROPEAN COMMUNITIES , THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE GOVERNMENT OF THE ITALIAN REPUBLIC , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS 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 ( FIRST CHAMBER )
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR DE CASSATION OF THE KINGDOM OF BELGIUM , BY JUDGMENT OF 3 OCTOBER 1983 , HEREBY RULES :
1 . WHERE , IN THE CASE REFERRED TO IN ARTICLE 77 ( 2 ) ( B ) ( I ) 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 ), THE AMOUNT OF THE BENEFITS PAID BY THE STATE OF RESIDENCE IS LOWER THAN THAT OF THE BENEFITS GRANTED BY ANOTHER STATE WHICH IS RESPONSIBLE FOR PAYMENT , THE WORKER RETAINS THE RIGHT TO THE HIGHER AMOUNT AND IS ENTITLED TO RECEIVE AN ADDITIONAL BENEFIT , PAID BY THE COMPETENT SOCIAL SECURITY INSTITUTION OF THAT STATE , EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS .
2.CONSIDERATION OF THE QUESTIONS REFERRED TO THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 .
