1 BY JUDGMENT OF 15 NOVEMBER 1969, RECEIVED AT THE COURT REGISTRY ON 16 JANUARY 1970, THE CONSEIL DE PRUD'HOMMES D' APPEL DE MONS SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING ON THE INTERPRETATION OF THE PHRASE " CAME UNDER THE LEGISLATION " CONTAINED IN ARTICLE 42 ( 6 ) ( A ) OF REGULATION NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, AS AMENDED IN ACCORDANCE WITH ARTICLE 1 OF REGULATION NO 1/64 EEC OF THE COUNCIL :
1 . " IS THIS PHRASE TO BE UNDERSTOOD TO MEAN THAT A DECEASED WORKER MUST BE REGARDED AS HAVING COME UNDER THE LEGISLATION ONLY IF HE HAS SATISFIED THE CONDITIONS UNDER WHICH HE OR HIS DEPENDANTS MAY ACQUIRE THE RIGHT IN QUESTION? "
2 . " WHEN THE ORPHAN PERMANENTLY RESIDES IN THE TERRITORY OF A MEMBER STATE IN WHICH THE DECEASED WORKER HAS COMPLETED INSUFFICIENT INSURANCE PERIODS TO ENTITLE HIM TO THE BENEFITS PROVIDED FOR IN THE LEGISLATION OF THE COUNTRY OF PERMANENT RESIDENCE, IS THE COMPETENT INSTITUTION IN THE COUNTRY FROM WHICH THE PENSION IS DUE REQUIRED TO PAY THE FAMILY ALLOWANCES TO THE DEPENDANTS? "
2 BY VIRTUE OF ARTICLE 42 ( 6 ) OF REGULATION NO 3, IN THE EVENT OF THE DEATH OF A WAGE-EARNER, WHICH DOES NOT OPEN ENTITLEMENT TO A PENSION IN RESPECT OF INDUSTRIAL ACCIDENTS OR OCCUPATIONAL DISEASE PURSUANT TO THE LEGISLATION OF A MEMBER STATE, THE GRANTING OF FAMILY ALLOWANCES IN RESPECT OF HIS CHILDREN IS GOVERNED DIFFERENTLY ACCORDING TO WHETHER THE DECEASED WORKER CAME UNDER THE LEGISLATION OF A SINGLE MEMBER STATE OR OF SEVERAL MEMBER STATES .
3 IF THE DECEASED WORKER CAME UNDER THE LEGISLATION OF A SINGLE MEMBER STATE AND IF THE ORPHAN PERMANENTLY RESIDES OR IS BEING BROUGHT UP IN THE TERRITORY OF ANOTHER MEMBER STATE, FAMILY ALLOWANCES ARE DUE IN ACCORDANCE WITH LEGISLATION OF THE FORMER MEMBER STATE AS THOUGH THE ORPHAN PERMANENTLY RESIDED OR WERE BEING BROUGHT UP IN THAT COUNTRY .
4 IF THE DECEASED WORKER WAS SUBJECT TO THE LEGISLATION OF SEVERAL MEMBER STATES AND IF THE ORPHAN PERMANENTLY RESIDES OR IS BEING BROUGHT UP IN THE TERRITORY OF ONE OF THESE STATES, FAMILY ALLOWANCES ARE DUE IN ACCORDANCE WITH THE LEGISLATION OF THAT MEMBER STATE .
5 THE SPECIAL FEATURE OF THE LEGAL SITUATION WHICH GAVE RISE TO THE DECISION TO REFER THE CASE FOR A RULING IS THAT THE DECEASED WORKER WAS SUCCESSIVELY EMPLOYED AND INSURED IN ITALY AND IN BELGIUM .
6 HOWEVER, THE INSURANCE PERIOD COMPLETED UNDER THE ITALIAN LEGISLATION WAS LESS THAN THE MINIMUM OF SIX MONTHS NECESSARY FOR THE ACQUISITION OF ANY RIGHT AT ALL AND THE SITUATION CANNOT BE REMEDIED BY CALLING IN AID THE PRINCIPLE OF AGGREGATION .
7 IN FACT, AS THE ITALIAN LEGISLATION PROVIDES FOR THE ALLOWANCES IN QUESTION TO BE PAID IN RESPECT OF THE ORPHAN OF A WORKER IN THE FORM OF SUPPLEMENTS OR INCREASES IN THE WIDOW' S PENSION, ARTICLE 28 ( 2 ) OF REGULATION NO 4 IS APPLICABLE .
8 AS REGARDS SURVIVOR' S PENSIONS, THAT PROVISION STIPULATES THAT : " IF THE INSURANCE PERIODS ... COMPLETED UNDER THE LEGISLATION OF ONE MEMBER STATE DO NOT TOGETHER TOTAL SIX MONTHS NO BENEFIT SHALL BE GRANTED UNDER THE SAID LEGISLATION " AND THUS EXCLUDES ANY POSSIBILITY OF AGGREGATION .
9 THE MAIN POINT OF THE QUESTIONS PUT BY THE CONSEIL DE PRUD'HOMMES D' APPEL DE MONS IS THEREFORE WHETHER THE PHRASE " CAME UNDER THE LEGISLATION " USED IN ARTICLE 42 ( 6 ) OF REGULATION NO 3 CAN REFER TO THE LEGISLATION OF A MEMBER STATE WHICH WHEN APPLIED HAS NO EFFECT ON THE ACQUISITION OF A RIGHT TO BENEFITS .
10 THE PROBLEM OF INTERPRETATION THUS RAISED CAN ONLY BE RESOLVED IN THE LIGHT OF THE OBJECTIVES OF THE PROVISIONS OF ARTICLES 48 TO 51 OF THE TREATY, WHICH FORM THE BASIS OF REGULATION NO 3 .
11 THOSE PROVISIONS, THE PURPOSE OF WHICH IS TO ENSURE THAT THE MIGRANT WORKER AND HIS DEPENDANTS OBTAIN THE BENEFITS WHICH CORRESPOND TO THE VARIOUS PERIODS OF EMPLOYMENT AND INSURANCE COMPLETED BY HIM, DO NOT ALLOW REGULATION NO 3 TO BE INTERPRETED IN SUCH A WAY AS TO DEPRIVE THOSE CONCERNED OF CERTAIN BENEFITS BY REASON OF THEIR PLACE OF PERMANENT RESIDENCE .
12 AS REGARDS IN PARTICULAR THE SYSTEM ESTABLISHED BY ARTICLE 42 ( 6 ): TO TAKE INTO ACCOUNT NOT ONLY LEGISLATION UNDER WHICH THE DECEASED WORKER COMPLETED THE MAIN PART OF HIS CAREER FOR SOCIAL SECURITY PURPOSES BUT ALSO OTHER LEGISLATION TO WHICH HE WAS TEMPORARILY SUBJECT WITHOUT ITS HAVING ANY POSSIBLE PRACTICAL EFFECTS FOR HIM, WOULD AMOUNT TO DEPRIVING AN ORPHAN RESIDING PERMANENTLY IN THE TERRITORY OF THIS LATTER STATE OF ANY FAMILY ALLOWANCE IN THE ABSENCE OF ANY RIGHT TO BENEFIT TO WHICH SUCH ALLOWANCE COULD BE ATTACHED .
13 SUCH A RESULT WOULD BE CONTRARY TO THE PURPOSE OF ARTICLES 48 TO 51 OF THE TREATY AND IN PARTICULAR TO THE OBJECT OF ARTICLE 42 ( 6 ) OF REGULATION NO 3 WHICH IS TO ENSURE IN ALL CIRCUMSTANCES THE PAYMENT OF FAMILY ALLOWANCES WHICH CORRESPOND TO INSURANCE PERIODS COMPLETED BY THE DECEASED WORKER IN ONE OR MORE MEMBER STATES, WHATEVER THE PLACE OF PERMANENT RESIDENCE OF HIS DEPENDANTS .
14 IT FOLLOWS FROM THIS THAT IN THE CONTEXT OF ARTICLE 42 ( 6 ) THE PHRASE " CAME UNDER THE LEGISLATION " MUST BE INTERPRETED IN SUCH A WAY AS TO PREVENT THE TAKING INTO ACCOUNT OF ANY LEGISLATION WHICH CANNOT LEAD TO THE ACQUISITION OF A RIGHT .
15 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT THE PHRASE " CAME UNDER THE LEGISLATION " IN ARTICLE 42 ( 6 ) ( A ) OF REGULATION NO 3 MUST BE UNDERSTOOD TO MEAN THAT A DECEASED WORKER MUST NOT BE REGARDED AS HAVING COME UNDER THE LEGISLATION UNLESS HE HAS IN FACT SATISFIED THE CONDITIONS UNDER WHICH HE OR HIS DEPENDANTS MAY ACQUIRE THE RIGHT IN QUESTION .
16 THE REPLY TO THE SECOND QUESTION MUST THEREFORE BE THAT WHERE AN ORPHAN PERMANENTLY RESIDES IN THE TERRITORY OF A MEMBER STATE IN WHICH THE DECEASED WORKER COMPLETED INSUFFICIENT INSURANCE PERIODS TO ACQUIRE A RIGHT TO THE BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE COUNTRY OF PERMANENT RESIDENCE, THE COMPETENT INSTITUTION OF THE COUNTRY FROM WHICH THE PENSION IS DUE, IS REQUIRED TO PAY THE FAMILY ALLOWANCES TO THE DEPENDANTS .
17 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE GOVERNMENT OF THE ITALIAN REPUBLIC, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND 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 CONSEIL DE PRUD'HOMMES D' APPEL DE MONS, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CONSEIL DE PRUD'HOMMES D' APPEL DE MONS BY JUDGMENT OF 15 NOVEMBER 1969, HEREBY RULES :
1 . THE PHRASE " CAME UNDER THE LEGISLATION " IN ARTICLE 42 ( 6 ) ( A ) OF REGULATION NO 3 MUST BE UNDERSTOOD TO MEAN THAT A DECEASED WORKER MUST NOT BE REGARDED AS HAVING COME UNDER THE LEGISLATION UNLESS HE HAS IN FACT SATISFIED THE CONDITIONS UNDER WHICH HE OR HIS DEPENDANTS MAY ACQUIRE THE RIGHT IN QUESTION;
2 . WHERE AN ORPHAN PERMANENTLY RESIDES IN THE TERRITORY OF A MEMBER STATE IN WHICH THE DECEASED WORKER COMPLETED INSUFFICIENT INSURANCE PERIODS TO ACQUIRE A RIGHT TO THE BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE COUNTRY OF PERMANENT RESIDENCE, THE COMPETENT INSTITUTION OF THE COUNTRY FROM WHICH THE PENSION IS DUE IS REQUIRED TO PAY THE FAMILY ALLOWANCES TO THE DEPENDANTS .
