Report for the Hearing in Case C-119/91

I — Facts and procedure

1. Legal background

(a) Community law

Article 13 of Council Regulation (EEC) No 1408/71, in the version annexed to Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) provides:

‘1. Subject to Article 14c, persons to whom this regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title. 2. Subject to Articles 14 to 17: (a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State; ...’

Article 73(1) of the same version of Regulation No 1408/71 provided:

‘An employed person subject to the legislation of a Member State other than France shall be entitled to the family benefits provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State, as though they were residing in the territory of the first State’.

That Article 73 was amended as follows by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1), with effect from 15 January 1986:

‘Employed or self-employed persons the members of whose families reside in a Member State other than the competent State An employed or self-employed person subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI’.

Finally, Article 76 of Regulation No 1408/71, in the version annexed to Regulation No 2001/83 in force until 1 August 1989, provided:

‘Rules of priority in cases of overlapping entitlement to family benefits or family allowances in pursuance of the provisions of Articles 73 and 74 by reason of the pursuit of a professional or trade activity in the country of residence of the members of the family Entitlement to family benefits or family allowances under the provisions of Articles 73 and 74 shall be suspended if, by reason of the pursuit of a professional or trade activity, family benefits or family allowances are also payable under the legislation of the Member State in whose territory the members of the family are residing’.

Following the judgment of the Court in Case 377/85 Burchell v Adjudication Officer [1987] ECR 3329, Article 76 was amended as follows, with effect from 2 August 1989, by Council Regulation (EEC) No 2332/89 of 18 July 1989 amending Regulation (EEC) No 1408/71:

‘Rules of priority in cases of overlapping entitlement to family benefits or family allowances in pursuance only of the national legislation or of the provisions of Articles 73 and 74 by reason of the pursuit of a professional or trade activity in the country of residence of the members of the family Entitlement to family benefits or family allowances due only under the national legislation or under the provisions of Article 73 and 74 shall be suspended if, by reason of the pursuit of a professional or trade activity, family benefits or family allowances are also payable under the legislation of the Member State in whose territory the members of the family are residing’.

For information, it may be pointed out that Article 76 was amended with effect from 1 May 1990, by Regulation No 3427/89.

Article 10(1) of Regulation No 574/72, as amended by Article 2 of Regulation No 1660/85 (which came into force on 20 June 1985), provides:

‘1. (a) Entitlement to family benefits or family allowances due under the legislation of a Member State, according to which acquisition of the right to those benefits or allowances is not subject to conditions of insurance, employment or self-employment shall be suspended when, during the same period and for the same member of the family, benefits are due pursuant to Articles 73, 74, 77 or 78 of the regulation. (b) Where, however, a professional or trade activity is exercised or pursued in the territory of the said Member State by: (i) in the case of benefits due pursuant to Articles 73 or 74 of the regulation, the person entitled to the family benefits or family allowances, or the person to whom they are paid; then the right to family benefits or family allowances due pursuant to those articles shall be suspended and only those family benefits or family allowances of the Member State in whose territory the member of the family is residing shall be paid, the cost to be borne by that Member State; ...’

That article was also amended by Regulation No 2332/89 as follows, with effect from 2 August 1989:

‘1. (a) Entitlement to family benefits or family allowances due under the legislation of a Member State, according to which acquisition of the right to those benefits or allowances is not subject to conditions of insurance, employment or self-employment shall be suspended when, during the same period and for the same member of the family, benefits are due only under the national legislation or pursuant to Articles 73, 74, 77 or 78 of the regulation. (b) Where, however, a professional or trade activity is exercised or pursued in the territory of the said Member State by: (i) in the case of benefits due only under the national legislation or pursuant to Articles 73 or 74 of the regulation, the person entitled to the family benefits or family allowances, or the person to whom they are paid; then the right to family benefits or family allowances due only under the national legislation or pursuant to those articles shall be suspended and only those family benefits or family allowances of the Member State in whose territory the member of the family is residing shall be paid, the cost to be borne by that Member State; ..’.

(b) National legislation

i) The primary legislation in Northern Ireland is the Child Benefit (Northern Ireland) Order 1975, as amended. Article 3(1) provides: Article 5(1) provides:

‘Subject to the provisions of this Part, a person who is responsible for one or more children in any week beginning on or after the appointed day shall be entitled to a benefit (to be known as “child benefit”) for that week in respect of the child or each of the children for whom he is responsible’.

‘For the purposes of this Part, a person shall be treated as responsible for a child in any week if:

a) he has the child living with him in that week; or

b) he is contributing to the cost of providing for the child at a weekly rate which is not less than the weekly rate of child benefit payable in respect of the child for that week’.

ii) The primary legislation in Ireland is the Social Welfare (Consolidation) Act of 1981. Section 224 provides: The implementing rules are to be found in the Social Welfare (Children's Allowances) (Normal Residence) Rules 1974. Rule 2 provides: The Explanatory Note provides that the 1974 Rules ‘contain the provisions necessary to ensure that to a children's allowance is now vested in the mother of the child in the first instance ...’.

‘1. A person with whom a qualified child normally resides shall be qualified for a children's allowance in respect of that child and is in this Part referred to as a qualified person.

2. For the purpose of subsection (1): (a) the Minister may make rules for determining with whom a qualified child shall be regarded as normally residing, (b) a qualified child shall not be regarded as normally residing with more than one person’.

‘A qualified child who is resident with more than one of the following persons:

his mother

his step-mother

his father

his step-father

shall be regarded as normally residing with the person first so mentioned and with no other person’.

2. Background to the case

Mrs McMenamin, the respondent in the main proceedings, is a married woman who lived with her husband in County Donegal in Ireland. Mrs McMenamin has four children who reside with them. She is a teacher in a school in Londonderry in Northern Ireland in the United Kingdom. Every morning on a normal working day she crosses the border between Ireland and the United Kingdom to go to her school and every evening she returns across the border to her home. Her husband is employed by the Revenue Commissioners in the Republic of Ireland.

The Adjudication Officer, the appellant in the main proceedings, has responsibility for making decisions on claims for child benefit under the Social Security (Northern Ireland) Acts from 1975 to 1988.

On 1 December 1986, Mrs McMenamin claimed child benefit in Northern Ireland under the Child Benefit (Northern Ireland) Order 1975, as amended. The Adjudication Officer decided that Mrs McMenamin was entitled only to a supplement from 2 December 1985, namely the amount necessary to bring the child benefit payable to her under the corresponding Irish legislation up to the level of child benefit payable under the 1975 Order. Mrs McMenamin appealed to the Social Security Appeal Tribunal which upheld the Adjudication Officer's decision. Mrs McMenamin then appealed to the Social Security Commissioner.

The Adjudication Officer accepted that a claim made by Mrs McMenamin in Ireland on 16 July 1979 under the corresponding Irish legislation should be treated as a valid claim for child benefit in Northern Ireland, and consequently the Social Security Commissioner, by an interim decision dated 26 April 1989, awarded a child benefit supplement to Mrs McMenamin from 17 July 1978 (that is, one year before the date of the claim) until 19 June 1985 (the day before the entry into force of Article 10 of Regulation (EEC) No 574/72, as amended by Article 2 of Regulation (EEC) No 1660/85).

In his final decision given on 2 November 1989, the Social Security Commissioner decided that as from 20 June 1985 Mrs McMenamin was entitled to receive the full amount of child benefit due under the United Kingdom regulations.

The Adjudication Officer appealed against that decision only to the Court of Appeal in Northern Ireland, the effect of the Social Security Commissioner's decision being to throw the full charge of the relevant child benefit onto the public funds of the United Kingdom.

The Social Security Commissioner decided that, for the period commencing 20 June 1985,

a) Mrs McMenamin, as a person employed in and subject to the legislation of the United Kingdom, is, by virtue of Article 73(1) of Regulation (EEC) No 1408/71, entitled to child benefit in the United Kingdom for her children residing in Ireland ‘as though they were residing in’ the United Kingdom, and

b) Article 10(1)(b)(i) of Regulation (EEC) No 574/72, as amended by Article 2 of Regulation (EEC) No 1660/85, does not operate to suspend her right to such benefit since, despite the fact that her husband exercises or pursues a professional trade or activity in Ireland, Mrs McMenamin and not her husband is, for the purposes of the said Article 10(1)(b)(i), entitled to child benefit under the Irish legislation and she is not exercising or pursuing a professional or trade activity in Ireland.

The Adjudication Officer appealed by way of case stated from the decision of the Social Security Commissioner to the Court of Appeal in Northern Ireland, the questions put to the Court of Appeal by the Social Security Commissioner being these:

‘1. Whether I was correct in law in holding that the words ‘person entitled to the family benefits or family allowances’ in Article 10(1)(b)(i) of Council Regulation (EEC) No 574/72 did not apply to the Respondent's husband but applied to the Respondent only? 2. Whether I was correct in law in holding that as from 20 June 1985 the payment of United Kingdom child benefit was not suspended under Article 10(1)(b)(i) of Council Regulation (EEC) No 574/72?’

3. The questions referred to the Court of Justice

The Court of Appeal in Northern Ireland, by an order of 11 April 1991, asked the Court of Justice of the European Communities for a preliminary ruling on the following questions:

‘1. Whether, by reason of the provisions of Article 13 of Council Regulation (EEC) No 1408/71 (the effect of which appears to be that the Respondent is to be treated as subject to United Kingdom legislation only) the words ‘the person entitled to the family benefits or family allowances’ in Article 10(1)(b)(i) of Council Regulation (EEC) No 574/72 (as amended) do not apply to the Respondent despite the fact that under the Republic of Ireland legislation (and apart from the said Article 13) she is the person entitled to child benefit. 2. Whether, since the Respondent's husband is exercising or pursuing a professional or trade activity in the Republic of Ireland and is entitled to child benefit under the Republic of Ireland legislation if, for any reason, the Respondent either loses, or is unable to assert, her title to that benefit, the said Article 10(1)(b)(i) (as amended) operates to suspend the Respondent's right, under Article 73(1) of Council Regulation (EEC) No 1408/71, to child benefit in the United Kingdom.’

4. Procedure before the Court

The order for reference was received at the Court Registry on 25 April 1991.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted:

on 31 July 1991 by the Adjudication Officer represented by B. F. Kerr and R. E. Weatherup, and by H. A. Nelson, Solicitor,

on 31 July 1991, by the Government of the Federal Republic of Germany, represented by Ernst Röder, acting as Agent,

on 26 July 1991, by the Commission of the European Communities, represented by Nicholas Khan, of its Legal Service, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations submitted to the Court

5. The Adjudication Officer, the appellant in the main proceedings, suggests the following replies to the two questions: (i) the person entitled to benefit under Article 73 of Regulation No 1408/71 cannot be ‘the person entitled to the family benefits or family allowances’ under Article 10 of Regulation No 574/72 and (ii) Article 10 operates to suspend payment by the State of employment where family benefits are paid by the State of residence where one person with whom the child resides is employed. With regard to the first question, the Adjudication Officer considers the judgments in Case 302/84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging [1986] ECR 1821, Case 275/81 Koks v Raad van Arbeid [1982] ECR3013, Case 276/81 Board of the Sociale Verzekeringsbank v Kuijpers [1982] ECR3027, Case 24/75 Vetroni v Office national des tensions pour travailleurs salariés (ONPTS) [1975] ECR 1149, Case 60/85 Luijten v Raad van Arbeid [1986] ECR 2365 and Case 24/88 Georges v Office national d'allocations familiales pour travailleurs salariés [1989] ECR 1905. The Adjudication Officer states that it is clear that prohibited overlapping occurs where children's allowance in Ireland is payable and the qualifying child or children is or are residing with a person who is pursuing a professional or trade activity. The fact that the Irish authorities choose to award the allowance to the person entitled under Article 73 of Regulation (EEC) No 1408/71 cannot frustrate the operation of the Community rules on overlapping benefits, nor can the fiction that under Article 73 the child is treated as though residing with the employed person in the country of employment be used to justify overlapping benefits. In the Adjudication Officer's view, the Social Security Commissioner was mistaken when he concluded that the pursuit of a professional activity by Mrs McMenamin's husband was irrelevant. That is precisely the situation envisaged by Article 10(1)(a) of Regulation (EEC) No 574/72, as amended by Article 2 of Regulation (EEC) No 1660/85, for providing a solution in the event of overlapping entitlement to benefits for the same member of the family of a person entitled to family allowances under Article 73. The Adjudication Officer adds that Mrs McMenamin is an employed person in Northern Ireland, in the United Kingdom, and by Article 13 of Regulation (EEC) No 1408/71 is subject to the legislation of Northern Ireland only and is not subject to the legislation of Ireland in which she is resident. Accordingly, Mrs McMenamin cannot be the person entitled to family benefits or family allowances under the domestic legislation of Ireland. She therefore cannot be ‘the person entitled to the family benefits or family allowances or the person to whom they are paid’ for the purposes of Article 10(1)(b)(i) of Regulation (EEC) No 574/72. As for the second question, the Adjudication Officer maintains that the 1974 Irish Rules provide that title to the child's allowance is vested in the mother ‘in the first instance’. Where the Community legislation has the effect of excluding the mother's entitlement (as in this case where she is subject to the legislation of the United Kingdom only as a person employed in the United Kingdom) then the domestic legislation must be interpreted accordingly. In this case, where the mother and father are both residing with the children in one Member State and the mother is employed in another Member State (and is therefore the person entitled to the family benefit of the other Member State under Article 73 of Regulation (EEC) No 1408/71), the mother cannot be the person entitled to the family benefits in the first Member State, irrespective of its domestic legislation (as she is subject to the legislation of only one Member State under Article 13 of the regulation). Accordingly, the legislation of the first Member State must be interpreted without regard to the mother in order to give effect to the spirit of the provisions of the European legislation on overlapping benefits. In that event, the 1974 Irish Rules would be interpreted by applying Rule 2 or Rule 3 and treating the child as normally residing with the father (that is, Mrs McMenamin's husband). According to the Adjudication Officer, the children's allowance is being paid by the Irish authorities. It is for those authorities to decide whether to pay the children's allowance to someone other than the first entitled under the domestic rules and in this case such entitlement would fall to Mrs McMenamin's husband who is residing with the children and exercising a professional activity in the State of residence. Once the allowance is liable to be paid and is being paid, the United Kingdom is entitled to rely on the Community rules against overlapping. The Adjudication Officer refers to paragraphs 15 and 16 of the judgment in Case C-168/88 Dammer v Securex and Another [1989] ECR4553 and states that the spirit of the provisions of the Community regulations governing the overlapping of family benefits and the solutions therein provided for demonstrate that regard should be had to the direct recipients of the family benefit (in this case the parent) and the indirect recipients (in this case the children) and priority must be given to the State in which the children reside when two parents each pursue a professional activity in different Member States at the same time. For the above reasons, the Adjudication Officer suggests that the questions should be answered as follows:

‘1. The words “the person entitled to the family benefits or family allowances” in Article 10(1)(b)(i) of Council Regulation (EEC) No 574/72 (as amended) are to be interpreted as applying to a person, other than the Article 73 beneficiary, who under the domestic legislation of a Member State may be paid family allowances for the same members of the family taken into account for the purposes of applying Article 73 provided that those members of the family are residing with the person who is pursuing a professional or trade activity in that Member State.

2. Article 10(l)(b)(i) operates to suspend entitlement to family allowances under Article 73(1) of Council Regulation (EEC) No 1408/71 where family allowances are being paid for the same members of the family in the Member State where the family is residing and a person with whom the qualified children are residing is exercising a professional or trade activity.’

6. The German Government begins by pointing out that in this case there are the following overlapping entitlements to child benefit: Mrs McMenamin's entitlement in Northern Ireland arising out of her professional activity there, under the Child Benefit (Northern Ireland) Order 1975; Mrs McMenamin's entitlement in Ireland, given that her children live there with her, arising under the combined provisions of Section 224 of the Irish Social Welfare (Consolidation) Act 1981 and Rule 2 of the Social Welfare (Children's Allowances) (Normal Residence) Rules 1974; Mr McMenamin's entitlement in Ireland, given that his children live there with him, in respect of which, however, under Irish law the rights of the mother take precedence over the rights of the father. In the German Government's view, Article 13(2)(a) of Regulation (EEC) No 1408/71 subjects the employed person exercising his professional activity within a Member State to the legislation of that State. Article 73 of the same régulation treats members of the family residing in another Member State as though they were residing in the State where the employed person exercises his professional activity. However, in order to avoid overlapping entitlements, Article 76 of Regulation (EEC) No 1408/71, in the version in force until 1 May 1990, provided for the suspension of entitlement in the State of employment under certain conditions laid down therein and subject to the detailed provisions in the implementing Regulation (EEC) No 574/72. The German Government also points out that Article 10(l)(a) of Regulation (EEC) No 574/72 governs the overlapping of the following entitlements: entitlement to family benefits which is not conditional on employment, entitlement under national legislation or Articles 73, 74, 77 or 78 of Regulation (EEC) No 1408/71. According to the German Government, in this case of overlapping entitlement, where only one of those entitled exercises a professional or trade activity, namely the person holding the latter entitlement, the entitlement in the country in which the children live, that is the first-mentioned entitlement is suspended. The entitlement arising from employment takes precedence. The German Government refers in this context to the Opinion of Advocate General Mancini in Case 149/82 Robarás v Insurance Officer [1983] ECR 171, in which he has explained this precedence of the lex loci laboris on the grounds that the costs of the social security-scheme are to be borne by the State in which the worker is employed and to whose scheme he contributes. The German Government adds that that principle must be qualified if both persons entitled to child benefits exercise a professional or trade activity in different Member States. Article 10(1)(b)(i) of Regulation (EEC) No 574/72 provides in such cases that benefit is payable only by the country in which the children reside. This general principle that the lex loci laboris of the country where the children reside applies should prevail in all cases. The German Government interprets the questions referred for a preliminary ruling as meaning that the national court wishes to know whether Article 10(1)(b)(i) is applicable in the present case. In its view, that provision is applicable here if the three entitlements referred to above coexist. However, that condition is met only if no account is to be taken of the national rules against overlapping of benefits (Rule 2 of the Irish Social Welfare Rules 1974) when interpreting the Community rules against overlapping benefits. The German Government takes the view that when interpreting the Community provision there is indeed no place for the national nales against overlapping benefits. That follows from the sense and purpose of both provisions. Whereas the national provision is intended to regulate an internal situation, the Community provision, by virtue of its wording, envisages a transnational situation. Simultaneous application of both provisions would run contrary to the object of the Community provisions. In the German Government's view, it is unnecessary to consider the second question. Just on the basis of the principle that the lex loci laboris of the country where the children reside takes precedence, Mr McMenamin's entitlement prevails over that of his wife. Moreover, there is nothing in the facts of the case as set out in the order for reference to suggest that Mrs McMenamin has lost her entitlement or is unable to rely thereon.

7. The Commission observes at the outset that the problem arising in the present case is whether the amendment of Article 10 of Regulation (EEC) No 574/72 effected by Article 2 of Regulation (EEC) No 1660/85 results in the transfer of liability to pay family benefits or allowances from Ireland to the United Kingdom. Prior to the said amendment, the Commission considers that Article 10 suspended Mrs McMenamin's right to family allowances payable by the United Kingdom under Article 73. The Commission adds that the reply to the questions asked will have no bearing on the amount of benefit received by the McMenamin family: either the United Kingdom will pay the whole of the child benefit, or Ireland will pay the child benefit and the amount will be topped up by the United Kingdom in order to bring the amount of benefit received up to the level of child benefit in the United Kingdom. The Commission therefore suggests that the answers to the two questions should be that (i) Article 13 of Regulation No 1408/71 does not prevent a worker from receiving family-benefits from the State of residence when he is employed in another State, and (ii) Article 10 of Regulation No 574/72 should be interpreted as meaning that a person's right to family benefits under Article 73 of Regulation No 1408/71 is suspended only if (a) that person is not entitled to benefits in the State of residence, and (b) his spouse, who exercises a professional or trade activity in the State of residence, receives family benefits in the State of residence. In the Commission's view, the first question appears to be asking, in effect, whether the principle that a person can only be subject to one social security system at a time means that even if Mrs McMenamin is the person entitled to receive children's allowance under Irish law, the fact that she is subject to the legislation of the United Kingdom removes that entitlement. The Commission rules out any application of Article 76 of Regulation (EEC) No 1408/71 to the present case on the ground that, under Irish legislation, the right to child benefit is not dependent on carrying on an occupation. According to the Commission, the fact that Mrs McMenamin is, within the meaning of Article 13 of Regulation (EEC) No 1408/71, subject only to the legislation of the United Kingdom does not mean that she cannot be ‘the person entitled to the family benefits’ within the meaning of Article 10(l)(b)(i) of Regulation (EEC) No 574/72. The fact that Mrs McMenamin is subject to the legislation of the United Kingdom may have a bearing on the operation of any Community rules on the overlapping of benefits, but, in the Commission's view, it is clear from the judgment in Case 377/85 Burchell v Adjudication Officer [1987] ECR3329 and in Case 149/82 Robards v Insurance Officer [1983] ECR 171, that the operation of those rules is contingent on national rules and on other Community rules giving rise to an overlapping entitlement. In the Commission's view, it is precisely in order to cover situations where family benefits are payable in the Member State of employment under Article 73 of Regulation (EEC) No 1408/71, and in the Member State of residence under national law, that the provisions of Article 76 of Regulation (EEC) No 1408/71 and Article 10 of Regulation (EEC) No 574/72 were adopted. The Commission maintains that the overlapping rule established by Article 10(1) operates by reference to entitlement to benefit under national law. On this point, the Commission refers to the judgment in Case 100/78 Rossi v Caisse de Compensation pour Allocations Familiales [1979] ECR 831, at paragraph 9, in which the Court held that the 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. The Commission adds that in any event it doubts whether a reply to the first question would assist in determining whether or not the priority for payment of family benefits is transferred to Ireland in this case. In the Commission's view, if the Court rejects its submissions on the first question and decides that Article 13 of Regulation (EEC) No 1408/71 disentitles Mrs McMenamin from children's allowances which would, otherwise, be due to her under Irish law, it does not necessarily follow that Mr McMenamin acquires an entitlement to children's allowances under Irish law. The assumption behind the first question is that the operation of a rule of Community law which specifies the legislation applying to Mrs McMenamin may have the effect of conferring on Mr McMenamin an entitlement to benefits under Irish law. However, the Commission submits that there are no grounds for such an assumption. The Commission states that whilst the second question referred for a preliminary ruling seems to envisage only the hypothesis that Mrs McMenamin loses her entitlement to child benefit, it appears from the second question referred to the Court of Appeal by the Social Security Commissioner that he is seeking to establish whether Mr McMenamin currently has any entitlement to children's allowances notwithstanding Mrs McMenamin's present entitlement to child benefit in the United Kingdom. If one accepts the hypothesis implicitly contained in the second question, namely that if Mrs McMenamin loses her entitlement to child benefit, Mr McMenamin automatically becomes entitled to such benefit, the reply to the second question must, in the Commission's view, be in the affirmative. However, the reply to the second question put by the Social Security Commissioner is a matter solely of Irish law and the Commission does not consider itself competent to reply to it. According to the Commission, the effect of the amendment of Article 10(1)(b)(i) of Regulation (EEC) No 574/72 by Article 2 of Regulation (EEC) No 1660/85 is to make the transfer of priority dependent on the operation of national rules on entitlement to benefits. For the competent institution in the Member State of employment to be able to determine whether there are grounds for transferring the priority to the Member State of residence, it must establish whether entitlement to benefit arises under the legislation of the latter State. The Commission points out that the Administrative Commission set up pursuant to Article 80 of Regulation (EEC) No 1408/71 has shown itself to be aware of the need for coordination between national authorities in the operation of Article 10(1) of Regulation (EEC) No 574/72. Article 2(1) of that regulation places a duty on the Administrative Commission to draw up the documents necessary for the application of the regulation. Pursuant to that obligation, the Administrative Commission has adopted a number of decisions laying down the model forms necessary for the application of Article 10(1)(b)(i) of Regulation (EEC) No 574/72. Decision No 130 of 17 October 1985 amended, inter alia, Form E 411, entitled ‘Request for information on entitlement to family benefits (family allowances) in the Member State of residence of the members of the family’ (OJ L 192 of 15 July 1986). The Commission considers that the use of this form by the competent authorities in Northern Ireland will enable the issue of which Member State is to be responsible for the payment of benefits to be resolved. The Commission adds that, although it is not strictly necessary for the purposes of the proceedings before this Court to determine whether Mr McMenamin is presently entitled to children's allowance under Irish law, the Court might nevertheless consider it useful to have an authoritative statement of the position under Irish law. In the absence of an intervention in this case by Ireland, the Commission suggests that the Court might wish to make use of its powers under Article 21 of the Protocol on the Statute of the Court of Justice of the EEC to ask Ireland for information about how a claim for children's allowance by Mr McMenamin would be treated under Irish law. In the light of the foregoing, the Commission suggests that the following replies be given to the national court's questions:

‘Article 13 of Council Regulation (EEC) No 1408/71 is not to be interpreted as meaning that an employed person subject to the social security legislation of a Member State other than that of the Member State of their residence may not be regarded as entitled to receive family benefits available to them solely by virtue of the legislation of the Member State of their residence.

Article 10(1)(b)(i) is to be interpreted in the sense that where a person is not entitled under the law of the Member State of their residence to family benefits, but whose spouse who exercises a professional or trade activity on the territory of that Member State is entitled under the law of that Member State to receive family benefits, then that person's entitlement to family benefits from the Member State of their employment pursuant to Article 73 of Regulation (EEC) No 1408/71 shall be suspended.’

III — Oral procedure

At the hearing, the Commission's representative stated that the Commission concurred with the Adjudication Officer's views with regard to the reply to the first question. More specifically, the Commission now considers that ‘the person entitled to family benefits’ referred to in Article 10(1)(b)(i) of Regulation No 574/72 is not the recipient of benefits within the meaning of Article 73 of Regulation No 1408/71. The Commission is of the view that, for reasons of the overall coherence of the rules for the coordination of social security schemes, it is not desirable to depart from the principle laid down in Article 13 of Regulation No 1408/71 that a person is subject to the legislation of a single Member State.

G. C. Rodríguez Iglesias

Judge-Rapporteur

1 Language of the case: English.