Judgment_paragraph 1. · Alfonsa Saieva v Caisse de compensation des allocations familiales for the mining industry of the Charleroi and Basse-Sambre coal-fields (32/76)

1.As regards the first question referred by the Tribunal du Travail, the applicant in the main action maintains that there is nothing in Article 42 (5) of Regulation No 3 to justify the suspension of the payment of the family allowances. Family allowances remain payable as long as the orphans satisfy the conditions for payment laid down by the legislation of the State liable to pay the pension. If the orphans resided in Belgium they would have continued to receive family allowances after the age of 18 years because they have continued with their education.Mrs Reale suggests that the following reply be given to the first question referred by the Tribunal du Travail, Charleroi:‘The family allowances referred to in Article 42 (5) of Regulation No 3 of the Council remain payable until such time as the children to whom they are paid satisfy the conditions for payment laid down by the legislation of the State liable to pay the pension for accident at work.’As regards the second question referred by the Tribunal du Travail, the applicant in the main action maintains that under Article 94 (5) of Regulation No 1408/71, rights acquired before the entry into force of that regulation may only be reviewed on the application of the persons concerned. As is shown in particular by the fifth recital of the preamble to Regulation No 1408/71, Regulations Nos 1408/71 and 574/72 were adopted by the Council in order to improve the standard of living of workers and their dependants.Mrs Reale received no pension from the INPS despite a request to this effect from the Caisse and she thus received no family allowances. Furthermore, as the treatment of an insured person under Article 78 of Regulation No 1408/71 differs according to whether the said person received a pension under the legislation of one Member State or of several, and as its application may therefore be unfavourable to her she does not intend to apply for a survivor's pension in Italy on the basis of the insurance periods completed by her late husband. The Court of Justice is required to resolve this problem in Case 19/76, Pietro Triches v Caisse de compensation pour allocations familiales de la religion liégeoise.In conclusion, the applicant in the main action suggests that the following reply be given to the second question referred to the Court for a preliminary ruling:‘The competent institution of a Member State is not entitled to substitute itself for an insured person in order to achieve a review of the rights which that person acquired before Regulation No 1408/71 of the Council came into force, if the intended effect of such action is to reduce or discontinue payment of the benefits for which that institution is liable under its own legislation.At all events, such review cannot have the effect of reducing the benefits received by the worker or his dependants under earlier legislation.’

Alfonsa Saieva v Caisse de compensation des allocations familiales for the mining industry of the Charleroi and Basse-Sambre coal-fields (32/76)

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