1 By an order of 13 March 1989, which was received at the Court on 24 March 1989, the Sozialgericht ( Social Court ) Frankfurt am Main referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 73(1 ) and Article 99 of Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in its amended version contained in Council Regulation ( EEC ) No 2001/83 of 2 June 1983 ( Official Journal 1983 L 230, p . 6 ).
2 That question arose in proceedings challenging the decision of the Bundesanstalt fuer Arbeit to grant to Mr Yáñez-Campoy family allowances in accordance with Article 40 of the German-Spanish Convention on Social Security of 4 December 1973 rather than under Article 10 of the German law on family benefits, which provides for considerably greater allowances .
3 Article 73(1 ) and ( 2 ) of Regulation No 1408/71, prior to its amendment by Council Regulation ( EEC ) No 3427/89 of 30 October 1989 ( Official Journal 1989 L 331, p . 1 ), provided :
"( 1 ) A worker 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 .
( 2 ) A worker subject to French legislation shall be entitled, in respect of his family residing in the territory of a Member State other than France, to the family allowances provided for by the legislation of such Member State; the worker must satisfy the conditions regarding employment on which French legislation bases entitlement to such benefits ."
4 Article 99 of Regulation No 1408/71, repealed by Article 1(4 ) of Regulation No 3427/89, provided :
"Before 1 January 1973 the Council shall, on a proposal from the Commission, re-examine the whole problem of payment of family benefits to members of families who are not residing in the territory of the competent State, in order to reach a uniform solution for all Member States ."
5 In its judgment of 15 January 1986 in Case 41/84 Pinna v Caisse d' allocations familiales de la Savoie [1986] ECR 1, the Court gave the following preliminary ruling on a question referred to it by the French Court of Cassation :
"( 1 ) Article 73(2 ) of Regulation No 1408/71 is invalid in so far as it precludes the award to employed persons subject to French legislation of French family benefits for members of their family residing in the territory of another Member State .
( 2 ) Except as regards employed persons who have already brought legal proceedings or made an equivalent claim prior to the date of this judgment, the aforesaid invalidity of Article 73(2 ) of Regulation No 1408/71 cannot be relied on in order to support claims for benefits prior to that date ."
6 Following that judgment, and in connection with the same appeal, the Court of Cassation once again stayed the proceedings and referred to the Court questions on the consequences of that judgment . Ruling on that reference, the Court, in its judgment in Pinna II ( Case 359/87 [1989] ECR 585 ), held as follows :
"Until such time as the Council adopts new rules which are in conformity with Article 51 of the Treaty, the fact that Article 73(2 ) of Regulation No 1408/71 has been declared invalid means that the system for the payment of family benefits laid down in Article 73(1 ) of that regulation is of general application ."
7 On 30 October 1989, after the closure of the written procedure in the present case, the Council adopted Regulation No 3427/89, mentioned above . Under the terms of Article 1(1 ) of that regulation, Article 73 of Regulation No 1408/71 was replaced by the following provision :
"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 ."
8 In accordance with Article 3 of Regulation No 3427/89, the regulation entered into force on the day of its publication in the Official Journal of the European Communities, namely on 16 November 1989, and has been applicable since 15 January 1986 .
9 Article 60 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, annexed to the Treaty of 12 June 1985 concerning the accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community ( hereinafter referred to as "the Act of Accession "), provides as follows :
"( 1 ) Until the entry into force of the uniform solution for all the Member States referred to in Article 99 of Regulation ( EEC ) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, and until 31 December 1988 at the latest, Articles 73(1 ) and ( 3 ), 74(1 ) and 75(1 ) of Regulation ( EEC ) No 1408/71, and Articles 86 and 88 of Regulation ( EEC ) No 574/72 laying down the procedure for implementing Regulation ( EEC ) No 1408/71 shall not apply to Spanish workers who are employed in a Member State other than Spain, and the members of whose families are resident in Spain .
Article 73(2 ), 74(2 ), 75(2 ) and 94(9 ) of Regulation ( EEC ) No 1408/71, and Articles 87, 89, 98 and 120 of Regulation ( EEC ) No 574/72 shall apply by analogy to these workers .
However, the foregoing is without prejudice to legislative provisions of a Member State whereby family benefits are to be payable in respect of members of the family, whatever their country of residence .
( 2 ) Notwithstanding Article 6 of Regulation ( EEC ) No 1408/71, the following provisions of social security conventions shall continue to apply to Spanish workers during the period referred to in paragraph 1 :
( a ) ...
( b ) Spain-Germany
Points 1 to 4 of Article 40(1 ) of the Convention of 4 December 1973, as amended by Article 2 of the modifying arrangement of 17 December 1975;
..."
10 Mr Yáñez-Campoy, the plaintiff in the main proceedings, is a Spanish national . He resides and is employed in the Federal Republic of Germany . His two children live in Spain .
11 He brought proceedings before the Sozialgericht Frankfurt am Main against the abovementioned decision of the Bundesanstalt fuer Arbeit, arguing that he ought to have received the family allowances provided for in Article 10 of the Federal Law on Family Benefits, instead of the family allowances paid in accordance with Article 40 of the German-Spanish Social Security Convention . The applicant considered that, in accordance with Article 60 of the Act of Accession, and following the judgment of the Court of 15 January 1986 in Pinna, Article 73(1 ) of Regulation No 1408/71 must be applied in favour of Spanish workers with effect from January 1986 .
12 The Sozialgericht Frankfurt am Main decided to request the Court to give a preliminary ruling on the following question :
"Did the uniform solution for all the Member States referred to in Article 99 of Regulation ( EEC ) No 1408/71 enter into force in January 1986 and is Article 73(1 ) of Regulation ( EEC ) No 1408/71 consequently applicable from January 1986 to the children resident in Spain of Spanish workers employed in the Federal Republic of Germany?"
13 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
14 In its question, the national court is asking whether the uniform solution for all the Member States provided for in Article 99 of Regulation No 1408/71 entered into force on 15 January 1986 and whether, consequently, Article 73(1 ) of that regulation is applicable in accordance with Article 60 of the Act of Accession with effect from that date to Spanish workers employed in a Member State other than Spain whose families live in Spain .
15 It should be noted at the outset that Article 60 of the Act of Accession introduced transitional arrangements concerning family allowances for Spanish workers employed in a Member State other than Spain whose families live in Spain . Under those transitional arrangements, Article 73(2 ) of Regulation No 1408/71 is applicable by analogy to such workers .
16 Article 60 provides for two alternative possibilities for bringing an end to those transitional arrangements and for making Article 73(1 ) of Regulation No 1408/71 applicable to Spanish workers and the relevant members of their families, namely the entry into force of the uniform solution provided for in Article 99 of Regulation No 1408/71 or, failing that, the expiry of the transitional period on 31 December 1988 .
17 The present case concerns the period from 1 January 1986, the date of accession by the Kingdom of Spain to the European Communities, to 31 December 1988, the date on which the transitional period ended, and raises the question whether, during that period, the first condition mentioned in Article 60 of the Act of Accession was complied with, that is to say whether the uniform solution provided for in Article 99 of Regulation No 1408/71 did enter into force .
18 Following the judgment of the Court of 15 January 1986, Article 73(2 ) of Regulation No 1408/71 is invalid ab initio . However, the Court limited the temporal effects of that judgment and held that the declared invalidity of Article 73(2 ) of Regulation No 1408/71 could not be relied on to support claims relating to benefits in respect of periods prior to the date of the judgment, except as regards workers who had prior to that date brought legal proceedings or made an equivalent claim .
19 Subsequently the Court held in its judgment of 2 March 1989 that, failing the adoption by the Council of new rules in compliance with Article 51 of the EEC Treaty, the fact that Article 73(2 ) of Regulation No 1408/71 had been declared invalid meant that the system for the payment of family benefits laid down in Article 73(1 ) of that regulation was of general application .
20 In view of that finding, and having regard to the limitation placed by the Court on the temporal effects of its judgment of 15 January 1986, it must be held that the uniform solution for all the Member States provided for in Article 99 of Regulation No 1408/71 entered into force following the judgment of 15 January 1986 .
21 Accordingly, the application of Article 73(1 ) of Regulation No 1408/71 may, with effect from the date of delivery of that judgment and in accordance with Article 60 of the Act of Accession, be relied on by Spanish workers employed in a Member State other than Spain whose families live in Spain .
22 The reply to the question referred to the Court must therefore be that the uniform solution for all the Member States provided for in Article 99 of Regulation No 1408/71 entered into force on 15 January 1986 and that consequently Article 73(1 ) of Regulation No 1408/71 is applicable with effect from that date, in pursuance of the terms of Article 60 of the Act of Accession, to Spanish workers employed in a Member State other than Spain the members of whose families live in Spain .
Costs
23 The costs incurred by the German, Spanish, Portuguese and French Governments and by the Commission of the European Communities, which submitted observations to the Court, are not recoverable . Since 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 ( Sixth Chamber ),
in answer to the question referred to it by the Sozialgericht, Frankfurt am Main, by order of 13 March 1989, hereby rules :
The uniform solution for all the Member States, provided for in Article 99 of Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as enacted in Council Regulation ( EEC ) No 2001/83 of 2 June 1983, entered into force on 15 January 1986, and consequently Article 73(1 ) of Regulation ( EEC ) No 1408/71 is applicable with effect from that date, in pursuance of the terms of Article 60 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic, to Spanish workers employed in a Member State other than Spain the members of whose families reside in Spain .
