Official Journal of the European Union

C 362/8

(Case C-225/10) (<span class="super">1</span>)

(Social security - Regulation (EEC) No 1408/71 - Articles 77 and 78 - Pensioners entitled under the legislation of several Member States - Handicapped children - Family benefits for dependent children - Right to benefits in the former Member State of employment - Existence of a right to benefits in the Member State of residence - Failure to make a request - Choice of payment of an invalidity benefit incompatible with benefits for dependent children - Concept of ‘benefit for dependent children’ - Maintenance of rights acquired in the former Member State of employment)

2011/C 362/11

Language of the case: German

Referring court

Parties to the main proceedings

Applicants: Juan Perez Garcia, Jose Arias Neira, Fernando Barrera Castro, Dolores Verdún Espinosa successor in title to José Bernal Fernández

Defendant: Familienkasse Nürnberg

Re:

Reference for a preliminary ruling — Sozialgericht Nürnberg — Interpretation of Articles 77 and 78 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 (OJ 1997 L 149, p. 2) — Benefits for dependant handicapped children of pensioners which are due under the legislation of several Member States and benefits for orphans which are subject to the legislation of several Member States — Right to a supplement paid by the State of employment where allowances for children in the State of residence are higher but not compatible with a non-contributory pension for invalidity which the party concerned has opted for

Operative part of the judgment

Articles 77(2)(b)(i) and 78(2)(b)(i) 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 amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 must be interpreted as meaning that recipients of old age and/or invalidity pensions, or the orphan of a deceased worker, to whom the legislation of several Member States applied, but whose pension or orphan’s rights are based on the legislation of the former Member State of employment alone, are entitled to claim from the competent authorities of that State the full amount of the family allowances provided under that legislation for handicapped children, even though they have not, in the Member State of residence, applied for comparable, higher, allowances under the legislation of that latter State, because they opted to be granted another benefit for handicapped persons which is incompatible with those, since the right to family allowances in the former Member State of employment was acquired by reason of the legislation of that State alone.

The answer to the third question is that the answer to it is the same as that to the first two questions where, under the legislation of the Member State of residence, the interested persons are unable to opt for payment of family allowances in that State.

(<span class="super">1</span>) OJ C 221, 14.8.2010.