This request for a preliminary ruling concerns the interpretation of Articles 72, 78(2)(b) and 79(1)(a) of Regulation 1408/71. It has been made in proceedings between Mrs Dumont de Chassart and the Office national d’allocations familiales pour travailleurs salaries (‘ONAFTS’) concerning the latter’s refusal to grant her family benefits for orphans in relation to her son. Mrs Dumont de Chassart, a Belgian national, is the widow of Mr Descampe, who was also a Belgian national. The couple had a son, Diego Descampe, also a Belgian citizen, who was born in France. Both had worked in Belgium and in France. Mr Descampe, on early retirement, passed away in France.

Mrs Dumont de Chassart and her son moved to Belgium, where, after working for about a month, Mrs Dumont de Chassart became unemployed. She applied to the Belgian ONAFTS for a family benefit for orphans in respect of her son and for a supplementary allowance for single-parent families. Both were granted. However, later on, ONAFTS decided to deny the applicant the family allowance for orphans on the ground that, during the 12 months immediately preceding the death of Mr Descampe, the latter had not fulfilled the conditions for claiming six flat-rate monthly payments of the allowance under Belgian legislation.

An important question in the national proceedings was whether Articles 72 and 79(1) of Regulation 1408/71 only referred to periods completed by the deceased person and thus precluded the Belgian ONAFTS to take into account periods of insurance and employment completed by the surviving parent in France, whereas such periods completed by a surviving parent in Belgium could be taken into account based on national legislation. When it reached the Belgian Labour Court, it decided to stay the proceedings and ask the ECJ whether Articles 72, 78(2)(b) and point (a) of the second subparagraph of 79(1) of Regulation 1408/71 must be interpreted as permitting account to be taken of, for the aggregation of periods of insurance and employment necessary in a Member State to gain entitlement to benefits for orphans, only of periods completed solely by the deceased parent in another Member State, excluding those completed by the surviving parent. If that is the case, the national court asks whether those provisions of Regulation No 1408/71 are compatible with the general principle of equal treatment and non discrimination.

The ECJ held that the rules laid down in Article 78 of Regulation 1408/71 seek to determine the Member State whose legislation governs the granting of those benefits. It is clear from Article 78(2)(b)(i) that, where the deceased parent was subject to the legislation of several Member States, the Member State of residence is specified as having the sole competence to grant the benefits in question. Those provisions are intended not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by that regulation are not left without social security cover because there is no legislation which is applicable to them. By contrast, those provisions are not intended to lay down the conditions creating the right to benefits for orphans. It is for the legislation of each Member State to lay down those conditions.

For the purposes of Article 78(2) and the first subparagraph of Article 79(1) of Regulation 1408/71, the status of ‘deceased employed person’ constitutes merely a connecting factor which determines, first, whether those provisions are applicable and, second, in conjunction with the orphan’s place of residence, which national legislation is applicable. Pursuant to the first subparagraph of Article 79(1) of Regulation 1408/71, it is thus for the competent Belgian authorities to pay the benefits concerned in accordance with Belgian law, as if Mr Descampe had been subject to that legislation alone. Once the Belgian legislation has been designated as the applicable legislation pursuant to which benefits for orphans are to be allocated, the existence of a right to benefits for orphans then depends on the content of the applicable Belgian legislation.

In that regard, it is not disputed that that national law authorises, in order to determine the existence of a right to benefits for orphans, account to be taken of periods of insurance and employment completed by both the deceased parent and the surviving parent. In those circumstances, pursuant to the rule laid down in point (a) of the second subparagraph of Article 79(1) of Regulation 1408/71, the competent Belgian authorities must take account, in accordance with the principle of aggregation of periods of insurance and employment, of periods of insurance and employment completed by the surviving parent in another Member State. Article 79(1) in no way restricts the scope ratione personae of that national legislation.

The Belgian Government submitted that the taking into account by the competent Belgian authorities, for the purposes of their aggregation, of periods of employment completed in another Member State requires a minimum period of employment to have taken place in Belgium during the reference period. However, a Member State which is competent to award a family benefit cannot demand that an insurance period must have been completed in its own territory in addition to periods of insurance and employment completed in another Member State.

It follows that Articles 72 and 79(1)(a) of Regulation 1408/71, far from precluding account being taken of periods of insurance and employment completed by the surviving parent of a child of a deceased employed person in another Member State, require, on the contrary, such account to be taken where the legislation of the competent Member State provides that a right to benefits for orphans can arise not only from the deceased parent, but also the surviving parent, provided that they have the status of employed persons.