5.

The Commission takes the view that it is finally necessary to consider the question whether there are any provisions in the Franco-Belgian Protocol of 17 January 1948 mentioned in Annex D of Regulation No 3 which prevent the possibility of aggregating various periods of employment for the benefit of Belgian wage-earners and which justify, therefore, an exception to the principle laid down in Article 27. This brings us back to a problem which has already been broached at the beginning of my opinion but which must now be examined in greater detail. It has two aspects: it must first be established whether the Cour de Cassation does in fact expect us to interpret this Protocol and then the question must be asked whether under Article 177 of the EEC Treaty the Court has jurisdiction to interpret agreements of this kind. I will anticipate the answer: in fact I agree with the French Government in doubting whether we can follow the Commission's argument and interpret the Protocol. It is particularly doubtful whether the assumption can be accepted that the Cour de Cassation in fact asks us to interpret the Franco-Belgian Protocol. In its request it in fact refers to the interpretation ‘of acts of the institution of the Community’, of ‘an interpretation of Community rules’. It is hard to believe that these expressions could be intended to include a bilateral agreement concluded between two Member States. Since on the other hand — as has already been mentioned — the absence of explicit questions makes it difficult to determine clearly the intention of the Cour de Cassation, the main emphasis of the examination should not be placed on this aspect but the question should be asked whether the Court has jurisdiction to interpret the Franco-Belgian Protocol. As you know the Commission answers this question in the affirmative by referring to Article 50 of Regulation No 3 which provides inter alia that the Annexes referred to in Article 6(2)(e)— including also Annex D which mentions the Franco-Belgian Protocol — are an integral part of the regulation. In my opinion of the Commission it would be illogical to interpret the incorporation of Annex D as meaning that it only refers to the enumeration of the provisions of social security conventions listed therein and not to their actual texts. I am however convinced that a whole series of objections can be deployed against this argument. It must first of all be remembered that some of the Annexes mentioned in Article 50 (for example Annexes B and F) group together the provisions of national laws. If the provisions listed in the Annexes are deemed to be incorporated in Regulation No 3 with the result that the Court has jurisdiction to interpret them, it follows that it has jurisdiction to interpret the said national laws and this is an argument which is certainly not tenable. It must then be pointed out, as the French Government has done, that the argument that the agreements in Annex D are an integral part of the regulation is difficult to reconcile with the retention of the cancellation clauses in Annex D and the procedure provided for in Article 5(3) of Regulation No 3 for making amendments to Annex D. On the other hand even if Article 50 is interpreted strictly, that is to say, if only the actual enumerations in the Annexes and not the texts are deemed to be an integral part of Regulation No 3 it still has a meaning. I do not just have in mind in this connexion the task of delimination but also endeavours at interpretation. There is sufficient scope for such endeavours in view, for example, of the concepts of Annex A, the description of legislation in Annex B, the content of Annex C, the general observations of Annex D or the provisions of Annex G. Finally reference must be made to the judgment of the Court of 19 March 1966 (Case 75/63, [1964] E.C.R. 177) which also gave a preliminary ruling on Regulation No 3. In it the Court, ruling on the question whether in the event the application must succeed under the German-Dutch Convention of 29 March 1951 — mentioned in Annex D — on social security, held that ‘it is not entitled within the framework of Article 177 of the Treaty to interpret rules pertaining to national law’. Therefore the view must be upheld that the Court also has no jurisdiction to interpret the Franco-Belgian Protocol. If indeed these objections are rejected on the ground perhaps that Regulation No 3 together with the special agreements mentioned in Annex D constitute a coherent system requiring uniform interpretation, and if endeavours are made to ascertain the meaning of the Franco-Belgian Protocol on this basis there is much to be said for adopting the interpretation recommended by the Commission. According to this interpretation — which I have already outlined at the beginning of my opinion — the main purpose of the Protocol is to enable Belgian nationals to obtain the benefit of the French allowances for aged wage-earners (which is in principle linked to French nationality), by making the right to an allowance depend upon the question whether the applicant at the date of his claim establishes that he has been resident in France for an uninterpreted period of fifteen years. The reference to the ‘conditions prevues … par la legislation sur les vieux travailleurs salaries’ (‘conditions provided … by the legislation on aged wage-earners’), so far as periods of gainful employment are concerned cannot therefore be taken to mean that aggregation of periods of employment abroad in the case of Belgian workers is excluded contrary to the principle laid down in Article 27 which also applies to the allowances for aged wage-earners; on the contrary, the ‘French legislation’ to which the Protocol refers is French law as it stands at present as influenced by supranational law which takes precedence over it. In fact this interpretation, by avoidmg any discrimination against foreign workers, can claim to be in close harmony with the principles stated in Article 51 of the Treaty and in Regulation No 3 and repeatedly defined in the relevant case-law of the Court. It complies also with the general legal principle that exceptions to general rules must be capable of being clearly recognized as such (which for example is true in the case of the provisions in Annex E). It therefore it is assumed that the Court has jurisdiction to interpret the Franco-Belgian Protocol, it only remains for me to state that its text does not exclude the application of Regulation No 3, that is to say, the aggregation of periods of employment completed in various Member States.