Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 5 April 2001. - Elide Gottardo v Istituto nazionale della previdenza sociale (INPS). - Reference for a preliminary ruling: Tribunale ordinario di Roma - Italy. - Reference for a preliminary ruling - Articles 12 EC and 39(2) EC - Old-age benefits - Social security convention concluded between the Italian Republic and the Swiss Confederation - Refusal to take account of periods of insurance completed by a French national in Switzerland. - Case C-55/00.



European Court reports 2002 Page I-00413



Opinion of the Advocate-General

1. The Tribunale Ordinario di Roma (District Court, Rome) is asking the Court of Justice for a ruling under Article 234 EC on the interpretation of Article 12 EC and Article 39(2) EC, which prohibit any discrimination on grounds of nationality.

When a Member State has concluded with a non-member country a social security convention under which nationals of both States are accorded the right to aggregate insurance periods completed in both for the purposes of being awarded an old-age pension, the question arises whether those Community provisions allow the Member State to deny that right to a worker who is a national of another Member State. The reason given by the State for refusing aggregation is that the worker is not one of its own nationals.

I. The facts in the main proceedings

2. Elide Gottardo was Italian by birth and acquired French nationality following her marriage to a French national in February 1953. She has paid 100 weekly social security contributions in Italy, 252 in Switzerland and 429 in France. She receives an old-age pension in Switzerland and another in France, both of which were granted to her without the need to have recourse to the aggregation of periods.

In September 1996 she lodged an application with the Istituto Nazionale della Previdenza Sociale (hereinafter the INPS) for an old-age pension. In November 1997 her application was refused on the ground that she was a French national and the Italo-Swiss Social Security Convention of 14 December 1962, ratified by Law No 1781 of 31 October 1963 (hereinafter the Italo-Swiss Convention), was inapplicable for the aggregation of her insurance periods. She immediately lodged an official appeal against that decision and the INPS confirmed its refusal in June 1998.

3. In the proceedings before the courts, Mrs Gottardo maintains that, since she is a national of a Member State, Italy should acknowledge her right to receive a pension under the same conditions as Italian nationals, albeit by application of a convention concluded with a non-member country. The INPS contends that the action should be dismissed on the ground that the provisions of the Italo-Swiss Convention cannot be applied to the applicant, who is a French citizen.

4. As the national court explains in its order for reference, the Italian State allows its own nationals who can claim social security contributions to both the Italian scheme and the Swiss scheme to obtain an old-age pension by aggregation of the two sets of contributions. If Mrs Gottardo had not acquired French nationality and lost her Italian nationality, the INPS would certainly have granted her application on the basis that she had paid contributions in Italy, France and Switzerland. The court considers that the defendant social security institution rejected the worker's claim solely by reason of her nationality.

II. The question referred for a preliminary ruling

5. The Tribunale Ordinario, Rome, believing that the decision taken by the INPS might contravene Article 12 EC and Article 39 EC, stayed proceedings and referred the following question to the Court of Justice for a preliminary ruling:

Is a worker who is a citizen of a Member State with a record of payments of social security contributions to the competent institution of another Member State entitled to be awarded an old-age pension on the basis of aggregation of the contributions paid to the institution of a State outside the Union under the convention which the Member State has concluded with the latter and which it applies to its own citizens?

III. The Community legislation

6. The first paragraph of Article 12 EC stipulates:

Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

Article 39(2) EC establishes:

Such freedom of movement (for workers within the Community) shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

7. Article 7(1) and (2) of Regulation (EEC) No 1612/68 provides:

1. A worker who is a national of a Member State may not in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.

2. He shall enjoy the same social and tax advantages as national workers.

IV. The proceedings before the Court of Justice

8. The applicant in the main proceedings, the INPS, the Italian and Austrian Governments and the Commission have presented written observations in these proceedings.

Mrs Gottardo's representative, the representative of the INPS, the agent of the Italian Government and the agent of the Commission appeared to make oral submissions at the hearing held on 6 March 2001.

9. Mrs Gottardo maintains that the INPS's refusal to acknowledge her pension entitlement in Italy by aggregation of the contributions she has paid in that State and in Switzerland constitutes direct discrimination based on nationality, contrary to Articles 39 EC, 12 EC and 17 EC. She takes the view that the principle of equal treatment requires the Italian social security institution, which applies its national law of which the Italo-Swiss Convention forms part, to treat the nationals of the other Member States in the same way as Italian nationals. She adds that the insertion in the Treaty of a provision creating citizenship of the Union has strengthened the prohibition against discrimination on grounds of nationality.

10. The INPS states that the Italo-Swiss Convention cannot be applied to Mrs Gottardo because she is not a citizen of either of the contracting States. Nor, for the same reason may she invoke the Second Additional Agreement, adopted in 1980, which provides for the aggregation of contribution periods completed in non-member States which have concluded social security agreements with Italy and with Switzerland.

11. The Italian Government considers that the principle of equality of treatment established in Articles 12 EC and 39 EC is relevant only within the framework of Community law. If it were to apply the Convention with Switzerland, unilaterally, to a French citizen, it would be in breach of Regulation (EEC) No 1408/71, since the Member States which intended to apply the aggregation of periods registered, in Annex III, the provisions already contained in previous bilateral conventions. Furthermore, the Member States have not yet agreed to extend the provisions of Regulation No 1408/71 to the nationals of non-member States.

12. The Austrian Government submits that the principle of non-discrimination in Article 12 EC has been incorporated into the sphere of social security by Article 3 of Regulation No 1408/71 and that, therefore, it is necessary to have recourse to Article 12 EC only if the Regulation is applicable to the facts in the main proceedings. It points out that Articles 39 EC and 42 EC and Regulation No 1408/71 refer, in principle, to migrant workers moving within the Community and there is no provision for those rules to be extended to insurance periods completed outside it. The Austrian Government states that Regulation No 1408/71 could be considered to require equal treatment for Italian and French nationals only if the Italo-Swiss social security Convention were legislation within the meaning of the Regulation, because only under those circumstances does Article 3 establish a duty of non-discrimination.

13. The Commission considers that the national court has not requested an interpretation of Regulation No 1408/71 and it is therefore inappropriate to provide one for the purposes of a ruling in the case. It believes that the court making the reference wishes the Court of Justice to consider whether the fact that only Italian citizens may benefit from the aggregation of the insurance periods completed in Switzerland is compatible with Community law, from the point of view of the meaning not of social security benefit but of social advantage. In the Commission's opinion, although the aggregation of the insurance periods for acquiring the right to receive an old-age pension is linked to one of the social security benefits listed in Article 4 of Regulation No 1408/71, the national court is entitled to question whether the condition of nationality imposed by the Italo-Swiss Convention is compatible with Article 39(2) EC. In that regard, it states that the acknowledgment of a contribution period giving entitlement to an old-age pension is a social advantage which Italian law must confer on claimants, by observing the prohibition against discrimination based on nationality which Article 39(2) EC imposes on the Member States.

The Commission finishes by stating that Italy cannot avoid the obligation to ensure equality of treatment, with respect to the old-age pension entitlement, between Italian workers who have been employed in Switzerland and workers from other Member States who are in the same position.

V. Analysis of the question referred for a preliminary ruling

14. Both Article 12 EC and Article 39(2) EC prohibit any discrimination by Member States on grounds of nationality. The difference between the two provisions lies in the fact that the first contains a general prohibition which extends to the scope of application of the whole Treaty, whereas the second forms part of the chapter devoted to the free movement of workers.

15. This Court has consistently held that Article 12 EC is intended to apply independently only in situations governed by Community law where the Treaty does not lay down a specific prohibition on discrimination. In the sphere of the free movement of workers, the principle of equal treatment has been implemented and realised by Article 39(2) EC, which establishes the abolition of any discrimination as regards employment, remuneration and other conditions of work and employment.

It is apparent from the documents in the case that Mrs Gottardo is a national of one of the Member States and that she has worked, apparently as an employee, in Italy, Switzerland and France. I therefore consider that both Article 39 EC and Regulation No 1612/68 are applicable to her, since the Scholz judgment acknowledges that they apply to any Community national who has exercised the right to freedom of movement for workers and has been employed in another Member State, irrespective of his place of residence and his nationality.

The old-age pension is a deferred right which the worker acquires throughout his working life. When a migrant worker has moved exclusively between Member States, his pension entitlement is calculated by application of Regulation No 1408/71. However, if he has also worked in a non-member country with which the Member State to which he has applied for a pension has concluded a social security convention providing for the aggregation of the contributions paid in both States, aggregation of the periods completed in that non-member country forms part of the conditions of work which the Member State is required to afford the citizens of the other Member States, under Article 39(2) EC, without discrimination on grounds of nationality.

It is therefore unnecessary, in this case, to refer to Article 12 EC or Article 7(2) of Regulation No 1612/68 in order to reply to the question referred for a preliminary ruling by the Tribunale Ordinario, Rome.

16. It should be pointed out that, although the old-age pension entitlement of a migrant worker is involved, the national court which has raised the question has not requested an interpretation of Regulation No 1408/71 which, as we know, coordinates the national social security schemes of the Member States in order to achieve the objectives laid down in Article 42 EC. Furthermore, in the order for reference it makes not the slightest allusion to those rules.

17. The Italian court has carefully avoided referring to Regulation No 1408/71 because, firstly, it considers that the application by the INPS of the social security convention with Switzerland in this case infringes Article 39 EC and, secondly, it very probably knows how this Court has interpreted Regulation No 1408/71 in cases in which a Member State which has concluded a social security convention with a non-member country refuses to include, when calculating entitlement to benefits, the periods completed in that non-member country by workers who are nationals of another Member State, and does not wish to receive the same reply.

A. The interpretation of Regulation No 1408/71 and the refusal of Member States to aggregate, in respect of nationals of other Member States, insurance periods completed in a non-member country with which they have concluded a social security convention

18. All the cases brought before the Court of Justice on this matter to date have been resolved by interpreting Regulation No 1408/71, Article 3 of which applies the principle of equal treatment in the sphere of social security of migrant workers. In accordance with that provision, persons resident in the territory of one of the Member States to whom the Regulation applies are subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.

19. However, each time a question has been referred for a preliminary ruling in a dispute in which a migrant worker has been in the same or similar circumstances to those of Mrs Gottardo in Italy, and has sought to invoke the principle of equal treatment laid down in that provision, the Court has given a negative answer.

The reasoning has been based on the fact that a bilateral social security convention concluded between a Member State and a third State, although incorporated as a statute into the domestic legal order, did not constitute legislation within the meaning of Article 1(j) of Regulation No 1408/71, and it was not therefore possible to rely on Article 3 to claim equal treatment. Admittedly, in most cases the national court specifically requested an interpretation of those two provisions of secondary legislation. I do not dispute that, if the question is expressed in those strict terms, it might merit that response, but I must say I was surprised to see that, sometimes, the Court had also been asked to interpret provisions of primary law like Article 12 EC which, as I have indicated, prohibits discrimination on grounds of nationality within the scope of application of the Treaty.

20. The first of those judgments was delivered in 1972, in reply to a question from the Bundessozzialgericht (Federal Social Court). The case, which related to Regulation No 3 (the predecessor of Regulation No 1408/71) was similar to the one which is the subject of this Opinion. Unlike Mrs Gottardo, the claimant was an Italian national who asked the German social security institution to take into account insurance periods completed in Switzerland, invoking the Italo-Swiss social security Convention.

The Court pointed out that Article 16 of Regulation No 3 (laying down the rules relating to aggregation for sickness and maternity benefits) referred to insurance periods completed under the legislation of each of the Member States and that Article 1(b) of that Regulation, which was equivalent to Article 1(j) of Regulation No 1408/71, stated that legislation meant only laws, regulations and other enforceable provisions, present and future, of each Member State relating to the social security schemes and branches of social security. The Court therefore concluded that, for the purposes of acquiring a right to social security benefits, Member States are not bound to take into account insurance periods completed in third countries.

21. The second judgment was delivered in 1977. The case concerned an invalidity pension payable in Belgium to the persons entitled under a deceased Italian worker who had worked in Italy, Belgium and Austria and had acquired in Austria an invalidity pension calculated in accordance with a bilateral social security convention between Italy and Austria. Belgian law provided for account to be taken of the periods completed not only in the Member States but also in third countries, with the consequence that the benefit to be paid was reduced. The Court of Justice confirmed that the provisions of Regulations Nos 3 and 4 (the latter was the predecessor of Regulation No 574/72), concerning the aggregation of insurance periods, refer only to periods completed under the legislation of the Member States, and that periods completed in a third country, whether or not such country has entered into a social security convention with one or more of the relevant Member States, are not covered by any provision of the Community regulations relating to the harmonisation by the Member States of their systems of social security.

22. The third judgment was delivered in 1993, in the Grana-Novoa case, in response to a question referred by the Bundessozialgericht, which had to give a ruling in proceedings brought by a migrant worker who had been refused an invalidity pension. Ms Grana-Novoa, who had Spanish nationality, had not paid compulsory insurance contributions in her country of origin but had, on the other hand, pursued an occupation subject to compulsory social insurance in Switzerland and Germany. In Germany she became permanently incapacitated and applied for an invalidity pension. Her application was refused on the ground that she had not worked in the Federal Republic of Germany for a sufficient number of years to complete the qualifying period required by the German rules. Ms Grana-Novoa challenged that decision before the German courts. It was established that she would have been awarded a pension if the periods completed in Switzerland had also been taken into account. Germany had concluded with Spain a social security convention which established equal treatment for German and Spanish nationals, and with Switzerland a convention which applied only to German and Swiss nationals and contained a safeguard clause preventing Ms Grana-Novoa from relying cumulatively upon the German-Swiss and Spanish-German conventions.

The national court was unsure whether, since 1 January 1986, the date of Spain's accession to the European Communities, the principle of non-discrimination on grounds of nationality prevented the application of the safeguard clause inasmuch as it might obstruct, within the Member State which was a party to the convention, the free movement of nationals of other Member States.

Principally, the national court was asking whether the concept of legislation referred to in Article 3(1) of Regulation No 1408/71 covers the provisions of international conventions concluded between a Member State and a third country which have been incorporated as statute law into the domestic legal order. If that question were answered in the affirmative, the court wished to know whether the principle of equal treatment laid down in Article 12 EC and Article 3(1) of Regulation No 1408/71 prevented the German social security institutions to which application had been made for an old-age or validity pension from taking account, for German nationals only and not for other Community citizens, of the insurance periods completed in Switzerland.

The Court answered the first question in the negative and held that there was no need to answer the second question.

23. Ms Grana-Novoa, who was in an almost identical situation to that of Mrs Gottardo, therefore found that, although Article 39(2) EC prohibits discrimination on grounds of nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, of which social security entitlement is undoubtedly one, she was unable to rely on that provision to claim, in Germany, the same treatment as that accorded to German nationals who had completed insurance periods in Switzerland.

24. I must point out that not all of the five Member States which submitted observations in the Grana-Novoa case proposed that the first of the two questions referred should be answered in the negative. Italy and Portugal suggested to the Court of Justice that a Member State is required to ensure that citizens of the European Union who have carried on an activity in its territory and completed the corresponding insurance periods receive the same treatment as its own citizens under its legislation, which includes social security conventions signed with third countries.

25. It should also be pointed out that, whilst in the observations it has submitted in the Gottardo case, Italy maintains that the question raised by the Tribunale Ordinario, Rome, must be answered negatively, in those it presented in the Grana-Novoa case, it stated, on the contrary, that the principle of non-discrimination on grounds of nationality required the German authorities to acknowledge the claimant's right to aggregation of the insurance periods completed in Switzerland.

B. Recent case-law on the national treatment principle in favour of a company resident in one Member State with a permanent establishment in another, as regards the tax concessions provided for by bilateral double taxation treaties signed with third countries

26. The foundations for a change in the Court's position with regard to the free movement of workers and the bilateral conventions concluded by Member States with third countries which I have just described seem to have been laid in the Saint-Gobain judgment, delivered, curiously enough, in a case concerning the right of establishment and freedom to provide services, in relation to the tax concessions granted to companies limited by shares.

27. Saint-Gobain ZN is a German subsidiary of a company whose registered office and business address are located in France; it is therefore subject to limited tax liability for corporation tax and capital tax in Germany. The German tax authorities refused to grant it three tax concessions designed to prevent dividends which are received in Germany by companies with shareholdings in foreign companies and which have already been taxed abroad from being taxed again in Germany.

It was established during the proceedings that German legislation accorded different treatment to subsidiaries of non-resident companies and to resident companies, which constituted a restriction on the freedom to choose the form of secondary establishment.

28. In order to justify its refusal, the German Government relied upon the fact that the conclusion of bilateral treaties with a non-member country does not come within the sphere of Community competence. It took the view that taxation of income and profits falls within the competence of the Member States, which are therefore at liberty to conclude bilateral double-taxation treaties with non-member countries.

The Court held that although direct taxation is indeed a matter for the Member States, they must nevertheless exercise their taxation powers consistently with Community law. In that specific case, in which a double-taxation treaty had been concluded between a Member State and a non-member country, the national treatment principle requires the Member State which is party to the treaty to grant to permanent establishments of non-resident companies the advantages provided for by that treaty on the same conditions as those which apply to resident companies.

The Court then stressed this point by adding that the obligations which Community law imposes on Germany do not jeopardise those resulting from its agreements with the United States and Switzerland, and that the balance and the reciprocity of the treaties concluded by Germany with those two countries would not be called into question by a unilateral extension, on the part of Germany, of the category of recipients in Germany of the tax advantage provided for by those treaties, since such an extension would not in any way affect the rights of the non-member countries which are parties to the treaties and would not impose any new obligation on them.

29. By that judgment Member States have been required to grant non-resident companies with a permanent establishment in their territory the same tax advantages as they grant to national and resident companies under the same conditions.

I think that the judgment also overcame the difficulty involved, for a Member State which had concluded with a non-member country a social security convention providing for concessions restricted to the nationals of both, in extending them to migrant workers who were the nationals of other Member States, a difficulty which previously seemed insoluble. Indeed, the prohibition against discrimination, laid down in Article 39 EC for workers, cannot be in a less favourable position than the prohibition against discrimination provided for in Article 43 EC for the right of establishment or in Article 50 EC for the freedom to provide services.

It seems clear, therefore, that there needs to be radical change in the case-law of the Court of Justice to give Article 39(2) EC the scope required by the fundamental principle of non-discrimination it enshrines. It is necessary to depart from the solution reached in the Grana-Novoa judgment of 2 August 1993 and apply to this sphere the criterion introduced in the Saint-Gobain judgment of 2 October 1999, which requires Member States to grant non-resident companies limited by shares, with a permanent establishment in their territory, the same concessions as they give national and resident companies under conventions concluded with non-member countries.

C. The proposed change in case-law and the effect of the wording of the question referred for a preliminary ruling

30. I wish to emphasise how paradoxical it is for the Court of Justice to give the national court the reply I propose, considering the answer it gave to the Bundessozialgericht only eight years ago.

The only difference I can find between the Grana-Novoa case and Mrs Gottardo's case is that the Bundessozialgericht requested an interpretation of Regulation No 1408/71, whereas the Tribunale Ordinario, Rome, has not looked at secondary law but has asked directly for an interpretation of Treaty provisions which unconditionally prohibit discrimination on grounds of nationality.

31. It seems worrying to me that divergent solutions are found when the circumstances are almost equivalent and the applicable Community provisions are identical. The only reason for that divergence lies in the different wording of the questions referred for a preliminary ruling. However, it would not be the first time this has happened in Community case-law.

32. To give an example of these contradictions, I shall refer to two cases decided by the Court of Justice in the space of just two years, in which it had to clarify whether a specific article of the French Labour Code (L 213-1), which, subject to exceptions, prohibited the employment of women to do night work in factories and workshops, was contrary to Article 5 of Directive 76/207/EEC. In the first case the question referred for a preliminary ruling went no further; in the second, the national court added that it was necessary to take into account the ILO Convention No 89 of 9 July 1948, which had been signed by France and which prohibits night work by women.

The facts which had given rise to the two cases were very similar: two undertakings were charged with infringing the provisions of the Labour Code, by employing women in their factories to do night work, an infringement punishable by a fine.

33. In the Stoeckel judgment, which was the first to be delivered, although the French Government claimed that the ILO Convention was applicable, the Court of Justice merely replied that the Directive imposes on Member States the obligation not to lay down by legislation the principle that night work by women is prohibited, where night work by men is not prohibited.

34. In the Levy judgment, on the other hand, it was the national court itself which drew the attention of the Court of Justice to the applicability in France of the ILO Convention. With the problem expressed in those terms, it was a matter of knowing whether the obligation of the national court to ensure that the judgment in Stoeckel was fully complied with, by refraining from applying any conflicting provision of national legislation, continued to exist when the national provision which conflicted with Community law had been adopted by the Member State in order to ensure the performance by the Member State concerned of obligations arising under an international agreement covered by Article 307 EC. The Article provides that the provisions of the Treaty are not to affect the rights of third countries or the obligations of the Member States arising from agreements concluded before the entry into force of the Treaty.

In that case the Court held that, while it is true that equal treatment of men and women constitutes a fundamental right recognised by the Community legal order, its implementation has been gradual, and has been achieved by means of directives. Those directives allow, temporarily, certain derogations from the principle of equal treatment. In those circumstances, it is not sufficient to rely on the principle of equal treatment in order to evade performance of the obligations which are incumbent on a Member State in that field under an earlier international agreement and observance of which is safeguarded by the first paragraph of Article 307 EC.

Accordingly, the specific reply given by the Court of Justice was that the national court is under an obligation to ensure that Article 5 of Directive 76/207 is fully complied with by refraining from applying any conflicting provision of national legislation, unless the application of such a provision is necessary in order to ensure the performance by the Member State concerned of obligations arising under an agreement concluded with non-member countries prior to the entry into force of the Treaty.

35. I think it is significant that the Court waited until it had received the second question referred for a preliminary ruling before giving the French courts which had to apply that body of rules the full interpretation of the Community legislation they needed when, during the preliminary reference proceedings in the Stoeckel case, it had already been pointed out that the ILO Convention was applicable in France.

36. I am aware of the case-law of the Court of Justice according to which, in the allocation of duties made by Article 234 EC, it is for the national court which has to give a ruling on the merits to apply the rules of Community law to the specific case. The Court has also held that, when the questions submitted for a preliminary ruling concern the interpretation of a provision of Community law, the Court gives its ruling without, in principle, having to look into the circumstances in which a national court was prompted to submit the questions and envisages applying the provision of Community law which it has asked the Court to interpret.

However, the interpretative role assigned to the Court of Justice by Article 234 EC, with the aim of ensuring that Community law is applied uniformly in the Member States, cannot be limited to giving an automatic response to the questions strictly in accordance with the terms in which they have been formulated; the Court, as the official interpreter of Community law, must analyse the problem with a more broadminded approach and greater flexibility so as to give a reply which will be of assistance to the national court which raises the questions and to the other courts in the European Union, in the light of the applicable Community provisions. Otherwise, the dialogue between courts introduced by Article 234 EC might depend too much on the court which raises the question, so that, depending on the way it worded the question referred for a preliminary ruling, it could determine the answer, as occurred in the cases I have just examined.

D. The reply to the question referred by the Tribunale Ordinario, Rome

37. It may be inferred from the foregoing considerations that I agree with the national court and with the Commission that it must be possible for the prohibition against discrimination by reason of nationality established in Article 39 EC to preclude the INPS from refusing to allow Mrs Gottardo to include insurance periods completed in Switzerland for the purpose of acquiring the right to an old-age pension in Italy, on the ground that she does not fulfil the nationality condition laid down in the Convention.

38. No arguments have been put forward in these proceedings to show that the contractual equilibrium between the two States which are signatories to the Convention would be disturbed if Italy unilaterally extended that concession to the nationals of the other Member States, granting it to them under the same conditions as to its own citizens. As the Court of Justice held in the Saint-Gobain judgment, such an extension would not in any way affect the rights of the non-member country and would not impose any new obligation on it. Nor would the equilibrium between the parties or reciprocity be jeopardised. Finally, it would not compromise the rights conferred by the Convention on the Swiss State, since the obligations relating to the inclusion of the insurance periods devolve upon Italy and in no way affect the Swiss old-age pension scheme.

39. Thus, a Community citizen who is not Italian cannot rely on the abovementioned Convention to claim inclusion in Switzerland of insurance periods completed in Italy.

40. In the same way, a Community citizen for whom insurance periods completed in Switzerland have been included in Italy for the purpose of granting him the right to benefits may not require any other Member State to take them into account. As the Court of Justice held in Borowitz, such periods completed under the legislation of a non-member country do not, merely because they have been taken into account by the German institution pursuant to a bilateral convention concluded by the Federal Republic of Germany, become periods completed under the legislation of the Member States within the meaning of Article 46 of Regulation No 1408/71. Consequently, no provision requires the institutions of the other Member States to take account of them when making calculations under Article 46 and the fact that the German institution has taken those periods into account does not entail any increase in their obligations.

41. Italy points out that, in a case similar to that of Mrs Gottardo, concerning a Spanish national who had worked in Italy, Spain and Switzerland, the Swiss authorities refused to provide the Italian authorities with the information it required to award him benefits, on the ground that the claimant did not fulfil the condition of nationality.

I acknowledge that the obligations to cooperate and to implement the national treatment principle, established in Articles 10 EC and 39(2) EC respectively, do not concern Switzerland. However, Italy cannot free itself of its obligation on the basis of the non-cooperation of a third country which refuses to supply the necessary information, and leave the worker who is a national of another Member State in a less favourable position that its own nationals. It must use any other evidence which enables it to make reasonably sure that the insurance periods were completed by the worker in the third country.

42. I therefore consider that Article 39(2) EC precludes a Member State from refusing to take into account, for the purpose of granting the right to an old-age pension to workers who are nationals of other Member States, insurance periods completed in a third country with which it has concluded a social security convention, if it includes such periods for its own nationals under the same circumstances.

VI. Conclusion

43. In the light of foregoing considerations, I propose that the Court of Justice should give the following reply to the Tribunale Ordinario, Rome:

Article 39(2) EC precludes a Member State from refusing to take into account, for the purpose of granting the right to an old-age pension to workers who are nationals of other Member States, insurance periods completed in a third country with which it has concluded a social security convention, if it includes such periods for its own nationals under the same circumstances.