5.

In the fourth question the National Insurance Commissioner asks the Court “Whether, in the case of a worker who is entitled to claim maternity benefits under the legislation of two or more Member States within the meaning of Article 8 of Regulation (EEC) 574/72, the provision of that article that those benefits shall be granted exclusively under the legislation of the Member State in whose territory the confinement took place (in this case the Republic of Ireland) operates to exclude the claimant from obtaining maternity benefits in Member States where the confinement did not take place (in this case the United Kingdom): (a) only in respect of the period for which the claimant is entitled to claim maternity benefits under the legislation of the Member State where the confinement took place; or (b) in respect of all maternity benefits in relation to that confinement in those Member States where the confinement did not take place.” In order to appreciate the actual import of that question it is convenient to state certain of the facts of the main dispute. The legal systems to which regard must be had in this matter are those of Ireland and of the United Kingdom. Both of them grant a female worker a weekly maternity allowance on the occasion of a confinement but they award it for different periods of time: British law for a maximum period of 11 weeks prior to the confinement and for seven weeks thereafter (see section 22 (2) of the Social Security Act 1975), Irish law for six weeks prior to the confinement and for six weeks thereafter (see Social Welfare Act 1952). Under both legal systems the grant of the allowance is conditional upon payment of insurance contributions of a specified minimum amount. Moreover, the claimant must lodge an application with the competent authority. In the present case, the application was presented to the British authorities on 3 October 1975 whereas the confinement had taken place on 31 August of the same year. It is not clear whether any application has been made to the Irish authorities. The problem of general application which such a situation raises concerns the limits within which the rule against overlapping in Article 8 is intended to operate. It has been seen that according to that article the worker is entitled “exclusively” to the benefit provided by the legislation of the Member State in which confinement took place. Clearly, on each occasion on which two social security systems provide, in relation to the occurrence of a confinement, entitlement to benefits which differ in scope and if it is assumed that a worker is in a position to claim entitlement under the provisions of both systems, the mechanism of Article 8 will lead to the benefit which she may obtain being increased or reduced. In particular the allowance awarded by the law of the place of confinement may be higher or lower compared with that provided by the other legislation or it may be paid for a shorter or longer period. In the present case it has been seen how the principal difference between the British legislation and the Irish is concerned precisely with the period for which the allowance is granted: 18 weeks under British law and only 12 under Irish law. If Article 8 is construed literally it must be held that maternity benefits are always governed only by the legislation of the country in which the confinement took place, quite apart from the fact that that legislation may possibly be less favourable to the worker than other legislation which is also applicable to her. Mrs Walsh would then, be automatically worse off by reason of the fact that she bore her child in Ireland. In my opinion, the reasoning underlying Community rules on social security matters leads to the view that possible adverse effects for the worker are acceptable only if they are offset by advantages and do not put in jeopardy the aims of the Treaty. Applying that test, I think it may be stated that where an entitlement to specific benefits flows from-Community law (in the sense that it does not exist on the basis of the legislation of a Member State alone) the provisions of Community law may, on the basis of objective criteria, make one national legal system applicable to the exclusion of the other, irrespective of the fact that, in individual cases, that may bring with it a disadvantage for workers as regards the amount or duration of the benefits. In regard to cases in which, but for Community rules, the worker would not have any right to receive any allowance, it appears reasonable and in accordance with the criteria of Article 51 of the Treaty for the same Community rules to place possible limits to the entitlement of the worker by means of strict rules against overlapping. No disadvantage would, however, be acceptable in a case where the worker's entitlement to the larger benefits provided by the laws of a Member State other than that in which the contingency covered by the insurance arose is acquired under that law without recourse to Community rules. That solution appears to me consistent with the approach of the case-law of the Court, which has repeatedly laid down the inviolability of rights acquired by individuals in social security matters on the basis of national legislation while accepting, on the other hand, the possibility that rights based on national legislation supplemented by Community rules on the aggregation of insurance contributions may be appropriately regulated. As of particular significance in this respect I would recall the judgments of 21 October 1975 in Case 24/75 Petroni ν ONPTS [1975] ECR 1149; of 3 February 1977 in Case 62/76 Strehl ν Nationaal Pensioen Fonds voor Mijnwerkers [1977] ECR 211; of 13 October 1977 in Case 112/76 Manzoni ν Fonds National de Retraite des Ouvriers Mineurs [1977] ECR 1647; of 13 October 1977 in Case 22/77 Fonds National de Retraite des Ouvriers Mineurs ν Mura [1977] ECR 1699 and of 13 October 1977 in Case 37/77 Greco ν Fonds National de Retraite des Ouvriers Mineurs [1977] ECR 1711. It is worth recalling also that in the Petroni, Strehl and Manzoni judgments the Court was at pains to repeat that the aim of Articles 48 to 51 of the EEC Treaty “would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the laws of a single Member State”. However “the Council in the exercise of the powers which it holds under Article 51... has the power, in conformity with the provisions of the Treaty, to lay down detailed rules for the exercise of rights to social benefits which the persons concerned derive from the Treaty” (paragraph 20 of the decision in the Petroni judgment). In the present case, the order making the reference does not indicate clearly whether the entitlement claimed by Mrs Walsh in the dispute with the Insurance Officer also exists on the basis of British legislation alone and it is not for this Court to establish that point. However, so far as the entitlement due to the same worker on the basis of Irish legislation is concerned it appears that the insurance contributions paid by her in Ireland were not sufficient for her to acquire by virtue of Irish legislation alone any entitlement to maternity benefits. Consequently, Mrs Walsh would be able to claim maternity benefit from the Irish authorities only by virtue of the aggregation of insurance contributions laid down by Article 18 of Regulation No 1408/71. In that state of affairs, it seems to me that it would be of assistance to the Commissioner were the Court to consider both the situation in which the benefits due to the worker under the law of a Member State other than that of the confinement have their source in the national rules supplemented by the Community rules and the other situation in which the same benefits are founded solely upon national legislation. I consider that in the first case Article 8 must be construed as meaning that the legislation of the place of confinement is the only one which applies, irrespective of the fact that the two legal systems in question confer benefits of different worth and that the worker will receive the allowance which is smaller in amount. I would repeat that any possible disadvantage which this solution places upon the worker is only an apparent disadvantage, since it affects individual positions which, but for the Community regulations, could not even have arisen. There remains the other case, that is, where the worker has an entitlement under legislation other than that of the place of the confinement, and on the basis of the former's provisions alone, to larger benefits than those provided by the legislation which applies under Article 8. Where that is the position, I think that precedence must be given to the preservation of rights acquired under the law of the other Member State. In the application of that principle, it is essential to compare the benefits conferred by the legislation of the place of confinement with those conferred by another legal system in the context of which the worker has built up entitlement to maternity benefits in order to ascertain whether the latter allowance is greater in amount. Where that is so, it must be recognized that the worker is entitled to obtain, in the State other than that of the confinement, the difference between the greater and the lesser benefits. That means that Article 8 is to be interpreted in the sense that the adverb “exclusively” does not prejudice rights already acquired under the national legislation of a single Member State other than that of the confinement. The considerations put forward hitherto may be made supplemented having regard to the construction of Article 8 which I proposed in answer to the second question. I would recall what the subject-matter of that question gave me occasion to state, namely, that the rule against overlapping contained in Article 8 applies only when the worker has an actual entitlement to maternity benefits under the laws of one or more Member States concerned, or, in other words, when she is in the specific position of receiving those benefits in the framework of both systems. In keeping with that point of view, I consider that in cases in which the entitlement to benefit is governed by the operation of Community rules on the legislation of the Member State other than that in which the confinement took place (being cases which, as has been seen, may, in principle, involve the operation of the restriction in Article 8) the exclusive nature of the legislation of the State where the confinement took place cannot be asserted except as regards the period in which the person concerned may actually obtain maternity benefits from the authorities of that State. Where, on the other hand, the actual conditions giving rise to the entitlement to insurance benefit do not occur, there would be no ground for fearing a case of overlapping and therefore imposing the restriction specified in Article 8.