6.

On the basis of the principles mentioned and of the interpretation given by the Court I consider that I can show that the arguments to the effect that the provision at issue is valid are unfounded. My reasons for that conclusion are as follows. A — I shall commence, as in section 4 above, with the difference in treatment between a worker employed in France and a worker employed in one of the other Member States. The arguments which have been advanced with regard to that point by all those who have submitted observations have the merit of bringing out, with all its ramifications, the conflict underlying the choice between the criterion of the country of employment and the criterion of the country of residence as regards the grant of social security benefits and, especially, family benefits. As the Court is aware, the Council debated that choice at length, first when issuing Regulation No 3, subsequently when recasting it by means of Regulation No 1408/71 and finally following the proposal for a uniform solution which the Commission submitted to it in 1976 (see section 3 above). It would be interesting to go back over those debates but this is not the appropriate place. So it is sufficient to bear in mind that in 1971 the legislature adopted the general criterion of the country of employment and used the other criterion only where it was likely to be more practical in view of the nature of the benefit concerned or the way of determining it. In fact the latter criterion was used: (a) for sickness insurance benefits in kind provided in countries other than that of entitlement; such benefits are equivalent throughout the Community and, in any case, cannot be ‘exported’ physically; (b) family benefits paid to pensioners entitled to a pension under the legislation of two or more Member States; this is because of the difficulties that would arise in dividing family allowances pro rata as well; (c) some benefits granted to frontier workers. Having said that, I strongly contest the Council's contention that the discrimination which I have taken as my starting point is nonexistent. As far as that contention and, in particular, the arguments raised to support it are concerned, I shall simply say that it conflicts clearly or, better, stridently with the principle that migrant workers must be treated in accordance with uniform Community rules wherever they decide to settle. Other, more pungent, criticism would perhaps be appropriate but, I believe, would not be consonant with the office of Advocate General. The view that the disparity in question is due solely to the differences in the legislation of the 10 States, although it is more seemly, should likewise be rejected. Such differences may give rise to discrimination; the provision at issue is bound to cause discrimination. Let us examine its mode of operation. It causes the grant of family allowances to depend on a combination of laws: French law governs entitlement, whilst the character and the amount of the benefit are determined by reference to the law of the State of residence. Consequently, that reference determines the benefit and, as in the circumstances which gave rise to these proceedings, its effect is to reduce the substance of the right acquired under French law. The point is this: it is not any difference between the two laws which creates the discrimination but the way in which Article 73 (2) coordinates those laws. It is that coordination which eliminates the benefit granted by virtue of the State of employment only and artificially creates another, which is governed by the law of the State in which the members of the worker's family reside. Is such elimination permissible? My view is that it is not, and I base that opinion on the Court's judgments in the Rossi, Laterza, Gravina, Beeck and D'Amario cases. Admittedly those cases concerned overlapping benefits arising under the legislation of two or more Member States, whilst in this case only one benefit is involved, although it is governed by a combination of laws. However, it is obvious that a difference of that kind cannot go so far as to prevent the principle laid down by the Court (the worker must not suffer disadvantage as a result of the place in which the members of his family reside) from applying also to the situation with which this case is concerned. Moreover, as the Greek and Italian Governments and the appellant in the main proceedings observe, if that principle were not to apply to this case we should be faced with a manifest infringement of Article 51 of the EEC Treaty. And I would remind the Commission and the Fund that Article 51 also mentions the dependants of migrant workers and requires benefits to be paid (and hence exported) irrespective of the Member State in which the recipients of the benefits reside. Neither let it be said that the criterion of the State of employment may also be discriminatory, where a migrant moves from a country where benefits are very high to another where benefits are lower. Two objections may be levelled against that argument. In the case of Article 73 (1), which itself relies on the locus laboris, the position is different, since the benefits are lower because the worker has moved and not, as in Article 73 (2), on account of the place of residence of the members of his family. Secondly, to calculate advantages and disadvantages by comparing the ‘benefits’ received in each case is incorrect: the calculation must take account of the fact that the worker employed in France to whom Article 73 (2) applies receives ‘family allowances’ only whilst Article 73 (1) requires all ‘family benefits’ to be granted in the other nine Member States. B — Let us now examine the question of discrimination between the Community worker employed in France and French nationals employed in France. It is unnecessary to answer the arguments put forward by the Commission, the Fund and the French Government, since they are no different from those criticized above. However, the Council's argument warrants two comments. First, it is not true in every case that the contested provision favours the Community worker, for under the French legislation a member of the family may stay abroad for more than three months if his health or education so require (see Article 6 of the Decree of 10 December 1946 as amended by the Decree of 17 April 1972 and by the Decree of 14 May 1968 and, as regards case-law, Cassation (section sociale) 27 January 1972 and 22 March 1973 in Droit Social, 1972, p. 530, and 1973, p. 537). Secondly, it is wrong to say that there is no discrimination. Discrimination is present but covert, for, as the Italian Government points out, the operation of the ‘residence’ parameter differs according to the worker's nationality. In other words, the family unit of a person working in his country of origin is generally united whereas the migrant worker's family is generally separated. That some members of his family should reside in countries other than the one in which he is employed is in fact a normal effect of a worker's moving within the Community. C — Lastly there is the question of discrimination between non-French workers employed in France, depending on whether their children live with them or abroad. As we have seen, the Council considers that that discrimination is compatible with Article 48 (2) of the Treaty. In my view, it is not. By prohibiting all discrimination as regards employment, Article 48 (2) is designed to apply to the whole set of conditions determining the status of the employed worker and hence to, inter alia, his social security situation. On this assumption, it is impossible to understand why, given that they pay the same social security contributions to the competent institutions and/or the same taxes to the revenue authorities of the same country, some Community workers should be treated less favourably because of the place of residence of members of their families or even, as Mr Pinna points out, be equated to non-Community nationals without the benefit of a bilateral agreement providing for more favourable arrangements.