4.

I am of the opinion that the Court could confine itself to answering the questions referred to it by the Cour d'appel, Nancy, in the same way. In the case of an answer which, in accordance with the precedents established by this Court, takes account of Article 16 of Regulation No 109/65, a reply in these terms would have the advantage of enabling the Court to avoid having to give consideration of its own motion to certain questions which would arise in the case of a reply which held in favour of the worker quite regardless of French law. Otherwise, the reservation contained in Article 16 of Regulation No 109/65 concerning the maintenance of rights acquired might assume importance not as a provision referring to substantive national law defining and governing social security matters but a straightforward substantive provision capable, in itself, of, in theory, applying to any set of circumstances. It is doubtful whether this would be compatible with the general purpose of Community social legislation which, in the field of social security, does not seek to substitute its own substantive provisions for those of national laws but is essentially designed to coordinate the different national legislative systems in order to eliminate obstacles to the free movement of workers in the Community which may have been produced by the very fact that separate and independent national systems exist alongside each other on the territory of the common market. Nevertheless, although it must be agreed that, in Article 16 of Regulation No 109/65, the Community legislature intended to enable a migrant worker to transfer, at the cost of French social security institutions, rights which he had acquired against insurance institutions which, while coming within the jurisdiction of the French State until 30 June 1962, subsequently became wholly independent of it (notwithstanding a provision of French law laying down that the transfer shall be available to French nationals), it would be a task of some difficulty to determine the legal basis on which a Member State was burdened with obligations which a third State was under a duty to fulfil. On the basis of the concept of rights acquired, it would be comparatively easy to justify the taking into account of insurance periods completed in Algeria when it formed part of France, since they could be regarded as periods completed under the French social security scheme to which the rights accrued by workers against that State are, therefore, related, but this does not apply to the insurance periods completed after Algeria became an independent State outside the Community. Although the concept of rights acquired, to which the abovementioned Article 16 refers, was designed to safeguard existing rights which workers had acquired against France, it obviously does not apply to insurance periods completed under a social insurance scheme of a third state since they could not have conferred any right on the worker under the French system. Otherwise the provision would have to be regarded as being designed not merely for the purpose of safeguarding rights but rather for creating new ones (ex novo), which clearly conflicts with the concept of an acquired right. This would, in all probability, have consequences which, to put it mildly, would be surprising. Even if he had never had any connexion with the French social security scheme, a national of Member State who had begun work in Algeria after it obtained its independence would, by virtue of Community law, automatically acquire the right until 1965 to benefits in the Community the cost of which, though related to insurance periods completed in a third State, would in the end have to be borne by France, and this right would be in addition to the right which, with respect to the same insurance periods, he was able to assert against Algeria. The need to safeguard freedom of movement for workers in the Community could certainly not be invoked to justify such a result. There would also be a possibility that, as regard their rights against France, foreign workers might be placed in a position of advantage compared with French nationals. If the latter had worked in Algeria until 1 July 1962 they could not be treated as migrant workers and they could benefit from the transfer of the insurance rights which they had acquired against an institution which now belonged to a third State only by virtue of a French domestic law which had restricted its applicability to the period before Algeria gained its independence. For the succeeding period, in order to avoid differences of treatment which placed them at a disadvantage compared with the nationals of other Member States who could avail themselves of Regulation No 3 until 19 January 1965, should they, too, perhaps be treated as migrant workers within the meaning of Regulation No 3? On a wider view, however, it would be difficult to discover a satisfactory legal basis for the application or, rather, the extension to circumstances outside the area of the common market of a Community regulation designed to encourage the free movement of workers within the Community. Above all, the question would arise whether such extension had been correctly carried out. If Article 5 of Regulation No 109/65, which removes Algeria only with effect from 19 January 1965 from the list of territories to which Regulation No 3 applies, were to impose on a Member State obligations relating to circumstances and relationships which were extraneous to it, it would in fact constitute a derogative provision whose effect would in substance be to give Regulation No 3 retroactive effect for workers who were nationals of a Member State of the Community and who had continued to work in Algeria after 1 July 1962. The acquisition of independence by a section of the territory of a Member State, with its concomitant departure from the territory of the Community, means in fact that, in the absence of a provision to the contrary, any Community law designed to govern situations developing within the Community automatically ceases to apply to that territory. It might also be observed that Regulation No 109/65 contains no explanation whatever of the reasons for extending the application of a provision of an internal Community law to circumstances outside the Community, which, as I have stated, is an exceptional occurrence and a departure from principle. These difficult issues will not arise if, in defining the subjective scope of the French law to which the court of reference refers, the Court accepts my recommendation to base its decision purely on the principle of nondiscrimination, contained in the abovementioned provisions of the Treaty and reiterated in Article 8 of Regulation No 3.