4.

Naturally, the defence advanced by the Belgian Government attempts to exclude the Law of 16 June 1960 and the provisions subsequently amending it fromthe ambit of Article 1 (j) and Article 2 (1) of Regulation No 1408/71. To that end the defendant puts forward a series of submissions which, however, raise few matters new to the argument which has already been discussed and rejected in the Bozzone judgment. First, the defendant maintains that the social security scheme under discussion is discrete ana “special” in relation to Belgian social legislation. But in the Bozzone case the argument put forward by the defendant in the main proceedings, which was not accepted by the Court, was that the legislation in force in the metropolitan territory of a Member State must be considered as distinct from the provisions applicable in respect of an ex-colonial territory. However, the judgment of 31 March 1977 properly placed the emphasis on the breadth of the definition of “legislation” given in Article 1 (j) of Regulation No 1408/71 which includes “all provisions laid down by law, regulation and administrative action by the Member States and must be taken to cover all the national measures applicable in this case” (paragraph 10 of the decision). For my part, in my opinion on the same case ([1977] ECR 699) I drew attention to the fourth recital in the preamble to Regulation No 1408/71, and observed on that point that it “stresses the social security schemes of the various Member States and thus emphasizes by implication the fact that in this matter an institution of a Member State charged with the supervision of a social security scheme (or any part of such scheme) has obligations whatever the nature of the legislative measure which brought those obligations into being or ensures their continuance”. I therefore remain convinced that the special nature of the colonial insurance scheme in the context of the Belgian system cannot have any influence whatsoever on the application of Article 1 (j) and Article 2 (1) of Regulation No 1408/71. The principal consideration is that the Law of 16 June 1960 and the subsequent provisions emanated from the Belgian legislature, that it is that same legislature which maintains part of the colonial scheme in force, and that it is the Belgian social security organizations which administer the system. I would then point out that there is an error in the defendant's assertion that the result of applying Regulation No 1408/71 to workers who are insured under the scheme in question would be to compel the Belgian social security organizations to aggregate insurance periods completed in the Belgian Congo and those completed in Belgium, whereas the national legislation does not provide for such aggregation even in the case of Belgian workers. In that respect the Commission rightly observes that, in regard to the aggregation of insurance periods, Regulation No 1408/71 is concerned solely with cases where the various periods have been completed under the legislation of different Member States and no provision in the regulation requires the aggregation of periods completed under two social security schemes in a single Member State. Obviously, that leaves each national legislature free to adopt any measures it thinks appropriate for coordinating the application and operation of its various social security schemes. In support of its argument that a special law, such as that of 16 June 1960, governing situations which have developed outside the Community may legitimately include restrictive clauses based on residence, the defendant relies on the provision relating to Germany to be found in Annex V, Part C, paragraph 1 (b) to Regulation No 1408/71. Under that provision it is permissible not to make payment of benefits for accidents at work or occupational diseases which have occurred outside German territory — or to make such payments only under certain conditions — when those entitled to them reside outside that territoiy. But that provision is clearly in the nature of a derogation from the general rules in the regulation and in fact the title of Annex V is “Special procedures for applying the legislations of certain Member States”. Derogations, however, may not be given a liberal interpretation and still less may they apply by analogy. The abovementioned provision is therefore valid only for the Federal Republic and the situation to which it refers. It may also be said, arguing a contrario, that where no derogation has been provided for — as in the case of the Belgian colonial insurance scheme — the general provisions in the regulation must be applied. A characteristic feature of this social security scheme, which was underlined by the defendant in support of its point of view, lies in the fact that it concerns employment pursued in territories outside the Community (the former Belgian colonies in Africa). In view of that, the defendant maintains that to apply the conditions of residence and nationality to workers who were employed in such territories cannot in any way constitute an obstacle to the free movement of workers within the Community. In fact it would be contrary to the ratio of Articles 48 and 51 of the Treaty to extend the benefit of Regulation No 1408/71 to situations which have no connexion with such movements. I have examined that aspect of the question at length in my abovementioned opinion in the Bozzone case [1977] ECR 687, especially at pp. 703 to 706. I do not think it necessary to repeat all that I said on that occasion. I shall confine myself to summarizing the three main points of my reasoning, which are as follows: (a) the fact that Articles 48 and 51 do not apply to relations between the Community and the Belgian Congo has no bearing on the issue. That fact may be disregarded when the question is to determine the applicability of Community rules on social security where there exists legislation giving the Belgian State responsibility for social security benefits based on employment carried out in former colonial territories; (b) the deciding factor is that the insurance benefits must be provided by a Belgian institution established and governed by Belgian law. That close connexion, which has existed from the outset, between the entitlement to benefits and the Member State which is to pay them is sufficient to make Regulation No 1408/71 applicable, even if the employment on which that entitlement is based was pursued in a territory outside the Community; (c) that does not imply that the Community rules are to apply to workers moving between the Community and nonmember States; it means only that the fact that the social security scheme in question was set up by a Member State is to be considered a determining factor. A further objection put forward by the defendant is that to extend the application of a Community regulation dating from 1971 to a colonial system introduced many years previously is incompatible with the requirement of legal certainty. However, the Bozzone judgment has already stressed that the continuity of the scheme instituted by the Belgian colonial decree of 7 August 1952 was guaranteed by the Law of 16 June 1960 and that that Law also amended and supplemented the scheme (13th and 14th paragraphs of the decision). It may be added that more recent legislative provisions have brought fresh amendments and what is at issue here, therefore, is a body of rules which are the subject of frequent intervention on the part of the Belgian legislature. In any case, it is clear that the date of origin has no significance at all; what counts is the fact that the rules in question are at present in force. Lastly, I think there is no need to consider the objection concerning the financial burden which will be incurred by the defendant State in observing Community rules in relation to the social security scheme in question. Considerations of that nature cannot have any influence on the interpretation of Community law and of the obligations which it imposes on Member States. Moreover, it appears from the information supplied by the defendant in reply to the questions from the Court that the burden will not be so high as to place the Belgian State in difficulties.