2.

An unusual feature of the present case is the fact that the President of the Centrale Raad van Beroep considered it necessary to explain in a letter of 7 June 1978 addressed to the Court of Justice as a clarification of the questions submitted to the latter ‘the facts giving rise to the case and the line of reasoning of the Centrale Raad van Beroep leading to the questions’. In my view, whilst an acquaintance with these factors is helpful, it is not indispensable for an understanding of the questions and for providing a reply. Nevertheless, I feel it is essential for me to comment on a statement in the said letter which gives rise to serious difficulties (the more so in that it seems to concern an essential step in the line of reasoning followed by the court making the reference): the statement, that is, to the effect that Mr Lohmann falls within the sphere of persons covered by Regulation No 1408/71 and that the Netherlands provisions on family allowances for children at issue in the present case fall within the ambit of the matters covered by that regulation. In the reasoning of the Netherlands court the two points are related. The letter in fact mentions Article 1 (a) (ii) and Article 2 (1) and (3) of the regulation rsuant to Article 1 (a) (ii) the expre ‘worker’ means ‘any person who mpulsorily insured for one or more e contingencies covered by the branc of social security dealt with in this re ation, under a social security scheme for all residents or for the whole working population if such person can be identified as an employed person by virtue of the manner in which such scheme is administered or financed, or, failing such criteria, is insured for some other contingency specified in Annex V under a scheme for employed persons …’. According to Article 2 (1) the regulation applies to ‘… workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States …’. According to Article 2 (3) the regulation applies to civil servants" … where they are or have been subject to the legislation of a Member State to which this regulation applies". The Centrale Raad van Beroep wonders whether or not the two Netherlands laws on family allowances for children to which the person concerned has referred (the so-called general law and the law on family allowances for wage-earners and persons treated as such) are covered by the expression ‘legislation … to which this regulation applies’ and having considered on the basis of Article 4 that they are, it has concluded therefrom that Mr Lohmann is a person covered by that regulation. In this connexion the Commission has properly observed that rights to family allowances in situations like that in the present case are not independent rights but are subordinate to other rights and related to the status of the person entitled. It therefore appears to me that a comparison of the laws on family allowances with Regulation No 1408/71 in order to establish whether the former fall within the scope of the latter is a mistaken approach to the problem. In fact, when Article 2 identifies the persons covered by the regulation as workers (and then in paragraph (3) as civil servants) ‘subject to the legislation’ of a Member State the decisive element is the personal situation of the worker, that is the basic insurance scheme by which he is covered. On the other hand, turning to an appraisal of the present case, it appears curious that Mr Lohmann is considered to be covered by Regulation No 1408/71 on the ground that the two laws on family allowances are said to qualify as legislation envisaged by that regulation, in view of the fact that the very point which must be established is whether those two laws are applicable to Mr Lohmann (in pursuance of Article 77 of the regulation). The view adopted by the Netherlands court thus appears to me untenable even if it is conceded that in principle the two Netherlands laws on family allowances may fall within the concept of ‘legislation’ for the purposes of the said Article 2 (3). In fact we are aware that the plaintiff does not satisfy all the conditions prescribed by those laws; accordingly, he is not in fact subject to one or other of them. It has already emerged that pursuant to Article 2 (3) civil servants can claim to be covered by Regulation No 1408/71 only in so far as they are or have been subject to a national legislation to which the regulation applies. Accordingly, we cannot merely find that the person concerned relies upon national laws to which the regulation is applicable; it is necessary that the conditions for the application of those laws to the person concerned should be fulfilled. In the present case reliance is placed in Regulation No 1408/71 in an endeavour to overcome the difficulty constituted by the failure to fulfil the conditions prescribed by the national legislation, but that failure rules out the application of Article 2 (3). Likewise, it must not be overlooked that Article 2 (3) is in the nature of an exceptional provision. In fact, the harmonization provisions laid down in Regulation No 1408/71 have as their basic purpose the removal, in matters of social security, of obstacles to effective freedom of movement within the Community which Article 48 of the Treaty guarantees for employed persons in the private sector. In my view, the only proper way of treating the problem is to establish the scope of Article 4 (4) of Regulation No 1408/71; the interpretation of that provision in fact affects both the question of the persons covered by the regulation and the meaning to be conferred on Article 77 (2), which forms the subjectmatter of the second question of the Netherlands court.