2.

I consider that the second question logically takes precedence, in that it relates to the interpretation of a rule prescribing one of the general conditions for the application of Regulation No 1408/71. Article 2 of that regulation is indeed entitled ‘Persons covered’ and paragraph (1) provides that the regulation shall apply 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 …’. The provision of Article 10 to which the first question refers presupposes that the regulation is applicable and on that assumption residence cannot be taken as a condition for the enjoyment of the benefits acquired. On the other hand, the concept of ‘benefits … acquired under the legislation of one or more Member States’ contained in Article 10 (1) is inseparably linked to the concept of ‘workers … subject to the legislation of one or more Member States’ referred to in Article 2 (1). The essential question of interpretation thus consists in establishing the scope of the concept of ‘legislation of a Member State’ employed by both of the said provisions. According to the form given by the Belgian court to its second question the point to be established is whether an essentially legislative measure, enacted by the competent authority of a Member State at a time when the latter held an overseas territory as a colony (in this case the Colonial Decree of 7 August 1952) falls within the framework of ‘legislation of a Member State’. However, this approach seems to me too narrow: it must be broadened, in view of the fact that, even before the emergence of a new independent State on the territory of the former colony of the Congo, Belgium provided by a ‘metropolitan’ law, the said Law of 16 June 1960, that one of its own institutions should undertake the duties relating to social security under the Colonial Decree of 7 August 1952. Whilst it is true that this important circumstance cannot be disregarded, the scope of the problem is rather wider: when the entitlement of an insured person to an insurance benefit is governed by a measure of colonial legislation and has subsequently been confirmed by a measure of metropolitan legislation placing the corresponding obligation on a former colonial institution which has been maintained within the metropolitan system, does this fall within the scope of the legislation of a Member State? For the purposes of interpreting the term ‘legislation’ account must be taken of Article 1 (j) of Regulation No 1408/71: it states that this term ‘means all the laws, regulations, and other provisions and all other present or future implementing measures of each Member State relating to the branches and schemes of social security covered by Article 4 (1) and (2)’. The provision proceeds to explain that in principle the provisions of industrial agreements remain excluded. This rule cannot throw a great deal of light on the problem in question: it is obvious that all measures of a substantially legislative nature, that is, capable of regulating in general social security matters and not arising from union agreements must be embraced by the term ‘legislation’, and it cannot be doubted that the nature of the Colonial Decree of 7 August 1952 is substantially legislative. The fourth recital of the preamble to Regulation No 1408/71 is more relevant to this matter: there it is stated that ‘the considerable differences existing between national legislations as regards the persons to whom they apply make it preferable to establish the principle that the regulation applies to all nationals of Member States insured under social security schemes for employed persons’. This recital 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. In view of these factors I consider that the question, whose terms I have explained above, must be answered in the affirmative. At the time when the Colonial Decree of 7 August 1952 was enacted it did not come within the legal system of the Congolese State, which indeed did not exist, but within the framework of the Belgian colonial system; that is, a legal system based on the Belgian system and controlled by Belgian authorities. The institution to which the social security contributions were paid was set up within the framework of that system at the instance of the authorities of the Belgian State. However, at the date when the invalidity pension was awarded to Mr Bozzone the obligation to pay that pension had already been taken over by a Belgian institution which, although originating as a colonial institution, continued to operate within the legal system of metropolitan Belgium on the basis of an ordinary law of that State. I must now add some considerations on the purpose of that law in the context of the events which took place on the termination of the colonial legal system in the Congo. In general terms, it must be stated that two kinds of effect are produced on the termination of any colonial legal system through the attainment of independence by the territory in which that system operated: within the system of the new State, which, because it is newly created, has a discretion regarding the recognition of previously established relationships, with the exception of certain disputed international obligations, and within the system of the State which headed the colonial administration of the territory. In the case of the Belgian Congo the new State, today known as Zaire, rescinded the Belgian colonial social security system as from 1 July 1960. It would be interesting to consider whether under international law the Belgian State was obliged, in this situation, to undertake the obligations entered into with regard to foreign citizens by social security institutions under public law which it had itself set up and operated in the former colony when the authorities of the new State failed to assume those obligations, in particular in view of the compulsory nature of the insurance system, based on contributions, established and controlled by legislative measures of the Belgian colonial authorities. Consideration of this problem is however rendered unnecessary by the fact, which I have already noted several times, that the Belgian State of its own volition enacted the Law of 16 June 1960, a law promulgated, and I emphasize this again, even before the Congo attained its independence. The fact that, when by that law Belgium undertook social security obligations, this undertaking was said to be in the nature of a guarantee does not alter the real nature of its legal scope with regard to insured persons. In fact the law in question was intended to provide insured persons with a guarantee that the transformation of the territory in which they had worked from the status of a colony to that of a sovereign State would not entail any modification to their disadvantage in the application of the social security system set up by the said Colonial Decree. The social security institutions established for the colonies were to continue to operate on behalf of the Belgian State even after the former colonial territories had attained their independence. In this way the national legislature ensured, at any rate with regard to the settlement of situations prior to 1 July 1960, that the social security legislation adopted by Belgian authorities in respect of a territory then subject to Belgian rule would continue to have effect with regard to recipients of social security benefits. At the financial level, all the funds of the pre-existing colonial social security institutions which Belgium was able to save from confiscation by Zaire (amounting to approximately 40 % of the total colonial funds) were paid into the Office de Sécurité Sociale d'Outre-Mer. This indicates the economic continuity, in addition to the legal and political continuity, marking the relationship between Belgium and recipients of social security under the colonial system.