1.

First the Commission alone made (written) submissions and then the Institut national made submissions but only in the oral proceedings. It thereby became clear that there was a controversy which does not emerge in the same manner from the order making the reference. In my view it can be shown without far-reaching examination that its solution does not present any undue difficulties. All considerations must start with the fact that Regulation No 4, of which Article 28 is here at issue, contains in principle only provisions of a mainly procedural nature in implementation of Regulation No 3. Looked at from this point of view it must a priori be regarded as extremely improbable that Regulation No 4 could also contain provisions with decisive importance as regards substantive law. In particular one would not expect Regulation No 4, but just conceivably Regulation No 3, to contain a provision which — as the Institut national believes — excludes the right to benefits in certain circumstances which constitutes a considerable incursion into national law, if it can at all be accepted that in accordance with the general system of the regulations and in view of their function under the terms of the Treaty, such a provision is intended to be a part of the European law on social security for migrant workers. If this is borne in mind from the outset there is no difficulty in concluding from the wording of Article 28 of Regulation No 4 that the purpose of that provision is the one stated by the Commission in its written observations. Indeed the idea that the main purpose of Article 28 is to render the administrative procedure more simple and to save expense in cases where only very short insurance periods have been completed in one Member State and the insurance institution of that Member State has therefore to bear only a very small portion of, the cost of the benefits, appears convincing. It was sought to achieve the latter object because the amount of benefit due was disproportionate to the administrative cost. Under the basic principles of the law governing social security for migrant workers this is in fact only possible if any detriment to the insured's legal rights is avoided, that is to say, if no insurance periods are left out of consideration. Article 28 therefore expressly provides that the other Member States shall take into account the periods in question (insurance periods of less than 6 months) ‘for the acquisition, maintenance and recovery of right to benefits’ and further that this shall not apply ‘for determining the proportionate amount due in accordance with Article 28 (1) (b) of the Regulation’. Thus for Member States which stipulate longer insurance periods the benefits payable are higher in comparison with the system under Article 28 of Regulation No 3. The Commission dealt with this in detail in its written observations. The clear basic idea behind Article 28 of Regulation No 4 may therefore be said to be a balancing of the compensation for the necessities entailed in simplifying the administration. On the other hand it must also follow that where there is no possibility of compensation in other Member States which stipulate longer insurance periods (as for example in this case where the minimum insurance period for the acquisition of a right to benefits is not achieved even when periods are aggregated) there can be no question of the application of the first sentence of Article 28 (2) of Regulation No 4, that is the non-payment of benefits for insurance periods of less than six months. If it were otherwise the rights of the insured would be lost, which would not be reconcilable with the principles of Regulation No 3. If the principle contained in Article 51 of the EEC Treaty, which these regulations serve to apply, is to be observed, there remains only the possibility, in cases such as this where the law of the Member State which requires the longer insurance period does not enable the right to be acquired, of applying the basic principle of aggregation to the country which requires the shorter insurance periods. In that Member State the pension must then be calculated in accordance with the provisions of Regulation No 3, that is, by taking all insurance periods into account, and the share of the benefits to be paid by its insurance institution must be calculated on the pro rata basis. The Commission has pointed out that this is how other cases that came before the Administrative Committee on Social Security for Migrant Workers were dealt with and it was apparently regarded as the correct interpretation in the course of the negotiations on the revision of Regulations Nos 3 and 4. According to the explanation submitted by the Commission which is, taken as a whole convincing and in harmony with the system, the question should be answered in the negative and it should be pointed out that Article 28 (2) of Regulation No 4 does not apply when the acquisition of a right is excluded in Member States which stipulate longer insurance periods but rather that in such a case it is the first Member State which, although the insurance periods completed in that country amount to less than six months, must determine the matured right to benefits by means of aggregation and proportional calculation.