3.

The persons covered by the Community rules harmonizing social security schemes applicable to employed persons moving within the Community are defined in Article 2 (1) of Regulation No 1408/71. It is there provided 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 or who are stateless persons or refugees residing within the territory of one of the Member States, as also to the members of their families and their survivors’. At first sight it might be thought that the fact that the above provision sets out the condition that the person should at present be or have been in the past subject to the (social security) legislation of one or more Member States while at the same time requiring that he should be at present a national of one of those Sutes signifies that the requirement must be satisfied at the time when the worker makes the application for social security benefits. However for the benefits applied for to be granted to the plaintiff, it is by no means necessary for the concept of the field of application of the regulation contained in the aforesaid Article 2 to be restricted to the moment at which the person concerned asks that the regulation be applied to him. The field of application is the same as the field of validity and therefore the limits as regards the persons covered, as laid down by the provision in question, are applicable to all the effects of the regulation and for the various times at which the regulation produces effects; they include in particular the time when the monthly insurance periods completed in the various Member States are aggregated. On the other hand there is a reason for the apparent contrast from a temporal point of view between the way in which the first requirement is fixed and that in which the second is laid down, namely the different nature of the various types of benefits: for some (sickness benefits for example) it is necessary for the worker to be subject at the present time to the laws of a Member Sute: for others (invalidity benefits, old-age benefits) it is sufficient for the worker to have been subject to the laws of one Member Sute. It may be added that if the aforesaid provision had included persons who ‘have been’ nationals of one of the Member States it would have extended the application of Community provisions to cover also workers who ad first become subject to the social security legislation of one or more Member States after losing the nationality of one of those States. The limitation of the application of these rules to persons who are nationals at the time at which they are subject to the social security legislation of a Member Sute has the advantage of avoiding such an absurdity. To that end the requirement of nationality laid down by Article 2 (1) of Regulation No 1408/71 must be related to the periods during which the individual was a worker and subject to the laws of the Member States to which he subsequently submits his request that the aforesaid regulation be applied to him. The fulfilment of the above- mentioned condition at the time when the work is carried out by a migrant worker is indeed necessary and sufficient in order to achieve the essential aim of the Community provisions in question: that is to give effect to the principle of freedom of movement for workers of the Member States of the Community. In the light of that consideration the requirement that the condition as to nationality must be satisfied pursuant to this provision at the time also when the worker submits his application for social security benefits may be ruled out. The aforesaid aim furnishes no justification for it. In support of the interpretation which I propose it may be useful to consider the anomalous consequences which would ensue from the interpretation proposed by the German social insurance institution to the effect that the condition concerning nationality must be fulfilled not at the time when the work is carried out and the insurance periods are being completed but rather at the time when the application for insurance benefits is made. If that were the case a foreign national who had worked in several Member States of the Community and who, shortly before his retirement, had acquired the nationality of a Member Sute would, for that reason alone, benefit retroactively from the Community rules as though he had always possessed the nationality of that Member Sute. Conversely a person who had worked in several Member States of the Community and was a national of one of those States but who, before being awarded the social security benefits accruing to him on the basis of the aggregation of his completed insurance periods, had acquired the nationality of a third Sute and had lost his original nationality, would be totally excluded from the Community provisions. I again say that such a result, apart from being clearly unfair, would certainly be contrary to the aims of the Community provisions which serve to ensure the effective freedom of movement within the Community of workers who are nationals of one of the Member States.