7.

It therefore remains to consider whether the contested residence requirement — a claimant must have been ‘incapacitated for work in the Netherlands for an uninterrupted period of 52 weeks’ — is compatible with Article 2 (4) of Regulation No 1390/81, which provides that: ‘Any benefit which has not been awarded or which has been suspended by reason of the nationality or place of residence of the person concerned shall, on the application of the person concerned, be awarded or resumed with effect from the entry into force of this Regulation ... ’, that is to say, from 1 July 1982 (Article 4). The purpose of that provision was to permit persons covered by the Community regulations at issue to obtain, from that date, social security benefits the award of which they had been refused or, after they were awarded, were suspended ‘by reason of the nationality or place of residence of the person concerned’. In that regard, the Netherlands court raises the question whether the aforementioned residence requirement, to which the very existence of the right to invalidity benefit is subject, is deprived of effect by Article 2 (4) even though that provision appears to apply only to the case in which the insured person's pension is not awarded or payment of the benefits related thereto is refused after he has transferred his residence to a Member State other than that in which the institution paying the benefit is located. As the Netherlands and the Commission observe, that question raises the question of the scope of the principle concerning the ‘waiving of residence clauses’; that principle is set out in Article 10 (1) of Regulation No 1408/71 and Article 2 (4) of Regulation No 1390/81 merely applies it to a transitional period. More precisely, the question is whether that provision concerns a condition for the acquisition of the right or merely for its implementation or its maintenance. In this regard, Article 10 (1) of Regulation No 1408/71, which essentially contains the previous provisions of Regulation No 3, provides as follows: ‘Save as otherwise provided in this Regulation, invalidity ... pensions ... acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated’ (my italics). The Court has already ruled on the meaning of the word ‘acquired’ in that article. In its judgment in Sociale Verzekeringsbank v Smieja, the Court stated that the purpose of that provision is ‘to promote the free movement of workers, by insulating those concerned from the harmful consequences which might result when they transfer their residence from one Member State to another’ (Case 51/73 [1973] ECR 1213 paragraph 20 at p. 1222). Consequently, the Court decided in its judgment in Caracciolo v INAMI that: ‘It is clear from that principle not only that the person concerned retains the right to receive pensions and benefits acquired under the legislation of one or more Member States even after taking up residence in another Member State, but also that he may not be prevented from acquiring such a right merely because he does not reside in the territory of the State in which the institution responsible for payment is situated’ (my italics). (Case 92/81 [1982] ECR 2213 paragraph 14 at p. 2224). That result is determined by the provisions of Article 51 of the EEC Treaty, the purpose of which, according to the Court's recent judgment in Sprttyt v Bestuur van de Sociale Verzekeringsbank, is ‘to contribute to the establishment of the greatest possible freedom of movement for migrant workers, which is one of the foundations of the Community’. The Court added that: ‘The aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the advantages in the field of social security guaranteed to them by the laws of a single Member State’ (judgment of 28 February 1986 in Case 284/84 Spruyt v Bestuur van de Sociale Verzekeringsbank, paragraphs 18 and 19). Thus, the Court's decisions require in principle the waiving of all residence clauses on which depend not only the maintenance of benefits already acquired but also whether entitlement to those benefits arises at all. That is the context in which Article 2 (4) of Regulation No 1390/81 must be read: it makes it impossible to rely on the provisions of Article 2 (1), according to which‘no right shall be acquired under this Regulation in respect of a period prior to the date of its entry into force’, as against self-employed persons whose right to benefit arose before 1 July 1982 if they satisfied the residence requirement and permits them to take advantage, from that date, of the provisions of Article 10 of Regulation No 1408/71, as interpreted by the Court. However, let me make two observations. — So construed, that principle, as Article 10 (1) itself expressly provides, may be modified in certain respects. For example, Annex VI to Regulation No 1408/71 on ‘special procedures for applying the legislation of certain Member States’ provides, with regard to Germany (Section C 1), that: ‘The provisions of Article 10 of the regulation shall not affect the provisions under which accidents (and occupational diseases) occurring outside the territory of the Federal Republic of Germany, and periods completed outside that territory, do not give rise to payment of benefits, or only give rise to payment of benefits under certain conditions, when those entitled to them reside outside the territory of the Federal Republic of Germany.’ On the other hand, with regard to the ‘Application of the Netherlands legislation on insurance against incapacity for work’, referred to in Annex VI, Part I, Netherlands, section 4, no exception of that type is provided for. In the absence of such an exception, the general principle laid down in Article 10 (1) must be applied. — The solution which I propose does not appear to be at odds with that proposed by Advocate General Sir Gordon Slynn in his Opinion in Case 302/84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging [1986] ECR 1821 concerning a residence requirement of the same type provided for in a transitional provision of the Law on Incapacity for Work. In that case, the plaintiff was already compulsorily insured in the Federal Republic of Germany when she joined the voluntary insurance scheme provided for by the Law on Incapacity for Work. In such a situation, the voluntary insurance is merely additional and is therefore excluded from the scope of Regulation No 1408/71 by Article 13 thereof which provides that ‘... persons to whom this Regulation applies shall be subject to the legislation of a single Member State only... ’ (my italics).