Opinion of Mr Advocate General Mancini delivered on 13 October 1987. - Mario Roviello v Landesversicherungsanstalt Schwaben. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Social security - Pension in respect of occupational invalidity or incapacity for work. - Case 20/85.



European Court reports 1988 Page 02805



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . Proceedings are currently pending between Mario Roviello and the Landesversicherungsanstalt Schwaben ( Regional Insurance Office, Swabia ), Augsburg, in which the former is seeking to obtain an occupational invalidity pension . The parties are in dispute as to : ( a ) the relevance for the purpose of determining entitlement to such a pension of the occupation pursued by the plaintiff in a Member State other than the Federal Republic of Germany; ( b ) the aggregation of periods of insurance completed by the plaintiff in another Member State with those completed by him in Germany .

The Bundessozialgericht ( Federal Social Court ), before which the dispute was brought, has asked the Court of Justice to interpret Point 15 of Section C ( Germany ) of Annex VI to Regulation No 1408/71 of the Council on the application of social security schemes to migrant workers and their families ( Official Journal, English Special Edition 1971 ( II ), p . 416 ), as amended by Council Regulation No 2000/83 of 2 June 1983 ( Official Journal L 230, p . 1 ).

2 . The facts . Born in 1935, Mr Roviello is an Italian national and, it appears, has no specific professional qualifications . From 1960 to 1974 he worked in Italy as a tiler, initially as the employee of an undertaking, occupying a post in respect of which insurance contributions had to be paid, and later as a self-employed person . After he came to the Federal Republic of Germany, he pursued the same activity from May 1976 to June 1980, although not continuously . He thus completed in that country a period of compulsory insurance of 48 months .

In 1980, since he considered that he was suffering from an illness which entitled him to an occupational invalidity pension, Mr Roviello applied for such a pension to the competent Italian and German institutions . Both ofthose applications were refused . In particular, the Regional Insurance Office for Swabia gave as the ground for its refusal the fact that the plaintiff was still able to do a full day' s work of any kind, as long as the work was not heavy . Mr Roviello responded to that decision, dated 16 October 1981, by bringing an action before the Sozialgericht ( Social Court ) Stuttgart and subsequently appealed to the Landessozialgericht ( Higher Social Court ) Baden-Wuerttemberg . In a decision of 22 August 1983, the latter court also dismissed his action . It pointed out that the plaintiff had no formal qualification as a tiler and had not pursued that occupation continuously . He was therefore to be regarded as a semi-skilled worker and, as such, was not entitled to be assigned to a specific activity .

At that point, Mr Roviello appealed on a point of law to the Bundessozialgericht . He argued that the appeal court' s findings concerning the occupation hitherto pursued by him were inadequate, claimed in that context that a tiler is a skilled worker and complained that the judgment did not specify the jobs to which he could have been assigned . Consequently, he sought : ( a ) the annulment of the judgments at first and second instance, ( b ) the annulment of the decision of 16 October 1981, and ( c ) an order directing the Landesversicherungsanstalt Schwaben to pay him a severance grant for the period from 1 December 1980 to 11 January 1982 and the pension in question from 17 February 1982 .

By an order of 28 November 1984, the Fourth Senate of the Bundessozialgericht stayed the proceedings and referred the following questions to this Court for a preliminary ruling under Article 177 of the EEC Treaty :

"( 1 ) For the purpose of determining entitlement to an occupational invalidity pension, is Point 15 of Section C in Annex VI of Regulation No 1408/71, as amended by Regulation No 2000/83, to be interpreted as meaning that account must be taken of the occupation hitherto pursued by an insured person only where the periods of insurance necessary for the acquisition of entitlement to that pension were completed solely in activities which are subject to compulsory insurance under German legislation?

( 2 ) If the first question is answered in the affirmative, is Point 15 also applicable to contingencies which materialized before Regulation No 2000/83 entered into force ( 1 July 1982 )?

( 3 ) If the second question is answered in the negative, does it follow from Point 15 that entitlement to a pension which has not yet been established must be restricted to the period prior to the date on which the regulation entered into force ( 1 July 1982 )?"

3 . The unusual length of these proceedings is due to events which are worth mentioning . The order for reference was received at the Court Registry on 24 January 1985 and the Court decided to open the oral procedure without any preliminary inquiry . However, it put a question to the Commission concerning the formal validity of Point 15 and, four days later, having received the reply ( 28 February 1986 ), assigned the case to the Second Chamber under Article 95 ( 1 ) and ( 2 ) of the Rules of Procedure . The hearing took place on 24 April 1986 . In the Opinion which I delivered on 22 January 1987, I concluded that ( a ) it would be necessary to rule on the validity of a provision contained in a regulation ( No 2000/83 ) adopted unanimously by the Council; ( b ) that Point 15 of Section C, Germany, in Annex VI, inserted in Regulation No 1408/71 by the abovementioned measure, must be declared void on the ground that it was vitiated by a breach of essential procedural requirements and was in any event incompatible with Articles 7 and 51 of the EEC Treaty; ( c ) that, for those reasons, it was proper to hear the Council and the Parliament . I therefore proposed that the Chamber refer the case to the Full Court under Article 95 ( 4 ).

The Second Chamber accepted my suggestion and the Court decided to reopen the oral procedure under Article 61 of the Rules of Procedure ( 11 February 1987 ). It then invited the Council, the Commission and the Parliament to submit written observations on the validity of Point 15, with regard in particular to the formal requirements for its adoption, and decided to send the Parliament a copy of all the documents in the case . During the hearing, which took place on 8 April 1987 and at which agents of the three institutions and Mr Roviello' s representative presented arguments, both points of view from which the validity of the contested provision seemed open to question were discussed . Therefore I think it necessary to examine them again . I am also led to that conclusion by the fact that I am addressing a formation of the Court different from that which I addressed eight months ago and by the principle that courts must act with all deliberate speed which, I believe, requires the Court to reply to the national court without any further procedural delays .

My views have not changed since 22 January 1987 . This Opinion therefore essentially repeats my previous one . However, it takes account of the arguments put forward by the three institutions after the reopening of the oral procedure and I have added to it a detailed consideration of the views held by the Parliament, the Council and legal writers on the subject of renewed consultation .

4 . In order to clarify the case, it is necessary to consider the national rules applying at the time of the events and the Community rules referred to in the three questions .

The basis of the national rules is the Reichsversicherungsordnung ( German Insurance Code ) of 1911, which is the German legislation on social security . Paragraph 1246 of that measure provides that an occupational invalidity pension is due to an insured person : ( a ) in respect of whose occupation or activity prior to the materialization of the contingency compulsory insurance contributions had been paid for at least 36 months out of the preceding 60; ( b ) who had completed a "waiting period" of at least 60 months of insurance ( subparagraph 1 ). An insured person is regarded as an "occupational invalid" if, as a result of illness, infirmity or loss of physical or mental capacity, his ability to earn is reduced to less than half of what would be appropriate for a worker in good physical and mental health and having similar training and equivalent knowledge and abilities ( subparagraph 2, first sentence ). Capacity to earn is assessed in the light of all the occupations which correspond to the capacity and aptitudes of the insured person and which he could be asked to engage in, having regard to the length and level of his training, to the occupation hitherto pursued and to the requirements of that occupation ( subparagraph 2, second sentence ).

It should also be pointed out that the German courts have developed a system of classification of invalids with a view to assigning them to other activities . That system is composed of four categories based on various criteria, among which is to be found principally the amount of the salary : the top category comprises foremen and/or highly skilled workers (" Vorarbeiter mit Leistungsfunktion bzw . besonders hoch qualifizierter Arbeiter "), skilled workers (" Facharbeiter "), semi-skilled workers (" angelernter Arbeiter "), and unskilled workers (" ungelernter Arbeiter ") ( Entscheidungen des Bundessozialgerichts BSGE 41, pp . 129 et seq .; 43, pp . 243 et seq .; 45, pp . 276 et seq .; and 49, pp . 54 et seq .).

As a result of that classification, the competent institution may refuse to grant the pension only if : ( a ) the insured person may be assigned to an occupation included among the activities characteristic of the category immediately below that to which the occupation hitherto pursued by him belongs; ( b ) the salary for that occupation is at least equal to half that paid to those pursuing the insured person' s former occupation . An assessment of the activity pursued by the insured person before he became an invalid is thus of particular importance in determining the category in which the institution must place him . It would appear that the German courts require not merely that the insured person should have done work corresponding to his job but also that he should have possessed the theoretical knowledge and practical aptitudes normally required of persons in that category . In other words, the insured person is supposed to have been "competitive" in regard to other workers in the same group ( Entscheidungen des Bundessozialgerichts BSGE 41, pp . 129 et seq ., Bundessozialgericht Sozialrecht 2200, Paragraph 1246, No 53, p . 163 ).

That is the complex framework of legal rules and decisions in the light of which the Bundessozialgericht must decide whether ( a ) a worker not holding the required qualification but having pursued his occupation for many years may be assimilated to workers who have completed the required period of training, and ( b ) the pursuit of an occupation in another Member State has any effect on the conditions to which the German rules make the right to a pension subject . The first problem is extraneous to the subject on which the Court has been asked to rule . I will go into the second in detail after examining the relevant Community rules .

5 . As the Court will be aware, Article 89 of Regulation No 1408/71 provides that "special procedures for implementing the legislations of certain Member States are set out in Annex VI ". Article 1 of Regulation No 2000/83 added a Point 15 to Section C, Germany, of that Annex . It reads as follows : "Where under German legislation account must be taken of the occupation hitherto pursued by the person concerned for the purpose of determining his entitlement to a pension in respect of occupational invalidity ... that occupation shall be determined by taking account only of insurable activities under German legislation ". ( 1 )

The process leading to the adoption of the rules cited above is of great importance for the Court' s decision . According to the Commission, the Council and the Landesversicherungsanstalt Schwaben, the origin of those rules is to be found in the difficulties encountered by the German social security institutions and, in the event of litigation, by the courts, in determining occupational invalidity pensions by applying the case-law of the Bundessozialgericht ( see the judgment of 29 November 1978, Entscheidungen des Bundessozialgerichts 47, pp . 183 et seq .). Before that decision, those bodies took into account only the principal occupation pursued by the claimant during the period of activity covered by the German system . By contrast, from 1979 the social security institutions and the courts were also obliged to take account of the activity which the claimant had pursued in another Member State and the insurance period which he had completed there . In particular, they were obliged to carry out difficult and laborious enquiries to determine whether the latter activity presupposed training, and gave rise to a salary, similar to those required by German legislation for the same or analogous activities .

The German Government drew the Community' s attention to the problem in a note of 18 November 1980 . However, the Commission does not appear to have regarded it as very serious . In the proposal which it submitted to the Council on 21 December 1982 and which is the source of Regulation No 2000/83 is to be found an addition to Section C, Germany, designated Point 14 ( which is among other things practically identical to the provision under the same number in the final text ) but no Point 15 ( Official Journal C 27, 2.2.1983, p . 3 ). Both the Economic and Social Committee, by way of an Opinion prepared at its 205th Plenary Session held in Brussels on 23 and 24 January 1983 ( Official Journal C 90, p . 29 ), and the European Parliament adopted decisions on the document thus drafted, that is to say, without the provision which is of interest here . The European Parliament approved it on two occasions : at the sitting on 11 March, by way of the procedure without a report, and at the sitting on 16 May, by way of a resolution based on the report of Mr Ghergo MEP, which terminated the consultation procedure ( Official Journal C 161, p . 17 ).

Point 15 emerged after the Commission had submitted its text and after that text had been submitted to the Parliament for its opinion . It was proposed by the German delegation in the context of the Working Party on Social Questions in the Council ( January 1983 ). The group recommended the insertion of the point in Regulation No 1408/71 . The proposal was accepted by the Permanent Representatives Committee ( 27 May 1983 ) and was finally adopted unanimously by the Council at the sitting at which Regulation No 2000/83 was adopted ( 2 June 1983 ).

6 . After that introduction let me point out that although it has not formally asked the Court to rule on the validity of Point 15, the Bundessozialgericht deals at length with its origins ( pp . 8 and 9 of the order for reference ) and thereby shows clearly that it considered the problem . The plaintiff in the main proceedings is more explicit : in his written observations, he asks whether the provision is valid, having regard to the fact that it was not proposed by the Commission and the Parliament was not consulted on it .

For their part, the Commission and the Council correctly described the procedure leading to the adoption of the contested provision but also maintained that it was lawful . Citing the judgment of 15 July 1970 in Case 41/69 ACF Chemiefarma v Commission (( 1970 )) ECR 661, paragraphs 68 and 69 of the decision, the Commission observes in particular that : "( a ) When the Council has consulted the Assembly on a proposal for a regulation and has subsequently modified the text thereof, a new consultation is not necessary if the amendment does not substantially change the proposal as a whole; ( b ) Point 15 contains a provision which, being designed to resolve certain problems which arose out of the application of German legislation, is merely technical and, as such, not likely to bring about the abovementioned substantial alteration ".

The Council' s argument is more diffuse . It points out in general that if the Assembly had to be consulted on all points of a legislative proposal and consulted again on the final terms thereof, the procedure for adopting Community measures would be excessively ponderous . Furthermore, in this case, the special procedures for implementing the legislation of certain Member States, which, according to Article 89 of Regulation No 1408/71, are governed by Annex VI, do not appear in principle capable of having an effect on the substance of that measure or on amendments thereto and therefore, to be of such a nature as to require renewed consultation of the Parliament . Such a consultation could undoubtedly become necessary if one of those detailed rules was contrary to Article 51 of the Treaty . As is established by the judgment of 9 December 1982 in Case 309/81 ( Klughardt v Hauptzollamt Hamburg-St Annen (( 1982 )) ECR 4291 ), that must, however, be excluded in this case . The Community legislature in fact made use of Regulation No 2000/83 "in order to solve other problems arising from particular features of the national social security legislations ".

I shall consider those arguments shortly . I think it is important to emphasize at this stage that the Court' s case-law does not in any way prevent it from ruling on the validity of Point 15 . It could be argued that, according to the judgment of 9 December 1965 in Case 44/65 Hessische Knappschaft v Singer (( 1965 )) ECR 965, a party to the main action cannot, in the context of an application for a preliminary ruling, ask the Court to decide whether the measure to be interpreted is valid . However, such an objection would not be well founded if it is true, as I have just pointed out, that in this case it is primarily the Bundessozialgericht which raised the problem, and thereby put it before the Court . In such a situation, it would seem to me that the principle laid down by the Court in its judgment of 1 December 1965 in Case 16/65 Firma C . Schwarze v Einfuhr - und Vorratsstelle fuer Getreide und Futtermittel (( 1965 )) ECR 877 is the relevant one .

That decision states that : "the conclusion to be drawn from the ... questions ... is that the (( national )) court is concerned less with the interpretation of the Treaty or of a measure adopted by a Community institution than with obtaining a preliminary ruling on the validity of such a measure, which the Court is empowered to give by subparagraph ( b ) of the first paragraph of Article 177 ". In such cases, "it is appropriate for the Court to inform the national court at once of its view without compelling the national court to comply with purely formal requirements which would uselessly prolong the procedure ... and would be contrary to (( the )) very nature (( of Article 177 )). Although (( such )) strict adherence to formal requirements may be defended in the case of litigation between two parties whose mutual rights must be subject to strict rules, it would be inappropriate to the special field of judicial cooperation under Article 177 which requires the national court and the Court of Justice ... to make direct and complementary contributions to the working out of a decision" ( p . 886 ).

A later and particularly incisive application of the same principle was made by the Court in its judgment of 3 February 1977 in Case 62/76 Strehl v Nationaal Pensioenfonds voor Mijnwerkers (( 1977 )) ECR 211 . The Court was asked to interpret Article 46 ( 3 ) of Regulation No 1408/71 and Decision No 91 of the Administrative Commission on Social Security for Migrant Workers . However, the Court first considered the validity of those provisions and, as the Court will be aware, declared them incompatible with Article 51 of the Treaty . In regard more generally to the raising by the Court of its own motion of defects not raised by the national court ( that case was concerned with a breach of essential procedural requirements ), it is useful to bear in mind the judgment of 18 February 1964 in Joined Cases 73 and 74/63 NV Internationale Krediet - en Handelsvereniging Rotterdam and Others v Netherlands Minister for Agriculture and Fisheries (( 1964 )) ECR 1 .

7 . In the light of those considerations, and in order to achieve the objective I set myself in Section 3, I propose to assess the validity of Point 15 from three aspects . The first two concern the breach of essential procedural requirements ( absence of a proposal from the Commission and failure to consult the Parliament ) and the third concerns a breach of the Treaty .

In regard to the first aspect, I note that Regulation No 2000/83 is based on two provisions, Articles 51 and 235, according to which the Council is to act on a proposal from the Commission . However, it is clear that the Council may always amend the proposal provided that it acts unanimously ( Article 149, first paragraph ) and, I would add, provided that the modification or addition does not distort the Commission' s proposal to such an extent as to encroach upon the power of initiative which the Treaty reserves to the latter ( for a similar view see the Report of Mr Jozeau-Marigné MEP on legal problems raised by the consultation of the European Parliament, Session Documents 1967/68, 8.8.1967, No 110, p . 8 ). According to the better view among legal writers, that power is not diminished if the amendment, though altering the legal basis of the proposal, remains within the scope of the subject to which the proposal refers ( see, for further comment, Dewost, "Commentaire à l' article 149" in Le droit de la Communauté économique européenne, Vol . 9, Brussels, 1979, p . 133 ).

If that argument is correct ( and it seems to me that it is ) it is sufficient, in order to conclude that in this context Point 15 may be regarded as valid, to observe ( a ) that Regulation No 2000/83, in which the provision is contained, was adopted unanimously, and ( b ) that the provision certainly forms part of the subject-matter with which the Commission' s proposal dealt, namely the Community rules on social security .

8 . Consideration of the second aspect raises more complex questions . As the Court will be aware, consultation of the European Parliament is a very important requirement . It is, as was stated in the famous Isoglucose cases, "an essential factor in the institutional balance intended by the Treaty" because it "allows the Parliament to play an active part in the legislative process of the Community" and thus, "although limited, it reflects ... the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly ". It follows that "due consultation of the Parliament in the cases provided for by the Treaty ... constitutes an essential formality disregard of which means that the measure concerned is void" and that observance of that requirement "implies that the Parliament has expressed its opinion" ( judgments of 29 October 1980 in Case 138/79 Roquette frères v Council (( 1980 )) ECR 3333, paragraph 33, and Case 139/79 Maïzena v Council (( 1980 )) ECR 3393, paragraph 34 ).

However, the proposal on which the Parliament expressed its opinion may be amended, as occurred in this case, and opinions on the need to submit such an amendment for the approval of the Assembly are not merely varied but largely divergent . Let me consider them one by one, beginning with those of the institutions concerned . Conscious of the fact that consultation is the heart of the system of checks and balances upon which the Community constitutional order is based, the Parliament has often argued that it is desirable to have generous recourse to that procedure and has often complained of the Council' s failure to renew consultations . The ideas underlying its policies are therefore to be found in numerous documents, some of which go back to the beginning of the 1960s ( see the reports by Mr Deringer MEP, Session Documents 1962/63, No 70, paragraph 14; Mr Luecker MEP, Session Documents 1962/63, No 100, paragraph 13; Mr Furler MEP, Session Documents 1963/64, No 31, paragraph 67; Mr Illerhaus MEP, Session Documents 1966/67, No 118, paragraph 19 ). However, they were set out in an organized way for the first time in the abovementioned report by Mr Jozeau-Marigné MEP .

That document distinguishes between formal and material amendments . With regard to the former, it is not necessary to renew consultation of the Parliament when : ( a ) they do not alter the economic effects of the proposal; ( b ) they change merely the legal basis mentioned by the Commission, except where the change has an effect on the quorum required for approval of the measure; ( c ) they concern the external form of the measure . With regard to the second category, it is stated that "renewed consultation ... (( is )) always necessary in cases in which the Council (( is seeking )) to adopt decisions in regard to a matter not covered in the initial proposal ... (( and in particular when )) the Commission (( has proposed )) to amend a specific point of an already existing regulation and the Council wishes to make use of that opportunity to ... amend other points . The same may be said if the Council continues to pursue the objective (( indicated )) in the Commission' s text, but decides to adopt ... forms of words or solutions ... (( upon which no )) decision has previously been adopted and ... therefore which were not ... in contemplation during the consultation procedure" ( op . cit ., pp . 8 and 9 ).

The document summarized above served as a basis for a resolution ( 17 October 1967 ) in which the Council and the Commission were called upon to work on the basis of the following principles : ( a ) the Parliament is to be consulted on all the fundamental provisions of measures which the Council proposes to adopt, even if it is necessary to seek several opinions on the same proposal; ( b ) the Parliament is to be consulted on all measures adopted under basic regulations which significantly influence the political, economic or legal consequences thereof; ( c ) measures on which the Parliament has not been properly consulted are void and the Court of Justice may so declare them ( Journal Officiel 1967, No 268, p . 7 ). A further precise rule is laid down in the Resolution of 9 July 1981 on relations between the Parliament and the Council . It states that the latter should repeat its consultation of the Parliament whenever "the Commission amends its original proposal on which Parliament has already delivered an opinion and such amendments have not been considered by Parliament" ( Official Journal 1981, C 234, p . 54 ).

On the other hand, the rules contained in the Resolution of 12 September 1985 on the granting of VAT relief to German farmers ( Official Journal 1985, C 262, p . 105 ) are more general, as are those contained in the Resolution of 10 October 1985 on the proposal for a Council regulation on the termination of service of officials ( Official Journal 1985, C 288, p . 103 ). According to the first of those documents, where "the proposal about to be adopted by the Council is substantially different from that ... submitted to the European Parliament, (( the latter )) must be reconsulted" ( paragraph 3 ). The second document states that the requirement of consultation is not satisfied if "the proposal finally adopted by the Council contains elements marking a substantial departure from the proposal on which Parliament had expressed its opinion" ( paragraph 2 ). It should be pointed out, however, that both texts call upon the Commission "to withdraw the proposal for a regulation ... if it emerges that the Council was in the process of modifying an essential element thereof, thereby invalidating the consultation procedure" ( paragraphs 4 and 6 respectively ).

As well as making the above statements, the Parliament has incorporated into its own internal rules some provisions on the subject of renewed consultation . Rule 37 of the version in force at the time at which Regulation No 2000/83 was adopted provided that "where the Commission withdraws its initial proposal after Parliament has delivered its opinion in order to replace it with another text, or substantially amends the proposal on which Parliament originally delivered an opinion, the President shall request that Parliament be consulted once again ". In the version now in force, a similar provision ( Rule 42 ) is laid down in regard to amendments made by the Council .

9 . Let me now turn to the Council . Commenting on the abovementioned Resolution of the Assembly of 27 October 1967, the acting President, Mr Medici, stated that "the purpose of consultation is ... to permit the Council and the Commission to be aware of the Parliament' s opinion ... in order to take account thereof in drawing up Community legislation . As a general rule, that objective is achieved when the Parliament has given its opinion . If, however, the amendments which the Council wishes to make concern essential problems not previously referred to the Parliament, we will not hesitate to consider the possibility of renewed consultation . It must, however, be pointed out that when the Council is called upon to adopt a decision on a proposal from the Commission, it is generally very difficult to consult the Parliament every time modifications or amendments are proposed" ( sitting of 26.11.1968, Official Journal 1968, Supplement 108, p . 20 et seq .).

That line of argument, full of inconsistencies and of little binding effect, is also the basis for the later texts . Thus, a document dated November 1973 states that "where, following an initial consultation of the European Parliament, the Commission submits an amended proposal, a further consultation will take place if the amendments exceed the scope of the original proposal; furthermore, reconsultation may be considered appropriate in special cases, depending upon the time available to the Council before the adoption of the provision in question and the importance of the proposed amendment" ( Document No R/2673/73 ( ASS 1253 ) corr . 1; see also the Council' s reply of 20 December 1979 to Written Question No 409/79 submitted by Lord O' Hagan ( Official Journal 1980, C 27, p . 3 ) ). Similarly, in a 1982 text, it is stated that the Council "already consults the Parliament on amended proposals when there have been substantive changes to the original proposal as a whole and ... it intends to continue doing so" ( letter of 8 April 1982 from the acting President, Mr De Keersmaeker, to the President of the Parliament, European Parliament, Document No PE 78.554, p . 5, Section E ).

However, it seems that only once in the relationship between the Council and the Parliament has there been renewed consultation, incidentally after my first Opinion in this case . A letter of 24 April 1987 invites the Assembly to again express its opinion on the proposal for a directive on value limits for the discharge of aldrin, dieldrin and endrin, amended by the Commission ( European Parliament, Session Documents 1987/88, C Series, No 1-37/87 ).

10 . In legal writing, the most important contribution to the study of this subject remains Schaub' s treatise, Die Anhoerung des europaeischen Parlaments im Rechtsetzungsverfahren der EWG ( Berlin, 1971 ). After pointing out that the comparison between the proposal submitted for an opinion and that resulting from successive amendments made by the Commission and the Council is to be made on the basis of the individual provisions and in regard to the entire text, Schaub also distinguishes between formal and material amendments . Among the former, those concerning the legal basis and the external form of the measure require renewed consultation only if they affect the material content of the measure . On the other hand, a request for a new opinion is necessary if :

( a ) it is proposed to extend the duration of a provision, for example, by transforming a temporary provision into a permanent one;

( b ) it is decided to remove part of the proposal;

( c ) several proposals have been joined in a single measure and that joining gives rise to a text which is different in nature .

In the case of material amendments, on the other hand, renewed consultation is required when : ( a ) they alter the scope of the original proposal either by adding provisions which were not contained in the text submitted to the Parliament or which do not reflect the views expressed in the latter' s opinion, or by conferring on the Council or the Commission powers which were not initially provided for; ( b ) they reduce the scope of the proposal so as to bring about a change in its nature; ( c ) they enlarge the scope . Schaub offers an example of the third possibility which seems to anticipate this case in all its details : he states that renewed consultation is essential when the proposal concerns amendments to be introduced in a measure already in force and the Council or the Commission decides, after consultation of the Parliament, to make further amendments to that text ( p . 155 ).

It is also pointed out that, according to the majority of legal writers, the power to give opinions is conferred on the Parliament so that it may participate in the legislative process . It follows that Article 149 of the Treaty is also a substantive provision and consequently may not be interpreted restrictively ( Grabitz and Laeufer, Das europaeische Parlament, Bonn, 1980, p . 127; Laeufer, in Grabitz, Kommentar zum EWG-Vertrag, Munich, 1986, paragraph 14 on Article 137; dubitante, Louis, Les règlements de la Communauté économique européenne, Brussels, 1969, p . 12, which refers to several judgments in regard to concordant opinions of the Council of the ECSC : the judgment of 13 July 1965 in Case 111/63 Lemmerz Werke GmbH v High Authority, Case 37/64 Mannesmann v High Authority and Case 39/64 Société des aciéries du Temple v High Authority (( 1965 )) ECR 677, 725 and 761 respectively, now superseded, however, by the Isoglucose judgments ).

11 . Finally, with regard to the case-law, it should be noted that the Court of Justice has never ruled in general and abstract terms on the problem which arises in this case . It has, however, laid down a series of criteria which, if applied in a flexible and reasonable manner, make it possible in the great majority of cases to provide a satisfactory solution to the problem .

The leading case in that regard is Chemiefarma, cited above . The applicant alleged that two provisions of Regulation No 17/62 of the Council were invalid : Article 15 because it provided for a system of fines different from that provided for in the proposal considered by the Assembly, and Article 24 because it gave the Commission powers which had not been mentioned in that proposal . The Court rejected those two complaints, observing in regard to the first that "considered as a whole, the substance of the draft regulation on which the Parliament was consulted has not been altered" ( paragraph 178 ) and, in regard to the second, that "in Article 20 of the ...draft in the version approved by Parliament ... there is a provision substantially identical to Article 24 of Regulation No 17" ( paragraph 69 ).

Then followed three judgments of 4 February 1982 ( Case 817/79 Buyl v Commission (( 1982 )) ECR 245, Case 828/79 Adam v Commission (( 1982 )) ECR 269 and Case 1253/79 Battaglia v Commission (( 1982 )) ECR 297 ). In those cases also the applicants claimed that Council Regulation No 3085/78 was too different from the proposal on which the Assembly had expressed its opinion to be considered valid, whereas the Commission defended the validity of the regulation by arguing that with regard to measures adopted unanimously, the question whether or not it is necessary to consult the Parliament again is "pointless ". Impliedly rejecting the defendant' s argument, the Court compared closely the initial proposal of the Commission, the Parliament' s opinion and the definitive text adopted by the Council . It concluded that the latter conformed "to the proposal submitted ... apart from the substitution of updated exchange rates for the EUA and the transitional provisions intended to alleviate the effect of ... the regulation ... with regard to certain pensioners ". However, such divergences did not deprive the measure of validity : the former constituted in reality a "change of method" rather than "of substance" and the latter "corresponded broadly to the wish expressed by the Parliament" ( Case 817/79, cited above, paragraph 23 ).

The lessons which may be drawn from those judgments seem evident . A proposal in which provisions are amended or in which a new provision is inserted will escape the need to be submitted once again to the Parliament only if the amendment or addition fulfils one of the following conditions : ( a ) it leaves unaltered the essential aspects of the provision on which it has an effect ( Chemiefarma, cited above, paragraph 69 ); ( b ) it is of a merely technical nature, that is to say, it involves changes of method and not of substance ( Buyl, paragraph 23; Chemiefarma, paragraph 178, cited above ); and ( c ) it corresponds to the wishes of the Parliament ( Buyl, ibidem ).

12 . Let me now turn to Point 15 . I would point out that the Commission' s proposal envisaged adding to Part C, Germany, of Annex VI to Regulation No 1408/71 a single point, No 14 . That provision was advantageous to migrant workers because it required the German authorities to calculate the net earnings to be taken into account for the determination of the benefit to be paid to insured persons not residing in Germany as though they did reside there . On the other hand, the Court has seen that Point 15 is distinctly unfavourable to the same workers . Hence, if the distinction drawn by Jozeau-Marigné and Schaub is applied, there is no doubt that the addition of that provision constitutes a modification of the "material" content or "scope" of the proposal .

However, can it be said that such a modification is also "substantial" in the light of the criteria laid down in the Court' s case-law? I believe that it is . It is clear that it is impossible to regard condition ( a ) as being satisfied, that is to say, to regard the provision in which it is contained ( Article 1 of Regulation No 2000/83 ) as "substantially identical" to the corresponding provision in the proposal or, to have recourse once again to Schaub, such as not to alter the "nature" of that provision . Moreover, condition ( c ) is also not satisfied . The Commission does not agree and draws an analogy between this case and Chemiefarma, but its argument is unsound . Whereas in Chemiefarma, Article 15 was undoubtedly designed to meet the wishes of the Assembly, there is no indication in the minutes of the sitting of 11 March 1983, the report of Mr Ghergo MEP or the Resolution of 16 May 1983 that the contested provision was intended to satisfy a wish expressed by the Parliament .

There remains condition ( b ), and it is precisely on that condition that the Commission and the Council rely most heavily . It will be recalled that in the view of the former, Point 15 contains a provision of a merely technical nature which, as is stated in Article 89 of Regulation No 1408/71, takes account of certain particularities of German law . However, that is not quite true . For one thing, Article 89 could not possibly require that account be taken of the special technical characteristics of national legislation . As the Court has seen, that article refers mainly to Annex VI in which the special procedures for implementing national legislation are to be found . However, the fundamental point is that the contested provision does not lay down a merely "technical rule" and the Commission itself accepts that : in its observations, it claimed that far from merely clarifying a legal situation likely to produce anomalies or undesired effects, that provision lays down "new rules", that is to say, it modifies the system in force up to that time - according to which the occupation hitherto pursued was determined by taking account of activities pursued in other Member States - by laying down a formula which requires that account should be taken only of activities pursued in Germany ( p . 20 ).

With regard to the Council, the arguments which I have summarized in Section 6 could not be weaker . Thus, to say that the special procedures for implementing national legislation leave the regulation unaltered in principle makes no sense if it is true, as the legal writers and, above all, the Court' s case-law consider, that amendments must be assessed not in the abstract but by comparing in detail and as a whole the text of the proposal with that of the final measure . It is no less absurd to claim that renewed consultation is necessary only if those arrangements are contrary to the "principles of Community law concerning the coordination of social legislation", that is to say, essentially with Article 51 of the Treaty . In a case of that sort, those arrangements would be invalid and a second opinion of the Parliament would certainly not be sufficient to validate them . I would add that that argument is in conflict with the judgment of 25 February 1986 in Case 284/84 Spruyt v Bestuur van de Sociale Verzekeringsbank (( 1986 )) ECR 685, paragraph 18 of which states that : "the provisions of Regulation No 1408/71, and in particular those of Annex VI thereto, were adopted to implement Article 51 of the EEC Treaty and must be interpreted in the light of the objective of Article 51, which 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 reference to the judgment in Klughardt, in which the Court confirmed its case-law concerning Article 190 by deciding that the recitals in the preamble set out the essential aspects, but not all the details, of the measure adopted, is also entirely pointless . On the contrary, a factor which emerged during the procedure before the Full Court seems to me to be most valuable, namely the admission that the Secretariat-General of the Council made in a memorandum drafted on 17 March 1983 for the meeting of the Social Questions Group which took place two weeks later . That body stated that the comments of the Member States on the Commission' s proposal were mainly "modifications of a linguistic or drafting nature", but at least in part "concerned requests for substantive amendments of the text of Regulations Nos . 1408/71 and 574/72 as now in force ". Thus, the Council spoke of substantive amendments four years ago but is now speaking of technical adjustments . The about-face could not be more apparent and the argument on the basis of which the Council' s Agent tried at the hearing to deny it or to diminish its scope - that the Council and the Secretariat-General of the Council are not the same thing - is clearly of no value .

If those comments are justified, it appears to me to be logical to deduce from them that the failure to renew consultation of the Parliament constituted a breach of essential procedural requirements and renders Point 15 invalid .

13 . The conclusion thus arrived at makes it unnecessary to consider the compatibility of the provision in question with the relevant provisions of the Treaty . However, I do not intend to shirk that task both because the parties to the main proceedings, as well as the institutions concerned, concentrated their efforts on that problem and because it is a good rule that the Advocate General should express an opinion on all aspects of the case assigned to him .

Let me therefore begin by ascertaining the exact scope of the provision . The order for reference puts forward two possible interpretations : ( a ) the provision affects the conditions governing entitlement to a pension under Paragraph 1246 of the Reichsversicherungsordnung and excludes insured persons who have not completed the 60-month waiting period in Germany; ( b ) the provision affects only the identification of the category to which the insured person is to be assigned, providing for that purpose that account should be taken solely of activities pursued by him in Germany .

The Bundessozialgericht appears to prefer the first of those interpretations . In its opinion, the provision determines "entitlement to a pension ... only by the activities taken into account under the German social security scheme", excludes from consideration "activities subject to compulsory insurance in other Member States" and does not permit aggregation of insurance periods "at any rate if entitlement is based on the occupation hitherto pursued" ( order for reference, p . 5 ). That approach, which is based on national law alone, is supported by a particularity of the German system : the idea that, in the context of a relationship based essentially on an exchange of advantages, the pension must correspond to a sufficiently long period of skilled or semi-skilled work requiring payment of compulsory insurance contributions .

The Landesversicherungsanstalt Schwaben and the Commission favour the second interpretation . They maintain that Point 15 must be interpreted as meaning that the expression "insurable activities under German legislation" does not refer to the waiting period but merely serves to identify the occupation hitherto pursued by the insured person . Support for that proposition is to be found in the reasons for which it was adopted . It was introduced to circumvent the case-law of the Bundessozialgericht which by requiring social security institutions to take account of the migrant worker' s activities before his arrival in Germany made it necessary for them to undertake difficult research into the equivalence of those activities to activities pursued in Germany, thus delaying payment of pensions .

Let me say immediately that I prefer the approach adopted by the court making the reference and taken up by Mr Roviello during the proceedings before this Court . I consider, however, that even more than the arguments advanced by the Bundessozialgericht, it is supported by the letter and the purpose of the contested provision . The wording of the provision is sufficiently explicit . As the Court will recall, Paragraph 1246 of the Reichsversicherungsordnung provides that in order to be entitled to a pension, the worker must fulfil two conditions : the activity hitherto pursued by him must have been subject to compulsory insurance for at least 36 months and the waiting period must have been completed . However, when referring to the benefit thus regulated, the Community legislature employed the expression "entitlement" and "for the purpose of determining his entitlement" ( see 4, supra, first paragraph ), thus showing that it was contemplating the conditions on the basis of which the benefit was being granted . The reasons on which Point 15 is based, to be found in the fourth recital of the preamble to Regulation No 2000/83, may be cited as pointing in the same direction : "provision should ... be made that for entitlement ( in the German version the term employed is 'Anspruchsvoraussetzungen' , that is to say 'conditions for entitlement' , and in the French version it is 'ouverture à un droit' ) to a German invalidity pension only the insurable activities under German legislation should be taken into account ".

Consideration of the objectives which Point 15 seeks to achieve leads to a similar result . As the Court has seen, the defendant in the main proceedings and the Commission take the view that the provision is intended merely to free the German social security institutions from the task of making a decision on the equivalence of the activities which the migrant worker pursued in other Member States to the work which he performed in Germany . In fact, the Bundessozialgericht did a great deal more than require consideration of such activities . Thus the judgment of 29 November 1978 ( cited above ) stated that in order to acquire a right to a miner' s pension ( governed by Paragraph 45 of the Reichsknappschaftsgesetz in terms identical to those of Paragraph 1246 ) the waiting period was to be calculated taking into account the insurance periods completed by the migrant worker before his arrival in Germany . It is therefore highly probable that Point 15 was also, or even principally, intended to refer to the condition concerning the 60 months and to set aside the interpretation favourable to the interests of migrant workers which had been given to it by the courts . That evasion certainly does not cease to be relevant, as the Commission' s Agent claimed at the second hearing, by virtue of being a decision not of the full Bundessozialgericht but of one of its Senates .

14 . Can a rule which produces that effect be in conformity with the Treaty? I note that Regulation No 1408/71 is based on Articles 7 and 51 . As the Court will be aware, the former prohibits discrimination on grounds of nationality and the second provides that "the Council shall ... adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers ...: ( a ) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of several countries ". Let me also point out that according to the Court' s case-law the aim of Article 51 is to "allow the migrant worker to acquire the right to benefit for all periods of employment or periods treated as such which have been completed by him in various Member States, without discrimination as against other workers by reason of the exercise of his right to freedom of movement" ( judgment of 9 July 1975 in Case 20/75 D' Amico v Landesversicherungsanstalt Rheinland-Pfalz (( 1975 )) ECR 891, paragraph 10; judgment of 23 April 1986 in Case 153/84 Ferraioli v Deutsche Bundespost (( 1986 )) ECR 1401, paragraph 16 ).

In the light of those principles, Point 15 is manifestly incompatible with the Treaty . As I have said, it does not permit the aggregation which the Council is required to ensure for workers coming from other Member States and for that very reason treats them in a discriminatory manner . That can be shown by a fairly simple example . A migrant worker who has not completed in Germany the period of 60 months required by Paragraph 1246 of the Reichsversicherungsordnung cannot rely on insurance periods completed before he came to the Federal Republic even if, as in Mr Roviello' s case, they amount to a total of 15 years . On the other hand, a German worker obtains a pension even if he has worked for only 60 months .

15 . However, that is not all . Point 15 would be contrary to Article 51 of the Treaty even if the Court accepted the ( somewhat implausible ) "minimalist" interpretation of it put forward by the Commission and the Swabian insurance institution .

Let us imagine that by requiring account to be taken only of activities insured under German legislation, the Council was in fact contemplating the determination of the occupation pursued by the insured person up to the time at which the contingency materialized . The migrant worker would still be placed at a disadvantage even though in this situation it would be because of the impossibility of relying on the highest qualification he had acquired before coming to Germany . That effect, excluded in Mr Roviello' s case but entirely possible, is surely contrary to the principle prohibiting discrimination against a worker "by reason of the exercise of his right to freedom of movement" ( see D' Amico, supra ).

16 . On the basis of the foregoing considerations, I would propose that the Court reply as follows to the questions referred to it by the Fourth Senate of the Bundessozialgericht by order of 28 November 1984 in the proceedings between Mario Roviello and Landesversicherungsanstalt Schwaben :

"Point 15, added by Council Regulation No 2000/83 of 2 June 1983 to Section C, Germany, of Annex VI to Regulation No 1408/71 of the Council, is vitiated by breach of essential procedural requirements ."

(*) Translated from the Italian .

( 1 ) - Translator' s note : the German version of Point 15 says, more precisely, "... that right shall be determined by taking account only of activities which are subject to compulsory insurance under German legislation ".