OF A MEMBER STATE , RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT WHICH IS RESPONSIBLE FOR PAYMENT OF THE SOCIAL SECURITY BENEFITS IN RESPECT OF EMPLOYMENT IN THE SAID ASSOCIATED TERRITORY ; IN OTHER WORDS , WHETHER ARTICLE 2 ( 2 ) OF THE COLONIAL DECREE OF 7 AUGUST 1952 , AS AMENDED BY THE COLONIAL DECREE OF 2 JULY 1956 , IS CONTRARY TO THE PROVISIONS OF REGULATION NO 1408/71 IN THAT IT REQUIRES ACTUAL AND HABITUAL RESIDENCE IN BELGIUM , THE BELGIAN CONGO , RUANDA-URUNDI OR IN A STATE WITH WHICH A RECIPROCAL AGREEMENT HAS BEEN CONCLUDED .
2 . WHETHER IT IS NECESSARY TO CONSIDER A WORKER EMPLOYED IN AN ASSOCIATED TERRITORY AND AT THE SAME TIME SUBJECT TO SPECIFIC LEGISLATION ENACTED BY ONE OF THE MEMBER STATES WITH REGARD TO THAT TERRITORY AND THE PERSONS EMPLOYED IN IT , IN THIS CASE THE COLONIAL DECREE OF 7 AUGUST 1952 , AS A WORKER WHO IS OR HAS BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES WITHIN THE MEANING OF ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 .
2 THESE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF AN ACTION BROUGHT BY AN ITALIAN WORKER RESIDENT IN ITALY AGAINST A BELGIAN SOCIAL SECURITY INSTITUTION FOR THE ANNULMENT OF THE REFUSAL BY THAT INSTITUTION TO GRANT THE PLAINTIFF INVALIDITY BENEFITS ON THE BASIS OF INSURANCE PERIODS COMPLETED BY THE LATTER IN THE FORMER BELGIAN CONGO , NOW THE REPUBLIC OF ZAIRE .
3 THAT REFUSAL WAS BASED ON THE FACT THAT PURSUANT TO THE COLONIAL DECREE REFERRED TO BY THE NATIONAL COURT - TO WHICH THE PLAINTIFF IN THE MAIN ACTION HAD BEEN SUBJECT AND OF WHICH THE RELEVANT CLAUSES IN THE PRESENT CONTEXT ARE REPEATED IN A BELGIAN LAW - SUCH BENEFITS ARE GRANTED ONLY TO PERSONS WHO ACTUALLY AND HABITUALLY RESIDE IN BELGIUM OR IN ONE OF THE FORMER BELGIAN COLONIES .
4 REGULATION NO 1408/71 OF 14 JUNE 1971 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) APPLIES , ACCORDING TO ARTICLE 2 ( 1 ) THEREOF , 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 .
5 IN VIEW OF THAT PROVISION THE SECOND QUESTION REFERRED TO THE COURT MUST BE CONSIDERED FIRST , FOR IF THE APPLICANT - WHOSE STATUS AS A WORKER AND AS A NATIONAL OF A MEMBER STATE IS NOT CONTESTED - CANNOT BE HELD TO BE OR HAVE BEEN ' SUBJECT TO THE LEGISLATION OF A MEMBER STATE ' , HIS SITUATION IS NOT GOVERNED BY COMMUNITY RULES AND THE FIRST QUESTION THEREFORE BECOMES DEVOID OF PURPOSE .
6 IT IS THEREFORE APPROPRIATE TO ESTABLISH FIRST THE SCOPE OF THE CONCEPT ' LEGISLATION OF A MEMBER STATE ' .
7 THE DEFENDANT IN THE MAIN ACTION MAINTAINS THAT ' LEGISLATION OF A MEMBER STATE '