CELEX: 61993CC0308(01)
Language: en
Date: 1996-02-29 00:00:00
Title: Opinion of Mr Advocate General delivered on 29 February 1996. # Bestuur van de Sociale Verzekeringsbank v J.M. Cabanis-Issarte. # Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. # Social security for migrant workers - Voluntary old-age insurance - Surviving spouse of a worker - Equal treatment. # Case C-308/93.

OPINION OF ADVOCATE GENERAL
      TESAURO
      delivered on 29 February 1996 (
            *1
         )
      
               1. 
            
            
               After I had delivered my Opinion in this case on 21 September 1994, (
                     1
                  ) the Court decided to reopen the oral stage of the procedure. At the same time, it referred the case to the full Court and asked a number of questions, seeking in particular to obtain the views of the parties in the main proceedings, the Commission and the Member States concerning the distinction drawn between rights claimed by persons as rights of their own and derived rights, as set out in the judgment in Kermaschek (
                     2
                  ) and confirmed in subsequent decisions (
                     3
                  ) (hereinafter ‘the Kermaschek case-law’).
               I would recall that, on the basis of that distinction, while persons who have the status of workers within the meaning of Regulation No 1408/71 (hereinafter ‘the regulation’) may claim entitlement to the benefits covered by the regulation as rights of their own, members of the family or survivors of a worker may claim only derived rights, that is to say those acquired through their status as members of the family and/or survivors of a migrant worker.
            
         
               2. 
            
            
               Mrs Cabanis-Issarte, a French national, lived for nearly 18 years in the Netherlands on account of her husband's occupation. (
                     4
                  ) She made an application seeking the right to pay the same reduced contributions as Netherlands nationals — in accordance with the Algemene Ouderdomswet (General Old-age Insurance Law, hereinafter ‘the AOW’) — where entitlement to a pension is acquired through voluntary insurance, but in respect of a period during which she neither U ved nor worked in that State.
               The Centrale Raad van Beroep, the national court before which the proceedings between Mrs Cabanis-Issarte and the Bestuur van de Sociale Verzekeringsbank (Netherlands social insurance bank, hereinafter ‘the SVB’) are pending, has therefore asked the Court to interpret Articles 2 and 3 of the regulation, and also Points 2(a), (c) and (e) of Annex VI(J) to the regulation, in order to establish whether they confer on a person in Mrs Cabanis-Issarte's position the right which nationals have to pay reduced contributions.
            
         
               3. 
            
            
               I recall that in my Opinion of 21 September 1994 I proposed that the Court's reply to the questions referred by the national court should be that the relevant provisions of the regulation must be interpreted as not precluding the application of national legislation which restricts the right to a reduction in contributions paid under a voluntary insurance scheme to nationals and persons who have the status of workers within the meaning of the regulation.
            
         
               4. 
            
            
               For the reasons already set out in that Opinion, (
                     5
                  ) I am still convinced that for the purposes of claiming the reduction in contributions, Mrs Cabanis-Issarte cannot in effect rely on Points 2(a) and (e) of Annex VI(J), referred to by the national court in its first question ((a) and (c)). I shall merely observe that the fact that married women may, on certain conditions, invoke Annex VI to the regulation for the purposes of recognition of periods of insurance under the AOW is quite irrelevant to the detailed rules relating to voluntary insurance which are still governed by national law and which, in any event, the annex in question disregards altogether.
               Equally, I am still of the opinion that application to this case of the distinction between rights of one's own and derived rights arising from the Kermaschek case-law inevitably leads to the conclusion that Mrs Cabanis-Issarte is not entitled to the reduction in contributions which she seeks. (
                     6
                  ) Taking into consideration the fact that all persons resident in the Netherlands are covered directly and personally by the AOW, from 15 years of age until 65, regardless of sex or marital status, it is clear that entitlement to a pension, attended by the rules on affiliation to a voluntary insurance scheme, is not a right acquired through status as a member of a migrant worker's family or as his or her survivor, but is a personal right vested in each individual.
            
         
               5. 
            
            
               Having said that, I confess to having felt some misgivings when I proposed that the Court should apply the distinction between rights of one's own and derived rights to Mrs Cabanis-Issarte, precisely because of the implications of that distinction for freedom of movement which, if not prejudiced as a result, is not encouraged either. Those qualms were only intensified when, a few months later, in my Opinion in Krid, (
                     7
                  ) I stated that in accordance with a previous decision of the Court (
                     8
                  ) the Kermaschek case-law does not apply to members of the family or survivors of workers from non-member countries with which the Community has concluded cooperation agreements.
               In short, this is a distinction which I find confusing for more than one reason. The reopening of the oral procedure, however, taking into account moreover the answers given by the SVB, the Member States and the Commission to the Court's questions concerning the point under discussion, gives me the chance to go deeper into the matter.
            
         
               6. 
            
            
               It seems to me apposite to bear in mind, first, that by virtue of Article 3(1) of the regulation: ‘Subject to the special provisions of this regulation, persons resident in the territory of one of the Member States to whom this regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.’ This provision therefore confirms the principle of equality of treatment as between nationals and those to whom the regulation applies, provided that they reside in the territory of one of the Member States, and subject to the special provisions of the regulation.
               According to Article 2(1), the regulation is to ‘apply to employed or self-employed persons 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 (...) as well as to the members of their families and their survivors’. So far as is relevant for the purposes of this case, moreover, the term ‘“member of the family” means any person defined or recognized as a member of the family or designated as a member of the household by the legislation under which benefits are provided or (...) by the legislation of the Member State in whose territory such person resides’ (Article 1(f)). ‘Survivor’ is defined in broadly similar terms (Article 1(g)). In both cases, the reference to national legislation is, however, restricted by the concept of a ‘person (...) mainly dependent’ on the worker, in the sense that in such a case the condition of ‘member of the family’ and/or ‘survivor’ is to be considered satisfied in any event for the purposes of the application of the regulation. (
                     9
                  )
            
         
               7. 
            
            
               The provisions to which I have just referred make it clear, first, that the regulation applies not only to workers but also to their families and/or survivors and, secondly, that where there are no special provisions in the regulation the principle of equality of treatment should apply both to workers and to members of their families.
               That is the legislative background to the Kermaschek case-law, which in my view is not entirely consistent. In any event, I think it appropriate to give a brief summary of that case-law, in order in particular to gain a better understanding of the reasoning at the basis of the distinction between rights of one's own and derived rights. The starting point for such an analysis has to be the judgment in Kermaschek.
               
            
         
               8. 
            
            
               Called upon in that judgment to rule on the applicability of Articles 67 to 70 of the regulation, concerning unemployment benefits, to the spouse — a national of a non-member country — of a German non-migrant worker, who therefore had not taken advantage of the rules on freedom of movement for workers, the Court stated that Article 2(1) of the regulation refers to two clearly distinct categories: workers on the one hand, and the members of their families and survivors on the other. (
                     10
                  ) On the basis of that premiss, the Court established the distinction in theory between rights of one's own and derived rights, a distinction it held was confirmed by Article 2(2) as well as by Article 1(f) and (g). (
                     11
                  )
               Article 2(2), according to which workers who are not nationals of a Member State are assimilated to such nationals as regards the rights of their survivors, provided the latter are nationals of one of the Member States, merely provides that the regulation is to apply to (Community) nationals who are members of the family of a worker who is a national of a non-member country by virtue of their status as survivors. The provision in question, which is undoubtedly relevant in the circumstances since Mrs Kermaschek — before she became a member of the family of a Community national — had lived and worked in a Member State, states incontrovertibly that workers who are not nationals of a Member State are not entitled to rely on the regulation in their capacity as workers, even if they are members of a Community national's family. From that point of view, Article 2(2) of the regulation does not seem to me to support the distinction between rights of one's own and derived rights, at least not in the broad and generalized manner asserted by the Court in subsequent case-law.
               Similarly, although in defining ‘member of the family’ and/or ‘survivor’ Article 1(f) and (g) of the regulation refers to the national legislation under which benefits are provided or of the State in whose territory the person in question resides, it is none the less true that the sole purpose of such a reference is to establish whether or not that person is a member of the worker's family, (
                     12
                  ) and is certainly not to be understood, as certain States and the SVB have claimed during these proceedings, as leaving to individual national legislatures the right to decide to which benefits, among those falling within the scope of the regulation, the members of a worker's family are entitled.
            
         
               9. 
            
            
               The distinction between rights of one's own and derived rights, as drawn in the Kermaschek judgment, has been confirmed on subsequent occasions. (
                     13
                  ) I believe it is important to point out that in most of the cases brought to the Court's attention the benefits denied under the regulation, because they were classified as personal rights, were none the less awarded by virtue of Article 7(2) of Regulation No 1612/68, (
                     14
                  ) which provides that a worker who is a national of a Member State is to enjoy, in the territory of another Member State, ‘the same social and tax advantages as national workers’.
               The broad interpretation of the concept of ‘social advantage’, provided by the Court in its consistent case-law, (
                     15
                  ) accordingly enables a member of a worker's family to be awarded social security benefits, inasmuch as they are classified as a social advantage for the worker, which have been refused under the regulation because they cannot be classed as rights derived through the person's status as a member of the worker's family. (
                     16
                  ) In that way, as the French Government in particular has pointed out, any adverse effects resulting from the application of the Kermascbek case-law are avoided.
            
         
               10. 
            
            
               The fact just noted cannot, however, in my view, be considered such as to dispel the uncertainties fed by the distinction between rights of one's own and derived rights. That is clear, first, from the present case, in that Article 7(2) of Regulation No 1612/68 cannot always be used to obviate the restrictions inherent in that distinction; secondly, the Kermaschek case-law viewed as a whole shows how such a distinction, drawn — why conceal it — in an admittedly special case and based on reasons which relate to that specific case, (
                     17
                  ) then became far too broad and general in scope, to the point where it might clash with the very objective of the regulation, which must first and foremost be understood with reference to freedom of movement for workers.
               It is worth recalling here the wording of the fifth recital in the preamble to the regulation, according to which ‘the provisions for coordination of national social security legislations fall within the framework of freedom of movement for workers who are nationals of Member States and should, to this end, contribute towards the improvement of their standard of living and conditions of employment, by guaranteeing within the Community firstly equality of treatment for all nationals of Member States under the various national legislations and secondly social security benefits for workers and their dependants regardless of their place of employment or of residence’.
            
         
               11. 
            
            
               It seems to me undeniable that such purpose would be at the very least devalued if each national legislature were allowed to determine the social security benefits to which the members of workers' families and/or their survivors are entitled, by defining the relevant rules and features. Furthermore, as the Commission has pointed out, at present those benefits are increasingly interpreted as rights of one's own rather than as derived rights, having regard in particular to social change.
               From that perspective, it is only too obvious that maintaining the distinction between rights of one's own and derived rights in the terms used by the Court from the judgment in Kermaschek onward leads in the end to the rather modest conclusion that the members of a worker's family are certainly, if not exclusively, entitled to sickness benefits, family allowances, and also to widows' and orphans' pensions and annuities. Having regard to the nature of those benefits, however, it seems to me legitimate to question the value and scope of the principle of equal treatment enshrined in Article 3(1) of the regulation, a principle which — let me repeat — is established, subject to the special provisions of the regulation, in favour not of all workers but of all persons to whom the regulation applies, including therefore the members of workers' families and/or their survivors.
            
         
               12. 
            
            
               Next, I must point out that by contrast the distinction between rights of one's own and derived rights is not applied, as indicated above, in relation to members of the families of workers from non-member countries with which the Community has entered into cooperation agreements. In Kziber, (
                     18
                  ) a case which concerned unemployment allowances claimed by the daughter of a Moroccan worker, the Court held, as regards the scope of the rights of that member of the family living with him, that ‘the principle of freedom from all discrimination, based on nationality, in the field of social security (...) means that such a person, who satisfies all the conditions laid down by national legislation for the purposes of entitlement to the unemployment allowances provided for the benefit of young persons in search of employment, may not be refused those benefits on the ground of his nationality’. (
                     19
                  )
               In its later judgment in Krid, (
                     20
                  ) where it was expressly called on to apply the Kermaschek case-law also to members of the families of workers from non-member countries with which the Community had concluded cooperation agreements — in that case the cooperation agreement was with Algeria —, the Court stated that that case-law was inapplicable since the persons covered by the agreement ‘are not the same as those covered by Article 2 of Regulation No 1408/71’. That statement can be endorsed in part only. It is true that the fact that the agreements in question contain provisions prohibiting any discrimination whatsoever based on nationality between nationals, on the one hand, and workers from non-member countries and their families, on the other, makes it possible — in the absence of the implementing measures none the less envisaged which are to be adopted by the cooperation council — not to restrict, so far as members of workers' families are concerned, the equal treatment so required exclusively to those benefits which can be classed as derived rights. However, it is equally true, it seems to me, that there is no reason to render the principle of equal treatment laid down in Article 3 of the regulation inoperative whenever the benefit concerned is not expressly provided by the regulation solely and exclusively in favour of workers.
            
         
               13. 
            
            
               That is the approach adopted in Mr and Mrs F., (
                     21
                  ) in which the Court in fact confirmed that ‘in the framework of the matters covered by the regulation and in the absence of a specific provision to the contrary, the members of an employed person's family must be allowed the benefit of the legislation of the State of their residence under the same conditions as the nationals of that State. Consequently, as regards the enjoyment of rights under a national legislation providing benefits for the handicapped, neither the employed person himself nor the members of his family may, as compared with the nationals of the State of their residence, be placed in a less favourable position for the sole reason that they do not possess the nationality of that State.’ The Court concluded therefore that the regulation, in particular Articles 2(1) and 3(1) thereof, did not permit the grant of the benefit for handicapped adults to be refused in the case of the child of a migrant worker. (
                     22
                  )
               The same solution, it is worth noting, was adopted by the Court in a subsequent judgment, Inzvrillo, (
                     23
                  ) given shortly after that in Kermaschek. I would add that this solution strikes me as more consistent not only with the purpose but also with the actual wording of the relevant provisions of the regulation.
            
         
               14. 
            
            
               Of course, that does not mean that members of workers' families are entitled to all the social security benefits contemplated by the regulation, but rather, quite simply, that by virtue of the principle of equal treatment, they are entitled to them wherever the wording of the regulation does not expressly preclude it. In other words, I consider that the distinction between workers and members of their families must definitely be maintained, with the result that some benefits remain payable exclusively to workers, (
                     24
                  ) while the distinction between rights of one's own and derived rights must definitely be abolished, if it is construed, as in the Kermascbek case-law, as meaning that members of workers' families are entitled only to the social security benefits expressly provided for by the various national legislative systems for them as well.
               The approach just expounded, which is moreover entirely consistent with the judgments in Mr and Mrs F. and Inzirillo, means in short that classification of a right as a right of one's own or as a derived right must be determined in accordance with the regulation and not with individual national legislation. Let me explain: having regard to the fact that the objective pursued by the regulation is essentially to ensure freedom of movement for workers, and that it is precisely for that purpose that members of workers' families and/or their survivors are included within the range of the persons covered by the regulation, the definition of a derived right, attended by the benefits to which the members of workers' families are entitled on account of that status, cannot be other than a Community definition. That leads me to conclude that members of workers' families are entitled, by virtue of the principle of equal treatment, to receive all the benefits granted to nationals which are not in any way linked to the pursuit of an occupation and which are not therefore personal rights vested in workers.
               That interpretation does not seem to me to conflict at all with the fact, referred to during the proceedings, that the regulation provides for the coordination of national laws in the field of social security, without however providing for any harmonization. On that point, I shall merely observe that the proposed solution does not entail any kind of harmonization and will certainly not affect the diversity of the relevant national laws.
            
         
               15. 
            
            
               To return to the case before the Court, which concerns reductions in contributions granted only to nationals in making voluntary payments towards a pension, I consider it appropriate to point out that, as is apparent from Question 1(b), Mrs Cabanis-Issarte acquired pension rights in relation to certain periods of insurance in her capacity as a member of a migrant worker's family, and thus as derived rights within the meaning of the Kermaschek case-law; in relation to other insurance periods, however, she acquired such rights as rights of her own. More specifically, in the periods during which she lived in the Netherlands she acquired entitlement in her own right, since the AOW applies to all residents; in the periods subject to the transitional scheme or during which she did not live in the Netherlands, she acquired entitlement through her status as a worker's spouse, and thus as a derived right.
               Having said that, let me make it clear that the sole issue here is the amount of contributions payable for voluntary insurance for the period from 15 July 1969 (the date on which Mrs Cabanis-Issarte ceased to live in the Netherlands) to 13 May 1974 (the date of her 65th birthday). Since during that period Mrs Cabanis-Issarte no longer lived in the Netherlands and her husband was already receiving a pension, application of the Kermaschek case-law would lead to the conclusion that, for the period in question, she acquired pension entitlement in her own right, with the further consequence that there was no way in which she could claim the reductions in contributions granted to nationals.
            
         
               16. 
            
            
               In the light of the foregoing observations, I am clearly proposing that the Court should no longer follow that path. I would note, moreover, that Mrs Cabanis-Issarte's case reveals only too plainly the perverse results to which the distinction between rights of one's own and derived rights may lead. In this case, a right is classified as a derived right or as a right of one's own depending on the features of the national legislation in question, whereas the fact that for Mrs Cabanis-Issarte the right in question is closely linked to her status as a member of a worker's family is left out of consideration altogether.
               The pension rights acquired by Mrs Cabanis-Issarte under Netherlands legislation are dependent solely on her being the spouse of a migrant worker who was employed in the Netherlands, all the more so if it is borne in mind that until her husband's death Mrs Cabanis-Issarte did not receive a pension of her own, since her pension rights formed part of her husband's, who accordingly received a married couple's pension. From this point of view, the fact that during the period in question she did not live in the Netherlands and that her husband was by then a pensioner cannot in any event be such as to subject the possibility of acquiring pension rights, offered her by the SVB itself moreover, to less advantageous conditions than those applicable to nationals.
               In short, I consider that, on the basis of Article 2(1) of the regulation, read in the light of Article 3(1) thereof, Mrs Cabanis-Issarte is entitled, as a member of a migrant worker's family, to pay the same reduced contributions as nationals are allowed to pay for voluntary insurance.
            
         
               17. 
            
            
               Since I am proposing that the Court review the Kermaschek case-law, if only in part, I consider it necessary to assess whether it would be expedient to limit the temporal effects of a judgment given in line with the approach I have suggested.
               I would add that, in stating their views on that point, in response moreover to a specific question asked by the Court when reopening the oral procedure, the SVB and the Member States asked the Court to limit the effect in time of the judgment if it were to depart from the Kermaschek case-law. The Commission itself, while it considered that the practical and financial consequences for social security systems would not be of any significance, raised no objections to such a suggestion.
            
         
               18. 
            
            
               In that regard, I would point out first that, as is well known, the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines the meaning and scope of that rule as it must be or ought to have been applied from the time of its coming into force. In principle, therefore, the rule so interpreted may, and must, be applied by the courts even to legal relationships which arose and were created prior to the ruling on interpretation, provided that those relationships have not already come to an end and that the conditions enabling a dispute relating to the application of that rule to be brought before the courts having jurisdiction are satisfied. (
                     25
                  )
               Consequently, it is only in exceptional circumstances that, in application of the general principle of legal certainty, the Court has limited the opportunity for the persons concerned to rely on the provision so interpreted. (
                     26
                  ) In ruling to that effect, the Court has, on the one hand, taken into account the risk of serious financial consequences arising in particular from the large number of legal relationships established in good faith on the basis of legislation which was regarded as validly in force and, on the other, assessed whether there existed serious doubts on objective grounds as to the scope of the Community provisions forming the subject-matter of the ruling on interpretation.
            
         
               19. 
            
            
               I would point out first of all that, in the light of the foregoing observations, departure from the Kermaschek case-law would not seem to entail significant financial consequences for the social security bodies of the Member States, a fact borne out by the answers given by the States to a specific question from the Court. (
                     27
                  ) It is nevertheless the case that the solution I have proposed implies changing a line of decisions that dates back some 20 years, with the result that the existence of objective and serious doubts concerning the scope of the provisions interpreted here must perforce be recognized.
               I consider therefore that in the circumstances of the present case it is necessary to limit the temporal effects of the judgment. Of course, in due compliance with the principle of full judicial protection, a fundamental principle which the Court is required to guarantee, the rights of those who have before the date of the judgment initiated proceedings or raised an equivalent claim must in any event be safeguarded.
            
         
               20. 
            
            
               In the light of the foregoing observations, I must propose a solution different from the conclusion I reached in my Opinion of 21 September 1994. I therefore suggest that the Court should reply to the national court's questions as follows:
               
                        (1)
                     
                     
                        Articles 2(1) and 3(1) of Regulation No 1408/71 are to be interpreted as precluding national legislation which, on grounds linked to residence, denies members of the family and/or survivors of a worker within the meaning of that regulation the right to a reduction in contributions granted to nationals under a voluntary insurance scheme.
                     
                  
                        (2)
                     
                     
                        Articles 2(1) and 3(1) of Regulation No 1408/71 may not be relied upon by members of the family and/or survivors of a worker in support of claims relating to periods prior to the date of the judgment, except by persons who have already initiated proceedings or raised an equivalent claim.
                     
                  
         (
            *1
         )	Original language: Italian.
      (
            1
         )	I refer to that Opinion not only for a description of the facts and relevant provisions of Community and national law, but also for all points not related to the distinction between rights of one s own and derived rights. The following observations are concerned solely with the distinction in question and its effects on the situation before the Court.
      (
            2
         )	Case 40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669, paragraph 8.
      (
            3
         )	Case 157/84 Frascogna v Caisse des Depots [1985] ECR 1739, paragraphs 16 and 17; Case 94/84 ON EM v Deak [1985] ECR 1873, paragraphs 14 to 16; Case 147/87 Zaoui v CRAMIF [1987] ECR 5511, paragraphs 12 and 13; Case C-243/91 Belgian State v Taghavi [1992] ECR I-4401, paragraphs 8 and 9; Case C-78/91 Hughes v Chief Adjudication Officer [1992] ECR I-4839, paragraphs 25 and 26; and Case C-310/91 Schmid v Belgian State [1993] ECR I-3011, paragraphs 12 and 13.
      (
            4
         )	More exactly, Mrs Cabanis-Issarte lived in the Netherlands from 23 November 1948 to 15 July 1969, with a break between 20 October 1960 and 12 November 1963.
      (
            5
         )	See, in particular, points 12 to 14.
      (
            6
         )	See points 9 to 11 of the Opinion of 21 September 1994.
      (
            7
         )	Opinion of 23 February 1995 in Case C-103/94 Krid v CNAVTS [1995] ECR I-719.
      (
            8
         )	Case C-18/90 ONEM v Kziber [1991] ECR I-199, paragraph 28.
      (
            9
         )	See Article 1(f), the second sentence of Article l(i) and the second sentence of Article 1(g).
      (
            10
         )	Kermaschek, cited above in footnote 2, paragraph 6/7.
      (
            11
         )	Idem, paragraph 8.
      (
            12
         )	This interpretation is borne out by the fact, already noted, that the reference to national legislation is restricted by the concept of a mainly dependent person.
      (
            13
         )	See the judgments cited in footnote 3.
      (
            14
         )	Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).
      (
            15
         )	See, inter alia, Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn [1985] ECR 973.
      (
            16
         )	The Court interpreted Article 7(2) of Regulation No 1612/68 in that manner so as to include in the definition of social advantage a special old-age allowance (Frascogna, cited in footnote 3, paragraphs 20 to 24), unemployment benefits for young persons (Deak, cited at footnote 3, paragraphs 21 to 24), and disability allowances (Schmid, cited in footnote 3, paragraphs 18 to 22). The sole exception is Taghavi, where the same disability allowance was at issue as in Schmid. The different decision reached by the Court is explained by the fact that the relevant national legislation in those two cases precluded nationals of non-member countries, even though they were members of the family of a national, from qualifying for the benefit in question. Unlike Ms Schmid, Mrs Taghavi, although the wife of a (Community) migrant worker, was not a national of a Member State. I cannot help observing, however, that the Court had, again by virtue of Article 7(2), granted the young persons' unemployment allowance to Mr Deak who, though a member of a migrant worker's family, was a national of a non-member country, despite the fact that the relevant national legislation refused non-Community members of nationals' families entitlement to those allowances.
      (
            17
         )	The special features of the case which led to the distinction between rights of one's own and derived rights should not be forgotten. I am referring in particular to the fact that the basis of Mrs Kermaschek's claim for unemployment benefit was that she had worked in one Member State and then moved to another Member State in which she acquired, though only after ceasing work, the status of member of a (non-migrant) Community worker's family. Her claim for those benefits in her capacity as a member of a worker's family is explained by her being a national of a non-member country; otherwise she could have claimed the benefits in question as a worker. Having said that, I must admit to harbouring serious doubts as to the applicability of the regulation to a person in Mrs Kermaschek's situation: that is so, needless to say, even if the right to unemployment benefit had been regarded as a derived right. Although the regulation applies not to migrant workers only but to all workers, even to those (non-migrant) workers who move within the Community for reasons other than the pursuit of employment, and thus also to members of the families (of non-migrant workers) so moving, I fail to see how a member of a non-migrant worker's family who has never moved in his capacity as a member of a worker's family can possibly claim ‘derived rights’. Yet such an approach was upheld by the Court in Zaoui (cited in footnote 3). The Court refused Mr Zaoui, an Algerian national who does not appear ever to have moved within the Community, entitlement to a supplementary allowance paid to old-age pensioners by a national solidarity fund and claimed by Mr Zaoui as the husband of a French national who had never exercised the right to freedom of movement within the Community, on the sole ground that it considered the right in question to be a right of one's own and not a derived right. That means, as in Kermaschek, that if according to the national legislation in question the allowance applied for had been regarded as a right derived from the status of member of the family, he would have been entitled to it.
      (
            18
         )	Cited in footnote 8, paragraph 28.
      (
            19
         )	It is interesting to note that, in his Opinion in that case, Advocate General Van Gerven had on the contrary claimed that the interpretation given [of Articles 2 and 3 of Regulation No 1408/71] in Kermaschek, confirmed in Deak and applied in that judgment to the allowances in point, must also apply with respect to Article 41 of the Agreement. Having regard to the purpose and scope of the Agreement and the terms of Article 41, which is intended to ensure equality of treatment, it cannot be accepted that this provision accords to members of the family of a Moroccan worker rights more extensive (that is to say, not merely derived rights but rights of their own) than those which Regulation No 1408/71, which is intended to ensure freedom of movement for workers within the Community, accords to members of the family of a worker who is a Community national' (Kziber, cited above, at p. I-219).
      (
            20
         )	Cited at footnote 7, paragraphs 38 and 39.
      (
            21
         )	Case 7/75 Mr and Mrs F. v Belgian State [1975] ECR 679, paragraphs 16 and 17.
      (
            22
         )	In the same judgment, the Court also stated: ‘Indeed, if this were not the case, a worker anxious to ensure to his child the lasting enjoyment of the benefits necessitated by his condition as a handicapped person, would be induced not to remain in the Member State where he has established himself and has found his employment, which would run counter to the object sought to be attained by the principle of free movement of workers within the Community, bearing in mind inter alia the right recognized under this principle to employed persons and to members of their families to remain within the territory of a Member State in which the employed person was employed under the conditions determined by Commission Regulation No 1521/70 of 29 June 1970’ (paragraph 20). Finally, I think it worth noting that the national legislation in question is exactly the same as gave rise to the Taghavi and Schmid cases (cited at footnote 3), in which the Court, applying the distinction between rights of one's own and derived rights, reached the different conclusion however that the regulation was not applicable, precisely because the benefit for handicapped adults was classified as a right of one's own.
      (
            23
         )	Case 63/76 Inzirillo [1976] ECR 2057, paragraphs 15 to 17. This case also concerned entitlement to an allowance for handicapped adults, interpreted by national legislation as a right of one's own.
      (
            24
         )	This is the case not only as regards benefits in respect of occupational diseases and industrial accidents, but also unemployment benefits which, pursuant to Articles 67 to 70 of the regulation, are intended only for those who have the status of workers within the meaning of the regulation.
      (
            25
         )	See Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205, paragraph 16, and Joined Cases 66/79, 127/79 and 128/79 Amministrazione delle Finanze v Salumi and Others [1980] ECR 1237, paragraph 9.
      (
            26
         )	See Case 43/75 Defrenne v Sabena [1976] ECR 455, paragraphs 69 to 75, and more recently Case C-415/93 Bosman [1995] ECR I-4921, paragraphs 139 to 146.
      (
            27
         )	When called upon to indicate the possible practical and financial consequences of departing from Kermaschek for their social security institutions, the Member States and the SVB itself were unable to provide any information in that respect.