CELEX: 61979CC0150
Language: en
Date: 1980-06-26 00:00:00
Title: Opinion of Mr Advocate General Capotorti delivered on 26 June 1980. # Commission of the European Communities v Kingdom of Belgium. # Social security - Workers previously employed in the former Belgian Congo or in Ruanda-Urundi. # Case 150/79.

OPINION OF MR ADVOCATE GENERAL CAPOTORTI
      DELIVERED ON 26 JUNE 1980 (
            1
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         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In the application initiating these proceedings the Commission asks the Court to declare that, by attaching conditions of nationality or residence to the enjoyment of the rights conferred by the Law of 16 June 1960 relating to social security, the Belgian State has failed to fulfil its obligations to the Community, and in particular those imposed by Articles 48 and 51 of the EEC Treaty.
               The abovementioned Law, which was enacted on the eve of the gaining of independence by the former Belgian colonies (the Belgian Congo and Ruanda-Urundi), was intended to guarantee the continuity of the social benefits previously provided by colonial legislation.
               The title speaks for itself: “A law placing under the guarantee of the Belgian State the institutions administering social security for workers from the Belgian Congo and Ruanda-Urundi, and providing a guarantee by the Belgian State of social security benefits in favour of such persons”. The practical effect of the measure in question may be described as follows: from the moment when the authorities of the newly independent States (known today as Zaire, Rwanda and Burundi), which replaced the Belgian colonial administration, abolished the former social security scheme, the Belgian State assumed the obligations corresponding to the rights of the workers covered by that scheme. A series of amendments to the Law of 16 June 1960 brought about certain improvements in the position of those insured by adapting it to their new living requirements and conditions, thereby bringing the benefits originally provided for under the colonial system into line with the general Belgian welfare scheme in certain respects.
               The grant of the benefits guaranteed by the abovementioned Law of 16 June 1960 is subject, however, to conditions of either residence or nationality, as the case may be. Sometimes these conditions result from rules under the colonial system, the applicability of which is confirmed, whilst in other instances they are provided for directly by the Law in question. Thus, for example, since the benefits guaranteed by the Belgian State are those resulting from the provisions in force in the former colonies in June 1960 (Article 9 of the abovementioned Law), Article 2 of the Decree of 7 August 1952 on sickness or invalidity insurance for workers in the colonies, which requires the beneficiary to be habitually and actually resident in Belgium, the Belgian Congo, Ruanda-Urundi or a country with which a reciprocal agreement had been made, has remained in force. On the other hand, Article 11 (4) of the Law of 16 June 1960 excludes insured persons who are not Belgians from benefiting from the indexation of payments to the cost of living, an exception being made in favour of nationals of States with which Belgium has concluded reciprocal agreements in that regard.
               The problem of the compatibility with Community law (and in particular with Regulation No 1408/71 of 14 June 1971 on social security for migrant workers) of national laws imposing a restrictive condition of residence in a Member State was considered by the Court in a preliminary ruling given by it on 31 March 1977 in Case 87/76, Bozzone ([1977] ECR 687), which concerned precisely a case which fell under Article 2 of the abovementioned Belgian colonial decree of 7 August 1952. That judgment settled two points which are equally decisive for the purposes of the present case. First, workers covered by the Belgian colonial insurance scheme fall within the sphere of application of Regulation No 1408/71 since they are (in the words of Article 2 (1) of Regulation No 1408/71) “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”. The reason for that is that the Belgian colonial insurance scheme which was confirmed by the Law of 16 June 1960 forms part of “the legislation of a Member State” within the meaning of that provision. Secondly, the first subparagraph of Article 10 (1) of Regulation No 1408/71, which is an individual instance of the application of the principle that restrictive conditions based on residence in a particular Member State are not to have any effect, covers the case of a recipient of benefits guaranteed by the legislation of a Member State relating to employment in a territory which at the time maintained special relations with a Member State (such as the former Belgian colonies).
            
         
               2. 
            
            
               Even after the Bozzone decision, the Belgian State retained without alteration the conditions of residence and nationality laid down in the Law of 16 June 1960 and in the colonial decrees the continuity of which it guaranteed. The Commission therefore commenced proceedings under Article 169 of the EEC Treaty against the Belgian Government by a letter of 29 September 1978, in which it set forth the infringement of which that Government was accused and invited it to submit its observations in the matter. In the reply thereto a solution which would have satisfied the Commission was announced in general terms. However, the announcement was not found to be confirmed by the facts and therefore, on the expiry of the period which had been allowed, the Commission issued its reasoned decision on 2 March 1979 in which it claimed that the Belgian State had infringed Articles 5, 48 and 51 of the EEC Treaty and Articles 2 (1), 3 (1) and 10 (1) of Regulation No 1408/71. Subsequently, that contention having remained unanswered, the Commission brought this action against the Kingdom of Belgium on 27 September 1979.
            
         
               3. 
            
            
               The presence in the legislation of a Member State of rules which restrict the exercise of the rights of migrant workers who enjoy the protection of Regulation No 1408/71 by imposing the condition that they should be nationals of that State or reside in its territory is incompatible with Community law and constitutes an infringement of it by the State in question. I have already referred, in relation to residence, to the first subparagraph of Article 10 (1) of Regulation No 1408/71; as to nationality, it is sufficient to cite Article 3 (1) of that regulation, which states that “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”. Moreover, those rules are in harmony with the principles contained in the EEC Treaty. It should not be forgotten that Article 51 (b) provides, as one of the objectives of the Community social security system for migrant workers, for “payments of benefits to persons resident in the territories of Member States” and that Article 48 (2) requires “the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment”.
               That being said, the problem reduces itself to ascertaining whether the Belgian legislation which confirmed (and subsequently, to a certain extent, amended) the previous colonial social security scheme falls within the ambit of the “legislation of a Member State”. Article 1 (j) and Article 2 (1) of Regulation No 1408/71 are crucial to the answer to that question. The first of those provisions clarifies the meaning of the word “legislation”, whilst, as I have already had occasion to say, the second states that the regulation applies 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. In any event I think it is superfluous to repeat the reasoning given in the abovementioned decision of 31 March 1977 in Case 87/76. It gave a positive reply to the question described above, and in my opinion there is no reason to adopt a different line of argument on this occasion. It is true that in deciding the Bozzone case the Court considered the Belgian colonial insurance scheme from the particular point of view of invalidity insurance but it is clear from the grounds of the judgment that the Court's opinion as to the interpretation to be given to the expression “legislation of a Member State” refers to the whole body of rules in that insurance scheme.
            
         
               4. 
            
            
               Naturally, the defence advanced by the Belgian Government attempts to exclude the Law of 16 June 1960 and the provisions subsequently amending it fromthe ambit of Article 1 (j) and Article 2 (1) of Regulation No 1408/71. To that end the defendant puts forward a series of submissions which, however, raise few matters new to the argument which has already been discussed and rejected in the Bozzone judgment.
               First, the defendant maintains that the social security scheme under discussion is discrete ana “special” in relation to Belgian social legislation. But in the Bozzone case the argument put forward by the defendant in the main proceedings, which was not accepted by the Court, was that the legislation in force in the metropolitan territory of a Member State must be considered as distinct from the provisions applicable in respect of an ex-colonial territory. However, the judgment of 31 March 1977 properly placed the emphasis on the breadth of the definition of “legislation” given in Article 1 (j) of Regulation No 1408/71 which includes “all provisions laid down by law, regulation and administrative action by the Member States and must be taken to cover all the national measures applicable in this case” (paragraph 10 of the decision). For my part, in my opinion on the same case ([1977] ECR 699) I drew attention to the fourth recital in the preamble to Regulation No 1408/71, and observed on that point that it “stresses the social security schemes of the various Member States and thus emphasizes by implication the fact that in this matter an institution of a Member State charged with the supervision of a social security scheme (or any part of such scheme) has obligations whatever the nature of the legislative measure which brought those obligations into being or ensures their continuance”.
               I therefore remain convinced that the special nature of the colonial insurance scheme in the context of the Belgian system cannot have any influence whatsoever on the application of Article 1 (j) and Article 2 (1) of Regulation No 1408/71. The principal consideration is that the Law of 16 June 1960 and the subsequent provisions emanated from the Belgian legislature, that it is that same legislature which maintains part of the colonial scheme in force, and that it is the Belgian social security organizations which administer the system.
               I would then point out that there is an error in the defendant's assertion that the result of applying Regulation No 1408/71 to workers who are insured under the scheme in question would be to compel the Belgian social security organizations to aggregate insurance periods completed in the Belgian Congo and those completed in Belgium, whereas the national legislation does not provide for such aggregation even in the case of Belgian workers. In that respect the Commission rightly observes that, in regard to the aggregation of insurance periods, Regulation No 1408/71 is concerned solely with cases where the various periods have been completed under the legislation of different Member States and no provision in the regulation requires the aggregation of periods completed under two social security schemes in a single Member State. Obviously, that leaves each national legislature free to adopt any measures it thinks appropriate for coordinating the application and operation of its various social security schemes.
               In support of its argument that a special law, such as that of 16 June 1960, governing situations which have developed outside the Community may legitimately include restrictive clauses based on residence, the defendant relies on the provision relating to Germany to be found in Annex V, Part C, paragraph 1 (b) to Regulation No 1408/71. Under that provision it is permissible not to make payment of benefits for accidents at work or occupational diseases which have occurred outside German territory — or to make such payments only under certain conditions — when those entitled to them reside outside that territoiy. But that provision is clearly in the nature of a derogation from the general rules in the regulation and in fact the title of Annex V is “Special procedures for applying the legislations of certain Member States”. Derogations, however, may not be given a liberal interpretation and still less may they apply by analogy. The abovementioned provision is therefore valid only for the Federal Republic and the situation to which it refers. It may also be said, arguing a contrario, that where no derogation has been provided for — as in the case of the Belgian colonial insurance scheme — the general provisions in the regulation must be applied.
               A characteristic feature of this social security scheme, which was underlined by the defendant in support of its point of view, lies in the fact that it concerns employment pursued in territories outside the Community (the former Belgian colonies in Africa). In view of that, the defendant maintains that to apply the conditions of residence and nationality to workers who were employed in such territories cannot in any way constitute an obstacle to the free movement of workers within the Community. In fact it would be contrary to the ratio of Articles 48 and 51 of the Treaty to extend the benefit of Regulation No 1408/71 to situations which have no connexion with such movements.
               I have examined that aspect of the question at length in my abovementioned opinion in the Bozzone case [1977] ECR 687, especially at pp. 703 to 706. I do not think it necessary to repeat all that I said on that occasion. I shall confine myself to summarizing the three main points of my reasoning, which are as follows: (a) the fact that Articles 48 and 51 do not apply to relations between the Community and the Belgian Congo has no bearing on the issue. That fact may be disregarded when the question is to determine the applicability of Community rules on social security where there exists legislation giving the Belgian State responsibility for social security benefits based on employment carried out in former colonial territories; (b) the deciding factor is that the insurance benefits must be provided by a Belgian institution established and governed by Belgian law. That close connexion, which has existed from the outset, between the entitlement to benefits and the Member State which is to pay them is sufficient to make Regulation No 1408/71 applicable, even if the employment on which that entitlement is based was pursued in a territory outside the Community; (c) that does not imply that the Community rules are to apply to workers moving between the Community and nonmember States; it means only that the fact that the social security scheme in question was set up by a Member State is to be considered a determining factor.
               A further objection put forward by the defendant is that to extend the application of a Community regulation dating from 1971 to a colonial system introduced many years previously is incompatible with the requirement of legal certainty. However, the Bozzone judgment has already stressed that the continuity of the scheme instituted by the Belgian colonial decree of 7 August 1952 was guaranteed by the Law of 16 June 1960 and that that Law also amended and supplemented the scheme (13th and 14th paragraphs of the decision). It may be added that more recent legislative provisions have brought fresh amendments and what is at issue here, therefore, is a body of rules which are the subject of frequent intervention on the part of the Belgian legislature. In any case, it is clear that the date of origin has no significance at all; what counts is the fact that the rules in question are at present in force.
               Lastly, I think there is no need to consider the objection concerning the financial burden which will be incurred by the defendant State in observing Community rules in relation to the social security scheme in question. Considerations of that nature cannot have any influence on the interpretation of Community law and of the obligations which it imposes on Member States. Moreover, it appears from the information supplied by the defendant in reply to the questions from the Court that the burden will not be so high as to place the Belgian State in difficulties.
            
         
               5. 
            
            
               For the reasons which have been given, I suggest in conclusion that the Court allow the application of the Commission, and accordingly declare that by imposing conditions of nationality and residence on the grant of the social security benefits provided for by the Law of 16 June 1960 and by the rules amending and supplementing that Law the Kingdom of Belgium has infringed the provisions of Articles 5, 48 and 51 of the EEC Treaty and of Articles 10 (1) and 3 (1) of Council Regulation (EEC) No 1408/71. Lastly, I propose that the defendant be ordered to pay the costs of the action.
            
         (
            1
         )	Translated from the Italian.