Opinion of Mr advocate-general Trabucchi

Mr President,

Members of the Court,

1. In order to establish whether an internal provision is applicable to a migrant worker the court making the reference requests the interpretation of Article 27 (1) of Regulation (EEC) No 3 of the Council and of the corresponding provision in Regulation (EEC) No 1408/71 of the Council (Article 45 (1)). The Court has on various occasions delivered rulings on those provisions, which provide for the aggregation of insurance periods and assimilated periods completed in various Member States for the acquisition of the right to social benefits by a worker who has been successively subject to the legislation of two or more Member States.

2. In this connexion there is no doubt that the Community legislation, the objective of which is to coordinate the social legislation of the Member States in order to abolish any inequality of treatment amongst workers on the basis of their nationality so as to provide freedom of movement for workers within the Community, tends in many respects to prevail over the principle of territoriality which characterizes the individual national legislative systems, in the sense that it treats as relevant, for the application of each such system, situations pertaining to the worker which arise in a different Member State from that whose legislation is in question. Many provisions in Community regulations refer specifically to facts and situations subsisting outside the territory of a Member State in order to attach to them legal effects for the purposes of the application of the social legilsation of that State. In its observations the Commission has quoted an entire series of examples in this connexion.

I am therefore of the view that the Court should reply to the question of the Bundessozialgericht as follows:

In accordance with Article 27 (1) of Regulation (EEC) No 3 of the Council and of Article 45(1) of Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, for the application of a national provision rendering the grant of early retirement benefit subject to the additional condition of completing a minimum period of unemployment within the territory of the State, a period of unemployment completed under corresponding conditions on the territory of another Member State must be regarded as producing the same effects, even though the period is reckonable neither towards the acquisition of the right nor in calculating the benefits.

1 Translated from the Italian.