Opinion of Mr Advocate-General Capotorti

Mr President,

Members of the Court,

1. The matter to be settled in the present case is in substance as follows: when a national of a Member State has acquired the right to social security benefits from an insurance institution in another Member State in respect of employment outside the geographical limits of the Community in a territory which was then associated with the Community and which now enjoys independence, is it in accordance with Community law that payment of the benefits is made dependent on residence within the territory of the State responsible for payment? The problem is analogous to that which the Court must consider in Case 79/76, Fossi, on which Mr Advocate-General Warner yesterday delivered his opinion; but it must be stated from the outset that there are also important differences between the facts of the two cases.

2. I consider that the second question logically takes precedence, in that it relates to the interpretation of a rule prescribing one of the general conditions for the application of Regulation No 1408/71. Article 2 of that regulation is indeed entitled Persons covered and

3. Another aspect of the problem nevertheless calls for careful consideration. The social security system based on the Colonial Decree of 7 August 1952 and on the Law of 16 June 1960 concerns employment in overseas territories (the former Belgian colonies of the Congo and Ruanda-Urundi). Is this sufficient to modify the conclusions which we reached through analysis of Article 2 (1) of Regulation No 1408/71?

4. In the past there have been no clear decisions on this particular point.

5. It is indeed true that the Community system of social security was envisaged in terms of freedom of movement for workers within the Community and not between the Community and non-member countries. The promotion of freedom of movement within the Community is undoubtedly the objective in view of which Regulation No 1408/71 is concerned to protect persons changing their place of work from one Member State to another, by ensuring that they do not lose the rights to social security benefits which they have already acquired in relation to one Member State. However, from this it is possible to infer only that it would not be in accordance with either the letter or the spirit of that system to extend it to cover social security benefits which a worker has acquired in relation to a non-member country.

6. It remains to say a few words about Article 10 (1) of Regulation No 1408/71. That provision is intended to ensure that the worker, by moving his residence from one Member State to another, does not risk losing the rights to social security benefits which he can claim under the social security system of a specific Member State.

7. I accordingly conclude by suggesting that the Court of Justice should reply to the questions submitted by the Tribunal du Travail, Brussels, to the effect that a national of a Member State who was employed in a territory outside the Community when that territory was covered by the colonial legislation of another Member State and who was, as a result, subject to a social security scheme pursuant to which a public institution of the latter State is now responsible for payments to insured persons, should be considered as a worker who has been subject to the legislation of a Member State, within the meaning of Article 2 (1) of Regulation No 1408/71; accordingly, the effects referred to in Article 10 (1) of Regulation No 1408/71 obtain, in particular with regard to the absolute nature of the prohibition upon the rendering of social security benefits conditional upon residence within the Member State responsible for payment.

1 Translated from the Italian.