Opinion of mr advocate general mayras

Mr President,

Members of the Court,

I —. The present case has been referred to this Court by the National Insurance Commissioner, who has jurisdiction in the United Kingdom to give a decision on appeal on certain social security disputes. The Court will once more be led to deal with the situation relating to cash sickness insurance benefits of workers absent from Great Britain within the meaning of Regulation No 1408/71.

II —. The abstract reply which this Court will have to give to those questions might well go beyond the present case; the problem is in fact whether detention, imprisonment or any other fact occurring in a Member State — and not only in the Republic of Ireland, whose system of criminal law is still very close to the English system, although since partition it has displayed certain original features — constitutes a valid ground for disqualification from the right to cash sickness benefits in the other Member States, not only in the United Kingdom, both with regard to a worker and to that worker's wife or husband.

1. It is an established fact that Mr Kenny's incapacity for work preceded his imprisonment, which is hardly astonishing in view of the nature of his illness, and that if he had not gone to Ireland it would have been possible to begin paying him benefits at the end of the qualifying period. In addition it is an established fact that the applicant was, for at least a proportion of his detention, suffering from the same incapacity as that which he had been acknowledged or which he should have been acknowledged to be suffering from before his imprisonment. Finally, it is not alleged that the fact of his detention made it impossible for the English National Insurance authorities to instruct a doctor of their choice to certify the physical incapacity of Mr Kenny to continue or resume work. Moreover the National Commissioner recognizes that that incapacity persisted until his release on 28 March 1974.

2. The only reason why the Commissioner did not grant the applicant's request is that the grant of benefits in his case is discriminatory as against nationals of the United Kingdom who are not migrant workers and who are in the same situation and subject to English legislation. The Commission for its part illustrates this disparity in treatment by also quoting the example of a migrant worker who, instead of returning to his original State (the Republic of Ireland), decides to remain in the country in which he serves the prison sentence (the United Kingdom).

3. Article 7 therefore prohibits a Member State from giving less favourable treatment to nationals of other Member States than to its own nationals. This provision, according to Mr Cohen Jonathan (Revue du Marché Commun 1978, p. 74, La Cour des Communautes et les Droits de l'Homme (The Court of the Communities and Human Rights) is merely the expression of an economic need — to ensure freedom of movement — without a genuine social and humanitarian objective.

III —. On the other hand, the fundamental principle of non-discrimination on the basis of nationality is the subject of specific rules laid down in the chapters of Title III of Part Two of the Treaty on the freedom of movement for workers, the right of establishment and the provision of services.

IV —. But does such a rule prohibiting inverted discrimination exist specifically in the field of social security as a result of a general unwritten principle of Community law?

V —. It remains to inquire whether there is a general principle common to the laws of the Member States enabling the competent national institution to treat facts which have occurred on the territory of another Member State as equivalent to corresponding facts which, had they occurred in its own State, would have disqualified the worker concerned in part or in whole for receiving cash sickness insurance benefits.

VI —. Finally, whatever the reply given by this Court to the questions referred to it, I consider, as I have already said, that it is necessary for the Court not to go beyond the problem of the payment of cash sickness benefits to insured prisoners and to rule in short, as the Insurance Officer suggests in his written observations, that any fan occurring in a Member State and capable of turning out to the disadvantage of an insured person must be treated as equivalent to a corresponding fact which occurred in the competent State, extending this rule to the case of members of the families of insured prisoners.

I conclude that the Court should rule that neither Article 7 of the EEC Treaty nor Articles 19 and 22 of Regulation No 1408/71 nor any principle of Community law or general principle common to the laws of the Member States whatever require the national courts to uphold the rights of nationals of the competent State who, because of the consequences attached by that State to detention in legal custody on its territory in relation to cash sickness insurance benefits, would be subject to less favourable treatment than workers or members of their families from other Member States residing in the competent State who would be imprisoned in similar conditions in their State of origin or in another Member State.

1 Translated from the French.