Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The present case raises the problem of the effen of the loss of the nationality of one of the Member States on the applicability of Regulation No 1408/71 of the Council of 14 June 1971 on social security for migrant workers.

2. in all three questions formulated by the court in Gelsenkirchen particular significance is attached to the provisions of Article 16 (2) of Regulation No 109/65 of the Council; as we have seen, mat provision is expressly referred to in the second and third questions but the first question also is essentially based on a particular interpretation which the court making the order for reference attributes to the article and paragraph in question. The content of Article 16 (2) is simple: as it had been decided that Algeria should be removed from the group of territories to which Regulation No 3 was applicable, Article 16 (2) secured the rights acquired pursuant to that regulation. Subsequently, however, Article 99 of Regulation No 1408/71 repealed Regulation No 3. For that reason the German insurance institution contends that Article 16 (2) of Regulation No 109/65 has lost its point of reference and no longer has any force; in consequence the insurance entitlement previously acquired by the plaintiff in France at the time when he was still a French national must be regarded as extinguished. The court making the order for reference however has doubts whether the said provision of Regulation No 109/65 may have remained in force and it states that if that is the case the insurance periods completed in France before 19 January 1965 by a worker in the position of the plaintiff must be taken into account.

3. The persons covered by the Community rules harmonizing social security schemes applicable to employed persons moving within the Community are defined in Article 2 (1) of Regulation No 1408/71. It is there provided that the regulation shall apply 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 or who are stateless persons or refugees residing within the territory of one of the Member States, as also to the members of their families and their survivors.

4. What I have said so far is sufficient to clear up both the illusory problem of the application of Article 16 (2) of Regulation No 109/65 to circumstances such as those in the present instance, and the general objection raised by the German social insurance institution that Regulation No 1408/71 is inapplicable. There remains, however, one important question which cannot be avoided if we are to give a complete answer to the questions referred to us by the national court: the definition of the concept of accrued rights wihtin the meaning of the Community provisions concerning the application of national social security schemes.

5. In the present instance the worker concerned asked the German institution to apply to him the Community rules relating to insurance periods completed by him in France before he acquired Algerian nationality. As we have seen during the first 14 months of his employment in Germany he remained a French citizen; he was therefore a migrant worker within the meaning of Community law and as such he was subject to Regulation No 3. This gave him the right to have taken into account in Germany, in addition to the insurance period of 14 months already completed, the insurance periods which he had previously completed in France. In other words when he lost the nationality of a Member Sute the worker had already acquired the right, pursuant to Community rules, to have taken into account French periods of contribution for the subsequent application of the social security system of another Member State.

6. For the reasons set out above I propose that the Court of Justice should rule as follows in answer to the questions raised by the Sozialgericht Gelsenkirchen by order received at the Court on 1 February 1978:

1 Translared from the Italian

2 Translator', note The word, used in the kakan text art dimti acqu uisiu which elsewhere in the regulation art translated as accrued right