Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The preliminary questions which give rise to the present case concern the scope of Regulation (EEC) No 1408/71 (on social security for migrant workers) in relation to family allowances for the dependent children of a pensioner, a former civil servant of a Member State. In the main action the person concerned is a Netherlands national, Mr Lohmann, formerly an official of a local authority in the Netherlands who from 1 May 1971 has enjoyed an invalidity pension which he received under the general law on civil pensions. On his removal to Belgium he claimed from the competent Netherlands institution family allowances for a daughter who remained in the Netherlands; his claim was, however, dismissed since the recipient of the pension did not reside in the Netherlands as is required in Article 17 (1) of the Law on family allowances for wage-earners and persons treated as such.

2. An unusual feature of the present case is the fact that the President of the Centrale Raad van Beroep considered it necessary to explain in a letter of 7 June 1978 addressed to the Court of Justice as a clarification of the questions submitted to the latter the facts giving rise to the case and the line of reasoning of the Centrale Raad van Beroep leading to the questions. In my view, whilst an acquaintance with these factors is helpful, it is not indispensable for an understanding of the questions and for providing a reply. Nevertheless, I feel it is essential for me to comment on a statement in the said letter which gives rise to serious difficulties (the more so in that it seems to concern an essential step in the line of reasoning followed by the court making the reference): the statement, that is, to the effect that Mr Lohmann falls within the sphere of persons covered by Regulation No 1408/71 and that the Netherlands provisions on family allowances for children at issue in the present case fall within the ambit of the matters covered by that regulation.

3. Let us then consider whether the lack of any reference to Article 4 (4) in the context of Article 1 (j) of Regulation No 1408/71 might mean that the expression legislation is to be understood as extending to special schemes for civil servants. It seems to me clear that the reply must be in the negative. In fact, Article 1 (j) refers specifically to Article 4 (1) and (2) inasmuch as the latter define positively the sectors of and schemes for social security covered by the concept of legislation. On the other hand, Article 4 (4) indicates the kinds of assistance and the insurance schemes to which the regulation does not apply and, irrespective of any reference, it covers Article 1 (j). Article 2 (3) and Article 77 (2). The foregoing is furthermore in accordance with the system of the EEC Treaty which, in Article 48 (4), expressly rules out the application of the provisions on the free movement of workers within the Community to employment in the public service.

4. On the basis of the considerations which I have set out above I conclude by suggesting that the Court of Justice should answer the preliminary questions submitted by the Centrale Raad van Beroep, by orders of 13 December 1977 and 6 June 1978, with the following ruling:

1 Translated from the Italian.