Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. In this reference for a preliminary ruling an interpretation is sought not only of two provisions of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, but also, and from various aspects, Article 8 of Regulation No 574/72 of the Council of 21 March 1972 which fixes the procedure for implementing the first-mentioned regulation. Moreover, a question is raised as to the validity of that article, doubts having been cast on its conformity with Article 51 of the EEC Treaty.

2. In the first question the Commissioner asks the Court whether a person who satisfies the contribution conditions of one Member State (in this case the United Kingdom) for entitlement to maternity allowance (in this case at a reduced rate) throughout the period for which maternity allowance is claimed in that State is a worker for the purpose of (a) Regulation (EEC) No 1408/71 and (b) Regulation (EEC) No 974/72, notwithstanding that during that period she has paid no contributions and is not liable to pay contributions.

3. The second to fifth questions all concern Article 8 of Regulation No 574/72 which is headed Rules applicable in the case of overlapping of rights to... maternity benefits under the legislation of several Member States. According to that article, if a worker... is entitled to claim maternity benefits under the legislation of two or more Member States, those benefits shall be granted exclusively under the legislation of the Member State in whose territory the confinement took place.... In the second question the National Insurance Commissioner asks the Court Whether a worker who satisfies the contribution conditions for maternity benefit (either at the full or at a reduced rate) under the legislation of two or more Member States (in this case those of the United Kingdom and the Republic of Ireland) is to be regarded, for the purpose of Article 8 of Regulation (EEC) No 574/72 as entitled to claim maternity benefits under those legislations:

4. The third question is concerned with the meaning to be given to the expression the legislations of two or more Member States which occurs in the said Article 8 of Regulation No 574/72. The National Insurance Commissioner wishes to know whether that expression is to be regarded as (a) including or (b) excluding the regulations of the European Economic Community.

5. In the fourth question the National Insurance Commissioner asks the Court Whether, in the case of a worker who is entitled to claim maternity benefits under the legislation of two or more Member States within the meaning of Article 8 of Regulation (EEC) 574/72, the provision of that article that those benefits shall be granted exclusively under the legislation of the Member State in whose territory the confinement took place (in this case the Republic of Ireland) operates to exclude the claimant from obtaining maternity benefits in Member States where the confinement did not take place (in this case the United Kingdom):

6. The fifth question is concerned with the validity of Article 8 of Regulation No 574/72. The Commissioner entertains doubt whether that provision to the extent to which it operates to exclude the claimant from obtaining maternity benefits in Member States where the confinement did not take place may be regarded as invalid through being ultra vires. In essence, it is thereby suggested that the rule in question is incompatible with Article 51 of the EEC Treaty.

7. The sixth and final question is concerned with the interpretation of Article 86 of Regulation No 1408/71. In terms of that provision any claim, declaration or appeal which should have been submitted, in order to comply with the legislation of one Member State, within a specified period to an authority, institution or tribunal of that State shall be admissible if it is submitted within the same period to a corresponding authority, institution, or tribunal of another Member State. In such a case the authority, institution, or tribunal receiving the claim, declaration or appeal shall forward it without delay to the competent authority, institution or tribunal of the former State.... The Commissioner asks the Court whether those provisions apply in the case of a claim which should have been, but has not been, submitted, in order to comply with the legislation of one Member State (in this case the Republic of Ireland), within a specified period to an authority, institution or court of that State but has been submitted, outside that period, to a corresponding statutory institution or court of another Member State (in this case the Department of Health and Social Security, London, United Kingdom).

8. I therefore conclude by suggesting that the Court answer the questions framed by the National Insurance Commissioner by order of 11 September 1979 in the following manner:.

1 Translated from the Italian.