Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. In the application initiating these proceedings the Commission asks the Court to declare that, by attaching conditions of nationality or residence to the enjoyment of the rights conferred by the Law of 16 June 1960 relating to social security, the Belgian State has failed to fulfil its obligations to the Community, and in particular those imposed by Articles 48 and 51 of the EEC Treaty.

2. Even after the Bozzone decision, the Belgian State retained without alteration the conditions of residence and nationality laid down in the Law of 16 June 1960 and in the colonial decrees the continuity of which it guaranteed. The Commission therefore commenced proceedings under Article 169 of the EEC Treaty against the Belgian Government by a letter of 29 September 1978, in which it set forth the infringement of which that Government was accused and invited it to submit its observations in the matter. In the reply thereto a solution which would have satisfied the Commission was announced in general terms. However, the announcement was not found to be confirmed by the facts and therefore, on the expiry of the period which had been allowed, the Commission issued its reasoned decision on 2 March 1979 in which it claimed that the Belgian State had infringed Articles 5, 48 and 51 of the EEC Treaty and Articles 2 (1), 3 (1) and 10 (1) of Regulation No 1408/71. Subsequently, that contention having remained unanswered, the Commission brought this action against the Kingdom of Belgium on 27 September 1979.

3. The presence in the legislation of a Member State of rules which restrict the exercise of the rights of migrant workers who enjoy the protection of Regulation No 1408/71 by imposing the condition that they should be nationals of that State or reside in its territory is incompatible with Community law and constitutes an infringement of it by the State in question. I have already referred, in relation to residence, to the first subparagraph of Article 10 (1) of Regulation No 1408/71; as to nationality, it is sufficient to cite Article 3 (1) of that regulation, which states that persons resident in the territory of one of the Member States to whom this regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State. Moreover, those rules are in harmony with the principles contained in the EEC Treaty. It should not be forgotten that Article 51 (b) provides, as one of the objectives of the Community social security system for migrant workers, for payments of benefits to persons resident in the territories of Member States and that Article 48 (2) requires the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

4. Naturally, the defence advanced by the Belgian Government attempts to exclude the Law of 16 June 1960 and the provisions subsequently amending it fromthe ambit of Article 1 (j) and Article 2 (1) of Regulation No 1408/71. To that end the defendant puts forward a series of submissions which, however, raise few matters new to the argument which has already been discussed and rejected in the Bozzone judgment.

5. For the reasons which have been given, I suggest in conclusion that the Court allow the application of the Commission, and accordingly declare that by imposing conditions of nationality and residence on the grant of the social security benefits provided for by the Law of 16 June 1960 and by the rules amending and supplementing that Law the Kingdom of Belgium has infringed the provisions of Articles 5, 48 and 51 of the EEC Treaty and of Articles 10 (1) and 3 (1) of Council Regulation (EEC) No 1408/71. Lastly, I propose that the defendant be ordered to pay the costs of the action.

1 Translated from the Italian.