Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. By this action under Article 169 of the EEC Treaty, the Commission seeks a declaration that Article 121 (10) of the Belgian Law of 9 August 1963 establishing and organizing a compulsory sickness and invalidity insurance scheme, as amended by the Law of 8 August 1980 concerning the budget proposals for 1979/80, is incompatible with Community law.

2. The Belgian Government does not deny that the application of the Belgian legislation at issue to all insured persons regardless of the Member State in which they reside constitutes a failure to comply with Article 33 of Regulation No 1408/71.

3. In my opinion this is not the place to examine those measures with regard to the alleged failure of Belgium to fulfil its obligations. I would merely observe that the situation to which the Commission has rightly objected remains unchanged today. The Belgian Government explains that its delay in conforming to Article 33 is due to difficulties encountered both in the choice and in the drawing up of the national amending provisions. In that respect it is sufficient to recall that the Court has consistently held that:

4. Consequently, I propose that the Court declare that, by retaining unamended the provisions of Article 121 (10) of the Law of 9 August 1963, as amended by the Law of 8 August 1980, and by failing to provide an exception in respect of Community nationals residing in another Member State, Belgium has failed to fulfil its obligations under Article 33 of Regulation No 1408/71 of the Council.

1 Translated from the French.

2 Moniteur belge [Belgian Official Gazette] of 1-2 November 1963, p. 10555.

3 Moniteur belge of 15 August 1980, p. 9463, Article 161 at p. 9514.

4 Article 121 (10), fourth subparagraph.

5 Official Journal, English Special Edition 1971 (II), p. 416, as amended by Regulation No 2864/72 of the Council of 19 December 1972 (Official Journal, English Special Edition 1972 (31 December), L 306, p. 15).

6 Case 30/72 Commission v Italy [1973] ECR 161, paragraph 11; see also the more recent Case 279/83 Commission v Italy [1984] ECR 3403, paragraph 4, in relation to a directive.