Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. Father van Roosmalen is a Dutch priest attached to a monastery at Postel in Belgium who was sent to Zaire as a missionary in 1955. In 1977, he took out voluntary insurance, provided for under Article 77 of the Arbeidsongeschiktheidswet [Law on Incapacity for Work], (Staatsblad 1975, p. 674), for persons pursuing activities in a developing country.

2. The Netherlands court is unsure whether the abovementioned residence requirement is in conformity with Community law.

3. Those six questions raise the following point: May a Community citizen defeat a residence requirement which must be fulfilled in order to qualify for the invalidity benefits provided for under the legislation of a Member State concerning incapacity for work by relying on the provisions of Regulation No 1408/71, as extended since 1 July 1982 by Regulation No 1390/81 to self-employed persons? Summed up in that way, the questions referred to the Court require an explanation and make a particular approach necessary.

4. As the Commission has observed, the Law on Incapacity for Work makes the right to benefits conditional upon the claimant's having pursued during the year preceding the occurrence of the event insured against an activity or profession in respect of which he received income. In Netherlands revenue law, income is not strictly limited to earnings from employment, a business or the exercise of an independent profession, but covers more generally — to cite the national court's words in the third question — income from

5. Consequently, the interpretation of the expression self-employed person is not decisive for the application of the Community protection. None the less, if that expression, which the national court asks this Court to interpret, is to be of some value to it in resolving the dispute before it, the following observations should be made.

The term legislation

6. Article 77 of the Law on Incapacity for Work extends the right to insure oneself to those who have pursued or are pursuing activities in a country which ... may be regarded as a developing country. Do persons so insured under legislation which takes account of activities pursued in States forming no part of the territory of the Community, as defined in Article 227 of the EEC Treaty, come within the scope ratione personae of Regulation No 1408/71, as defined in Article 2 (1) and Article 1 (j)or that regulation, which states that:

The residence requirement

7. It therefore remains to consider whether the contested residence requirement — a claimant must have been incapacitated for work in the Netherlands for an uninterrupted period of 52 weeks — is compatible with Article 2 (4) of Regulation No 1390/81, which provides that:

8. In the light of all the foregoing considerations, I propose that the Court reply as follows to the questions referred to it by the Raad van Beroep, Utrecht:

1 Translated from the French.