Opinion of Mr Advocate General Van Gerven delivered on 14 March 1989

1 Original language: Dutch.

2 Regulation on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416); for the latest consolidated version, see the annex to Regulation (EEC) No 2001/83 (OJ L 230, 22.8.1983 p. 8).

3 OJ C 245, 25.10.1975, p. 1.

4 Anicle 4 of Regulation No 1408/71 specifies, in particular, the branches of social security to which that regulation applies (paragraph 1) and also provides that the regulation is to apply to all general and special social security schemes, whether contributory or noncontributory, and to schemes concerning the liability of employers in respect of those branches.

5 Article 1(a) of Regulation No 1408/71 defines that term as the Member State in whose territory the competent institution is situated. Article 1(o) defines the competent institution amongst others as the institution with which the person concerned is insured at the time of the application for benefit, or the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of his family were resident in the territory of the Member State in which the institution is situated.

6 The terminology used in Article 71 has apparently misled the Netherlands Government. In its observations, the Netherlands Government points out that Article 71(1)(b)(ii) does not apply to Mrs Warmerdam because, during her last employment, she was not residing within the territory of a Member State other than the competent State, the Netherlands Government evidently interpreting the words was residing (in Dutch woonde) as having his residence (in Dutch woonplaats hebbend).

7 If that is not the case, Mrs Warmerdam will not be able to rely on the application of Article 71 or, therefore, to exercise the option provided for therein. In that case, she will fall within the scope of the ordinary rules of aggregation in Article 67. Article 67(3) (see section 12 below) imposes, however, a restrictive condition on the application of those rules on aggregation: the worker must have completed lastly periods of insurance or employment in accordance with the legislation under which the benefits are claimed.

8 Regulation No 3 of the Council concerning social security (or migrant workers, OJ 30, 16.12.1958, p 561 et seq.

9 At p. 185. It must be emphasized that Regulation No 3 did not contain any separate definition of the concept of worker.

10 On the whole, that point of view strikes me as being incorrect. The acquisition of the status of worker in a given Member State docs not ipso facto confer entitlement to the advantages of all the branches of social security in another Member State. Regulation No 1408/71 is designed primarily to coordinate and not to harmonize the social security systems of the Member States. In that connection, the basic principle of Regulation No 1408/71 is that migrant workers are entitled to social security benefits regardless of their place of employment or residence, so that the exercise of the rights which they have acquired is facilitated to the greatest possible extent throughout the territory of the Community, without however affecting the manner in which social security rights are acquired in the Member States. That principle has been implemented by the introduction of rules on aggregation and by the grant of benefits regardless of such workers' place of residence (see the preamble to Regulation No 1408/71, OI L 149, 5.7.1971, p. 2), but in accordance with the legislation of the Member State which must provide the benefits. Article 71 is in keeping with that principle, as I intend to show (in section 9).

11 Emphasis added by the Board. I wish to state here and now that that interpretation of the Court's judgment strikes me as incorrect. Admittedly, it is apparent from paragraph 17 of the judgment that the Court had not taken into consideration the national court's question except in relation to the contingency of sickness. None the less, there is nothing in the grounds of that judgment to suggest that the Court intended to consider the status of worker according to each branch of social security. In that judgment the Court deduced that status only from the existence of insurance cover against a given risk, namely the sole risk which was at issue in the proceedings.

12 The Board refers to Article 18 as regards sickness benefits and to Article 38 as regards invalidity benefits.

13 If, in that connection, the person concerned opts for the Member State in which he resides, the regulation establishes the fiction that he was last employed in that State (on that point, sec further in this section and, in connection with the second question, section 13). On the other hand, the competent institution of the Member State in which a migrant worker resides may, for the purpose of determining his entitlement to benefits, also take account of the factual circumstances in which his last employment was terminated. Thus, it is apparent from the order for reference, and confirmed by Mrs Warmerdam's observations, that she herself resigned from her position in the United Kingdom. If the legislation of the Member State chosen by the person concerned does not provide for entitlement to benefits in a situation of that kind, no such righi can be derived from Article 71(1)(b)(ii) either. The Board made it clear at the hearing, however, that the court of first instance (the Raad van Beroep, Arnhem) had taken the view that Mrs Warmerdam's resignation had to be regarded as involuntary and that no appeal had been lodged against the decision on that point.

14 This was so, for instance, in the main proceedings in Cases 39/76 (Mouthaan, see section 5 above) and in Case 227/81 (Aubin, see section 5 above).

15 That situation may have arisen in the main proceedings in Case 76/76 (Di Paolo) where the person concerned had, after completing his studies in Belgium, accepted a temporary position in the United Kingdom.

16 It should be pointed out that the technical expressions periods of employment or periods of insurance in Article 67 are not used in Article 71.

17 This phrase comes from paragraph 6 of the judgment of 15 March 1978 in Case 126/77 Frangiamore [1978] ECR 725, which is referred to by the Board.

18 This implies, as I pointed out earlier (section 10) that the characteristics and the scope of the insurance system of the Member State in which the worker was last employed arc irrelevant.

19 For the application of that rule see, inter alia, the judgment in Moutbaan, cited above, paragraphs 12 to 15.