Opinion of Mr Advocate General Lenz delivered on 6 June 1990

1 Original language: German.

2 Federal German Gazelle (BGBl.) 1977 II, p. 687.

3 Regulation (EEC) 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, OJ, English Special Edition, (1971) II, p. 416, as subsequently amended (see Annex I to Council Regulation No 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6).

4 Council Regulation of 30 October 1989 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, and amending Regulation (EEC) No 574/72 on the implementation of Regulation (EEC) No 1408/71 (OJ 1989 L 331, p. 1).

5 OJ 1985 L 302, p. 23.

6 Judgment of 15 January 1986 in Case 41/84 Pinnav Caisse d'allocations familiales de la Savoie [1986] ECR 1.

7 Judgment of 2 March 1989 in Case 359/87 Pinna v Caiai d'allocations familiales de la Savoie [1989] ECR 585.

8 In the version which existed before entry into force of Regulation No 3427/89; Article 99 of Regulation No 1408/71 was repealed by Article 1(4) of this regulation.

9 Compare also the amended version in Regulation No 3427/89 of the other provisions referred to in the first subparagraph of Article 60(1) of the Act of Accession; see in this connection the pending case of Commission v France (Case C-371/88).

10 Since lhe question was asked prior to adoption of lhe abovementioned regulation lhe wording thereof relates to the effects of the judgment in the Pinna I case, as is also apparent from the grounds of the order for reference.

11 Grabitz: Kommentar zum EWG-Vertrag (Commentary on the EEC Treaty), Article 191, footnote 5.

12 The definition of the concept of retroactivity in Grabiiz also supports this view, loc. cit., Article 191, footnote 7.

13 See, for example, Council Regulation (EEC) No 1660/85 of 13 June 1985, OJ 1985 L 160, p. 1 (Article 3(1) to (3)) and Council Regulation (EEC) No 2793/81 of 17 September 1981, OJ 1981 L 275, p. 1 (Article 3(2)).

14 It is also not consistently adhered to, see Article 3 of Council Regulation (EEC) No 196/81 of 20 January 1981, OJ 1981 L 24, p. 3. Here there were, however, only a few days between entry into force and publication.

15 Emphasis added.

16 Sec the Opinion of Mr Advocate General Mancini in Case 41/84 Pinna 1, cited above, at p. 3, and p. 14.

17 The French Government refers to the judgment in Case 234/83 Gesamthochschule Duisburg v Hauplzollamt München-Mitte [1985] ECR 327; see also the earlier judgment in Joined Cases 212 to 217/80 Amministrazione delle finanze dello Stato v Salumi [1981] ECR 2735.

18 See the judgment in Case 234/83, cited above, paragraph 20.

19 See the judgment in Joined Cases 212 to 217/80, cited above, paragraph 9.

20 Pursuant to which the new version of Article 76 of Regulation No 1408/71 is valid only as from 1 May 1990.

21 In accordance with the scope of application of Article 73 in the old version of Regulation No 1408/71 which is restricted to employees — although the title of the regulation, also reproduced in Article 60 of the Act of Accession (see Regulation (EEC) No 1390/81, OJ 1981 L 143, p. 1), would lead one to believe otherwise — Article 60 of the Act of Accession also expressly governs only the legal situation of employees.

22 Emphasis added.

23 Judgment in Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 13.

24 Case 98/78 Racke v Hauplzollamt Mainz [1979] ECR 69.

25 Case 99/78 Decker v Hauplzollaml Landau [1979] ECR 101

26 IRCA v Staatliche Finanzverwaltung (1976] ECR 1229, at pp 1236 and 1237

27 Judgment in Case C-114/88 Delbar v Came d'allocation familialei de Roubaix-Tourcoing [1989] ECR 4067

28 As is well known, this category did not fall within Article 73 (old version) of Regulation No 1408/71 and therefore was not covered by the judgment in Pinna ƒ.

29 See paragraph 10 of the judgment in the Delbar case, cited above.