Report for the Hearing in Case C-99/89

I — Facts and procedure

A — Legal framework

Article 73(1) and (2) of Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (Official Journal, English Special Edition 1971 (II) p. 416), before being amended by Council Regulation (EEC) No 3427/89 of 30 October 1989 (Official Journal L 331, p. 1), provided as follows:

Article 99 of Regulation No 1408/71, now repealed by Article 1(4) of Regulation No 3427/89, provided as follows:

In its judgment of 15 January 1986 in Case 41/84 Pinna v Caisse d'allocations de la Savoie [1986] ECR 1, in answer to a question referred to it for a preliminary ruling by the French Cour de cassation (Court of Cassation), the Court held as follows:

As a result of that judgment, and in the same proceedings, the Cour de cassation once again stayed proceedings and referred questions to the Court on the consequences of that judgment. In its judgment of 2 March 1989 in Case 359/87 Pinna v Caisse d'allocations de la Savoie [1989] ECR 585, the Court, in response to those questions, held as follows:

On 30 October 1989, after the termination of the written procedure in this case, the Council adopted Regulation No 3427/89, cited above. According to Article 1(1), the version of Article 73 then in force was replaced by the following text:

By virtue of Article 3 thereof, Regulation No 3427/89 applies from 15 January 1986.

Article 60 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, annexed to the Treaty of 12 June 1985 concerning the accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community (hereinafter referred to as the Act of Accession) provides as follows:

Similar provisions appear in Article 220 of the Act of Accession in regard to Portuguese workers who are employed in a Member State other than Portugal, and the members of whose families are resident in Portugal.

B — Facts

Mr Yáñez-Campoy, the plaintiff in the main proceedings, is a Spanish national. He resides, and is employed, in the Federal Republic of Germany. His children, Francisco José and Enrique, live in Spain.

The Bundesanstalt für Arbeit, the competent German institution, paid the plaintiff family allowances of DM 10 for the first child and DM 25 for the second, in accordance with Article 40 of the Social Security Convention between Germany and Spain of 4 December 1973. The amount of the family allowances provided for by Article 10 of the German law on family allowances is DM 50 for the first child and DM 100 for the second.

The plaintiff lodged a complaint with the Arbeitsamt (Employment Office) Frankfurt, arguing that he was entitled to the amounts provided for in Article 10 of the German law on family allowances. Since his complaint was rejected, the plaintiff brought an action before the Sozialgericht Frankfun am Main. Before that court, the plaintiff argued that, in accordance with Article 60 of the Act of Accession, Article 73 of Regulation No 1408/71 should be applied to Spanish workers from 1 January 1986, as a result of the Court's judgment of 15 January 1986 in Case 41/84 Pinna, cited above.

C — The question referred to the Court

By order of 13 March 1989, the Sozialgericht Frankfurt am Main decided to stay proceedings until the Court of Justice had given a ruling under Article 177 of the EEC Treaty on the following question:

It is apparent from the order for reference that the Sozialgericht takes the view that as a consequence of the Pinna judgment, which declared Article 73(2) void in so far as it precludes the award to employed persons subject to French legislation of French family benefits for members of their family residing in the territory of another Member State, the uniform solution for all the Member States regarding the rules on child benefit entered into force in January 1986.

The national court considers that that judgment fulfils the first alternative condition contained in Articles 60 and 220 of the Act of Accession and it was therefore unnecessary to wait until 31 December 1988. Consequently, the rules of Community law relating to the payment of child benefit have been applicable to Spanish workers since January 1986.

D — Procedure

The order of the Sozialgericht Frankfurt am Main was received at the Court Registry on 24 March 1989.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted by Mr Yáñez-Campoy, represented by Ángel González Maeztu, of the Social Affairs Division of the Spanish Consulate in Frankfurt, by the Government of the Federal Republic of Germany, represented by Helmut Kaupper, Ministerialrat in the Federal Ministry of Labour and Social Security, by the Government of the Kingdom of Spain, represented by Javier Conde de Saro, Director-General for Community Legal and Institutional Coordination, and by Mrs Rosario Silva de Lapuerta, abogado del Estado, acting as Agents, by the Government of the Portuguese Republic, represented by Luís Inês Fernandes, Director of Legal Affairs in the Directorate-General for the European Communities, and by Sebastião Pizarro, Deputy Director of the Department for International Relations and Social Security Conventions, acting as Agents, by the Government of the French Republic, represented by Edwige Belliard, Agent, and Claude Chavance, Deputy Agent, and by the Commission of the European Communities, represented by its Legal Adviser, Dimitrios Gouloussis, and Jürgen Grunwald, a member of its Legal Department, acting as Agents.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. By decision of 31 January 1990, the Court decided to assign to assign the case to the Sixth Chamber under Article 95(1) and (2) of the Rules of Procedure.

II — Written observations submitted to the Court

Mr Yáñez-Campoy, the plaintiff in the main proceedings, considers that the judgments of 15 January 1986 and 2 March 1989, cited above, directly affect Article 60 of the Act of Accession inasmuch as they declare Article 73(2) of Regulation No 1408/71 void.

In view of the Court's ruling, the application of the three-year transitional period provided for in Article 60 of the Act of Accession is now impossible under the conditions agreed on. Consequently, Article 60 must be interpreted in a way which resolves the problem of its applicability.

The first question which arises is to determine whether, having regard to the fact that it is an entirely separate legal measure, the Act of Accession is affected by the declaration that Article 73(2) of Regulation No 1408/71 is void. That question should be answered in the affirmative since Article 60 does not refer to any principle but to a particular article of the regulation. The fact that that reference rule is void will thus also determine the applicability of the transitional period in regard to family allowances.

The declaration that Article 73(2) is void creates a legal vacuum in Article 60 of the Act of Accession which cannot be filled merely by applying Article 60(2). The provisions of the conventions concluded between Spain and the other Member States, which are set out therein, constitute solely an improvement over the rules contained in Article 73(2) of Regulation No 1408/71. They refer to amounts higher than those to which the persons concerned would have been entitled under Article 73(2), but none the less below those payable where Article 73(1) is applied. The validity of Article 73(2) of Regulation No 1408/71 is a condition for the application of Article 60(2) of the Act of Accession.

According to the plaintiff, the legal vacuum in Article 60 of the Act of Accession may be filled by taking account of the solution adopted by the Court in its judgment of 2 March 1989, cited above. According to that judgment, the national authorities are required to apply, even to workers subject to French legislation, the rules laid down in Article 73(1), which now remain the only valid system of reference.

The plaintiff contrasts the transitional period in regard to family allowances fixed for Spain in Article 60 with that fixed for the Hellenic Republic. Article 48 of the Act concerning the conditions of accession of the Hellenic Republic and the adjustments to the Treaties, annexed to the Treaty of 28 May 1979 concerning the accession of the Hellenic Republic to the European Economic Community and the European Atomic Energy Community, contains no provision similar to Article 60(2) of the Act of Accession for Spain and Portugal. On the contrary, there is an important and significant difference: whereas the transitional provisions applicable to the Hellenic Republic contain a single, fixed time-limit, namely 31 December 1983, the transitional period for Spain consists of two alternatives, namely a maximum time-limit, expiring on 31 December 1988, or the entry into effect of the uniform solution for all the Member States referred to in Article 99 of Regulation No 1408/71, which is a condition subsequent.

The plaintiff considers whether the abovementioned judgment of the Court of 15 January 1986 constitutes the uniform solution referred to in Article 60 of the Act of Accession. He concludes that that judgment did in fact make it possible to arrive at a uniform solution for the award of family allowances.

The plaintiff also considers whether the solution resulting from the judgment of 15 January 1986 is a solution within the meaning of Article 60 of the Act of Accession. The hypothesis that the uniform solution has been brought about seems to be contradicted by the fact that the procedure laid down in Article 99 of Regulation No 1408/71, to which Article 60(1) of the Act of Accession refers, was not applied within the prescribed time-limit (31 December 1972). Since the Act of Accession was signed more than 12 years after the expiry of that time-limit, Article 60 of the Act of Accession could not possibly be based on a literal interpretation of Article 99 of the regulation. The conditions which the uniform solution must fulfil must therefore be determined on the basis of a teleological interpretation of Article 60 of the Act of Accession.

Article 60(1) of the Act of Accession lays down two alternative conditions. It follows that the Contracting Parties envisaged in any event that, during a transitional period of not more than three years, the family allowances paid in respect of children residing in Spain should be subject to the system laid down in Article 73(2) until such time as a system similar to that of the other Member States was applicable to Community workers employed in France. The parties to the negotiations had in mind that, when a uniform solution was achieved, the transitional period should not derogate from it. Since the judgment of 15 January 1986, cited above, is binding, the uniform solution referred to in Article 60 of the Act of Accession has been achieved, with the result that the general objective laid down in Article 99 of Regulation No 1408/71 has been attained and that, simultaneously, the first of the conditions laid down in Article 60 of the Act of Accession must be regarded as fulfilled.

In conclusion, the plaintiff considers that by virtue of the judgments of the Court of 15 January 1986 and 2 March 1989, Article 73(2) of Regulation No 1408/71 cannot be applied in this case because a uniform solution for the payment of family allowances has already been achieved or, on the contrary, because the abovementioned article has been declared void and therefore the express reference thereto in Article 60 of the Act of Accession has ipso facto ceased to be valid.

The Government of the Federal Republic of Germany observes that, by virtue of Article 60 of the Act of Accession, until the entry into force of the uniform solution for all the Member States referred to in Article 99 of Regulation No 1408/71, and not later than 31 December 1988, Article 73(1) of Regulation No 1408/71 is not applicable. In the meantime, Points 1 to 4 of Article 40(1) of the Spanish-German convention of 4 December 1973, as amended by Article 2 of the amending agreement of 17 December 1975, continue to apply. That transitional period expired on 1 January 1989.

It must be admitted that since the Pinna judgments, cited above, Article 73(1) of Regulation No 1408/71 applies uniformly in all the Member States. However, whether that constitutes the entry into force, within the meaning of Article 60(1) of the Act of Accession, of the uniform solution referred to in Article 99 of Regulation No 1408/71 is doubtful. The reply to that question should be in the negative.

A uniform solution may be said to have entered into force only when the Council has adopted and published a measure to that effect. The transitional period may be shortened only by the adoption of a measure so providing. At the time that the German Government submitted its observations, the Council had not adopted a proposal for a regulation on that subject.

A judgment of the Court cannot replace the necessary legislative provision, since the expiry of the time-limit must be determined in a way which is uniform and certain in regard to all concerned. Consequently, it is also not possible to envisage an application by analogy of the legal effects of the Council regulation to a case such as the present concerned with a ruling made by the Court, all the more so because, even if the Member States had foreseen that development in the law, they would certainly have preferred a clear and unambiguous limitation of the time-limit to such an arrangement.

The Government of the Federal Republic of Germany proposes that the answer to the national court should be as follows:

The Government of the Kingdom of Spain observes that the problem is to determine whether the uniform solution referred to in Article 99 of Regulation No 1408/71 has or has not entered into force; if it has not, then the rules governing the payment of family allowances to a Spanish worker in the Federal Republic of Germany are those contained in the social security convention between Germany and Spain, in particular, Article 40 thereof; if it has, then the transitional period laid down in Article 60 of the Act of Accession has ended and Article 73 of Regulation No 1408/71 is fully applicable to Spanish workers.

With effect from the judgment of the Court of 15 January 1986, cited above, the dual system of benefits provided for in Article 73 of Regulation No 1408/71 disappeared and there is now only one set of rules for all the Member States; the uniform solution referred to in Article 60 of the Act of Accession has thus entered into force and the transitional period laid down in that article for Spanish workers as an alternative pending the introduction of the uniform solution referred to has ended. That interpretation is in accordance with the judgment of the Court of 2 March 1989.

In conclusion, the Government of the Kingdom of Spain considers that the answer to the national court's question should be that the judgment of 15 January 1986 in Case 41/84 brought into force the uniform solution referred to in Article 60 of the Act of Accession of Spain and Portugal to the European Communities, with the effect that Article 73(1) of Regulation No 1408/71 applies from January 1986 to the children resident in Spain of a Spanish worker employed in the Federal Republic of Germany.

The Government of the Portuguese Republic observes that the generalization of the system for paying family allowances brought about by the judgment of 15 January 1986, cited above, involves a uniform solution within the meaning of Article 99 of Regulation No 1408/71.

The raison d'être of Articles 60 and 220 of the Act of Accession is the absence in Community law of a solution in regard to family allowances which is uniformly applicable in all the Member States. Article 60 of the Act of Accession lays down two possibilities for the ending of the transitional system provided for therein: a maximum period of application of that system and the condition that the transitional system will cease to have effect at the date on which the uniform solution for all the Member States referred to in Article 99 of Regulation No 1408/71 enters into force.

The generalization of the system for payment of family allowances laid down in Article 73(1) of Regulation No 1408/71 as a result of the declaration that Article 73(2) is void thus fulfilled one of the two alternative conditions laid down in Article 60 and 220 of the Act of Accession, with the effect that it is no longer necessary to await the normal expiry date on 31 December 1988.

The Government of the Portuguese Republic adds that, although the chapter of Regulation No 1408/71 dealing with family allowances has not been applicable since the accession of Spain and Portugal to the Communities to Spanish and Portuguese migrant workers because there is no uniform solution among the other 10 Member States, it would be illogical both from a legal and from a social point of view, if, once a uniform solution has been brought about, it were not applied to all 12 Member States because that partial non-application results in the continuance of a dual solution applied on the basis of the nationality of the workers involved.

The application by analogy of Article 73(2) of Regulation No 1408/71, provided for in Articles 60 and 220 of the Act of Accession, ceased to have effect inasmuch as that provision, declared void, disappeared from the Community legal order with effect from 16 January 1986. It is not possible to apply by analogy a provision which is legally void.

The judgment of 2 March 1989 excluded no situation from the effects of the generalized application of Article 73(1) and it is therefore for the competent institutions in all the Member States, without exception, to apply, with effect from the date at which the judgment of 15 January 1986 produces its effects, the sole system of reference valid in this domain, namely Article 73(1) of Regulation No 1408/71.

The Government of the Portuguese Republic proposes that the Court should answer the national court's question as follows:

The Government of the French Republic observes that Regulation No 1408/71 coordinates the national social security systems.

It is not a harmonizing regulation and, in that regard, the French Government refers to the settled case-law of the Court (see, inter alia, the judgment of 15 January 1986, cited above). The concept of coordination itself cannot rule out differences in treatment from one Member State to another as a result of disparities between different national legislative rules, because the objective of Regulation No 1408/71 is not to make major changes in the way in which the national social security systems are organized. The implementation of the principle of coordination also makes it possible to consider that the application, for a limited period, of special rules, as defined in Articles 60 and 220 of the Act of Accession, for the payment of family allowances to nationals of the new Member States of the Community is in conformity with Community law.

This case raises the problem of whether a uniform solution within the meaning of Article 99 of Regulation No 1408/71 has not been arrived at indirectly as a result of the judgments of the Court of 15 January 1986 and 2 March 1989. That question was decided in regard to the Member States other than Spain and Portugal in the judgment of 2 March 1989. On the other hand, the question of the rules applicable to Spanish and Portuguese workers is completely independent of the problem raised in the Pinna judgments as a result of the special provisions concerning those rules contained in the Act of Accession.

The Government of the French Republic contests the argument that the arrangements set up by the Act of Accession disappeared because Article 73(2) of Regulation No 1408/71 was declared void and that the uniform solution ending the transitional period instituted by Articles 60 and 220 of the Act of Accession has been in place since 15 January 1986. On that view, the adoption of new rules by the Council would be without purpose.

Such an approach is misconceived inasmuch as the rules deriving from the abovementioned provisions of the Act of Accession were specific to Spain and Portugal and derogated from the general rules laid down in Regulation No 1408/71. The French Government agrees with the Commission and, in that regard, it refers to the Commission's answer to a written question in the European Parliament on Articles 60(2) and 220(2) of the Act of Accession.

Although the Court did not rule on whether a uniform solution within the meaning of Article 99 of Regulation No 1408/71 existed in Community law as a result of its judgments of 15 January 1986 and 2 March 1989, it did state in the latter judgment that it was for the Council to decide on the rules for payment of family allowances under Article 73 of Regulation No 1408/71.

The French Government considers that the Act of Accession, which is at the same level as the EEC Treaty in the hierarchy of sources of Community law, may perfectly well contain provisions derogating, on the one hand, from the Treaty itself and, on the other, from subordinate legislation such as Regulation No 1408/71, which are of a lower rank than the Act of Accession. According to settled case-law, the Court has no jurisdiction to consider the legality of provisions of the Act of Accession in the light of the EEC Treaty or subordinate legislation (see the judgment in Joined Cases 31 and 35/86 Laisa and CPC España v Council [1988] ECR 2285).

The French Government proposes that the Court should reply to the national court that the transitional rules laid down, in particular in regard to Spanish workers, by Article 60 of the Act of Accession, apply until 31 December 1988, in the absence of a uniform solution, within the meaning of Article 99 of Regulation No 1408/71, adopted by the Council in accordance with the procedure laid down in that article. The Spanish workers are thus covered by the rules laid down in Article 73(2) of Regulation No 1408/71 and by Article 94(9) thereof where the terms of the bilateral social security convention between Spain and the Member State in which the workers concerned are employed are more favourable.

The Commission of the European Communities contests the argument that a uniform solution for all the Member States within the meaning of Article 99 of Regulation No 1408/71 has been arrived at as a result of the declaration that Article 73(2) of that regulation is void. Such an interpretation must be rejected because the said Article 99 refers to a uniform solution adopted by the Council on a proposal from the Commission. The Council regulation referred to in the said Article 99 cannot be replaced by a judgment of the Court, as is indirectly confirmed by the judgment of 2 March 1989, which requires application of the legal situation created by the judgment until such time as the Council adopts new rules for the payment of family benefits which are in accordance with Article 51 of the EEC Treaty.

The Commission then considers whether the declaration that Article 73(2) of Regulation No 1408/71 is void and the decision to apply the general rules laid down in Article 73(1) thereof have an effect on the legal position of Spanish workers as laid down in Article 60(1) of the Act of Accession, since the application by analogy of Article 73(2) of Regulation No 1408/71 provided for therein is also inapplicable and Spanish workers must be made subject to the rules laid down in Article 73(1) of the said regulation.

According to the Commission, the Court's judgments in the Pinna cases, cited above, should not be given such a meaning, having regard to the different legal situations initially existing. In those cases, the Court was called upon to rule on a situation exclusively concerned with the dual system for the payment of family allowances laid down in Article 73(1) of Regulation No 1408/71, on the one hand, and Article 73(2) on the other. Specifically, what was at issue was whether the principle of equal treatment permitted a Member State to be subject to rules for the payment of family allowances different from those applying in the other nine Member States.

On the other hand, the rules laid down in Article 60(1) of the Act of Accession deal with the relations between the existing 10 Member States and Spain. They not only made the payment of family allowances to Spanish workers subject, during a transitional period, to the same principle of residence as was laid down for France, but went beyond the scope of Article 73(2) of Regulation No 1408/71, inasmuch as they not merely made the rights of Spanish workers employed in France subject to the principle of residence, but applied to Spanish workers employed in other Member States. The application by analogy of Article 73(2) of Regulation No 1408/71, provided for in the second subparagraph of Article 60(1) of the Act of Accession, does not refer in that regard to a situation of fact. The latter provision is a rule in its own right, and it is only in regard to the legal consequence — the application of the principle of residence — that reference is made to the rules laid down in Article 73(2) of Regulation No 1408/71.

The fact that Article 60(1) of the Act of Accession introduced a dual system between the States which were members before the accession of Spain is justified by the transitional nature of the rules. Transitional rules, of their very nature, are marked by the fact that they lay down specific rules which derogate from the legal situation in the existing Member States. If the considerations governing the application and validity of the provisions of Community law applicable in the fully integrated Member States were applied to the transitional rules applicable to new Member States, the transitional rules would be deprived of their substance, creating a legal situation which should come into being only at the end of the transitional period. That would run counter to the rules laid down in Article 6 of the Act of Accession, which provides that amendments to the rules governing legal situations created by the Act of Accession may be made only by means of the procedure laid down in the original treaties enabling those treaties to be modified.

On the basis of that provision, the Commission points out that, even if the declaration of invalidity concerning Article 73(2) of Regulation No 1408/71 was extended to the second subparagraph of Article 60(1) of the Act of Accession, that would not entail the application of the general rules laid down in Article 73(1) of that regulation for the payment of family allowances. That would be contrary to the unequivocal rules laid down in that regard in the first subparagraph of Article 60(1) of the Act of Accession, according to which Article 73(1) of Regulation No 1408/71 is not to apply until a uniform solution for all the Member States has been brought into force by a Council regulation or when the transitional period has expired on 31 December 1988.

Finally, the fact that the findings made in the judgments in Cases 41/84 and 359/87 are not applicable to the legal situation created by Article 60(1) of the Act of Accession also may be seen from the fact that the jurisdiction claimed by the Court in the abovementioned cases did not involve any declaration as to the validity or invalidity of the Act of Accession. The Court also has jurisdiction in regard to the interpretation and validity of the provisions of the Act of Accession (see Article 1 (3) of the Treaty of Accession). However, that does not apply to proceedings brought under subparagraph (b) of the first paragraph of Article 177 of the EEC Treaty, as was the situation in Cases 41/84 and 359/87.

The Court's jurisdiction in those cases was limited merely to declaring whether a piece of Community subordinate legislation was valid or invalid, whereas what is involved in regard to the rules laid down in Article 60 of the Act of Accession is the validity and implementation of a provision which is part of primary Community law. Consequently, the Commission considers that, in this case, the Court does not even have jurisdiction to rule on the validity of the provisions of the Act of Accession.

The Commission proposes that the Court should reply as follows to the Sozialgericht Frankfurt:

III — Written questions and answers

By decision of 31 January 1990, the Court asked the following question of the plaintiff in the main proceedings, the Portuguese, French, Spanish and German Governments and the Commission:

The plaintiff answered the Court's question by saying that the judgment of 15 January 1986 constitutes the uniform solution referred to in Article 99 of Regulation No 1408/71 and Article 60 of the Act of Accession.

Regulation No 3427/89, and in particular, Article 3 thereof, eliminated any doubt that the uniform solution applied to Spanish and Portuguese workers employed in a Member State as from 15 January 1986.

It follows from Article 189 of the EEC Treaty that regulations are legislative in nature and do not apply to a limited number of persons expressly designated or easily identifiable but to persons generally designated in abstract terms. Thus, if Regulation No 3427/89 was not to apply to Spanish and Portuguese nationals, that fact should have been mentioned in the terms of the regulation.

The plaintiff states that the defendant considers that the date on which the uniform solution came into effect for Spanish and Portuguese workers was the day on which Regulation No 3427/89 was published in the Official Journal of the European Communities, namely 16 November 1989.

According to the plaintiff, Article 60 of the Act of Accession fixed the date from which Article 73(1) of Regulation No 1408/71 was applicable as the day on which the uniform solution entered into force, which was not the same as the day on which the regulation defining that solution was published.

Article 191 of the EEC Treaty distinguishes between the date of entry into force of a regulation and the date of its publication and gives the institution which adopts it the task of fixing the date of entry into force. The distinction between entry into force and applicability in Article 3 of Regulation No 3427/89, also contained in other regulations amending Regulation No 1408/71, the basic regulation, can be understood only in the context of the said Article 191. The date fixed by the Council for the entry into force of the uniform solution in the new version of Article 73 of Regulation No 1408/71, 15 January 1986, is the date of retroactive entry into force, which is different from the date of its publication, namely 16 November 1989.

With regard to the entry into force of Regulation No 3427/89, the plaintiff refers to the judgment in Case C-114/88 Delbar v Caisse d'allocations familiales de Roubaix-Tourcoing [1989] ECR 4067, which recognizes the right of self-employed persons to family allowances — a right missing from the earlier version of Article 73 of Regulation No 1408/71 — with effect from the date fixed in Article 3 of Regulation No 3427/89, namely 15 January 1986.

According to the latest information available to the plaintiff, the defendant in the main proceedings bases its argument on the reservation made by the Government of the Federal Republic of Germany on 30 October 1989, mentioned below, at the time that Regulation No 3427/89 was adopted. The plaintiff is unaware of any such reservation. Moreover, even if the Government of the Federal Republic of Germany had made such a reservation, it would be ineffective since it does not form part of the regulation.

The Government of the Portuguese Republic replied that the necessary consequence of the adoption of Regulation No 3427/89 was that the uniform solution referred to in Article 99 of Regulation No 1408/71 and Articles 60 and 220 of the Act of Accession entered into force on 15 January 1986.

The provisions of the new regulation contain no derogation or exception to its application in regard to Articles 73 to 75 with effect from 15 January 1986. It would therefore be wrong not to apply it from that date.

If there was to be a derogation regarding the application of the new regulation in relation to that date, it would have been made expressly, as can be seen from the last paragraph of Article 3 thereof, which postponed the application of Article 76 to 1 May 1990.

That also corresponds to the very concept of a regulation, as defined in Article 189 of the EEC Treaty.

The French Government answered that, in the absence of a uniform solution within the meaning of Article 99 of Regulation No 1408/71, the provisions of Articles 60 and 220 of the Act of Accession remained fully in effect until 31 December 1988. Since then, by virtue of the provisions of the Act of Accession, Spanish and Portuguese workers covered by those provisions have been subject, since the expiry of that transitional period, to the rules on the payment of family allowances laid down in Article 73(1), already applicable in nine other Member States.

A uniform solution applicable to all workers subject to Regulation No 1408/71 was developed by Regulation No 3427/89, which generalized the so-called country of employment system.

The Community legislature made no reservation in the first paragraph of Article 3 of Regulation No 3427/89 concerning Spanish and Portuguese workers. In the French Government's view, it was not necessary to do so. The provisions of the Act of Accession had already taken effect and the transitional period had ended on 1 January 1989. Only the rules applicable to workers who are nationals of Member States other than Spain or Portugal and, from 1 January 1989, to all workers from other Member States employed in France remained to be defined. Regulation No 3427/89 changed nothing in regard to the payment of family allowances in the other 11 Member States. All it did was to extend in law, in accordance with the judgments of 15 January 1986 and 2 March 1989 and in the form required by Article 51 of the EEC Treaty and Article 99 of Regulation No 1408/71, the country of employment principle to France under the conditions laid down by the Council.

Thus, Regulation No 3427/89 had retroactive effect only in regard to workers from other Member States who are subject to French social security law, with the exception of Spanish and Portuguese workers in that category during the transitional period up to 31 December 1988, who are subject to the Act of Accession.

The French Government also considers that the provisions of Regulation No 3427/89 can in no circumstances set aside superior rules of law such as Articles 60 and 220 of the Act of Accession, which had already-been given full effect when the said regulation was adopted on 30 October 1989 and thereby call into question, with effect retroactive to 15 January 1986, the legal situations established by those provisions both in regard to the workers receiving family allowances and to the social security institutions concerned.

Any amendment to the provisions of Regulation No 1408/71 had no effect on the rules for payment applicable during the transitional period, as defined in the said Articles 60 and 220. Those rules which flow from an independent source, namely the Act of Accession, which has the same status as the EEC Treaty in the hierarchy of sources of Community law, were independent of any decision adopted elsewhere, except if the uniform solution provided for in the Act of Accession itself was adopted before 31 December 1988; the effect of this would have been to cause those rules automatically to cease to have effect by virtue of the extension of a single system of payment to all the Member States.

However, that did not happen and the uniform solution, adopted only on 30 October 1989, entered into force only on the date on which Regulation No 3427/89 was published in the Official Journal, as is provided for in the first paragraph of Article 3, namely 16 November 1989.

The French Government therefore considers that the arrangements for payment of family allowances applicable to the members of the family of a worker who is a national of a Member State who do not reside in the Member State in which the worker is employed, as laid down in Article 73 of Regulation No 1408/71, as amended, are in fact the uniform solution referred to in Article 99 of Regulation No 1408/71, but have no effect on the rules for the payment of family allowances applicable to Spanish and Portuguese workers during the transitional period, which ended without the uniform solution referred to in the Act of Accession being adopted.

Consequently, the French Government considers that Spanish and Portuguese workers employed in a Member State other than Spain or Portugal the members of whose families reside in their country of origin were not entitled to the benefit of the provisions of Article 73 of Regulation No 1408/71, as amended, with effect from 15 January 1986 but only with effect from 1 January 1989, following the adoption of Regulation No 3427/89, cited above, regardless of the provisions contained in that regulation.

The Government of the Kingdom of Spain answered the question by saying that the uniform solution referred to in Article 60 of the Act of Accession was found at the time that the Court delivered its judgment of 15 January 1986 (Pinna) and Regulation No 3427/89 merely incorporated into a legislative text what the Court had already laid down in that judgment.

However, even if that interpretation is not accepted, the result is the same because Regulation No 3427/89 fixes the date of the entry into force of the uniform solution at 15 January 1986, that being, according to Article 3 thereof, the date from which all its provisions were to apply with the exception of Article 76 and therefore the date from which a single system for the payment of family allowances common to all the Member States was in existence.

It is clear that a Community rule can have retroactive effect, and the Court has decided on several occasions that the point in time from which a Community measure may take effect can be fixed at a date before its publication (see the judgments in Case 99/78 Decker v Hauptzollamt Lindau [1979] ECR 101 and in Case 108/81 Amylum v Council [1982] ECR 3107).

The Government of the Federal Republic of Germany answered the question by saying that, under the first paragraph of Article 3 of Regulation No 3427/89, that measure entered into force on 16 November 1989, the date of its publication in the Official Journal of the European Communities. However, according to the second paragraph of Article 3 of the regulation, it is to apply with effect from 15 January 1986. That retroactive application has no effect on the rights of Spanish and Portuguese migrant workers. The German Government relies in that regard on the terms of the said regulation, in particular on the words enter into force as opposed to shall apply with effect from. It was only for that reason that the German Government was able to approve Regulation No 3427/89.

Furthermore, when Regulation No 3427/89 was adopted on 30 October 1989, the German delegation caused the following declaration to be recorded in the Minutes of the Council:

Neither the Commission nor any other Member State contested that declaration.

The provisions in the Act of Accession to the effect that the rules under the conventions were to remain in effect until 1 January 1989 are to take precedence on the basis that they constitute special legislation.

The Commission answered that the consequence of the adoption of Regulation No 3427/89 is that the uniform solution referred to in Article 99 of Regulation No 1408/71 and Article 60 of the Act of Accession entered into force on 15 January 1986.

1 Language of the case: German.