Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. In the present case the Belgian Court of Cassation has referred to the Court of Justice for a preliminary ruling two questions on the interpretation of the conflict rules contained in Title II of Regulation No 1408/71 in the case of a worker who was the victim of an accident on board a vessel flying the flag of a State other than that in which the undertaking remunerating him is established.
2. In order to reply to the first question raised by the national court it is necessary at this point to recall briefly the scope of Regulation No 1408/71, as provided for in Articles 2 and 4 of that regulation. The former provision defines the personal scope of the instrument, by providing in particular that the regulation is to apply to workers who are or have been subject to the legislation of one or more Member States and are nationals of one of the Member States and to members of their families and their survivors. Article 4, which defines the regulation's scope of application radone materiae, provides in paragraph 1 that the regulation is to apply to legislation concerning the various branches of social security.
3. As to the second question submitted by the Court of Cassation I would first of all state that its scope does not seem entirely clear, in view of the national legislative situation.
4. Having said that and whilst leaving to the national court the task of interpreting the Belgian legislation on accidents at work, I shall merely attempt to provide a reply as regards the situation contemplated by the national court, that is to say the case in which the legislation governing the contract of employment and that governing accidents at work cannot be relied on by the person concerned on the ground that the vessel was not sailing under the flag of the State in which the undertaking has its registered office.
5. Applying those principles in the recent Kits van Heijningen case, which has been mentioned several times and concerns a case similar to the present one, the Court, after recalling that Article 13(2)(a) of Regulation No 1408/71 provides that a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State, went on to stress that that provision would have no practical effect if the residence requirement imposed by the legislation of the Member State in whose territory the person is employed as a condition of affiliation to the insurance scheme which it establishes could be relied on against the persons referred to in Article 13(2)(a). With regard to those persons, the effect of Article 13(2)(a) is to replace the residency condition with a condition based on employment in the territory of the Member State concerned.
6. In the light of the foregoing considerations I propose that the Court should give the following answers to the questions submitted by the Belgian Court of Cassation:
1 Original language: Italian.
2 Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and to members of their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416).
3 Journal Officiel 1958 L 30, p. 561.
4 Judgment in Case 75/63 Hoekstra v Bedrijfsvereniging voor Detailhandel [1964] ECR 177.
5 Judgment in Case 39/76 Mouthan v Metaalnijverheid [1976] ECR 1901.
6 Sec codified version of Regulation No 1408/71 published in OJ C 138 1980, p. 1; the provision in question essentially coincides with Article I3(2)(c) of the current version of trie regulation.
7 I4b(4) of the consolidated version.
8 Judgment in Case 60/85 Luitjen v Raad vart Arbeid [1986] ECR 2365, at paragraph 14.
9 Judgment in Case C-2/89 Kits van Heijningen v Bestuur van de Sociale Verzekeringsbank [1990] ECR I-1775.
10 Judgments in Case 110/79 Coonan v Insurance Officer [1980] ECR 1445, at paragraph 12 and in Case 266/78 Brunori v Landesversicherungsanstalt Rheinprovinz [19791 ECR 2705, at paragraph 6.
11 Judgment in Case 276/81 Soziale Verzekeringsbank v Kuijpers[1982] ECR 3027, at paragraph 14.
12 Judgment in Koks v Raad van Arbeid [1982] ECR 3013, paragraph 10.
13 Judgment in Kits van Heijningen, cited above, at paragraph 20.
14 Kits van Heijntngen judgment cited above, at paragraph 21.