Opinion of Mr Advocate General Van Gerven delivered on 17 September 1991

1 Original language: Dutch.

2 Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version as amended with regard, inter alia, to Articles 73 and 75, by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p.1). This version of Regulation No 1408/71 was approved by the Council after the date of the reasoned opinion (30 May 1989) but before lodgment of the application in the present case (28 June 1990). Like the Commission I consider it to be applicable in this case in view of the fact that the provisions of Regulation No 3427/89 relevant to this case were declared to be applicable with effect from 15 January 1986 (that is from the date of the Pinna įudgment). From a substantive point of view it makes no difference to the present case whether this version or the previously applicable version of Articles 73 and 75 of Regulation No 1408/71 is applicable.

3 Judgment in Case 171/82 Valenlim v ASSEDIC [1983] ECR 2157.

4 Proposal submitted by the Commission to the Council on 18 June 1980 for a Council Regulation amending, for the benefit of unemployed workers, Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1980 C 169, p.22).

5 The proposal concerned solely persons taking early retirement as provided for under the legislation of a Member State. It is not therefore clear whether the proposal also covered the situation of persons in receipt of early retirement benefits under the Netherlands scheme since, according to the Netherlands Government, those payments are not provided for by law but are derived from private arrangements between employers and employees (see also paragraph 5 in fine).

6 In another context, namely the examination of the personal scope of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), Advocate General Darmon, in his Opinion of 29 May 1991 in Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and Others v Sociale Verzekeringsbank [1991] ECR I-3757, considered that persons who have taken early retirement fall under the scope of that directive in the same way as old-age pensioners.

7 Judgment in Case 129/78 Sociale Verzekeringsbank v Lohmann [1979] ECR 853.

8 Council Regulation (EEC) No 2195/91 of 25 June 1991 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed fiersons, to self-employed persons and to members of their amilies moving within the Community and amending Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (Official Journal 1991 L 206, p.2).

9 Proposal for a Council Regulation (EEC) amending Regualtion (EEC) No 1408/71 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community, and of Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1990 C 221, p.3).

10 Judgment in Case 302/84 Ten WoWer[1986] ECR 1821.

11 Written Question No 1481/87 by Lamben Croux to the Commission (19 October 1987) and reply by Mr Marin on behalf of the Commission (12 January 1988) (OJ 1988 C 121, p. 21).

12 Judgment in Case 104/80 Beeck v Bundesanstalt fiir Arbeit [1981] ECR 503.

13 Judgments in Case C-140/88 Noij v Staatssecretaris van Financien [1991] ECR I-387, and Case C-245/88 Daalmeijer v Bestuur van de Sociale Verzekeringsbank [1991] ECR I-555.

14 See in particular the judgment in Case 166/82 Commission v Italy [1984] ECR 459, at paragraph 16.