Opinion of Advocate General Van Gerven delivered on 28 April 1993

1 Original language. Dutch

2 Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self employed persons and to mem bers of their families moving within the Community For this case reference may be made to the consolidated version of 1983 (OJ 1983 L 230, p. 6); in the meantime a more recent consolidated version has appeared in OJ 1992 C 325. p. 1.

3 Bundesgesetzblatt 1977, II, pp. 687 and 722.

4 BGBl. 1965, II, p. 1294.

5 Sec the reasoning on this point in the Report for the Hearing in section 7.

6 BGBl. 1976, II, p. 1372.

7 Including, according to the order for reference, the Federal Republic, at least as regards international conventions laying down rights and obligations in the sphere of social security.

8 With regard to the problems to which a dualistic system may lead as regards possible conflicts of laws and the application of the principle lex posterior derogat legi priori, see inter alia P. J. G. Kapteyn and P. VerLoren van Themaat, Introduction to the law of the European Communities, L. W. Gormley (ed.), Deventer, Kluwer Law & Taxation, Î988, pp. 40 and 41, and, with more particular reference to the German context, O. Kimminich, Einführung in das Völkerrecht, München, Saur, 1987, p. 265 et seq. See also the observations of M. Waelbroek putting the matter in perspective: Enforceability of the EEC-EFTA Free Trade Agreements: A Reply, Eur. L. Rev., 1978, pp. 27, 28 and 29.

9 The Court has repeatedly confirmed that this principle of substitution is of an imperative nature which permits of no exceptions apart from the cases expressly mentioned in the regulation: see (with regard to the analogous provision of Article 5 of Regulation No 3) the judgments in Case 32/72 Walder ν Sociale Verzekeringsbank [1973] ECR 599 at paragraphs 6 and 7 and in Case C-227/89 Ronfeldt [1991] ECR I-323 at paragraph 22.

10 Judgment in Case 16/72 [1972] ECR 1141. at paragraph 12

11 Judgment in Case 75/76 [1977] ECR 495 at paragraphs 8 and 9.

12 Judgment in Case 21/87 Borowitz [1988] ECR 3715 at para graph 25

13 Judgment in Borowitz at paragraph 26. From that paragraph it also seems to me that the Member State concerned which, on the basis of the bilateral convention, and so of an obligation which it has accepted itself, is required to take account of third periods, is not required to do so on the basis of Regulation No 1408/71 any more than are the other Member States.

14 [1988] ECR at p. 3729.

15 Judgments in Case 87/76 Borione [1977] ECR 687 at paragraph 10; in Case 150/79 Commission ν Belgium [1980] ECR 2621 at paragraph 4; in Case 300/84 van Roosmalen [1986] ECR 3097 at paragraph 28; and in Joined Cases 82 and 103/86 laborero and Sabato [1987] ECR 3401 at paragraph 23. In other judgments too the Court shows that it interprets this definition broadly, particularly in the light of the objectives of Article 51 of the EEC Treaty: see the judgment in Case 109/76 Blottner [1977] ECR 1141 at para graph 9 et seq.

16 It was precisely because of that Law that the Commission subsequently brought before the Court an action against Belgium for failure to fulfil its obligations see the judgment in Commission ν Belgium, previously cited

17 Previously cited in footnote 8.

18 Cf the Court's reformulation of the question in paragraph 21 of the judgment.

19 Judgment in Ronfeldt, paragraph 28.

20 Judgment in Rönfeldt, paragraph 27.

21 Judgment in Case 36/74 Walrave 1974 ECR 1405 at paragraph 28

22 Judgments i n van Roosmale n at paragraph 30, i n Laborero and Sabato at paragraph 25, and in Case C-105/89 Buhari Haji 1990 ECR I-4211 at paragraph 15

23 Judgment i n laborero and Sabat o at paragraph 26

24 Judgment in Labore ro and Sabato at paragraph 27

25 In this respect I am disregarding the fact-which incidentally has not been raised by any of those who have submitted observations to the Court-that Ms Grana-Novoa worked in Switzerland and subsequently settled in Germany before Spain's accession to the Communities. Consequently, as the court of reference correctly observes, her situation is governed by Article 94 of Regulation No 1408/71: Ms Grana-Novoa can acquire rights under the regulation only as from 1 January 1986 (Article 94(1)), but in this case account must be taken also, with retroactive effect, of insurance periods completed or of contingencies which materialized prior to that date (Article 94(2) and (3).

26 Cf. the judgment in Case 106/77 Simmenthal [1978] ECR 629 at paragraph 17.