Opinion of Advocate General Gulmann delivered on 16 February 1993

1 Original language: Danish.

2 Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71, as consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6). A number of the provisions applicable here have been amended by Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7), which came into force on 1 June 1992; see the transitional provisions set out in Article 2(6) of the regulation. As the Commission has pointed out, the amendments have no bearing on the replies to the questions in the present case.

3 See Article 34 of the Belgian Royal Decree of 21 December 1967 on general regulations for the retirement pension and survivors' pension scheme for employed persons.

4 The ONP bases this interpretation on Article 1 of Royal Decree No 50 of 24 October 1967, which provides that the retirement pension scheme is established for employed persons who have been employed in Belgium under a contract of any kind for the hire of labour.

5 It is clear from the wording of the national court's question that it is concerned with whether this condition is compatible with Community law. It is therefore unnecessary to decide whether the ONP's first ground for refusing to take account of the periods of invalidity is permissible under Community law. This ground was that, by virtue of an administrative practice in Belgium, there is no right for a period of invalidity to be treated as a period of active employment if the person concerned received benefits under the Belgian legislation on sickness and invalidity insurance only because of the application of the Community rules, and was simultaneously in receipt of foreign invalidity benefits.

6 See Case 14/67 Landesversicherungsanstalt Rheinland-Pfalz v Welchner [1967] ECR 427, Case 2/72 Murru [1972] ECR 333, paragraph 10, and Case C-302/90 CAAMI v Faux [1991] ECR I-4875, paragraphs 25 to 28.

7 Case C-227/89 Rönfeldt v Bundesversicherungsanstalt für Angestellte [1991] ECR I-323, paragraph 19. Conversely, the regulation docs not preclude a Member Sute from treating periods completed in other Member States as periods completed on its territory: sec Case 21/87 Borowitz v Bundesversicherungsanstalt für Angestellte [1988] ECR 3715, paragraph 25.

8 It is clear from Article 13(2)(a) of Regulation No 1408/71 that workers arc subject to the legislation of the Member State where they arc employed or where they were last employed (sec Case 302/84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging [1986] ECR 1821). However, the Court held that that provision was not applicable to workers who had finally given up all employment. In that case, the Member States may make membership of the national social security scheme subject to residence conditions. Conversely, it is for the national legislation in question to determine whether the fact that a person receives benefits connected with the cessation of his last employment means that he must be deemed to be insured under a social security scheme: see Case C-245/88 Daalmeijer [1991] ECR I-555. Sec also une recent judgment in Case C-253/90 Commission v Belgium [1992] ECR I-531. where the Court held that persons such as workers who have definitely ceased to work and who arc not in one of the situations referred to in [Article 13(2) and Articles 14 to 17 of the regulation] may be subject simultaneously to the legislation of more than one Member Sute. The question is not relevant here, as Mr Lepore and Mr Scamuffa still reside in the Member State where they were last employed.

9 See Case C-227/89 Rönfeldt v Bundesversicherimgsanstalt für Angestellte [1991] ECR I-323, paragraph 12, and Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 22.

10 See Case 1/78 Kenny v Insurance Officer [1978] ECR 1489, paragraph 18, where the Court held as follows: By prohibiting every Member State from applying its law differently on the ground of nationality, within the field of application of the Treaty, Articles 7 and 48 arc not concerned with any disparities in treatment which may result, between Member States, from divergences existing between the laws of the various Member States, so long as the latter affect all persons subject to them in accordance with objective criteria and without regard to their nationality. This is also to be found in Case 313/86 Lenoir v Caisse d'Allocations Familiales des Alpes-Maritimes [1988] ECR 5391, paragraph 15.

11 Sec, most recently, Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 15.

12 Sec Case 254/84 De Jong v Soziale Verzekeringsbank [1986] ECR 671, paragraph 14. Sec also Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119, paragraph 16.

13 See Masgio, cited in footnote 11, paragraph 17.

14 Sec the judgment in the Paraschi case, cited in footnote 10, paragraph 22. and the Opinion of Advocate General Darmon delivered on 14 January 1993 in Case C-165/91 S. J. M. van Munster, particularly paragraphs 37 to 40. Judgment has not yet been eiven in this case. See also the Masgio judgment, cited in footnote 11, paragraph 18. In tne judgment in the Faux case, cited in footnote 5, paragraph 28, the Court observed more particularly that the provisions defining insurance periods in Regulations Nos 3 and 1408/71 may not be interpreted as meaning that they may result in depriving migrant workers of the advantages which they could have claimed under the legislation of a single Member State, thus posing an obstacle to the objective pursued by Articles 48 to 51 of the Treaty....

15 On this point the Commission refers to Case 15/69 Ugliola [1969] ECR 363, Case 184/73 Kaufmann [1976] ECR 517, Case 33/75 Galati [1975] ECR 1323, Case C-228/88 Bronzino v Kindergeldkasse [1990] ECR I-531, and Case C-12/89 Gatto v Bundesanstalt für Arbeit [1990] ECR I-557, and, with regard to cases where there were no grounds for the recognition of events in other Member States, the judgment in the Kenny case, cited in footnote 9, and Case 66/77 Kuyken [1977J ECR 2311.

16 Sec, in this connection, the judgments cited in footnotes 10 to 13, and particularly the recent Opinion of Advocate General Darmon delivered on 14 January 1993 in Case C-165/91 S. J. M. van Munster. On the other hand, there is perhaps one judgment supporting the opposite view. This is the judgment in the Zeichner case, cited in footnote 5, which concerned certain German rules for the calculation of invalidity benefits which required, as a condition for periods of military service to be treated as so-called substitution periods within the meaning of the German legislation, the person concerned to have begun work in Germany entailing compulsory membership of the invalidity insurance scheme within a certain timelimit which began to run shortly after the end of military service. The plaintiff in the main action argued that the fact that he had taken up such work in France was sufficient for the abovementioned purpose. On the basis of an interpretation of Regulation No 3, which applied at that time and which basically corresponds to Article l(r) of Regulation No 1408/71, the Court held that Germany was not obliged, in the circumstances of that particular case, to take account of a period completed under the legislation of another Member State. Therefore it was not contrary to Community law to require, as a condition for recognizing a period as equivalent, the person concerned to have been an employee in the Member State shortly after the end of the period in question. However, it should perhaps DC mentioned that the grounds of the judgment also referred to specific provisions of an annex to the regulation and that those provisions may have been of decisive importance to the decision.

17 As regards the application of these calculation rules, sec most recently Case C-5/91 Di Prinzio [1992] LCR I 897 and Joined Cases C-90/91 and C-91/91 Casagrande [1992] LCR 1 3851.

18 See the judgment in the Murru case, cited in footnote 5

19 See Article 24a of the Belgian Royal Decree of 21 December 1967

20 On this point, see Case 50/75 Massonet [1975] ECR 1473