Opinion of Advocate General Lenz delivered on 24 March 1994

1 Original language: German.

2 Consolidated version of 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 (OJ 1992 C 325, p. 1), in the version relevant for these proceedings, that of Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

3 Association pour l'emploi dans l'industrie et le commerce.

4 From 1 November 1993 the EC Treaty, in accordance with the Treaty on European Union of 7 February 1992 (OJ 1992 C 224, p. 1).

5 And other pensions too in certain cases, such as invalidity benefits, widows' pensions and orphans' pensions (see Article 39(5) and Article 44(1) of Regulation No 1408/71 as amended).

6 Contraint et forcé, see page 3 of the plaintiff's observations.

7 See the heading of the article.

8 See the judgment in Case C-342/88 Spits [1990] ECR 1-2259.

9 See note 1.

10 See Article 51 of the EC Treaty and Article 45 of Regulation No 1408/71.

11 Since being amended by Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7), Article 49 also applies in cases where the person concerned expressly asks for postponement for the award of old-age benefits; see Article 44(2) and the second subparagraph of Article 49(1) of Regulation No 1408/71.

12 See page 9 of the plaintiff's observations.

13 Pages 4 and 5 of the French Government's observations.

14 See the Spits judgment, cited above, paragraph 12; see also Article 46(1).

15 For instance, five or seven years (Spits case, cited above).

16 Article 46(2)(c), former version; see also the judgment in Joined Cases C-113/92, C-114/92 and C-156/92 Fabrizii and Others [1993] ECR 1-6707, paragraph 28.

17 Mr McLachlan does not satisfy the conditions f or an independent pension laid down by French legislation, in this case the completion of a period of insurance of 150 quarterly periods in France (see page 7 of the observations). Mr McLachlan does not meet the conditions laid down by French legislation (150 quarterly periods) for him to claim equal treatment and thus receive an independent benefit (pension at full rate) (see page 8 of the observations).

18 Judgments in Case C-5/91 Di Prinzio [1992] ECR 1-897 and in Fabńzii and Others, cited above.

19 Under compulsion (contraint et forcé), according to his own submission.

20 My emphasis.

21 See the obligation to make a recalculation under Article 49(2) of the regulation and the French Government's submission with regard to the facts, page 6.

22 Under Article 46(l)(b) in its current version the competent institution may even waive the calculation [of the proportionate benefit] to be carried out in accordance with (a)(ii) if the result of this calculation ... is equal to or lower than the result of the calculation [of the independent benefit] carried out in accordance with (a)(i)

23 Judgment in Case 24/75 Petroni v ONPTS [1975] ECR 1149, paragraph 13; similarly, on the interpretation of the comparable provisions of Regulation No 3, the judgment in Case 191/73 Niemann v BnndesversicherHngsanstall [1974] ECR 571, paragraph 5.

24 Judgment in Case C-199/88 Cabras [1990] ECR 1-1023, paragraph 24.

25 See the judgments in Petroni, cited above, paragraph 14, and Niemann, cited above, paragraph 6. See also Cabras, cited above, paragraphs 25 and 26.

26 Petroni, cited above, paragraph 16 and Niemann, cited above, paragraph 6.

27 See the Spits judgment, cited above, paragraph 12.

28 According to the French Government, the plaintiff moreover possesses French nationality as well as British nationality.

29 See, for example, Article 48(2) of the EC Treaty.

30 See, for example, tlie judgments in Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie [1986] ECR 1, paragraph 23, and Case 313/86 Lenoir v Caisse d'Allocations Familiales des Alpes-Mańtimes [1988] ECR 5391, paragraph 14.

31 See, for example, the judgments in Joined Cases 117/76 and 16/77 Ruckdeschel v HauptzoUamt Hamburg-St Annen [1977] ECR 1753, paragraph 7; Joined Cases 124/76 and 20/77 Moulins Pont-à-Mousson v Office Interprofessionnel des Céréales [1977] ECR 1795, paragraphs 14 to 17; and Case 265/78 Ferwerda v Produktschap voor Vee en Vlees [1980] ECR 617, paragraph 7.