C-82/86

Mr President, 3. The questions submitted by the two Members of the Court, national courts seek in substance to ascertain whether the Belgian law in question falls within the scope of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social 1. The preliminary questions on which I am security schemes to employed persons, self- to give my Opinion today have been raised employed persons and members of their in two cases, the first brought before the families moving within the Community. ' Tribunal du travail (Labour Tribunal), Brussels, by Giancarlo Laborero, and the second before the Cour du travail (Labour Court), Mons, by Francesca Sabato, the widow of Giuseppe Mezzorecchia. Both plaintiffs are Italian nationals residing in Belgium. The cases were brought against the Office de sécurité sociale ďoutre-mer 4. They also ask the Court whether Article (Overseas Social Security Office), which, on 51 of that law is compatible with the rule the basis of Article 51 of the Belgian Law of prohibiting discrimination on grounds of 17 July 1963 on overseas social security, nationality laid down in Article 7 and refused to grant index-linking for Mr Articles 48 to 51 of the EEC Treaty and Laborero's pension and Mrs Sabato's Article 3 (1) of Regulation (EEC) No survivor's pension, which it pays to them 1408/71. As regards the points made by the under that law. Office de sécurité sociale d'outre-mer, the defendant in the main proceedings, and the Belgian Government concerning the inap- propriateness of the reference to Article 51 of the EEC Treaty, I should like to point 2. Article 51 of that law, which is contained out straight away that, even if it is Article in Chapter VI entitled 'Adaptation of 48 (2) which provides for the abolition of benefits to the cost of living', provides as any discrimination based on nationality in follows: order to ensure freedom of movement for workers, Article 51 serves the same purpose by contributing, in the field of social security, to the fullest possible realization of that fundamental freedom. The Court has 'The provisions of this Chapter shall not accordingly held, in its judgment of 28 June be applicable to recipients of foreign 1978 in Case 1/78 Kennyv Insurance Officer nationality unless they are dependants of an [1978] ECR 1489, that the rule in Article 7 insured person of Belgian nationality and was implemented, as regards employed reside in Belgium or unless they are persons, by Articles 48 to 51 (paragraph 9). nationals of a country which has entered Similarly, in its judgment of 8 April 1976 in into a reciprocal agreement which grants Case 112/75 Sécurité sociale Nancy v them such entitlement.' 1 — For a codified version, see Council Regulation (EEC) No * Translated from the French. 2001/83 of 2 June 1983 (Official Journal, L 230, p. 6).

Hirardin [1976] ECR 553, the Court refers 'This Regulation shall apply to employed or to the 'prohibition, contained in Articles 48 self-employed persons who are or have been to 51 of the Treaty, of any discrimination subject to the legislation of one or more based on nationality between workers of the Member States and who are nationals of Member States' (paragraph 9). one of the Member States . . . as well as to the members of their families and their survivors.' 5. The actual principle that a condition regarding nationality or reciprocity,2 such 8. The question in this specific case is as Article 51 of the Belgian Law of 17 July therefore whether the plaintiffs in the main 1963, is incompatible with Community law proceedings may be regarded as 'employed and in particular with Article 3 (1) of Regu- or self-employed persons' (or persons lation No 1408/71 is not in fact directly entitled under such a person) and whether contested by any of the parties to these the Belgian law in question, although proceedings. However, the Office de concerned exclusively with occupations sécurité sociale d'outre-mer and the Belgian pursued outside the territory of the Member Government consider that neither Mr States of the Community, constitutes Laborero nor Mrs Sabato meet the defi- 'legislation of a Member State'. nition of 'employed or self-employed person' in Article 1 (a) (iv) of the regu- lation, first because they no longer carried out an activity as an employed or self- 9. The terms 'employed (and self- employed person at the time when they employed) person' and 'legislation' are applied for a pension or pension review, and defined in Article 1 (a) and (j) respectively secondly because, owing to its special of Regulation No 1408/71. characteristics, the scheme in question cannot be regarded as being linked to the general Belgian social security scheme. A — 'Employed person' Finally, they maintain that the 1963 law does not fall within the territorial scope of Regulation No 1408/71 because it relates exclusively to insurance periods completed 10. Article 1 (a) of Regulation No 1408/71 outside the Community. defines an 'employed person' mainly on the basis oft the criterion whether the persons concerned are affiliated to various kinds of social security schemes so that, as the Court held in its Hoekstra judgment of 19 March 6. It follows that the main question 19643 concerning Council Regulation No 3, confronting the two national courts is the it covers 'all those who, as such and under question of the definition ofpersons covered whatever description, are covered by the by Regulation No 1408/71. different national systems of social security*.

applicable to the instant cases because the 13. Finally, contrary to what is suggested scheme concerned is not for all residents or by the Office de sécurité sociale d'outre-mer for the whole working population and and the Belgian Government, there can be Annex I, to which it refers, contains the no doubt that both Mr Laborero and Mrs words 'does not appb/ in the case of Sabato, as the survivor of Mr Mezzo- Belgium. The relevant provision in this case recchia, fulfil the condition in the first is Article 1 (a) (iv) because the insurance indent of Article 1 (a) (iv) ('any person who scheme in question is a voluntary scheme. is insured'). No argument can in fact be That provision provides that, for the derived from the fact that at the present purposes of Regulation No 1408/71, time neither Mr Laborero nor Mrs Sabato is 'employed person' or 'self-employed person' employed or self-employed. By definition, means 'any person who is voluntarily any old-age or survivors' benefit is not paid insured for one or more of the contin- until the time when the person who was gencies covered by the branches dealt with subject to a social security scheme has in this Regulation, under a social security ceased working. Moreover, Article 2 (1) scheme of a Member State for employed or refers to persons who are or have been self-employed persons or for all residents or subject to social security legislation and to for certain categories of residents: their survivors. The use of the present tense in the first indent of Article 1 (a) (iv) clearly refers to the time when the person concerned was insured under the social security scheme. Both Mr Laborero and Mr if such person carries out an activity as an Mezzorecchia were in fact engaged in paid employed or self-employed person, employment during their voluntary affil- iation to the scheme established by the 1963 law and were still in employment when the risk insured against materialized.

86/76 Bozzone v Office de sécurité sociale social security scheme of a Member State d'outre-mer, [1977] ECR 687 and 11 July for employed or self-employed persons'. 1980 in Case 150/79 Commission v Belgium [1980] ECR 2621 the Court found that all those provisions were 'legislation' for the 18. In the context of Article 1 (a), that is to purposes of Regulation No 1408/71 and say the definition of 'employed person', that thus came to the conclusion that the regu- reference simply emphasizes, as I have lation did apply to persons who have been already indicated, that 'it is therefore by subject to that insurance scheme. being covered by the social security system of a Member State and not because of how the occupation in question is classified

. . '. argument cannot be accepted. First of all, any voluntary insurance implies by defi- nition a positive choice on the part of the person subscribing to it. Secondly, even 20. In those circumstances, Article 1 (a) (iv) though Article 1 (a) (iv) was historically cannot be interpreted as requiring that, in based on the Hoekstra judgment, cited order to be treated as an 'employed person', above, which extended the concept of a person must be insured under a general 'wage-earner or assimilated worker' to scheme of a Member State or, if he is persons 'admitted as beneficiaries of a insured under a special scheme, that the voluntary insurance scheme under national special scheme must be linked to, or incor- law governed by principles analogous to porated in, a general State scheme. those of the compulsory insurance' ([1964] ECR 177 at p. 187), the fact remains that that article does not contain any suggestion 21. Secondly, the fact that Article 13 of the of such a similarity of principle. 1963 law provides that 'the legislation relating to social security for employed persons' (i. e. the general Belgian social security scheme) is not applicable to persons

17. Finally, both Mr Laborero and Mr 1986 in Case 300/84 A. /. M. van Roostnalenv Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Mezzorecchia were insured 'under the Maatschappelijke Belangen [1986] ECR 3107.

although independent and distinct from the social security covered by Article 4 (1) and general Belgian social security scheme for (2)'. employed persons, are sufficiently compre- hensive to constitute a true, self-contained 'scheme' of its own. 27. In its judgment in Bozzone, cited above, the Court observed in paragraph 10 that 'this definition is remarkable for its breadth, 23. It may be noted, moreover, that special including as it does all provisions laid down schemes are amongst the legislation and by law, regulation and administrative action schemes specified by the Belgian by the Member States and must be taken to Government in its declarations made cover all the national measures applicable in pursuant to Article 5 of Regulation No this case' ([1977] ECR 687, at p. 696). In 1408/71. The fact that the overseas social that case, the fact that the 1960 Belgian law security scheme is not mentioned in its did not merely guarantee benefits acquired declarations does not mean that the scheme under the colonial scheme but, by does not fall within the scope of the regu- subsequent amendments, supplemented it by lation.5 It therefore seems to be that the providing for the grant of additional Belgian Government also takes the view that benefits and in particular adapted it to the a special scheme may in principle come cost of living according to the rules in force under Regulation No 1408/71. in Belgium was sufficient for the Court to find that as a whole those provisions constituted 'legislation'. 24. It follows from all the foregoing that Mr Laborero has the status of 'employed person' and Mrs Sabato the status of 28. The 1963 Belgian law, as repeatedly survivor of an 'employed person' for the amended, together with the various royal purposes of Regulation No 1408/71. decrees adopted for its implementation, assuredly has the character of 'legislation' as so defined. In Chapter I it creates the Office de sécurité sociale d'outre-mer, defining its 25. It therefore remains for me to examine responsibilities and laying down provisions whether the 1963 Belgian law constitutes regarding its administration. Chapter II 'legislation' of a Member State for the defines the scope of application of the law purposes of the regulation. and specifies the amount of the contri- butions to be paid. The following chapters contain special provisions applicable to the B — 'Legislation' various types of insurance for which it provides: old-age and survivors' insurance, sickness and invalidity insurance, health-care insurance. Chapter VI deals 26. According to Article 1 (j) of Regulation with the adjustment of benefits to the cost No 1408/71, the term 'legislation' means 'in of living and Chapter VII with respect of each Member State statutes, regu- supplementary insurance. The last two lations and other provisions and all other chapters contain special transitional and implementing measures, present or future, final provisions. relating to the branches and schemes of

30. Is the fact that the legislation relates 35. In the judgment of 11 July 1980 in exclusively to occupations pursued outside Commission v Belgium, cited above, which the Community of such a nature as to take concerned the Law of 16 July 1960, the it outside the scope of Regulation No Court had already emphasized the institu- 1408/71? tional aspect of that connecting factor by pointing out that the scheme in question was a 'scheme introduced by a Belgian law and administered under the control of the 31. In view of what the Court decided in a Belgian State by a public body subject to relatively recent case, the answer to that Belgian law the effects of which are question can no longer be open to doubt. produced, in general, not in the former Belgian colonies but principally in the Belgian metropolitan territor/ ([1980] ECR 2621, paragraph 7 at p. 2629). All 32. In its judgment of 23 October 1986 in those factors are also present in the present Case 300/84 A. J. M. van Roosmalen v cases. Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen [1986] ECR 3097 at p. 3116) the Court ruled that: 'National social security 36. Although it concerned a scheme rules which apply to persons who pursue or applicable to activities pursued in countries who have pursued activities either wholly or with which Belgium then had special partly outside the Community must be relations, the judgment in question was regarded as "legislation" within the worded in quite general terms so as also to meaning of Article 2 of Regulation No cover a scheme relating to activities pursued 1408/71'. exclusively 'in a totally independent country" (see the wording of the question of the Cour du travail, Mons). The Court had in fact stated that 'the mere fact that all the payments are based on periods of insurance 33. The Court arrived at that conclusion completed prior to 1 July 1960 outside after deciding that 'the essential criterion for determining the scope of the term is not the Community territory does not prevent the place in which the occupation was pursued Community regulations on social security but the link which exists between the worker, from applying' (Commission v Belgium regardless of the place in which he pursued [1980] ECR 2621, paragraph 7 at p. 2629 or is pursuing his occupation, and the social and 2630). security scheme in a Member State under which he has completed periods of insurance' (paragraph 29). 37. The judgment of 16 November 1972 in Case 16/72 6 and the judgment of 10 March 1977 in Case 75/76 7 quoted by the Office de sécur'é sociale d'outre-mer and the 34. That conclusion is in line with previous case-law under which an insured person's 6 — Case 16/72 Ortskrankenkasse Hamburg v Landesvtrsiche- attachment to a social security scheme of a rungsanstalt Schleswig-Holstein [1972] ECR 1141. 7 — Case 75/76 Kaucie v Institut national d'assurances Member State was the decisive criterion for maladies-invalidité [1977] ECR 495.

38. Moreover, in those judgments the Court referred to 'insurance periods completed' under legislation and 'social 41. In its judgment of 12 July 1984 in Case security benefits acquired' under such legis- 237/83 Prodest Sari v Caisse ^primaire lation and not, as the Office de sécurité d'assurance maladie de Paris [1984] ECR sociale d'outre-mer and, to some extent, the 3153 the Court ruled that: 'The provisions Belgian Government interpret those of Community law concerning the free judgments, to 'periods of work' or 'benefits movement of workers within the paid' in a non-member State. The Court Community... must be interpreted as was careful not to extend the application of meaning that the principle of non-discrimi- the Community legislation to insurance nation applies to the case of a national of a periods completed under the social security Member State who is employed by an scheme of a non-member country, whereas in undertaking of another Member State even the cases in question it is a matter of guar- during a period in which the employee anteeing to Community citizens the benefit temporarily works outside the territory of of that legislation from the moment they the Community for that Community under- were, or are, subject to a social security taking, and that in connection with the scheme of a Member State, irrespective of the application of the national provisions of the place where the insurance periods covered Member State in which that undertaking is by that scheme were completed. established concerning the retention of affil- iation to the general social security scheme of that State during the temporary posting of the employee in question to a non-member country, any provision which 39. It is not therefore a question of discriminates against nationals of other requiring a Member State to take into Member States must be disregarded'. account periods of work completed exclu- sively outside the Community for under- takings established outside the Community (see p. 34 of the observations of the Office de sécurité sociale d'outre-mer in Case 42. It thereby transposed to the circum- 82/86) but of ensuring that when a Member stances of the case before it the principle State has a social security scheme which it had laid down in its judgment of 24 concerning such activities and gives October 1974 in Case 36/74 Walrave and nationals of other Member States access to Koch v Association union cycliste interna- it, it applies it to such nationals according to tionale and Others [1974] ECR 1405, in

which the question was whether it was 1408/71, in particular Article 3 (1) thereof important that the activities in question were implementing the fundamental rule of pursued within the territory of the non-discrimination in the field of social Community or outside it, namely that 'by security for migrant workers.8 reason of the fact that it is imperative, the rule on non-discrimination applies in judging all legal relationships in so far as those relationships, by reason either of the place where they are entered into or of the 45. The answers to the questions submitted place where they take effect, can be located by the two Belgian courts can therefore only within the territory of the Community" be in the affirmative — the Belgian Law of (paragraph 28). 17 July 1963 on overseas social security does fall within the scope of Regulation No 1408/71 which in Article 3 (1) prohibits all

system) remained the same. Nor is there any justification for asserting that in social security matters the Court referred more to47. That being the case, no argument based the employment relationship than to the fact on the fact that Article 7 applies only that the person concerned was insured 'without prejudice to any special provisions under a Member State's social security contained therein [the EEC Treaty]' can be scheme. relevant. In particular, since the Court has held that Article 7 of the EEC Treaty, as implemented by Article 48 of the Treaty and Article 3 (1) of Regulation No 1408/71, is

OPINION OF MR MISCHO—JOINED CASES 82 AND 103/86

the legal system of each Member State of 1963 Belgian law, treats recipients of social any provision of national law affected by security benefits differently depending on that regulation which, like Article 51 of the their nationality.

48. In view of all the foregoing considerations I propose that the Court should reply to the question submitted by the Tribunal du travail, Brussels, and the Cour du travail, Mons, as follows:

'(1) Regulation (EEC) No 1408/71, in particular Article 2 (1) thereof, must be interpreted as meaning that it applies to Community citizens who, having carried out or carrying out an activity as employed or self-employed persons, were, or are, insured under the voluntary insurance scheme established by the Belgian Law of 17 July 1963 on overseas social security.

(2) Article 7 of the EEC Treaty, as implemented by Articles 48 to 51 of the EEC Treaty and Article 3 (1) of Regulation (EEC) No 1408/71, prohibits Member States from denying nationals of other Member States of the Community covered by that regulation, by applying to them conditions regarding nationality and reciprocity, the right to have thè social security benefits which are payable to them index-linked.'