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2. The plaintiff claims payment of family allowances in the amount provided for under the German provisions in respect of the period from January 1986. He takes the 4. The plaintiff took the view that the view that under these provisions he is judgment of the Court in Pinna 15 had entitled to family allowances for both his introduced the uniform solution mentioned children as if the children were resident in the Federal Republic, the State of 2 — Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employment. The Bundesanstalt für Arbeit employed persons and their families moving within the considers, on the other hand, that in respect Community, OJ, English Special Edition, (1971) II, p. 416, as subsequently amended (see Annex I to Council of the period up to 31 December 1988 the Regulation N o 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6). plaintiff is entitled merely to the — less 3 — Council Regulation of 30 October 1989 amending Regu- favourable — entitlement under the lation (EEC) N o 1408/71 on the application of social German-Spanish Convention on Social security schemes to employed persons and their families moving within the Community, and amending Regulation Security of 4 December 1973. 1 (EEC) N o 574/72 on the implementation of Regulation (EEC) No 1408/71 (OJ 1989 L 331, p. 1). 4 — OJ 1985 L 302, p. 23. * Original language: German. 5 — Judgment of 15 January 1986 in Case 41/84 Pinnav Caisse 1 — Federal German Gazelle (BGBl.) 1977 II, p. 687. d'allocations familiales de la Savoie [1986] ECR 1.

'1. Article 73(2) of Regulation No 1408/71 is invalid in so far as it precludes the 'Did the uniform solution for all the award to employed person subject to Member States referred to in Article 99 of French legislation of French family Regulation (EEC) No 1408/71 enter into benefits for members of their family force in January 1986 and is Article 73(1) of residing in the territory of another Regulation (EEC) No 1408/71 conse- Member State. quently applicable from January 1986 to the children resident in Spain of Spanish workers employed in the Federal Republic of Germany?' 2. Except as regards employed persons who have already brought legal proceedings or made an equivalent claim 9. The national court would like to answer prior to the date of this judgment, the this question in the affirmative. aforesaid invalidity of Article 73(2) of Regulation No 1408/71 cannot be relied on in order to support claims for 10. After the termination of the written benefits prior to that date.' procedure in the present case, the Council adopted Regulation No 3427/89. The wording of Article 73 of Regulation No 1408/71, as amended by that regulation, departs from the original text essentially by 7. Following that judgment, and in extending the provision to self-employed connection with the same appeal, the Court persons and, in particular, by no longer of Cassation once again stayed the providing for a rule corresponding to that proceedings and referred to the Court questions on the consequences of that 6 — Judgment of 2 March 1989 in Case 359/87 Pinna v Caiai ruling. Ruling on that reference, the Court, d'allocations familiales de la Savoie [1989] ECR 585.

13. In my Opinion in Case 359/87 {Pinna II) I have already considered the 16. What is open to dispute, however, is the question whether, on the basis of the legal consequence which flows from Article judgment in Pinna I, the uniform solution 3, pursuant to which the regulation is to within the meaning of Article 60(1) (and the apply 'with effect from 15 January 1986'. parallel provision contained in Article The question is whether the regulation 220(1)) of the Act of Accession has entered which was adopted (30 October 1989), into force. It may be seen from paragraphs published and brought into force (16 44 and 45 of that Opinion, to which I here November 1989) after expiry of the period refer, that that question is in my view to be of time provided for in Article 60 of the Act answered in the negative. Moreover, I share of Accession (31 December 1988), has any the Commission's view that the Pinna I effects on the legal situation of children of judgment concerns only the relationship of Spanish (and Portuguese) employees as France to the other nine existing Member regards the period from 15 January 1986 to States, whilst Article 60 of the Act of 31 December 1988. Accession governs the relationship between Spain and the 10 existing Member States, 7 — In the version which existed before entry into force of Regulation No 3427/89; Article 99 of Regulation No whereby the reference to Article 73(2) of 1408/71 was repealed by Article 1(4) of this regulation. Regulation No 1408/71 should merely be 8 — Compare also the amended version in Regulation No 3427/89 of the other provisions referred to in the first regarded as a reference to the legal conse- subparagraph of Article 60(1) of the Act of Accession; see quences ensuing. in this connection the pending case of Commission v France (Case C-371/88).

20. 1. In this connection, I would first like 23. On the other hand, in the context of the to take up an argument which was put regulations amending Regulation No forward by the German Government in the 1408/71, including Regulation No 3427/89, context of the interpretation of Article 3 of it seems to accord with current terminology Regulation No 3427/89 but which in my to use the expression 'entry into force' in view also concerns Article 60 of the Act of relation to the commencement of legislative Accession. It is the question whether the effect only where this moment coincides

9 — Since lhe question was asked prior to adoption of lhe 10 — Grabitz: Kommentar zum EWG-Vertrag (Commentary on abovementioned regulation lhe wording thereof relates to the EEC Treaty), Article 191, footnote 5. the effects of the judgment in the Pinna I case, as is also 11 — The definition of the concept of retroactivity in Grabiiz apparent from the grounds of the order for reference. also supports this view, loc. cit., Article 191, footnote 7.

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28. First of all, as Anicie 191 of the EEC Treaty demonstrates, the above terminology is mandatory neither from a legal nor a logical point of view. 13 25. I would like to illustrate this with an example. Supposing the two Pinna judgments did not exist, the competent French authorities would, assuming an appropriate application had been made, only 29. Above all it should not be automatically have been obliged as from the date of entry assumed that the formulation chosen gives into force of Regulation No 3427/79 to pay clear expression to the objective meaning benefits under Article 73, as amended by the and purpose of the relevant reservation. On aforementioned regulation, for the children this point it may be clearly presumed from of migrant workers living abroad in respect Article 60(1) of the Act of Accession that of the period from 15 January 1986. In the introduction (entry into force) of the particular, this would mean that there could uniform solution was in any event to bring be no question of any delay with regard to the transitional period to an end prior to 31 the period prior to the entry into force of December 1988. In the structure of the the regulation. provisions, the uniform solution, as the

12 — See, for example, Council Regulation (EEC) No 1660/85 13 — It is also not consistently adhered to, see Article 3 of of 13 June 1985, OJ 1985 L 160, p. 1 (Article 3(1) to (3)) Council Regulation (EEC) N o 196/81 of 20 January 1981, and Council Regulation (EEC) N o 2793/81 of 17 OJ 1981 L 24, p. 3. Here there were, however, only a few September 1981, OJ 1981 L 275, p. 1 (Article 3(2)). days between entry into force and publication.

Commission correctly observed, has priority adopted unanimously. That precluded the over the transitional period. transitional provisions of Article 60 and 220 of the Act of Accession from being rendered inoperative in favour of a uniform solution without the participation of Member States enjoying the benefit of these provisions. On 30. The reasons for this structural the other hand, the possibility was afforded arrangement may in fact be manifold, as of establishing definitive provisions became apparent at the hearing. It may in applicable to all Member States and particular be supposed that the authors of employees which accorded with the will of the Act of Accession did not wish to place all Member States. any obstacles in the way of the contempo- raneous application of the uniform solution in all Member States and to all employees in the Community, including Spanish and Portuguese workers. I refer to the opening formula, based on Article 99 of Regulation 32. In view of this clear priority in favour No 1408/71, of Anicie 60(1) of the Act of of a uniform solution to be supported by all Accession ('until the entry into force of the Member States, on whose adoption the uniform solution for all the Member interests of the 10 original Member States

The 1408/71 which characterized as provisional Treaty of Accession of 12 June 1985, to the legal situation under Article 73(2) of the which the Act of Accession is annexed in regulation prior to the introduction of the accordance with Article 1(2) thereof, uniform solution. 15 From the point of view entered into force on 1 January 1986 (see of the Act of Accession the termination of Article 2(2) of the Act of Accession), the provisional situation applicable during following ratification by the high the transitional period could be linked to contracting parties. At this time proceedings the termination of the provisional in the Pinna I case had indeed been arrangement mentioned in Article 99, that is brought but the judgment was still awaited to say responsibility therefor could be so that it was not clear that there would be assigned to the Council without there being any ground for adopting retroactive any fear of an unchecked whittling away of provisions to cover the period of time from the abovementioned concession. Measures the delivery of the judgment until the entry under Article 51 of the EEC Treaty must be into force of the relevant regulation.

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The result I am of the opinion that retroactive case-law cited by the French Government provisions of that kind are also covered does not require — even with regard to thereby. provisions whose own retroactivity is at issue — that such retroactivity be expressly provided for. Instead it is sufficient if the 'stated objectives (of the regulation) give a sufficiently clear indication' that retroac- tivity was intended, 17 or that it is clearly 35. 2. Accordingly, it is appropriate to apparent from the objective or structure of examine the question raised by the French the provision concerned that retroactive Government whether, conversely, the possi- effect is to be accorded to it. 18 The French bility of retroactive effect should have been Government's argument based on the expressly provided for in Article 60 of the principle of legal certainty in favour of a Act of Accession. In the French narrow construction of the reference Government's view, this was necessary in contained in Article 60 of the Act of the light of the requirement laid down in Accession therefore seems to me to be the Court's case-law according to which any without relevance. retroactivity of the provisions of a regu- lation must be expressly or at least clearly provided for. 16 In itself this case-law concerns only regulations themselves whose retroactivity is at issue, and not provisions which make reference to such regulations. The aforementioned principles are, 37. 3. On the basis of these considerations, however, said to be applicable by analogy. the further question may also be answered as to whether, in spite of the possibility conceded in principle by Article 60 of the Act of Accession that the uniform solution might be introduced with retroactive effect, that was in any event precluded after the

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38. Certainly, there is no mistaking the fact 41. First of all, it was not possible for the that the drafters of the Act of Accession drafters of the regulation to misconstrue the probably assumed that the provisions objective of this article of the Act of concerning the uniform solution would be Accession, as I have already clarified it. We adopted between 1 January 1986 and 31 may assume that the manner in which the December 1988. In this respect, too, the long-standing struggle for the uniform objective meaning and purpose of the solution and the wording of Article 60 (or referring provision under which the 220) of the Act of Accession were intercon- adoption of provisions is entirely reserved to nected was well known to the drafters of the Council should prevail. That also refutes the regulation. Had there been a desire the French Government's further argument under these circumstances to exclude based on the supposed priority of the Act of Spanish and Portuguese workers from the Accession with regard to the provisions to scope of application of the retroactivity be made for the transitional period. As I clause, an express provision along the lines have indicated, the referring provision of Article 3(3) of the regulation 19 would leaves it open to the Council to decide on have been appropriate. provisions departing from Article 60 of the Act of Accession and therefore having priority thereto, as regards the period since 31 December 1988.

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restrictive interpretation of the retroactivity Accession of Spain and Portugal has been clause from the point of view of Article 60 brought retroactively into effect.' (or 220) of the Act of Accession. I cannot conceive that the drafters of the regulation wished to rely on the subtlety of those applying it to identify all these nuances. 46. In this connection I share the unequivocal view taken by the Court of Justice which, in its judgment in Case 143/83 concerning Treaty infringement proceedings for failure to observe a 43. Thirdly, the first recital in the preamble directive, stated as follows: 'The Court to the regulation expressly refers to Article has consistently held that such unilateral 99 of Regulation No 1408/71. There again declarations cannot be relied upon for the mention is made of a uniform solution for interpretation of Community measures, all Member States. 21 Had it been intended since the objective scope of rules laid down to make exceptions from this basic by the common institutions cannot be objective, that intention would surely have modified by reservations or objections been more clearly expressed. which Member States may have made at the time the rules were being formulated.' 22 These principles are all the more valid in the interpretation of a regulation since under Article 191 of the EEC Treaty only the 44. The wording of Article 3 of Regulation published text thereof may produce effects. No 3427/89 therefore gives no ground for Unpublished declarations which are not the restrictive interpretation in question, reflected in that text cannot have effect. whilst the system and objective of the regu- lation clearly militate against such an inter- pretation.

Court in its judgments of 25 January 1979 French Government, it would be necessary in the Racke 23and Decker 24 cases, whereby to find positive indications to show that the retroactive provisions are only exceptionally retroactive effect provided for in Article 3 of compatible with the requirement of legal Regulation No 3427/89 in respect of the certainty enures solely for the benefit of the matters concerned by the present case is interests of Community citizens against incompatible with the requirement of legal measures of the Community authorities. certainty. This is clear from the constitutional origins of the prohibition on retroactivity which Mr Advocate General Warner had an early opportunity of examining in detail in his Opinion in Case 7/76, 25 and to which the Court of Justice referred in the abovemen- 51. In this connection I am, in the first tioned Racke and Decker cases by recalling place, persuaded that the alleged difficulties, the idea of the protection of legitimate assuming that they exist, arising out of legal expectations. certainty, scarcely justify an interpretation whose compatibility with the wording and the systematic context of the provision could not be established and which would, consequently, expose that interpretation to considerable uncertainties. Secondly, since

50. Therefore, in order to justify the other migrant workers as quickly as restrictive interpretation advocated by the possible. 23 — Case 98/78 Racke v Hauplzollamt Mainz [19791 ECR 69. 24 — Case 99/78 Decker v Hauplzollaml Landau [19791 ECR 101 25 — IRCA v Staatliche Finanzverwaltung (1976] ECR 1229, at pp 1236 and 1237

above. either.