OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 7 MARCH 1972 (*1)

Mr President,

Members of the Court,

The plaintiff in the main action which gave rise to the request for a preliminary ruling before the Court today is an Italian national residing in Casablanca in Morocco. It seems that she has been employed in that country for more than ten years since 1930. At that time, Morocco was a French protectorate, but under the Treaty concluded at Fez on 30 March 1912 the country was not considered to be French territory. The dahir (decree of the Sultan) of 12 August 1913 merely provided that ‘French nationals shall enjoy in the Protectorate of Morocco all the private rights accorded them in France under French law’. The dahir also laid down that, in so far as they did not enjoy particular privileges (which was not the case for Italian nationals), other foreign nationals enjoyed the same private rights as the French.

As regards social security, which is in fact the subject of this case, Article 1 of the French Law of 10 July 1965 states: ‘Paragraph (2) of Article L 244 of the Social Security Code shall be amended as follows : “This (that is, the possibility of voluntary insurance) shall also apply to old-age pensions as regards wage-earners or assimilated workers of French nationality who work outside French territory”’. Article 2 of the French Law continues: ‘Wage-earners or assimilated workers who join a voluntary insurance scheme may, for the periods during which they have, after 1 July 1930, engaged in a wageearning occupation outside French territory, acquire rights to old-age pension against payment of the contributions relating to such periods’. These provisions, which were to apply exclusively to French nationals, were clearly incompatible with the principle of equality of treatment of nationals of all the Member States contained in Regulations Nos 3 and 4 concerning social security for migrant workers. In the context of the amendment of Regulation No 3, the Administrative Committee on Social Security for Migrant Workers therefore examined and pursued ways of obtaining a suitable amendment of the French provisions. These efforts resulted on 5 April 1968 in the adoption of Regulation No 419/68 of the Council, ‘amending and amplifying certain provisions of Regulations Nos 3 and 4 on social security for migrant workers’ (JO L 87, 1968, p. 1). In accordance with Article 4 of that regulation, the text of Section IV of Annex G to Regulation No 3 was amended to read ‘Law No 65/555 of 10 July 1965 granting French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme, shall apply to nationals of other Member States subject to the following conditions:

The occupation which qualifies for voluntary insurance under the French scheme shall not be or shall not have been carried out either on French territory or on the territory of which the worker is a national ;

At the time of applying for participation in benefits under the Law the worker shall be required to prove either that he has been resident in France for at least ten years, whether or not consecutive, or that he has been subject to French legislation on a compulsory or optional continued basis during the abovementioned period.’

Circular No 213 SS of the French Ministry for Health and Social Security, dated 13 December 1968, referred to this provision and stated that as from 12 July 1965 nationals of the Member States of the EEC would be able to take advantage of Law No 65/555 of 10 July 1965 if they had worked outside French territory and outside the territory of their country of origin and if they had been subject to French legislation over a period of more than ten years.

Mrs Merluzzi, the claimant in the national proceedings, likewise wanted to exercise this option. She therefore submitted to the Caisse Primaire Centrale d'Assurance Maladie de la Région Parisienne, in Paris, a request to join the voluntary old-age insurance scheme and to be allowed to pay contributions for the period subsequent to 1930 during which she had been employed in Morocco. But her request was rejected by a decision of the Registration Department of 2 October 1969. The same fate awaited an appeal made against that decision. The decision issued by the Appeals Committee (Commission de recours gracieux) of the Caisse Primaire Centrale d'Assurance Maladie de la Région Parisienne on 9 December 1969 held that the claimant had never lived in France and had not been subject to French legislation for a period of ten years. The conditions required by the Law of 10 July 1965 and by Annex G to Regulation No 3 were thus not met. If Morocco were to be considered as French territory for the period in question, the conditions required by those provisions would still not be met because it would not have been proved that the claimant had worked outside French territory.

Mrs Merluzzi appealed against this decision to the Commission de Première Instance du Contentieux de la Sécurité Sociale et de la Mutualité Sociale Agricole in Paris. She maintains that she is entitled to voluntary old-age insurance because through application of the aforementioned dahir foreign nationals other than French nationals have been subject in Morocco to French legislation and thus also to French social insurance. As the determination of the claimant's request seems to depend upon provisions of Community law, namely Regulation No 3, the Tribunal stayed proceedings by decision of 25 March 1971 and asked the Court to give a preliminary ruling on the following question :

‘Do the provisions of Article 2(1) and (2) of the dahir of 12 August 1913 which provide that “French nationals shall enjoy in the French Protectorate of Morocco all the private rights accorded them in France under French law” and that “Foreign nationals shall enjoy the same private rights as French nationals, with no conditions or restrictions other than those resulting from their national law”, imply that a national of a Member State of the Community who relies on these provisions was subject to French legislation either on a compulsory or optional continued basis, within the meaning of Section IV of Annex G to Regulation No 3 of the Council of the European Communities?’

Only the Commission of the European Communities has submitted written and oral observations on this question. Its remarks seem convincing on the whole and the Court should adopt them in its ruling.

Thus we should first recall Article 4 of Regulation No 3, which defines as follows the field of application ratione personae of the regulation: ‘The provisions of this regulation shall apply to wage-earners or assimilated workers who are or have been subject to the legislation of one or more of the Member States and are nationals of a Member State or are stateless persons or refugees permanently resident in the territory of a Member State, as also to the members of their families and their survivors’. One may deduce from this that the provisions of Regulation No 3 are of importance only for cases concerning migrant workers properly so-called. In these circumstances and having regard to the facts of the national proceedings, the question which arises is primarily whether the applicant was, at any time, subject to the social insurance law of a Member State by reason of an activity carried on for remuneration. According to the reply which the referring court gave to the questions which the Court of Justice asked of it, that does not seem to be the case. It is not enough, for instance, that the applicant worked in Morocco, for it is certain that Morocco is not a Member State of the Community and it is impossible to interpret the status of protectorate to mean that Morocco was regarded as French territory.

Further, according to the note of 17 April 1966 addressed by the French Delegation to the Administrative Committee on Social Security for Migrant Workers, the important element for the application of Annex G to Regulation No 3 is that there should exist a particular link with the French social security system, for example, the fact that social insurance contributions have been paid for a certain number of years. This condition appears reasonable, because according to the wording and general scheme of Regulation No 3 only that type of legislation is of significance. That is why the Administrative Committee on Social Security for Migrant Workers raised no objection to the proposals of the French Delegation. As the Commission has emphasized, in the national proceedings it is necessary to distinguish the case governed by the abovementioned dahir, whereby foreign nationals have enjoyed ‘private rights under French law’, from the case of a person who has been subject to the French legislation on social security. Since the former does not necessarily imply that the person has been subject to French legislation on social security, it is certainly not sufficient to invoke the said dahir in order to apply Annex G to Regulation No 3. Nor is it possible, however, to preclude the application of Regulation No 3 for the sole reason that evidence of payment of a contribution to social insurance has not been produced. In my opinion, it should also be clear that there was no question of affiliation without payment of contributions — had that been possible. In that respect the national court should consequently, if appropriate, go beyond the questions which the Court put to it and make further inquiries.

This amounts to all that can be said from the point of view of Community law in relation to the facts submitted to the Court by the Commission de Première Instance du Contentieux de la Sécurité Sociale et de la Mutualité Sociale Agricole de Paris. I would suggest the following answer to the question :

The expression contained in Section IV B of Annex G to Regulation No 3 ‘subject to French legislation on a compulsory or optional continued basis’ should be understood as meaning that the persons concerned were subject to French social insurance. For the assessment of the facts at issue, the provisions of French law alone are decisive, together, where appropriate, with evidence that contributions have been paid to a statutory social security scheme or that insurance existed on a non-contributory basis.

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(*1) Translated from the German.