Important legal notice

61989C0307

European Court reports 1991 Page I-02903

Opinion of the Advocate-General

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Mr President,

Members of the Court,

Article 3(1) of Regulation No 1408/71 concerning equal treatment states, however, that:

"Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State". (3)

It should, however, be pointed out that, the fact that legislation which is in itself discriminatory does not, as a result of instructions given to the competent authorities or the absence of implementing decrees, lead in practice to discrimination against nationals of other Member States, is not such as to make that legislation unobjectionable. To retain such legislation might lead to a situation which is ambiguous and uncertain for the competent authorities of the Member State in question, and especially for the nationals of other Member States who are concerned. (9) That view is confirmed by the Commission' s finding that in practice the supplementary allowance has sometimes nonetheless been refused to nationals of other Member States. (10)

5. I therefore propose that the Court rule that the French Republic has failed to fulfil its obligations under Regulation (EEC) No 1408/71, in particular Article 3(1), and order it to pay the costs pursuant to Article 69(2) of the Rules of Procedure.

(*) Original language: Dutch.

(1) As amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 amending and updating Regulation (EEC) No 1408/71 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 also amending and updating Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1983 L 230, p. 6).

(2) The arrangements for implementing the second requirement were to be laid down by decree.

(3) OJ 1983 L 230, p. 13.

(4) See Article 4(4) of Regulation (EEC) No 1408/71. However, the French Government used that argument only in its reply of 7 March 1986 to the Commission' s letter of 4 December 1985.

(5) See, for example, judgments in Case 24/74 Caisse Régionale d' Assurance Maladie v Biason [1974] ECR 999, paragraphs 9 to 12; Joined Cases 379/85, 380/85, 381/85 and 93/86 CRAM Rhône-Alpes v Giletti [1987] ECR 955, paragraphs 9 to 12; Case 147/87 Zaoui v CRAMIF [1987] ECR 5511, paragraph 9.

(6) Case C-236/88 Commission v France (Fonds National de Solidarité) [1990] ECR I-3163). That case concerned a grant of the same supplementary allowance to pension-holders residing in another Member State of the Community. See also my Opinion of 12 June 1990 in that case.

(7) See the annex to the French Government' s rejoinder. It should be noted that at the end of 1989 and beginning of 1990, the French Government had already made a first attempt to amend the legislation at issue. The draft law to amend Article L 815-5 of the CSS was, however, then declared invalid by the Conseil Constitutionnel.

(8) Annex V to the Commission' s application.

(9) See, for example, the judgment in Case 167/73 Commission v French Republic [1974] ECR 359, paragraphs 41 and 42.

(10) See the Report for the Hearing, section I., 2.