B —The Commission of the European Communities makes the following observations :
— With regard to the first question, the answer must be in the negative. In fact, Article 4 (4) of Regulation No 1408/71, in excluding from the substantive field of application of the regulation ‘benefit schemes for victims of the war or its consequences’, is referring to benefit schemes granted in the context of legislation other than social security legislation. However, the French Law No 73-1051 of 21 November 1973 which has been referred to in this matter — the implementation of which is effected by Decree No 74-54 of 23 January 1974 — constitutes indeed social security legislation since it supplements the French Code de la Sécurité Sociale.— With regard to the second question, two cases may be envisaged :(a) either captivity or military service in the French or Allied Forces constitutes an objective condition for the grant of the advantage in question; or(b) the captivity and the military service are assimilated to an insurance period under French legislation.In the first case French courts will find that the conditions required by the French law have been met and will apply that law.In the second case on the other hand the assimilation of the captivity or military service to insurance periods under French legislation will be of such a nature as to bring about a conflict of laws between that legislation and Belgian legislation which is applicable in pursuance of Article 13 (2) (d) of Regulation No 1408/71. In that case, since, in pursuance of Article 13 (1) of tne said regulation, a worker is to oe subject to the legislation of a single Member State only, and having regard to the judgment of the Court of Justice in Case 92/63 (Moebs (née Nonnenmacher) v Sociale Verzekeringsbank [1964] ECR 281) French legislation would appear to be applicable in so far as France his not required the person concerned to contribute to the financing of a social security institution which is unable to provide him with additional benefits in respect of the same risk and the same period.— With regard to the third question, finally, the answer whould be that the old-age benefit in question must be applied without the possibility of any derogation from the provisions of Article 3 (1) of Regulation No 1408/71, which prohibits all discrimination between the workers of Member States. Such workers have the right to benefit therefrom, naturally to the extent to which the competent authority or court decides that the two conditions required are fulfilled, namely the minimum of insurance and the minimum length of captivity or military service in wartime in the French or Allied Forces.
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