C-20/75

JUDGMENT OF THE COURT 9 JULY 1975 <apnote>1</apnote>

Gaetano d'Amico

ν Landesversicherungsanstalt Rheinland-Pfalz (preliminary ruling requested by the Bundessozialgericht)

Case 20/75

Summary

1. Social security of migrant workers — Unemployment — Benefits — Legislation applicable — Place at which a worker becomes unemployed (Regulation No 1408/71 of the Council, Article 69)

1. Community law does not in principle national legislation makes the early provide for the right of an acquisition of the right to a retirement unemployed worker to claim un­ pension conditional upon the person employment benefits under the legis­ concerned having been unemployed lation of a Member State other than for a certain time as well as upon the State in which he became un­ the completion of a period of employed. membership of a social insurance scheme and when therefore the length 2. The insurance periods to be ag­ of the period of unemployment is not gregated for the acquisition of the intended to be aggregated to obtain right to a retirement pension may the minimum period of membership include a period of unemployment required or to be used in the which is regarded as equivalent to a calculation of the benefit there are no period of employment by the grounds for taking into account a legislation under which it was period of unemployment completed completed. On the other hand, when in another Member State.

In Case 20/75

Reference to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht, Kassel, for a preliminary ruling in the action pending before that court between:

1 — Language of the Case: German.

JUDGMENT OF 9. 7. 1975 — CASE 20/75

GAETANO D'AMICO

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure Mr d'Amico, who was born in Italy on 21 December 1907, was employed as a Under Section 1248 of the worker in Italy from 1932 to 1940, then Reichsversicherungsordnung (German in the German Reich from June 1940 to National Insurance Regulation) an July 1943, after that in Italy once more insured person who: and finally in France from 1947 to (1) has attained 60 years of age: December 1968. Since December 1968 (2) has completed 180 insurance months, he has been unemployed in France. called the waiting period: and (3) has been continuously unemployed On 27 July 1971 he submitted to the for at least one year: Caisse autonome nationale de la sécurité shall upon application be entitled to sociale des mines (Miners' Independent early retirement benefit. National Social Security Fund) an

D'AMICO v LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ

In accordance with Article 20 of the Protocol on the Statute of the Court of The first condition for the application of Justice of the European Communities, Section 1248 is satisfied, and the second written observations were submitted by condition is satisfied by aggregating his Mr d'Amico on 12 March 1975, by the insurance periods in the EEC. Although Commission of the European Mr d'Amico had been continuously Communities on 20 April 1975 and by unemployed for at least one year, the the Italian Government on 29 April defendant considered that the third 1975. condition was not satisfied, since under German law to be unemployed the After hearing the report of the worker must be available to the German Judge-Rapporteur and the views of the

All periods which of the Council of the EEC and Article 45 might in some way come into (1) of Regulation (EEC) No 1408/71 of consideration for the acquisition or the Council is account to be taken, for retention of the right to benefits must in the acquisition of the right to benefits, of fact be taken into account insurance periods completed in another Member State, which in essence are This means that periods of equivalent periods but which under the unemployment certified by the relevant internal law of the Federal Republic of French employment exchange must be Germany are not reckonable towards the taken into account when, in application qualifying insurance period for the of Section 1248 (2) of the

only the legal basis, but also the criterion for workers. The purpose of these on the basis of which Regulation No 3 provisions is to guarantee for all nationals and Regulation No 1408/71 must be of Member States equality of treatment interpreted. under the various national legislations and for workers and their dependants In interpreting these provisions it is 'social security benefits ... regardless of particularly necessary to ensure that their place of employment or of workers who exercise their right of free residence'. movement are not in any way handicapped in relation to other workers. The fact that a person entitled has his place of employment in a Member State This guiding principle is a factor which other than the Member State in which he argues in favour of recognizing events claims his right to social security benefits other than the insurance periods laid is not by itself a sufficient reason to down in Article 27 of Regulation No 3 refuse a claim which is in other respects and in Article 45 of Regulation (EEC) No well-founded. This statement must still 1408/71. hold good as regards the place where a national of a Member State is registered Article 51 (a) of the EEC Treaty not only as a person seeking work when his provides for aggregation of insurance employment comes to an end. periods and equivalent periods but aggregation ... of all periods taken into The objectives laid down in the fifth account under the laws of the several recital of the preamble to Regulation countries'. (EEC) No 1408/71 must be attained, according to the terms of the sixth Since this article determines both the recital, not only by the aggregation of framework and the limits of the insurance periods which have been interpretation of Regulation No 3 and properly certified but also by 'aggregation Regulation (EEC) No 1408/71, the of all the periods taken into account Commission maintains that Article 27 of under the various national legislations for Regulation No 3 and Article 45 of the purpose of acquiring and retaining Regulation (EEC) No 1408/71 must be the right to benefits and of calculating interpreted generally, to the extent the amount of benefits, and by the required by national law, to the effect provision of benefits for the various that periods completed in other Member categories of persons ...’. States should be recognized as giving rise to the right to social security benefits. Regulation No 3 and Regulation (EEC) No 1408/71 contain a number of The result of an interpretation in provisions which impose an obligation accordance with the spirit of the Treaty on Member States to recognize the events is to state that the Federal Republic of upon which the grant of benefits is

conditional under social insurance There can also be discrimination when legislation, even if they occurred in the decision of a court is not based another Member State. directly on the nationality of the migrant worker, but on other criteria, for As regards the unemployment field in example, his habitual residence (Case particular, although the unemployment 152/73, Sotgiu v Deutsche Bundespost benefits referred to in Articles 67 and 71 [1974] ECR 153). of Regulation (EEC) No 1408/71 must as a rule only be provided by the Member The judgment delivered by the Court in State to the authorities of which the Case 4/66, Hagenbeek v Raad van person seeking work is available, Arbeid [1966] ECR 425, clearly argues in Regulation No 3 and Regulation (EEC) favour of a wide interpretation of Articles No 1408/71 consider that 27 and 45 to the effect that these articles, unemployment per se is a common besides providing for the aggregation of problem to solve which all the Member insurance periods and equivalent periods, States must work together according to impose on Member States an obligation their means. to recognize events which justify the acquisition, retention or recovery of a The Commission recalls that it is now right under their various national possible to draw unemployment benefit legislations, even if these events took in a Member State other than that in place in similar circumstances in another which the person seeking work was last Member State. employed. The Commission therefore suggests the A migrant worker who is a national of a following answer to the question referred Member State and who has had to for a preliminary ruling: interrupt his employment with an undertaking in another Member State in 'In accordance with the objectives of the order to fulfil his obligations for military freedom of movement for workers, service in the country of which he is a Article 27 (1) of EEC Regulation No 3 national, has the right to have the period and Article 45 of Regulation (EEC) No of his military service taken into account 1408/71 must be interpreted as providing in the calculation of his seniority in an that periods completed in other Member undertaking, to the extent to which the States which under the legislation of the periods of military service in the country competent State are not insurance of employment are also taken into periods or equivalent periods within the account for the benefit of national meaning of Article 1 (p) and (r) of the workers (Case 15/69, Ugliola v Südmilch abovementioned regulations, but which AG, Rec. 1969, p. 363). are periods the completion of which is only a further condition to which the It must follow automatically from this right to benefits laid down by the judgment that periods of unemployment national law is subject, must also be completed by the plaintiff in France taken into account for the acquisition of must be treated as equivalent periods. a pension right.’

another Member State as though they undergone in another Member State were periods completed under the must likewise be taken into account for legislation of the latter State. the acquisition of the right to benefits, and that therefore the preliminary Article 1 of Regulation No 3 and Article question must be answered in the 1 of Regulation (EEC) No 1408/71 define affirmative. the term 'insurance periods' and 'periods of employment' by reference to the legislation under which these periods III — Oral procedure

However, he recalls proportion to the period completed in that under Regulation No 3, which was each State without fulfilling in each of in force for at least some part of the them the conditions prescribed. This period in question in this case, there was result presupposes the abolition of the no question of a Member State other residence qualification which the than the State in which the unemployed legislation of a Member State may worker last worked having to pay possibly make a condition of the grant of unemployment benefit.

This exist as regards early retirement benefit means that if a Member State must take for unemployed persons. into account a period of unemployment undergone in another Member State in Early retirement benefit is based on the order to assess whether insurance periods consideration that the person concerned have been completed, then the first has failed to be reintegrated into the Member .State ought all the more to take work process, and this fact distinguishes account of the concrete fact of it from unemployment benefit. unemployment although it was The Commission, which is aware that the undergone in another Member State, solution of this problem is uncertain, when this concrete fact is regarded as a argues in favour of a wide interpretation. prerequisite for the grant of the benefit. Thus the Italien Government considers The Advocate-General delivered his that periods of unemployment opinion on 12 June 1975.

In the main action, he claims that the defendant should grant him early retirement benefit, on a proportional basis, on the ground of those three months' work and membership of the social insurance scheme within the territory of what is now the Federal Republic of Germany, aggregated with the periods completed under the legislation of other Member States.

The defendant in the main action refused this application on the ground that under German law the term 'unemployment' implies that the unemployed person is available to the German employment bureau and on the ground that there is no provision of Community law which calls for any different interpretation.

JUDGMENT OF 9. 7. 1975 — CASE 20/75

4 The right to unemployment benefit presupposes that the unemployed person is available to the employment bureau at which he is registered, as appears from Chapter 6 of Regulation No 1408/71, in particular Articles 69 and 71 thereof.

Because vacant posts vary from one region of the Community to another, unemployment benefits are linked to the geographical region in which the person concerned became unemployed.

5 To enable an unemployed worker to move to seek work, Community law has provided that an unemployed worker may under certain conditions move within the Community whilst retaining the right to unemployment benefit.

9 Article 45 (1) of Regulation No 1408/71 provides that an institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of insurance periods shall take into account, to the extent necessary, insurance periods completed under the legislation of any Member State as though they had been completed under the legislation which it administers.

10 The said articles, like the entire system of which they form part, have as their basis, their framework and their bounds Articles 48 to 51 of the Treaty, which are aimed at securing freedom of movement for workers.

Under Article 51, implementing regulations must secure for migrant workers aggregation, for the purpose of acquiring the right to benefit, of all periods taken into account under the laws of the several countries.

The aim of this provision is to allow the migrant worker to acquire the right to benefit for all periods of employment or periods treated as such which have been completed by him in various Member States, without discrimination as against other workers by reason of the exercise of his right to freedom of movement.

The periods which must be treated as though they were periods of employment as regards aggregation may under Article 1 (r) of Regulation No 3 and under Article 1 (s) of Regulation No 1408/71 include periods of unemployment to the extent to which they are regarded as equivalent to periods of employment by the legislation under which they were completed.

11 On the other hand, when national legislation makes the early acquisition of the right to retirement benefit conditional upon the person concerned having been unemployed for a certain time, as well as upon the completion of a

THE COURT

in answer to the question referred to it by the Bundessozialgericht Kassel by order of 18 December 1974 hereby rules:

The provisions of Article 27 (1) of Regulation No 3 and of Article 45 (1) of Regulation No 1408/71 do not prohibit a rule of national law which requires, for the acquisition of the right to early

D'AMICO ν LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ

retirement pension, that the person concerned shall have been unemployed for a certain time and thus available to the employment bureau of the Member State in question.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Mr President, The provision of internal law in Members of the Court, connexion with which the request for interpretation was made is Section 1248 1. In order to establish whether an (2) of an earlier version of the internal provision is applicable to a Reichsversicherungsordnung (German migrant worker the court making the National Insurance Regulations). In reference requests the interpretation of providing that early retirement benefit Article 27 (1) of Regulation (EEC) No 3 may be obtained, it lays down that this of the Council and of the corresponding old-age pension shall also be payable to provision in Regulation (EEC) No an insured person who applies for it after 1408/71 of the Council (Article 45 (1)). reaching the age of sixty years provided The Court has on various occasions that he has completed the minimum delivered rulings on those provisions, prescribed insurance period and that he which provide for the aggregation of has been unemployed for an unbroken insurance periods and assimilated periods period of at least one year. completed in various Member States for the acquisition of the right to social At the time when he requested the benefits by a worker who has been application of the said national provision successively subject to the legislation of the worker concerned, the plaintiff in the two or more Member States. main action, had reached tne age of sixty, 1 — Translated from the Italian.