C-375/85

Mr President, not — contrary to the requirements of Members of the Court, Article 46 (1) of the employment law — exercised an activity subject to compul A — Facts sory contributions within the meaning of the employment law for a minimum of two years during the three (or five) years prior 1. The plaintiff in the case pending before to the beginning of the course. Nor clearly the Bundessozialgericht which gave rise to did the plaintiff satisfy the alternative this reference for a preliminary ruling is an requirements contained in Article 46 (2), Italian national; he worked in the Federal namely receipt of unemployment benefit or Republic of Germany from 1964 in the tele of benefit under an unemployment vision repair business and from July 1975 as assistance scheme prior to the course; on a skilled radio and television technician, the other hand, he did satisfy—according having passed his apprentice's examination. to the evidence he submitted in these From February 1977 to June 1980 he proceedings — the other conditions for worked in the same field in Italy — where obtaining assistance such as the necessary he paid compulsory insurance contri aptitude, personal prospects of success and butions — and subsequently he worked once opportunities opened up by the qualification more in the Federal Republic of Germany in sought. That was, moreover, confirmed by

The Landessozialgericht expressly tunities, hereinafter referred to as 'the emphasized that it was inconceivable to employment law') (as last amended by the state that the conditions could be satisfied fifth amending law of 23 July 1979) by relying on provisions of Community assistance for such vocational training — law and thus taking into account periods extension of professional knowledge and of employment completed in Italy. In adaptation of such knowledge in the light of that connection the Landessozialgericht technical progress — is provided in the form considered that no support was to be of the payment of expenses and the grant of derived from Article 67 of the chapter of an allowance (Articles 41, 43, 44 and 45 of Regulation No 1408/71 ' dealing with the employment law). In July 1980, the unemployment, which provides for periods plaintiff submitted an application for such of insurance or employment completed in

OPINION OF MR LENZ — CASE 375/85

ployment benefits') — only to benefits paid explanatory memorandum on that law — is in respect of existing unemployment and not concerned in large part with the prevention to vocational training measures for persons of unemployment in the future. Secondly, who are not unemployed. Similarly it is not the Bundessozialgericht refers to the Court's 3 possible to rely on Article 7 of Regulation judgment in Case 16/72, in which it held (EEC) No 1612/68 of the Council of 15 that in view of the objective of Article 51 of October 1968 on freedom of movement for the EEC Treaty (which is to establish the 2 workers within the Community — which most favourable conditions for achieving the provides for equality of treatment with freedom of movement and employment for national workers with regard to access to Community workers) the concept of social training in vocational schools and retraining security must be regarded as including centres — because no provision is made in preventive measures. this context for the calculation of periods of employment.

CAMPANA v BUNDESANSTALT FÜR ARBEIT

B — Substance position, or in relation to Article 44 (which deals with the payment of training allowances), that it is not necessary for persons seeking a professional qualification to be under the threat of unemployment. 8. 1. In view of the way in which the Bundessozialgericht drafted its question, the sole question for the Court to consider is whether Regulation No 1408/71 is 10. Conversely, it is clear that no decisive applicable solely to benefits granted in weight can be given to the reference made respect of existing unemployment or by the plaintiff to the importance, whether it may be interpreted more widely emphasized by the Council, of vocational so as also to cover benefits of a preventive training (see the Council's general nature, intended to avoid the onset of guidelines for a Community programme on unemployment (in which case it may be vocational training — Official Journal, necessary to determine precisely what English Special Edition, Second Series, Vol. relationship such benefits must have with IX, p. 50) or his reference to the principle unemployment).

I think it is unemployment insurance (as the plaintiff in clear that such general considerations are the main proceedings appears to think). insufficient, of themselves, to justify the Nevertheless, the objectives of certain application of the social insurance measures (I am thinking, for example, of provisions contained in Regulation No measures for promoting occupational 1408/71. On the contrary, the need for advancement, for the organization of a their application must follow, in the first professional examination or for the training place, from an interpretation of the of instructors — Article 43 (1), (4) and (5) provisions of Community law adopted of the employment law) strongly support the under the EEC Treaty.

OPINION OF MR LENZ — CASE 375/85

Article 5 of Regulation No 1408/71 whether periods of employment, of (according to which the Member States are membership or of contributions have been to specify the legislation and schemes completed. However, in the light of the referred to in Article 4 (1) and (2) in question of delimitation in that case those declarations which are then published) and considerations were relevant only in order to the declaration of the Federal Republic of to establish whether the case was not one of Germany pursuant to that provision social assistance, for which need is an published in Official Journal 1973 (C 12, p. important criterion. The question of delimi 12), which refers, under the heading 'Laws, tation with which this case is concerned was

ployment insurance. 4 — Judgment of 28 May 1974 Callemeyn v Belgium [1974] 14. (b) The same may be said in relation to ECR 553. 5 — Judgment of 5 July 1983 Valentiniv Assedic [1983] ECR the plaintiff's reference to two judgments of 2157.

17. (c) Finally, an equally negative approach constant express amendment of the rules must be adopted towards two of the and, by means of reasonable and forward- considerations put forward by the Federal looking interpretation, ensure that the coor­ Republic of Germany relating, in the first dination provisions are applied so as to place, to the origins of Regulation implement that important Treaty principle No 1408/71 and, secondly, to the general in the most effective manner. definition of the purpose of the regulation (namely to provide protection against risks which are beyond the wishes and powers of control of the individual). 20. On the other hand, as regards the general definition of the purpose of Regu­ lation No 1408/71 and, therefore, of the law relating to social insurance as a whole, there are doubts whether the factors 18. In that respect it must be acknowledged referred to are well-founded, which doubts that the wording of Article 4 of Regulation arise from the question whether — for No 1408/71 repeats virtually word for word example, in the fields of sickness and the corresponding provision of Regulation maternity — the situations really are beyond No 3 (Article 2); that when Regulation the wishes and powers of control of the 1408/71 was adopted it was not intended to individual. Moreover, the Commission has extend the list of benefits (as is shown by rightly drawn attention more generally to the passage in the preamble thereto which the ambiguous nature of the concept of a states that the aim is to bring together all the voluntary act, which is not really justified in basic provisions for-implementing Article 51 connection with measures to which a person of the EEC Treaty); and that — as subjects himself in order to avoid the risk of is indicated in the remainder of the detrimental consequences. It is therefore preamble — the main focus at the time, in hard to approve of appeal to considerations the field with which this case is concerned, of that kind in order to establish criteria for was without doubt benefits paid in respect defining the matters covered by Regulation of actual unemployment. It must not be No 1408/71 unless — and this remains to forgotten, however, that changes have been be seen — there are other important reasons taking place in that field for a number of for proceeding in that manner. years with a view to combating the risk of unemployment also by means of preventive measures.

contrary, what is important is the list of movement cannot in general be interpreted benefits contained in that provision and, as strictly — can be seen in the fact that Article regards this case, the reference in 67 of Regulation No 1408/71, to which the subparagraph (g) to unemployment benefits. Bundessozialgericht attached particular If attention is focused on that term, there is importance and which provides for the clearly considerable support for that aggregation of periods of insurance and assumption that it refers to benefits in employment, does not refer to existing respect of existing unemployment; that unemployment but in a very general manner assumption is further supported by other to the 'right to benefits'. language versions (such as the Italian, French, English and Dutch versions) and is consistent with the fact that in Chapter 6, headed 'Unemployment benefits', Articles 25. It must also be noted that Article 68 to 71 deal expressly with unemployed 4 (1) (a) uses wording — in respect of persons. sickness and maternity—which corresponds to that of subparagraph (g). However, it appears clear that in the field to which subparagraph (a) relates it is not necessary 23. There are, however, strong reasons not for the relevant risk to have materialized but to persist in such an assumption but to that — even if it is not stated expressly, as in recognize, on the contrary, that it is not subparagraph (b) — this field includes completely clear that such an approach will preventive measures (vaccinations, prophy­ lead to the exclusion of preventive benefits lactic treatment and, in the case of granted with a view to future unem­ maternity, treatment during pregnancy). ployment from the scope of Regulation No 1408/71. That is also true of the references made by the German Government: to the heading of Chapter 6 in Regulations 26. In addition, as regards the Court's Nos 1408/71 and 574/72, 'Unemployment judgments concerning Regulation No benefits'; to the fact that according to 1408/71 and the regulations it replaced, it Article 80 of Regulation No 574/72, on the may be observed that in the Court's application of Article 67 of Regulation No judgment in Case 16/72 (to which the order 1408/71, the person concerned must submit for reference expressly refers) the Court to the competent institution in unem­ emphasized in a general manner that Regu­ ployment matters a certified statement spec­ lation No 3 must be interpreted with regard ifying the periods of insurance or em­ to the fundamental aim of Article 51 of the ployment; and to the fact that Annex II to EEC Treaty and that it was therefore Regulation No 574/72, under the heading possible to regard 'the concept of social 'Unemployment and family benefits', refers security ... as including the aim of to the Bundesanstalt as the competent preventing the spread of disease' ([1972] institution for Germany — as we have seen ECR 1150, paragraph 4). that body is also responsible for the voca­ tional training measures provided for by the employment law.

31. I am of course inclined to the view that that statement of principle is not in itself 29. As regards the structure of the sufficient and that it is necessary to add employment law — which provides for a some clarification, in particular with regard preferential right to benefit from vocational to the question of demarcation raised by the training measures for unemployed persons German Government. In reality it is unde­ in the process of retraining and for persons niable that every training measure (even who are under an individual and direct schooling or general education) can be said threat of unemployment (Article 44, in the to reduce the risk of unemployment on an case, for example, of a person who has ever more demanding labour market. already been declared redundant or where However, it is also clear — and has been insolvency proceedings have been from the outset — that not all such commenced in respect of the undertaking measures can be held (as preventive concerned) — the unavoidable conclusion is measures) to fall within the field of unem­ that preventive measures must be regarded ployment insurance even though it may be as falling within the benefits referred to in argued that they are partially financed from Article 4 (1) (g) of Regulation No 1408/71 unemployment insurance contributions and that, conversely, it would be absurd to (which is, according to the employment law, exclude, for example, measures in respect of one of the conditions for the grant of imminent unemployment (within the benefits). It is entirely reasonable and meaning of Article 44 of the employment proper to require that — in a case where the law) for workers who have not completed person concerned is in employment — voca­ sufficient periods of employment in tional training assistance must have a clear, Germany and therefore to grant benefits in specific and close link with the struggle such a case only once the person has against unemployment when it is proposed become unemployed (in which case Article to rely upon the provisions adopted for that 67 of Regulation No 1408/71 clearly purpose. provides for the aggregation of periods of insurance and employment). The inter­ pretation of a provision should not, if it can possibly be avoided, lead to such 32. That seems also to be the view of the absurd — it might even be said, representative of the Italian Government, unjust — consequences. However, such who stated during the hearing that there

33. In my view an affirmative reply, as a 36. Let me state my conclusion matter of principle, to the question posed by immediately: I do not consider it possible to the Bundessozialgericht is possible only agree with the Commission's viewpoint. subject to that restriction, the scope of which will have to be defined gradually. 37. It must, of course, be recognized that according to the Court's judgment in Case 34. 4. The Commission went on to discuss 152/73 7(on which the Commission placed Article 7 of Regulation No 1612/68, which much emphasis) the rules on equality of was not, of course, referred to by the treatment contained in Article 7 of Regu­ Bundessozialgericht in its question and lation No 1612/68 forbid not only overt according to which a worker who is a discrimination by reason of nationality but national of a Member State has access, by also all covert forms of discrimination which, virtue of the same right and under the same by the application of other criteria of conditions as national workers, to training differentiation, lead in fact to the same in vocational schools and retraining centres. result ([1974] ECR 164, paragraph 11). It discussed that provision in response to the view expressed by the Bundessozialgericht that Article 7 was of no assistance in this 38. There is, moreover, something to be case because the relevant provision of the said for the conclusion that that applies to employment law, namely Article 46, did not the criterion laid down by Article 46 of the make any distinction on grounds of employment law (contribution to German nationality (so that it was unnecessary to unemployment insurance for two years), pursue the matter further). since that criterion is, as a rule, more easily satisfied by German workers, who will have completed periods of employment abroad only in rare cases. 35. In view of the interpretation of Regu­ lation No 1408/71 which I have proposed, 7 — Judgment of 12 February 1974 Sotgiu v Deutsche and which should permit a satisfactory Bundespost [1974] ECR 153.

C — Conclusion

5. In view of all the foregoing I propose that the reply to the question posed by the Bundessozialgericht should be as follows:

41. Article 67 (1) of Regulation (EEC) No 1408/71, read in conjunction with Article 4 (1) (g), is also applicable to a right to benefits granted by a State with a view to avoiding a specific and imminent risk of future unemployment. If the benefits are dependent upon the pursuit of a specific activity subject to compulsory contribution, account must consequently also be taken of periods of employment completed in other Member States.

8 — Judgment of 24 April 1980 Coonan v InsuranceOfficer [1980] ECR 1445('Sickness insurance for the elderly').