C-422/93

ŽABALA ERASUN A N D O T H E R S

OPINION OF ADVOCATE GENERAL ELMER delivered on 21 February 1995

Introduction after 'Law N o 31/1984'), a distinction is made in the payment of unemployment ben- efits between those based on compulsory contributions (Title I of Law N o 31/1984) and those not linked to previous contribu- tions on the part of the unemployed person 1. In this case four questions have been (Chapter I of Title II of Law N o 31/1984). referred to the Court for a preliminary rul- Chapter II of Title II of Law N o ing concerning Council Regulation (EEC) 31/1984 makes provision for 'asistencia sani- N o 1408/71 of 14 June 1971 on the applica- taria' which may be obtained under certain tion of social security schemes to employed conditions where an applicant does not sat- persons, to self-employed persons and to isfy the requirements for either contributory members of their families moving within the or non-contributory unemployment bene- Community. ' fits.

In the light of the information provided by the Spanish Government at the hearing, the question has, however, arisen in the mean- 3. The plaintiffs in the main proceedings, time as to whether the Court has jurisdiction Teresa Žabala Erasun, Francisco Casquero to answer the questions referred to it at all. Carillo and Elvira Encabo Terrazos (herein- after 'Žabala and Others') are Spanish citi- zens who have, over various periods, worked in France as employed persons. However, they lost their jobs in France, and applied for Facts and obtained unemployment benefits of the type linked to compulsory contributions (Title I of Law N o 31/1984).

Žabala and Others thereupon brought pro- ceedings against INEM. The cases are now pending before the appeal court, the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco. In connection with those appeals, that court referred the following four questions to the Court of Jus- 4. Should neither of the above interpreta- tice: tions be accepted, is the omission in the declaration by the Kingdom of Spain to be understood as intending not to exclude such unemployment protection definitively but to defer cover until a later date as yet undetermined?' '1. Does the declaration notified by the Kingdom of Spain to the President of the Council of the European Communi- ties and published in the Official Jour- nal of the European Communities on 22 April 1987 constitute a legal provi- sion in respect of which questions of interpretation must not be resolved by the ordinary national courts? 4. After the Tribunal Superior de Justicia de la Comunidad Autònoma del País Vasco had referred the above questions to the Court, 2 — The declaration was published in OJ 1987 C 107, p. 1. the Spanish Government paid out the bene-

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ŽABALA ERASUN AND OTHERS

fits claimed. The Kingdom of Spain, more- giving rise to the main proceedings. The ref- over, issued a declaration pursuant to Arti- erence to the Court of Justice of the Euro- cles 5 and 97 of Regulation N o 1408/71 pean Communities concerns points relating according to which the benefits in question to the application of Article 3(1), Article 4(1) do fall within the substantive scope of appli- and (2) and Articles 5 and 97 of Regulation cation of the regulation. 3 N o 1408/71. It seeks a definition from the Court of the scope of those rules of second- ary Community law and amplification or clarification of those provisions which will have binding force as an adjunct to them.'

In Article 4(2), it is specified that the regu- now devoid of purpose and that the Court of lation is to apply to all general and special Justice should therefore refuse to answer the social security schemes, whether contribu- questions referred to it. The Court's reply to tory or non-contributory. The regulation the questions must either be essential for the does not therefore cover social and medical actual dispute or for future cases on unem- assistance (Article 4(4)). ployment benefits under Chapter I of Title II of Law N o 31/1984, and the Court should therefore, in accordance with its case law in Case 104/79 Foglia v Novello4 decline to give a ruling on the questions referred to it.

N o r can significance be attached to the fact that in future the Spanish Government will In a similar context the Court decided that it in similar cases construe Regulation N o would be otherwise only in cases where 1408/71 as covering the social benefits in either it appeared that the procedure under question so that no similar cases should arise. Article 177 had been misused and had been The fact is that Article 177, which requires resorted to, in fact, in order to elicit a ruling cooperation and a clear division of functions from the Court by means of a spurious dis- as between the national courts and the Court pute or it was obvious that the provisions of of Justice, does not allow the Court to criti- Community law submitted for the interpre- cize the grounds of an order for reference or tation of the Court could not apply. 6 the relevance of the questions submitted. 8

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OPINION OF MR ELMER —JOINED CASES C-422/93, C423/93 and C-424/93

12. I do not believe the present dispute to be The legal authority of declarations by the spurious as was the case in Foglia v Novello. Member States under Articles 5 and 97 Here there is no question of the Court ruling on a procedural device arranged by the par- ties in order to induce the Court to give its views on certain problems of Community law which do not correspond to an objective requirement inherent in the resolution of a dispute. 15. With its first and second questions the Tribunal Superior de Justicia de la Comu- nidad Autònoma del País Vasco is seeking clarification as to whether a Member State's declaration under Article 5 of Regulation N o O n the contrary, before the national court 1408/71 is determinant as far as the question the Spanish Government sought to have the whether the social benefits of the Member questions referred for preliminary ruling State in question fall within the substantive withdrawn, and before the Court it has scope of the regulation is concerned. sought to have the questions rejected.

13. Finally, it does not appear either from the letter from the court which made the ref- erence, in which it maintains its request for a 16. The fact that in its declaration a Member preliminary ruling on the questions referred, State has referred to a specific law is or from the observations made at the hearing regarded, under the Court's case-law, as that any of the three cases from which the proof that the benefits granted on the basis reference arose are no longer pending. The of that law are social security benefits within questions referred for a preliminary ruling the meaning of Regulation N o 1408/71. 1 0 cannot therefore be rejected on the grounds that no account will be taken of a prelimi- nary ruling. 9

published are social security benefits within Series of the Official Journal of the European the meaning of Regulation N o 1408/71. Communities on 27 November 1993 must be regarded as proof that the social security reg- ulations mentioned in the amended declara- tion have, since their implementation, always fallen within the substantive scope of Regu- In my view, there can, however, be little real lation N o 1408/71. doubt that that is the case. The legal auth- ority of a Member State's declaration under Article 5 of the Regulation is precisely — as the Court emphasized with the word 'proof' — not dispositive in character but purely a statement of fact that sets out the current and past relationship between the benefits in 19. Accordingly it is in my view unnecessary question and Regulation N o 1408/71. to reach a decision on the question which is now of purely historical and hypothetical interest of whether the absence of any refer- ence to the benefits in question in the King- dom of Spain's declaration meant that those 18. It follows that the Kingdom of Spain's benefits did not fall within the substantive amended declaration as published in the C scope of Regulation N o 1408/71. »

Conclusion

In view of the foregoing I w o u l d p r o p o s e that the C o u r t reply to the q u e s t i o n s referred t o it as follows:

— T h e K i n g d o m of Spain's declaration p u r s u a n t t o Article 5 of C o u n c i l Regulation ( E E C ) N o 1408/71, as a m e n d e d and published o n 27 N o v e m b e r 1993, must b e

11 — If there had been no declaration, there would have been no difficulty in deciding that the benefits were covered b y Article 4(l)(g). The benefits are granted in accordance with clear criteria laid down by law, the competent national authorities have no discretion regarding the individual applicants' personal needs and the benefits in question relate to one of the social situations expressly listed in Arti- cle 4(1).