C-88/95

* Original language: German. 1 — Consolidated version of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and 4. Case C-102/95 concerns the claim for to members of their families moving within the Community (OJ 1992 C 325, p. 1). unemployment benefit by a plaintiff born on

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12 April 1937 who was employed between 6. In all three cases, the claimant has no 1 October 1971 and 30 November 1982 in employment-based periods of contribution the Federal Republic of Germany, where he under the Spanish social security scheme. paid 194 months' social security contribu- Each claimant was nevertheless granted tions. 2 Since 5 April 1993 he has been con- Spanish unemployment benefit on different tinuously registered as seeking work. From legal grounds, but was refused the follow-up 30 July 1993 to 29 January 1995 he was allowance for persons above 52 years of age. granted, for the maximum period of 18 The unemployment allowance at issue is a months, unemployment assistance under hybrid benefit. Spanish law for returning migrant workers. H e applied as long ago as 30 July 1993 for the grant and payment of the unemployment allowance for persons above 52 years of age, which he now hopes to receive as a follow-up benefit.

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8. The national court assumes that the 10. The Tribunal Supremo (Supreme Court) unemployment allowance for persons above sitting as a full court held on 28 Febru- 52 years of age within the meaning of the ary 1994, in a judgment concerning entitle- Spanish legislation constitutes an unemploy- ment to the unemployment allowance at ment benefit within the meaning of Article issue in this case, that persons who neither 67(1) and Article 4(1 )(g) of the Regulation. It were affiliated to the Spanish social security points out that the defendant Spanish institu- scheme nor had made any contributions to it tion is refusing to grant the plaintiffs the did not qualify for the benefit. A duty to pay unemployment allowance for persons above it could not arise, because the plaintiff in that 52 years of age because they do not satisfy case was not entitled to a retirement pension 'the minimum period of contribution in Spain. required in order to be entitled to a retire- ment pension under the social security scheme'. In this regard, it has been shown that each of the plaintiffs was affiliated to the social security scheme of another Member State (Germany or the Netherlands) and has made the contributions and completed the period required under the scheme in ques- tion in order to receive, on reaching retire- ment age, a retirement pension payable under the social security scheme of the rel- 11. The national court doubts whether that evant Member State. The inference is, there- interpretation is compatible with Commu- fore, that the Instituto Nacional de Empleo nity law. It refers the following questions to (National Employment Institute) requires the Court of Justice for a preliminary ruling, that a claimant must be able to retire in due the first of which is asked only in the orders course with a pension payable under the for reference in Cases C-102/95 and Spanish social security scheme if he is to be C-103/95 while the second, third and fourth entitled to the unemployment allowance at questions appear in identical terms in all issue. three orders.

If the foregoing question is answered in the that, subject to age requirements, they affirmative: are entitled to a retirement pension pay- able by the Spanish social security scheme (persons having such an entitle- ment in any other Member State being precluded from receiving such allow- ance) contrary to Articles 48(2) and 51 of the EC Treaty? 2) Must Article 67(1) of Regulation N o 1408/71 (in its present version) be inter- preted, as regards the particular facts to which it is to be applied, as meaning that periods of insurance or of employment completed under the legislation of any 12. The plaintiffs before the national court, other Member State must be taken into the Spanish Government and the Commis- account for the purposes of obtaining sion took part in the proceedings. I shall the unemployment allowance for per- return to their observations in my appraisal sons over 52 years of age, provided for of the law. by Article 215(3) of Royal Legislative Decree 1/1994 of 20 June 1994, which approves the consolidated version of the General Law on Social Security, to the extent to which the right to a retirement pension may be obtained on the basis of such contributions, subject to age requirements, in a Member State other B — Opinion than that of the competent institution?

I — The first question

3) Can that be the case even though the worker has not paid contributions in Spain or has paid contributions for less than one year, provided that he is 13. The interested parties all suggest that the entitled to a retirement pension in any first question be answered in the affirmative. Member State?

social security listed therein, includes, as 16. The Commission refers to its observa- Article 4(1 )(g), 'unemployment benefits'. tions in Joined Cases C-422/93, C-423/93 The plaintiffs also submit that the benefit at and C-424/93 on the designation of the ben- issue forms part of a non-contributory social efit at issue in this case, in which it argued security scheme for the purposes of Article that the Regulation applied. It also relies on 4(2) (however, whether the benefit falls the Opinion in that case of Advocate within the scope of the Regulation is, in fact, General Elmer, delivered on 21 February not determined by its qualifying as such). 1995. 8As a result it also is of the view for They base their view, first, on the declaration the purpose of these proceedings that there is of the Spanish Government, 3 giving notice no doubt that the benefit falls within the that the benefit falls under the Regulation. scope ratione materiae of the Regulation. They then rely on the case-law of the Court, according to which such a declaration is suf- ficient to establish that a benefit falls within the scope of the Regulation. 4 The Court has in any event already referred to the benefit at issue as falling within the scope of the Regu- lation. 5 Spanish legislation, for its part, pro- ceeds on the basis that it is an unemploy- 17. For the sound reasons set out in detail ment allowance in the nature of assistance. by the interested parties, I too am of the The Tribunal Supremo, 6 finally, has had no opinion that the allowance at issue falls doubt that the benefit falls within the scope within the scope of the Regulation and is not of the Regulation. excluded from its scope because, for instance, it constitutes social assistance within the meaning of Article 4(4) of the Regulation.

II — The second question

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law supplemented by Community law. In 25. The Spanish Government concludes order to obtain an entitlement to benefit therefrom that to grant benefit to the plain- under a Member State's legal system, it is tiffs would be contrary to the objective of necessary to satisfy basic minimum require- Article 67 of the Regulation. Article 67 ments in accordance with its national law. accordingly precludes taking account of peri- Those requirements must be founded on ods of insurance or of employment com- contributions, periods of insurance or peri- pleted in another Member State: ods of employment under that legal system. Only in those circumstances can national law be supplemented by Community law.

— if the claimant has paid no contributions and has not completed any periods of insurance or of employment in the Mem- ber State in which he claims the benefit; or

23. The plaintiffs in the main proceedings, however, were never affiliated to the Spanish social security scheme and never paid contri- — if he did not complete his last period of butions to it. In those circumstances, they insurance or pay his last contribution could never supplement any periods of con- under the legal system of that Member tribution in Spain with periods completed in State. another Member State, for the simple reason that the former do not exist.

— It cannot, in any event, be based on Article 67(1) of the Regulation since it 29. The Commission takes the view that falls outside the ambit of that provision. Article 67 of the Regulation must be inter- preted as a whole. It is of fundamental importance to examine whether Article 67 of the Regulation can be applied at all to the cases before the national court. At issue in particular is whether the criterion of 'periods — A further difficulty is that the competent of insurance completed lastly' laid down in institution of a Member State must Article 67(3) is satisfied. It has to be assumed decide whether there is a right to a pen- that the plaintiffs did not complete any peri- sion under another legal system, which is ods of employment in Spain. However, dur- contrary to the principle laid down in ing the periods when they received unem- Article 13 of the Regulation that the leg- ployment benefit in Spain, all three paid islation of a single Member State only contributions to different branches of the should be applicable. social security scheme, that is to say sickness insurance and family protection contribu- tions.

31. It is for the national court to assess 34. In its observations the Commission whether Article 67(3) of the Regulation is appears throughout to be referring to the satisfied. If it is, nothing prevents periods of first of the two tests. It seems however, in insurance from being aggregated within the view of the arguments of the national court meaning of Article 67(1). The Commission and of the other interested parties before accordingly concludes that the second ques- Spanish authorities and courts, that that test tion should be answered in the affirmative. does not give rise to a problem. The Spanish legislation does not require that the six years' contributions must have been paid immedi- ately before the application. Since the test of six years' unemployment contributions has evidently not been raised as an issue in the proceedings before the national court, I assume that such contributions are, in accordance with Community law, equally recognized if they are paid under the legal system of another Member State.

32. The wording and context of the second question suggest that the Court may answer the question whether the condition for entitlement to the unemployment allowance under Spanish law for persons above 52 years of age that all the criteria, other than age, for a retirement pension under the social 35. This appraisal therefore concentrates on security scheme (right to a future pension) be fulfilled can be met by possessing a right to a the second test, the right to a future pension. future pension under the legal system of The Spanish Government has also made this another Member State. the fundamental point at issue.

37. The starting point is the position of Article 67 in the Regulation. It is the first article in Chapter 6, 'Unemployment Ben- efits'. 19 It constitutes one of the bases for access to unemployment benefit. It requires account to be taken of periods of insur- 39. The Commission's argument, which ance 20 or periods of employment 21 com- clearly proceeds on the basis that Article 67 pleted in another Member State in so far as is applicable, and then overcomes the periods of employment or insurance deter- obstacle posed by Article 67(3) by relying on mine acquisition of entitlement to unem- periods of insurance completed by the plain- ployment benefit. The link to the competent tiffs while subject to Spanish social security, State is created by Article 67(3), which lays is ultimately based on the fact that the plain- down that the person concerned should have tiffs had already gained access to Spanish completed lastly periods of insurance or unemployment benefits. periods of employment in accordance with the provisions of the legislation under which the benefits are claimed.

40. The Commission's approach has the merits of clarity and transparency. Indeed the Court held in Warmerdam-Steggerda 22 38. It should be recognized that the require- that Article 67(1) of the Regulation did not ment 'lastly' is no longer of relevance for make the aggregation, by the competent access to unemployment benefit on the facts institution of a Member State, of periods of of the cases before the national court. All employment completed in another Member three plaintiffs have received unemployment State subject to the condition that such peri- benefit on the basis of Spanish national law ods should be treated as periods of insurance alone. For them to be entitled to benefit, it for the same branch of social security by the was not necessary for the basis of entitle- legislation under which they were com- pleted.

44. If that criterion is applied to the periods of insurance completed, in the cases before the national court, under the Spanish social security scheme, it is clear that they do not fulfil the above purpose. If the contributions paid by the employment service on the grant of unemployment benefit to the sickness fund and the family protection contributions 42. The Commission is admittedly right that were to be regarded as periods of insurance the expression 'periods of insurance' in for the purposes of Article 67(3), granting Article 67(3) of the Regulation does not nec- benefit per se would, paradoxically, operate essarily have to be construed as 'periods of to establish entitlement to benefits of the unemployment insurance'. Article 1, which equivalent type. 23 O n the basis of the above contains the general definitions for the Regu- lation, defines 'periods of insurance' in considerations, I have at least reservations Article l(r) as 'periods of contribution or about whether the solution advanced by the periods of employment or self-employment Commission should be followed. as defined or recognized as periods of insur- ance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equiva- lent to periods of insurance'. 45. In my opinion, we should pause at this point and remind ourselves what the issue actually is in these proceedings. It is not the aggregation of previous periods of insurance under an unemployment insurance fund of any Member State (the requisite six years' contributions are evidently recognized even if they were paid under the law of another 43. Notwithstanding that general definition, Member State). N o r is it the aggregation of the position and the spirit and purpose of the expression 'periods of insurance' in Article 67(3) of the Regulation should not be over- 23 — It should be noted that I am not referring here to periods looked. If one does not necessarily wish to treated as being equivalent by law, for example where under infer therefrom that what is meant is 'periods the legal system of a Member State account can be taken of periods of unemployment to establish expectancies under a of unemployment insurance', periods of pension inurance scheme.

49. If a right to a future pension that has 47. In this context, it is unnecessary to settle been acquired in another Member State can- whether and how a right to a future pension not be read into Spanish law on the basis of arises, but whether fulfilling that criterion Article 67(1) of the Regulation, the question under the law of one Member State may, by arises as to whether, and, if so, on what basis virtue of Community law, result in entitle- there is nevertheless an obligation under Community law to recognize such a right acquired in one or more other Member 24 — This chapter falls within Title III of the Regulation. States.

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50. In the field of the legislation on free 52. With regard to conditions for invalidity movement of workers there is a wide- pension entitlement, 29 the Court has held ranging body of case-law concerning recog- that it is incompatible with Community law nition of factual or legal circumstances for events and circumstances which can pro- occurring in another Member State. The long the reference period to be taken into cases are based predominantly on legislation account only if they occurred in the State of dealing with the various branches of social employment and not in the State of origin of security. The judgment in Warmerdam- a migrant worker. The Court held in relation Steggerda 25 referred to above concerned to the legislation at issue in that case: recognition of actual periods of employment, which had certain legal effects in another Member State, for the purpose of obtaining unemployment benefit.

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53. Invalidity benefits were likewise dealt 55. The last judgment to which I would like with in the judgment in Moscato, 31 where to refer in this short analysis of the case-law the issue was the effect, for the purposes of is that in Vougioukas. 35 This concerned tak- establishing benefit entitlement, of periods of ing account of periods of employment actu- insurance completed in another Member ally completed under the law of another State. The circumstances of that case are Member State which required such periods therefore similar to those of the case before to satisfy certain requirements for them to be the Court. The Court held in Moscato: "... relevant to acquisition of a right to a future where the applicable legislation of a Member pension. The Court held: 'Articles 48 and 51 State makes the grant of invalidity benefits of the EC Treaty must be interpreted as pre- subject, inter alia, to the condition that at the cluding refusal to take into account, for the time of his joining the scheme established by acquisition of the right to a pension, periods that legislation the worker's state of health of employment completed by a person sub- must not have been such as to make it fore- ject to a special scheme for civil servants or seeable that incapacity for work followed by persons treated as such ... in public hospitals invalidity would occur in the near future, the in another Member State, where the relevant competent authority must also take into national legislation allows such periods to be account periods of insurance completed by taken into account if they have been com- that worker under the legislation of another pleted in comparable establishments within Member State, as if those periods had been that State.' 36 completed under the legislation which it administers.' 32

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given, Article 67(1) cannot apply directly, a gained to the Spanish social security scheme worker can, in my opinion, rely directly on by means of national law alone. There is the principle laid down in Article 51 of the therefore a connection to Spanish law with- Treaty. out assistance from Community law being required. The fact that unemployment ben- efit, whether benefit for returning migrant workers or for workers who can show fam- ily responsibilities, was granted previously must be regarded as material under Commu- 57. To defeat this argument by referring to nity law. Article 67(3), when for the reasons already given Article 67 is no longer substantively relevant, would amount to reversing the intent of the Regulation. It does not corre- spond to the legislative purpose of Article 67, or accord with the aims of the Regu- lation, to erect additional obstacles to access to social security benefits. 60. The Spanish Government's further objection, that recognizing a right to a future pension acquired under the law of another Member State would require the Spanish authorities to determine whether such entitlement exists, is only partly right. It is 58. In my opinion, therefore, Article 51 of true that the claimant would have to be able the EC Treaty obliges the competent institu- to prove that he was so entitled under the tions of a Member State to take account of a social security scheme of another Member right to a future pension which has actually State. been acquired.

62. The competent Spanish institution there- 65. I therefore propose the following answer fore does not need to determine whether to the second question: there is a right to a future pension under the law of another Member State, but could, relying on the opportunities for cooperation described, take account of the information provided by the competent institution of another Member State. With regard to an unemployment allowance for persons over 52 years of age, provided for by Article 215(3) of Royal Legislative Decree 1/1994 of 20 June 1994, which approves the consolidated version of the General Law on Social Security, the compe- tent institution is required to take account of periods completed in another Member State, to the extent to which the right to a retire- 63. Finally, the objection that there is a ment pension is, subject to age requirements, problem, not in so far as any right to a future obtained on the basis of those periods of pension is required, but in so far as only the contribution in that other Member State. right in the future to a contributory pension under the social security scheme is required, must likewise be rejected. In my opinion, that criterion is not an obstacle in the least. The information procedures between authorities referred to above apply precisely to cooperation between the social security schemes of individual Member States. Restricting the rights to be taken into Ill — The third question account to pension rights under social secu- rity schemes therefore simplifies matters.

37 — Consolidated version of Council Regulation (EEC) No 66. The third question concerns the rel- 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the appli- evance of an applicant for the unemployment cation of social security schemes to employed persons, to allowance at issue not having the right to self-employed persons and to members of their families moving within the Community (OJ 1992 C 325, p. 96). even a pro rata pension under Spanish law.

67. Central to the plaintiffs' observations on the third question referred by the national court is the distinction that this case con- cerns the grant of an unemployment allow- ance, and that there is therefore no room for application of Article 48 of the Regulation, 70. The Commission, on the other hand, is which relates solely to the calculation of decidedly of the view that the judgment in retirement pensions. This argument is sup- Ventura must apply by analogy, so that there ported by a reference to the judgment in is no room in this case for taking account of Ventura. 38 Article 48.

68. The plaintiffs also contend that making grant of the unemployment allowance in 71. As can already be gathered from the question subject to the requirement that the observations on the second question, the provisions on the accrual of pension rights can in any event be relevant to Article 67 only to the extent that their application leads 38 — Case 269/87 Ventura v Landesversicherungsanstalt Schwa- ben [1988] ECR 6411. to the positive result of establishing a right

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to a future pension. This is because holding 74. I therefore propose the following answer such a right is one of the conditions for to the third question: entitlement to the unemployment allowance at issue.

If a worker is eligible for benefits under the Spanish social security scheme, whether on the basis of national law alone or under Community law, the competent institution is required to take account of entitlement to old-age benefits in another Member State even if he has paid no contributions in Spain or has paid them for less than a year.

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76. The competent authorities have always exclude automatically persons who fulfil all required, in addition to a right to at least a requirements, other than age, for a pension pro rata future Spanish pension, payment of in another Member State. Instead, they must 180 months' contributions, irrespective of satisfy all requirements, other than age, laid whether the worker making the claim down by Spanish law for obtaining a pen- already has a right to a future pension in sion, for example minimum contribution another Member State. periods. Spanish law thus requires claimants to show at least 15 years' contributions, of which at least two must be in the preceding eight years. That requirement is objective, not discriminatory. It does not matter whether the 15 years' contributions were paid exclusively under the Spanish scheme, or only partly under Spanish law with the remainder being paid under that of another Member State. It is in any event consistent with Article 67(3) of the Regulation for the 77. The plaintiffs' observations on the fourth claimant to have had to pay lastly at least question are largely based on their observa- one month's contribution to the Spanish tions on the second question. They conclude scheme. by proposing that the fourth question be answered in the affirmative on the ground that a strict interpretation of the Spanish leg- islation would be contrary to Articles 48(2) and 51 of the Treaty and the case-law apper- taining thereto. To require a right to a future Spanish pension as a condition for entitle- ment would constitute both discrimination contrary to Community law and a restriction on freedom of movement.

82. The argument put forward by the Span- ish Government is in fact liable to cause con- fusion. For the purposes of further appraisal, 80. The parties' respective references to their the Spanish Government's understanding of observations on the second question show the legal position must be assumed to be that that the answer to the fourth question is a a claimant has to show as a minimum that he corollary of the answer to the second. will in any event have a pro rata pension under Spanish law on reaching retirement age. He must also prove 180 months' contri- butions, of which at least 24 must have been paid in the preceding eight years. Accord- ingly, even if a right to a future pension can be acquired in another Member State with fewer months' contributions and a claimant can demonstrate acquisition thereof, that is not sufficient to comply with the eligibility 81. The comment made, in my view entirely requirement under Spanish law for the justifiably, by the plaintiffs on the wording unemployment allowance. of the fourth question should be considered at the outset. The question is ambiguously worded in so far as it could be thought that a right to a future pension in another Member State has the effect of excluding grant of the unemployment allowance applied for. It fol- lows from what has already been said that that is not so. Instead it is persons unable to show any entitlement at all to a pro rata pen- 83. The reference made by the Spanish Gov- sion in Spain who are excluded. The fourth ernment to the requirement, justified under question could therefore be worded '... per- Article 67(3) of the Regulation, that at least sons having such an entitlement in any other one month's contribution be paid to the Member State only being precluded from Spanish scheme, is of a purely hypothetical receiving such allowance ...'. It does not nature. First, that factor plays no part in any matter whether this wording or that of the cases before the national court. suggested by the plaintiffs is preferred. It is Secondly, according to the argument put clear that the substantive purpose of the forward by the Spanish Government even

86. If a right to a future pension has already been established, on the basis of the law of another Member State, by fulfilling shorter periods of contribution, the desired result — a pension starting at retirement age — has been achieved. The origin of the benefits 84. Against the background set out, poten- claimable on retirement is of no more than tial prejudice to workers who have been secondary importance. It must be assumed employed in a Member State other than that a migrant worker who has acquired a Spain is apparent in two respects. First, a right to a future pension under the law of a right to a future pension acquired in another Member State other than Spain will no Member State is not sufficient if it does not longer be a burden on the Spanish social coincide with a right to a future Spanish pen- security scheme once he reaches retirement sion. Secondly, the unemployment allowance age. applied for can be refused even in cases where a right to a pro rata future Spanish pension coincides with a future right acquired in another Member State, that is to say where 180 months' contributions includ- ing the temporal component cannot be shown. 87. The potential prejudice, described above, to migrant workers whose employment within the European Community has been wholly or partly outside Spain is, in my view, contrary to the objectives pursued by Articles 48 and 51 of the Treaty.

85. The Spanish Government considers that the second of the two factors constitutes an objective condition that is non- discriminatory. If, on the other hand, one starts from the requirement that pension entitlement be actually available when retire- 88. In the result, taking future Spanish pen- ment age is reached, the condition appears in sion rights as a minimum requirement for a different light. Admittedly workers who acquisition, by workers who have already have spent their entire active working life become eligible for Spanish social security in Spain must equally show 180 months' benefits on the basis of national law alone, of

(2) W i t h regard t o an u n e m p l o y m e n t allowance for p e r s o n s over 52 years of age, p r o v i d e d for b y Article 215(3) of R o y a l Legislative D e c r e e 1/1994 of 20 J u n e 1994, w h i c h approves the consolidated version of t h e G e n e r a l L a w o n Social Security, t h e c o m p e t e n t institution is required t o take account of p e r i o d s c o m - pleted in a n o t h e r M e m b e r State, t o the extent t o w h i c h the right t o a retire- m e n t p e n s i o n is, subject t o age r e q u i r e m e n t s , o b t a i n e d o n t h e basis of t h o s e p e r i o d s of c o n t r i b u t i o n in that o t h e r M e m b e r State.

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(3) If a worker is eligible for benefits under the Spanish social security scheme, whether on the basis of national law alone or under Community law, the com- petent institution is required to take account of entitlement to old-age benefits in another Member State even if he has paid no contributions in Spain or has paid them for less than a year.

(4) A requirement such as the one that, for migrant workers to receive the unem- ployment allowance available for persons of more than 52 years of age, it must be shown that, subject to age requirements, they are entitled to a retirement pension payable by the Spanish social security scheme (persons having such an entitlement in any other Member State only being precluded from receiving such allowance) is contrary to Articles 48(2) and 51 of the E C Treaty if and in so far as access of the category of persons concerned to social security benefits was granted on the basis of national law alone.