C-320/95

FERREIRO ALVITE v INEM AND INSS

OPINION OF ADVOCATE GENERAL ALBER delivered on 11 June 1998 *

A — Introduction 3. The plaintiff in the main proceedings was born in 1936 and had made social security contributions as an employee in the United Kingdom for 1 303 weeks before returning to Spain. He received an unemployment allow­ ance there for returning migrant workers for a limited period. As in Martinez, his case relates to the payment of a follow-up allow­ ance, specifically an unemployment allowance for claimants of more than 52 years of age. 1. This reference for a preliminary ruling is Persons claiming this allowance must be eli­ similar to Joined Cases C-88/95, C-102/95 gible for a retirement pension under the social and C-103/95 (Martínez Losada and Others), security scheme, for which it is in turn neces­ in which the Court of Justice gave judgment sary to have paid contributions for a minimum on 20 February 1997. 1This action was sus­ period. The plaintiff has not paid any contri­ pended until judgment in those cases had been butions into the Spanish pension scheme. given. The national court, having immediately been provided with the judgment in Martinez, maintained the reference for a preliminary ruling, but reformulated the questions in the light of the Opinion and judgment.

4. It is therefore necessary to determine the 2. The facts in the main proceedings in this requirements and scope of Article 67 of Regu­ case are comparable to those in Martinez. To 3 lation (EEC) No 1408/71 with regard to the that extent, reference may be made to the conditions of eligibility for the unemploy­ Opinion of my predecessor, Advocate Gen­ ment allowance structured as a follow-up 2 eral Lenz, and the judgment in that case. allowance under Spanish law. The questions

1. Is Article 67(1) of Regulation (EEC) No 1408/71 (in its present version) to be 3. Whether Article 67 of Regulation No interpreted, as regards the particular facts 1408/71 or Article 51 of the EC Treaty to which it is to be applied, as meaning applies, if the competent institution is that periods of insurance or of employ­ obliged to take account of future retire­ ment completed under the legislation of ment pension rights acquired in another any other Member State must be taken Member State, provided that the worker into account for the purposes of obtaining has been entitled to social security ben­ the unemployment allowance for persons efits, either under the national rules alone over 52 years of age provided for by or pursuant to the Community rules, Article 215(3) of Royal Legislative Decree would it be sufficient in order to obtain No 1/94 of 20 June 1994, which approves the unemployment allowance for persons the consolidated version of the General of more than 52 years of age, for a worker Law on Social Security, to the extent that, to have completed, either through contri­ subject to age requirements, contribu­ butions made in another Member State tions paid during such periods give a right alone or by cumulating those made in to a retirement pension in a Member State Spain with those made in such other other than that of the competent institu­ Member State or States, the qualifying tion? period required by one or other Member State or, on the contrary, would it be nec­ essary to complete the qualifying periods laid down in Article 161(1)(b) of the con­ solidated version of the General Law on Social Security?

8. If the plaintiff'srequest is taken as a claim that he qualifies for unemployment allow­ ance, then the reply given by the Court of Justice is only logical. As Article 67(3) of Regulation (EEC) No 1408/71 states: '... appli­ cation of the provisions of paragraphs 1 and 6. The first question has the same wording as 2 shall be subject to the condition that the the second question in Martinez, which the person concerned should have completed Court of Justice has already answered in para­ lastly: graphs 29 to 38 of its judgment. Both the Court and the Advocate General understood this question to relate to the applicability of Article 67 of Regulation (EEC) No 1408/71, although they each found different solutions. In the end, the Advocate General took the — in the case of paragraph 1, periods of view that the issue to be resolved did not insurance, relate to the scope of Article 67, because Article 67 confers eligibility for an unem­ ployment allowance which was no longer an issue in the case in question as a result of the availability under national law of the unem­ ployment allowance for returning migrant — in the case of paragraph 2, periods of workers. In the Advocate General's view, the employment, only outstanding question related to the con­ ditions of eligibility for the follow-up allow­ ance. The Court of Justice, on the other hand, 4 — Paragraph 37 of the Martinez judgment.

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OPINION OF MR ALBER — CASE C-320/95

in accordance with the provisions of the leg­ requiring the person concerned to be entitled islation under which the benefits are claimed.' to a retirement pension as such, but as requiring him to have completed a period of 15 years' contributions to a retirement pen­ 6 sion scheme.

5 — Emphasisadded. 6 — Paragraph 40 of the Martínez judgment.

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FERREIRO ALVITE v INEM AND INSS

contributions give rise to an entitlement to a minimum period of contributions but of actu­ retirement pension — subject to age require­ ally qualifying for a pension. It is, then, an ments — in a Member State other than that allowance which is replaced by an entitlement of the competent institution. to a pension when the age of retirement is reached. Such a condition would serve to ensure that persons were not in need when they reached retirement age.

II.The second question

17. This view is confirmed by the submis­ sions made on behalf of the Spanish Govern­ 14. The second question is clearly based on ment. The Government emphasises that the the premiss that, under Article 215 of the maintenance allowance in question displays General Law on Social Security, one of the some of the features of pre-retirement provi­ requirements for the allowance in question is sion which, under Spanish law, serves to main­ 'entitlement to a retirement pension'. tain a person's entidement to a pension to which he has already gained entidement. That is why, in the view of the Spanish Govern­ ment, future entitlement to a Spanish pension is a prerequisite.

21. If Spanish law requires that a person be entitled to a pension in order to qualify for the unemployment allowance in question, 19. Accordingly, there can be no doubt that then a pension entitlement acquired in another the benefit claimed is a type of unemploy­ Member State should be equally acceptable. ment allowance. First, it is described as such It should be taken into account as a circum­ by the Spanish Government under Article 5, stance of fact or law arising in another Member read in conjunction with Article 97 of Regu­ State. There is extensive case-law on the duty lation (EEC) No 1408/71. Secondly, a claimant under Community law, based on Article 51 must be available to the unemployment of the EC Treaty, to take such factors into authorities as a person seeking work. The account. In this respect, I refer to the expla­ latter is a typical requirement for unemploy­ nation in the Opinion in Martinez, para­ ment allowances and distinguishes it as dif­ graphs 48 to 58. In principle, therefore, a ferent in principle from pre-retirement provi­ pension entitlement acquired in another sion. Furthermore, the fact that the allowance Member State must, pursuant to Article 51 of is referred to as an unemployment allowance the EC Treaty, be taken into account. implies that if a person's unemployed status terminates (say, by his being successfully placed through the employment authorities), his entitlement to unemployment benefit will lapse.

22. I therefore suggest that the second ques­ tion be answered as follows: To the extent that it is necessary to be entitled to a retire­ ment pension under Article 215 of the Gen­ 20. Whether Spanish law requires that a eral Law on Social Security, the competent person have a future entitlement to a pension institution must, under Article 51 of the EC in order to qualify for the unemployment Treaty, take into account an entitlement to a allowance here at issue is a question which retirement pension acquired in another arises at an earlier stage and must be answered Member State.

23. It would be an entirely different matter if, to ensure financial equity, Spanish law laid 8 down a minimum contribution period as a precondition for claiming an unemployment allowance. In this case, the periods completed in other Member States must also be taken 25. This view also answers the concern into account under Article 67(1) of Regula­ expressed during the course of the proceed­ 9 tion (EEC) No 1408/71. ings that overly generous recognition of con­ tribution periods completed in other Member States could lead to a form of welfare tourism whereby workers over the age of 52 move to Spain in order to spend their pre-retirement years there at the expense of the Spanish unemployment insurance system. If the view set out herein is followed, only those migrant workers who have already benefited from 24. I should make it clear here that the view unemployment allowances under Spanish law I have expressed does not answer the ques­ can benefit from the allowance. tion of eligibility for the allowance. Article 67(3) of Regulation (EEC) No 1408/71 estab­ lishes that this is necessarily bound up with the national law of the country under which the allowance is being claimed. However, it should not be forgotten, for the purposes of this action, that a person's first-time eligi­ bility for temporary unemployment allow­ ance is governed exclusively by national law. 26. I suggest that the third question be If national law does not answer the question, answered as follows: If minimum periods of however, then for the purposes of Commu­ contribution are required under Article nity law it will be necessary to rely on the 161(1)(b) of the General Law on Social Secu­ principle, based on the judgment of the Court rity, in so far as entitlement to an unemploy­ of Justice in Martinez, that it is for the national ment allowance under Article 215 of that Law court to determine whether the periods during is conditional upon their having been com­ which the competent Spanish institution paid pleted, then periods completed in other contributions to the sickness insurance and Member States must also be taken into account under Article 67(1) of Regulation No 1408/71.

(2) To the extent that it is necessary to be entitled to a retirement pension under Article 215 of the General Law on Social Security, the competent institution must, under Article 51 of the Treaty, take into account an entitlement to a retirement pension acquired in another Member State.

(3) If minimum periods of contribution are required under Article 161(1)(b) of the General Law on Social Security, in so far as entitlement to an unemployment allowance under Article 215 of that Law is conditional upon their having been completed, then periods completed in other Member States must also be taken into account under Article 67(1) of Regulation No 1408/71.

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