C-88/95

José Paredes

and

Instituto Nacional de Empleo (lnem),

Instituto Nacional de la Seguridad Social (INSS)

on the interpretation of Articles 4, 48 and 67 of Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families

* Language of the case: Spanish.

after considering the written observations submitted on behalf of:

— Mrs Martínez Losada and others, by A. Vázquez Conde, R. Méndez Robleda and B. Mayo Martínez, of the Orense Bar,

— the Spanish Government, by A. J. Navarro González, Director General of the Department for Community Legal and Institutional Affairs, assisted by M. Bravo-Ferrer Delgado, Abogado del Estado, acting as Agents,

— Commission of the European Communities, by M. Patakia and I. Martinez del Peral, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

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2 The questions were raised in proceedings between Mrs Martínez Losada (C-88/95), Mr Fernández Balado (C-102/95) and Mr Paredes (C-103/95), on the one hand, and Instituto Nacional de Empleo ('lnem') and Instituto Nacional de la Seguridad Social, on the other, concerning payment of unemployment allowance as provided for by Spanish law for claimants of more than 52 years of age.

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JUDGMENT OF 20.2.1997 — JOINED CASES C-88/95, C-102/95 AND C-103/95

3 Under Article 215(3) of the General Law on Social Security, as codified by Royal Legislative Decree N o 1/94 of 20 June 1994 (BOE N o 154 of 29 June 1994), unem- ployed persons who have paid six years' unemployment insurance contributions and satisfy all the conditions, with the exception of the age requirement, for obtaining a contributory retirement pension under the social security system are eligible for unemployment allowance.

4 Article 161 of the General Law on Social Security makes the award of a contribu- tory retirement pension dependent upon completion of a minimum period of 15 years' contributions, of which at least two years' contributions must have been made in the eight years immediately preceding the event giving entitlement to ben- efit.

5 It appears from the case-files that the plaintiffs in the main proceedings have been in gainful employment in a number of Member States where they have acquired entitlement to a retirement pension.

1 0 0The plaintiffs then appealed to the Juzgado de lo Social de Santiago de Compost- ela, which raised the question whether Article 48(1) of Regulation N o 1408/71 was applicable to the cases before it and as to the interpretation to be given to Article 67 of that regulation.

1 1 Under Article 48(1) the competent institution of a Member State is not required to award a retirement pension where the duration of periods of contribution com- pleted under the legislation of that State does not amount to one year or where no contributions have been paid.

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JUDGMENT OF 20. 2.1997 — JOINED CASES C-88/95, C-102/95 AND C-103/95

12 Article 67, on unemployment benefits, reads as follows:

' 1 . The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits subject to the completion of periods of insurance shall take into account, to the extent necessary, periods of insurance or employment completed as an employed person under the legislation of any other Member State, as though they were periods of insurance completed under the legislation which it administers, provided, however, that the periods of employment would have been counted as periods of insurance had they been com- pleted under that legislation.

13 The national court is in doubt as to how Regulation N o 1408/71 should be applied. It observes that in a judgment of 28 February 1994 the Tribunal Supremo (Supreme Court) held that 'anyone who is not affiliated to the Spanish social secu- rity scheme and does not pay contributions thereto, and is hence outside that scheme, cannot qualify for the benefits which it confers'. According to that court, Article 48 of Regulation N o 1408/71 recognizes that it is necessary for a person claiming benefit to have been affiliated for a minimum period to the social security scheme of the State by virtue of which the benefit is granted.

1 4 In those circumstances, the national court stayed proceedings and referred the fol- lowing questions to the Court for a preliminary ruling:

1) 'Is the unemployment allowance for persons over 52 years of age applied for by the plaintiff, provided for by Article 13(2) of Law N o 31/84 of 2 August 1984, as amended by Royal Decree N o 3/89 of 31 March 1989 (now Article 215(3) of Royal Legislative Decree N o 1/94 of 20 June 1994) approving the consolidated version of the General Law on Social Security an unemployment benefit within the meaning of Article 4(1) of Regulation (EEC) N o 1408/71?' (C-102/95 and C-l 03/95)

2) 'Is Article 67(1) of Regulation N o 1408/71 (in its present version) to be inter- preted as meaning that periods of insurance or of employment completed under the legislation of any other Member State must be taken into account for the purposes of obtaining the unemployment allowance for persons over 52 years of age, provided for by Article 215(3) of Royal Legislative Decree N o 1/94 of 20 June 1994, which approves the consolidated version of the General Law on Social Security, to the extent that, subject to age requirements, contributions paid during such periods give right to a retirement pension in a Member State other than that of the competent institution?' (C-88/95, C-102/95 and C-103/95)

First question

17 The national court's first question seeks to establish whether an allowance such as that provided for by the Spanish General Law on Social Security for unemployed persons of over 52 years of age constitutes an unemployment benefit within the meaning of Article 4(1 )(g) of Regulation N o 1408/71.

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MARTÍNEZ LOSADA AND OTHERS v INEM AND INSS

18 According to Article 4(1 )(g), Regulation N o 1408/71 applies to all legislation con- cerning the branches of social security relating to 'unemployment benefits'. Article 4(2) provides that Regulation N o 1408/71 applies to general and special social security schemes, whether contributory or non-contributory.

19 Under Article 5 of the regulation, Member States are to specify in declarations to be notified and published in accordance with Article 97 the legislation and schemes covered by Article 4(1) and (2).

23 The essence of the third question is whether Article 48(1) of Regulation N o 1408/71 is to be interpreted as meaning that periods of insurance or employment completed under the legislation of a Member State which give entitlement in that State to a retirement pension can be taken into account in another Member State for the purposes of the grant of unemployment allowance where the persons con- cerned have not paid any contributions in the latter Member State or have paid contributions for less than one year.

24 Article 48(1) of Regulation N o 1408/71 forms part of the provisions of Chapter 3, O l d age and death (pensions)', of Title III of that regulation.

25 In Case 269/87 Ventura [1988] E C R 6411, the Court held that, since none of the provisions of Chapter 8, 'Benefits for dependent children of pensioners and for orphans', of Title III referred to Article 48 of Regulation N o 1408/71, that article could not be applied to orphans' pensions.

26 The same applies to the unemployment benefits referred to in Chapter 6, 'Unem- ployment benefits', of Title III, which likewise makes no reference to Article 48.

27 Consequently, Article 48 does not apply to unemployment benefits of the kind at issue in the main proceedings and hence the taking into account by a Member State of periods of employment or insurance completed by the persons concerned under the legislation of another Member State for the purposes of the award of unem- ployment benefit is governed solely by Article 67 of Regulation N o 1408/71, which is the subject of the second question.

31 In contrast, the Spanish Government considers that since the plaintiffs were never affiliated to the Spanish social security scheme and never paid contributions them- selves, they do not satisfy the condition laid down by Article 67(3) in order to be able to rely on periods of insurance or employment completed in other Member States.

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JUDGMENT OF 20. 2.1997 —JOINED CASES C-88/95, C-102/95 AND C-103/95

32 The Spanish Government contends that to require the plaintiffs in the main pro- ceedings to have paid at least one contribution to the Spanish social security scheme on their own behalf and to require the last period of contribution to have been completed in Spain accords with Article 67 of Regulation N o 1408/71 and Articles 48(2) and 51 of the Treaty. It cannot be right that any worker who has reached the age of 52 and acquired entitlement to a pension under the legislation of another Member State can go to Spain and receive unemployment allowance there without having ever paid contributions to the Spanish social security scheme.

33 Article 51 of the Treaty lays down the principle of aggregation of all periods taken into account under the laws of the several countries and that of exportation of benefits, but it does not define the expression 'periods of insurance'.

34 Article l(r) of Regulation N o 1408/71 defines periods of insurance as 'periods of contribution or periods of employment or self-employment as defined or recog- nized as periods of insurance 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 equivalent to periods of insurance'.

Fourth question

39 The fourth question arises only in case the national court should consider that the periods during which the competent Spanish institution paid contributions to the sickness insurance and family benefits schemes on behalf of the plaintiffs in the main proceedings constitute periods of insurance under its domestic legislation.

40 Since the allowance granted to claimants of more than 52 years of age is to be classed as an 'unemployment benefit' and not as a 'benefit in the nature of a retire- ment pension', the condition laid down by the Spanish legislation for the grant of that allowance must be construed, not as requiring the person concerned to be entitled to a retirement pension as such, but as requiring him to have completed a period of 15 years' contributions to a retirement pension scheme.

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JUDGMENT OF 20.2.1997 — JOINED CASES C-88/95, C-102/95 AND C-103/95

41 In its written observations, the Spanish Government expressly accepted that entitlement to the allowance in question is not conditional on the contributions of the person concerned having been paid during the requisite period to the retire- ment pension scheme of the Spanish social security scheme. According to the Gov- ernment, it is sufficient for those concerned to have paid 15 years' contributions to the social security scheme of another Member State or for them to have paid con- tributions during the same period partly to the Spanish scheme and partly to the scheme of another Member State.

45 The costs incurred by the Spanish Government and the Commission of the Euro- pean Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

O n those grounds,

T H E C O U R T (Fifth Chamber),

in answer to the questions referred to it by the Juzgado de lo Social de Santiago de Compostela by orders of 9 and 13 March 1995, hereby rules:

1) An allowance such as that provided for by the Spanish General Law on Social Security for unemployed persons of more than 52 years of age consti- tutes an unemployment benefit within the meaning of Article 4(1) of Coun- cil Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983, as amended by Council Regulation (EEC) N o 1248/92 of 30 April 1992.

2) Article 48 of the aforementioned regulation is not applicable to unemploy- ment benefits.

Delivered in open court in Luxembourg on 20 February 1997.

R. Grass J. C. Moitinho de Almeida

Registrar President of the Fifth Chamber

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