C-75/99
ECLI:EU:C:2000:347
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THELEN
OPINION O F ADVOCATE GENERAL MISCHO delivered on 27 June 2000 *
I — Legal background to the dispute (b) at least two Member States and one or more other States, where settlement of the cases concerned does not involve any institution of one of the latter States.'
A — Community provisions
2. Articles 7 and 8 of the Regulation pro- 1. Under Article 6 of Council Regulation vide that it is not to affect certain interna- (EEC) No 1408/71 of 14 June 1971, on the tional provisions and that Member States application of social security schemes to may conclude conventions with each other employed persons, to self-employed per- based on the principles and spirit of the sons and to members of their families Regulation. Article 46(4) lays down the moving within the Community, as amended conditions under which, so far as concerns by Council Regulation (EEC) No 1248/92 old age, invalidity or survivors' pensions, of 30 April 1992 1 ('the Regulation'): the provisions of a multilateral social security convention referred to in Arti- cle 6(b) relate to those of the Regulation.
'Social security conventions replaced by this Regulation subject to the provisions of 3. Chapter 6 of Title III of the Regulation, Articles 7, 8 and 46(4) this Regulation concerning unemployment benefits, con- shall, as regards persons and matters which tains the following provision: it covers, replace the provisions of any social security convention binding either:
(a) two or more Member States exclu- 'Article 67 sively, or
* Original language: French. 1. The competent institution of a Member 1 — OJ 1992 L 136, p. 7. State whose legislation makes the acquisi-
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tion, retention or recovery of the right to — in the case of paragraph 2, periods of benefits subject to the completion of peri- employment, ods 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 legisla- in accordance with the provisions of the tion which it administers, provided, how- legislation under which the benefits are ever, that the periods of employment would claimed. have been counted as periods of insurance had they been completed under that legis- lation.
4. Where the length of the period during which benefits may be granted depends on the length of periods of insurance or employment, the provisions of paragraph 1 or 2 shall apply, as appropriate.' 2. The competent institution of a Member State whose legislation makes the acquisi- tion, retention or recovery of the right to benefits subject to the completion of a period of employment shall take into account, to the extent necessary, periods of insurance or employment completed as an employed person under the legislation of B — Bilateral stipulations any other Member State, as though they were periods of employment completed under the legislation which it administers. 4. Under Article 7(1)(1) of the Convention on unemployment insurance concluded on 19 July 1978 between the Federal Republic of Germany and the Republic of Austria ('the Convention'):
3. Except in the cases referred to in Arti- cle 71(1)(a)(ii) and (b)(ii), application of the provisions of paragraphs 1 and 2 shall be subject to the condition that the person concerned should have completed lastly: '[P]eriods of unemployment subject to compulsory insurance contributions which have been completed according to the legislation of the other signatory State will be taken into account in determining whe- ther the qualifying period has been com- pleted and in determining the period of — in the case of paragraph 1, periods of entitlement (benefit period), provided that insurance, the applicant is a national of the signatory
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State in which the right is asserted and I I— The dispute in the main proceedings habitually resides in the territory of that State.'
7. Between 1986 and 1996 Mr Thelen, a German national, lived in Austria where he was in an occupation subject to compulsory contributions to unemployment benefit from 18 July 1991 to 15 June 1993, from 1 December 1993 to 20 December 1993 and from 1 February 1994 to 31 January C — National provisions 1996. Following his divorce he settled with his daughter, of whom he had custody, in a house in Trier which he inherited from his parents, where, on 4 March 1996, he applied to the employment office for unemployment benefit. It subsequently became apparent that he was unemployed 5. In Germany, under Paragraph 100 of the from 4 March to 31 July 1996 and it is to Arbeitsförderungsgesetz (Law on Employ- that period that the dispute in the main ment Promotion, 'AFG'), anyone who ful- proceedings relates. His application was fils a set of conditions including those dismissed on the ground that he did not relating to the qualifying period, is entitled fulfil the required conditions for the quali- to unemployment benefit. fying period. Thereafter, his complaint, then his appeal before the Sozialgericht (Social Court) Trier were both dismissed.
6. Those conditions derive from the com- 8. On appeal, the Landessozialgericht bined provisions of the first sentence of Rheinland-Pfalz found that the periods of Paragraph 104(1) and the first sentence of employment completed by Mr Thelen since Paragraph 106(1) of the AFG, the effect of 1 January 1994, the date of entry into force which is that in order to be entitled to the of the Agreement establishing the European 156 days' unemployment benefit, a person Economic Area, as a result of which the must have been in an occupation subject to regulation became applicable in Austria, compulsory contributions within the mean- were, in principle, not to be taken into ing of Paragraph 168 of the same law account because the Regulation had during the reference period. Under Para- replaced the Convention on that date and graph 104(2) and (3) of the AFG, the the conditions under Article 67(3) or Arti- reference period, which is three years, cle 71 of the Regulation were not fulfilled. immediately precedes the first day of the However, it considered that the periods of period of unemployment, from which date employment in question should be taken the other conditions entitling a person to into account in accordance with Article 7 register as seeking employment are ful- of the Convention, since Articles 48(2) filled. (now, after amendment, Article 39(2) EC)
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and 51 of the EC Treaty (now, after that, because of the principle of freedom of amendment, Article 42 EC) do not allow movement for workers, they do not pre- workers to lose social security advantages clude the continuance in force of a conven- conferred on them by a convention between tion concluded between States in the field Member States because of the entry into of unemployment insurance which is more force of the Regulation. It therefore upheld advantageous for the insured person, the applicant's claim. although in consequence of the reference period entitlement to unemployment insur- ance benefits can no longer be derived from the period before the entry into force of the Regulation?' 9. The defendant authority brought an appeal before the Bundessozialgericht in order to have that decision set aside and that court considered the question whether, notwithstanding the entry into force of the Regulation, it was possible to take into account provisions in the Convention III — Appraisal under the conditions defined by the Court of Justice's case-law. 2It observed in parti- cular that those judgments relate to pension schemes and that the conclusion reached in 11. All the parties which have made sub- them cannot necessarily be transposed to missions share the referring court's view an unemployment insurance scheme which that Mr Thelen cannot rely on the provi- displays particular characteristics with sions of Regulation No 1408/71 in order to regard to the qualifying period. obtain the benefits he is claiming.
12. They argue, quite rightly in my view, 10. Taking the view that the solution to the that it is apparent from Article 67(3) of dispute therefore depended on the interpre- that Regulation that in order to have tation of Articles 6 and 7 of the Regulation, account taken of periods of insurance the Bundessozialgericht decided to stay completed in another Member State, a proceedings and refer the following ques- person seeking employment must have tion to the Court of Justice for a prelimin- completed his last period of insurance in ary ruling: the Member State in which the benefits are being claimed, which is not the case in this instance.
'Are Articles 6 and 7 of Regulation (EEC) No 1408/71 to be interpreted as meaning 13. However, unless the periods of insur- ance completed by Mr Thelen in Austria 2 — Case C-227/89 Rönfeldt [1991] ECR I-323; Case C-475/93 are taken into account, he does not fulfil Thévenon [1995] ECR I-3813; and Joined Cases C-31/96 to C-33/96 Naranjo Arjona and Others [1997] ECR I-5501. the condition laid down by German law
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concerning the qualification period of 160 the Convention after the Regulation has days, within a reference period of three entered into force. The exceptions to re- years. The order for reference states that in placement for which the Regulation pro- the present case the reference period runs vides do not include Article 7 and are not from 4 March 1993 until 3 March 1996 relevant in this instance. and that during this period Mr Thelen did not belong to the German insurance scheme for 160 days.
18. It must therefore be established whe- ther it is possible to apply the bilateral convention in question not because it has 14. It is true that under Article 71 of the been replaced by the Regulation but on the Regulation it is possible for a worker to basis of the aforementioned case-law of the receive unemployment benefit paid by a Court of Justice, according to which the different State from that in which he provisions of the Treaty concerning the resides. However, it relates to different freedom of movement of workers give rise circumstances from those of the applicant in some cases to an obligation to allow for in the main proceedings. the continuation of the effects of previous bilateral agreements replaced by the Reg- ulation.
15. It follows, as noted by the referring court and the parties who have submitted observations, that Mr Thelen may rely only 19. The Commission, on the one hand, and on the provisions of the Convention and in the German and Spanish Governments, on particular Article 7 thereof in order to the other, interpret this point differently. obtain payment of the benefits he is claim- ing.
20. Thus, the Spanish Government argues that the existing case-law always concerned 16. As stated both by the referring court retirement or invalidity pensions in Ger- and the parties, it follows from Article 6 of many. Those pensions are different in kind the Regulation that that regulation replaced from the unemployment benefits at issue in the aforementioned German-Austrian bilat- the present case. eral Convention as from 1 January 1994, the date of entry into force of the agree- ment on the European Economic Area.
21. A particular feature of unemployment benefits is that they are immediate: the amount does not depend on the contribu- 17. The Regulation makes no provision for tion period and they are designed to the continued application of Article 7 of remedy a current situation, presumed to
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be temporary. There therefore appears to 25. I share that point of view. be no room here for the notion of an accrued right, which is fundamental in the case-law. By contrast, so far as concerns old age or invalidity, at a given time there is an accrued, full right to benefits calculated in particular by reference to the contribution 26. It is apparent that the aforementioned period. case-law is designed to prevent a worker who has exercised his right to freedom of movement and acquired social security rights from being deprived of them by the entry into force of the Regulation and the replacement by it of the bilateral conven- tions under which the rights were acquired. 22. The German Government also takes the view that application of the relevant case-law of the Court presupposes that a right had been acquired before entry into force of the Regulation, which is not the case in this instance. 27. As the Court ruled in Rönfeldt, the provisions of the Regulation must be read in the light of the objective of Article 51 of the Treaty, on which it is based, namely to contribute to the establishment of the greatest possible measure of freedom of movement for migrant workers, one of the 23. By contrast, the Commission argues principles on which the Community is that there is nothing in the case-law of the founded. The Court added that that objec- Court which implies that it applies only to tive would not be attained, if, as a result of old age or invalidity pensions. That case- exercising their right to freedom of move- law is based on the protection of legitimate ment, workers were to lose the advantages expectations and the only criterion for its guaranteed to them in any event by the application is that a worker should have legislation of a single Member State, exercised his right to freedom of movement including the bilateral conventions incor- before the entry into force of the Regula- porated within that legislation. 3 tion and the rule of replacement laid down by that regulation.
28. Applying those principles to the situa- tion where a convention agreed prior to entry into force of the Regulation confers 24. Furthermore, there is no reason to on workers greater advantages than those consider that the case-law in question arising from Community legislation, the applies only to benefits accrued over the Court concluded that 'any other interpreta- long term, since in some Member States that would not be the case for old age or invalidity pensions. 3 — Judgment in Rönfeldt, paragraphs 24 and 25.
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tion... disregarding the provisions of con- replaced the previous convention, where, as ventions between Member States which in the present case, the amount of benefits entail greater advantages for workers than at issue did not depend on the contribution are available under Community provisions, period. would substantially restrict the scope of the aims pursued by Article 51, inasmuch as the worker exercising his right to freedom of movement would find himself in a less favourable position than if he had not availed himself of that right'. 4 31. It would therefore appear that the nature of the benefits under consideration is not the determining factor for applying the case-law of the Court of Justice and that in principle that case-law may be applied to unemployment benefits.
29. Accordingly, that case-law is a priori designed to apply in all situations where a worker, within the meaning of the Regula- tion, has accrued a right under a bilateral 32. Moreover, in the present case, even the convention before that convention was parties submitting observations who con- replaced by the Regulation. Such a situa- sider that the case-law in question cannot tion may very well arise in the case of be applied to a case of unemployment benefits acquired at the end of a short benefit do not dispute the fact that if qualification period, such as the unemploy- Mr Thelen had worked in Austria continu- ment benefits at issue, and does not neces- ously beyond 1 January 1994 and had then sarily mean that rights accrued over the applied for unemployment benefit in Ger- long term must be concerned. It is sufficient many, the qualifying periods in Austria for the period in question to have com- would have to have been taken into menced before entry into force of the account and therefore the provisions of Regulation and for the benefits at issue to the Regulation would have to have been have been claimed subsequently. rejected in favour of those of the Conven- tion. In fact, application of the Regulation in place and instead of the Convention would have deprived the worker of his right to unemployment benefit accrued during the qualifying period in Austria.
30. The cases of Naranjo Arjona and Others and Grajera Rodriguez 5 confirm that view. The Court of Justice applied its decision in Rónfeldt to those cases and 33. Nevertheless, as both the German and therefore ruled out application of the the Spanish Governments point out, there provisions of the Regulation which are difficulties in applying the aforemen- tioned case-law to the present case. The question therefore arises as to whether, as 4 —Judgment in Rönfeldt, paragraph 28. those governments believe, they are insur- 5 — Case C-153/97 [1998] ECR I-8645. mountable.
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34. Firstly, the German and Spanish Gov- freedom of movement before the entry into ernments observe that the case-law relating force of the Regulation and a new exercise to the continuance of effects is applicable of that right after that date. only in situations in which the legal posi- tions have already been established before the Regulation entered into force. In parti- cular, such was the case in Thévenon, in which the Court explicitly restricted the applicability of its case-law solely to work- 37. The Commission observes in that ers who had already exercised their right to regard that the case-law of the Court does freedom of movement before the entry into not distinguish between whether or not force of the Regulation. there has been an interruption in the exercise of the right of free movement where the exercise of that right began before the entry into force of the Regula- tion, as is the case for Mr Thelen.
35. However, in the case in point Mr The- len had not acquired any rights before 1 January 1994, the date on which the 38. It must in any event be pointed out that Regulation entered into force in the case of it is not apparent from the documents the Republic of Austria. In that respect, the before the Court that there was an inter- German Government points out that, ruption by Mr Thelen of the exercise of his although at that time Mr Thelen was right to free movement, followed by a new entitled to unemployment benefit on the exercise of that right. The fact that between basis of the provisions of the relevant December 1993 and February 1994 he did bilateral convention, he lost that right by not pursue an occupation in Austria which operation of the three year reference period was subject to an obligation to pay con- prescribed by German law and not because tributions does not necessarily mean that he of the entry into force of the Regulation. returned to Germany before 1 January 1994 and then returned to Austria after that date.
36. The Spanish Government adds that in any event in the present case the condition 39. Moreover, in its judgment in Kuusi- laid down by the Thévenon judgment is not järvi 6the Court held that the fact that at fulfilled because Mr Thelen exercised his the time when the Regulation entered into right to freedom of movement before the force a worker was unemployed and there- entry into force of the Regulation. In fact, fore had no occupation subject to compul- he did not have any occupation in Austria sory contributions does not preclude appli- subject to compulsory contributions except cation of the case-law in question. until 20 December 1993 and as from 1 February 1994. Therefore there was an interruption of his exercise of the right to 6 — Case C-275/96 [1998] ECR I-3419.
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40. In any event, I take the view that there right to freedom of movement. The deter- is no need to consider whether or not mining factor is knowing whether, at that Mr Thelen's exercise of the right to free- time, the worker had already acquired dom of movement was interrupted. rights under the bilateral convention, aris- ing from the previous exercise of his right to freedom of movement. The Rönfeldt judgment, which concerned a worker who had already ended his migration before the entry into force of the Regulation, confirms that conclusion. 41. As I have stated, the case-law of the Court of Justice seeks to exempt legal positions previously acquired by the worker from the effects of the replacement of bilateral conventions by the Regulation. 44. If rights have been acquired, the Court's case-law, based, as we have seen, on the need to give full effect to the provisions relating to the freedom of move- ment of workers by guaranteeing protec- tion of those rights, can be applied whether 42. It necessarily follows, and this is very or not the worker has continued to exercise clear from Thévenon, that the right to his right to freedom of movement at the freedom of movement must have been time of entry into force of the Regulation. exercised before the replacement, that is The aim is to prevent the worker from to say before the entry into force of the finding himself in an unfavourable position Regulation. In fact, a worker who has compared to the situation which would exercised his right to freedom of movement have existed if he had not moved. only after the entry into force of the Regulation, that is to say at a time when it had already replaced the convention, cannot claim to have suffered a loss of advantages arising from that convention. 7 Furthermore, in exercising the right to freedom of movement a worker must have 45. It should therefore be established whe- acquired rights which would be extin- ther Mr Thelen had acquired a right at the guished by virtue of the replacement. time of the entry into force of the Regula- tion.
43. However, that does not mean that at 46. In that respect, the German Govern- the time of entry into force of the Regula- ment observes that on that date Mr Thelen tion, the worker must still be exercising his had in fact acquired a right to unemploy- ment benefit in Germany under the bilat- eral agreement but that he lost it again 7 — Thévenon, paragraph 26. because of the conditions relating to the
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qualification period laid down by German applicable and, on the basis of its provi- legislation and not because of the entry into sions, those periods of insurance would force of the Regulation. have been taken into account and Mr The- len would have obtained the benefits claimed.
47. In that respect, let me firstly point out that on that date Mr Thelen had in fact accumulated sufficient periods of insurance 51. Accordingly, it is not only by virtue of to be entitled to unemployment benefits in the conditions laid down by German law Germany under the bilateral convention. with regard to the qualification period that Mr Thelen is not in a position to obtain the disputed benefits, but also because of the replacement of the previous bilateral con- vention by the Regulation.
48. It is true that because German law imposes a qualification period contained within a reference period which is deter- mined from the date of commencement of 52. However, the consideration that the unemployment, a worker may, merely by entry into force of the Regulation results in the operation of those provisions and less favourable treatment for the worker without the entry into force of the Regula- than continuance of the bilateral conven- tion having any effect in that respect, lose a tion is not sufficient, of itself, to preclude right to benefits which he had obtained at a application of the provisions of the Reg- given time. ulation, as the Court held in the Wälder case. 8
49. However, that is not the case in this instance. Only if it is not possible to take 53. As we have already seen, the disadvan- into account periods of insurance which he tage suffered by the worker must be accumulated in Austria since the entry into capable of being interpreted as the loss of force of the Regulation does Mr Thelen not a right acquired prior to the entry into force fulfil the conditions for the qualification of the Regulation. period laid down by the German legisla- tion.
54. However, the fact that insurance peri- ods completed in Austria cannot be taken into account after the entry into force of the 50. On the other hand, without the inter- vention of Regulation No 1408/71, the bilateral convention would have been 8 — Case 82/72 [1973] ECR 599.
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Regulation, cannot, by definition, amount in Germany, under the same conditions as if to the loss of a previously accrued right. they had been completed in Germany.
55. Must one conclude therefrom that the 59. In circumstances such as those in issue, circumstances of the present case preclude it is therefore appropriate to disregard the application of the abovementioned case- provisions of the Regulation and apply law of the Court of Justice? those of the bilateral convention.
56. I do not think so. 60. In my view, the last argument put forward by the Spanish Government does not justify a different conclusion.
57. As the Commission quite rightly points out, this case does not concern only periods of insurance completed after the entry into force of the Regulation, since the reference 61. It argues that application of the provi- period prescribed by the German legislation sions of the Convention instead of those of for establishing whether the conditions for the Regulation fails to have regard to the the qualifying period have been fulfilled cohesion of the Regulation, which would commences on 4 March 1993. thus be divided into 'à la carte segments'.
58. On that date, Mr Thelen was in the 62. However, the annexes to the Regula- position of a worker who had exercised his tion itself provide for the continuance of right to freedom of movement before the some provisions of bilateral conventions, entry into force of the Regulation and can including provisions of the convention at reasonably expect that he should not, by issue in the present case. 9It is therefore virtue of the entry into force of the clear that the Community legislature did Regulation, be deprived of a right conferred not take the view that it was incompatible on him by the Convention, that is to say a with the full effect of the Regulation. right to have periods of insurance comple- ted in Austria taken into account for the purposes of granting unemployment benefit 9 — Annex III, paragraph 3(h)
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63. It remains for me to mention one final which an individual worker can claim as consideration, raised both by the referring protection in a specific case. court and the Commission. Does the fact that only German and Austrian nationals may rely on the provisions of the Conven- tion constitute discrimination according to nationality? 67. On the other hand, the case does not seek to cause the Convention to survive the entry into force of the Regulation and is therefore not concerned with the question whether a Member State could legitimately 64. It is true that, a priori, such a possibi- conclude a convention with another State, lity cannot be ruled out. the provisions of which could be invoked only by nationals of the parties to that convention. Moreover, in any event, the reply to that question could not deprive Mr Thelen of rights which Community legislation acknowledges to be worthy of 65. However, the Commission points out protection, but instead would call for an that that question could only arise in examination of the problem of whether a exceptional cases and that it is not relevant worker who is a national of another to the case in point. Since Mr Thelen is a Member State, placed in an identical situa- German national there is no need to reply tion, should not also benefit from that to the question of what the position would bilateral convention. be if he were not.
68. Accordingly, in the case in point, there 66. It should be pointed out that the is no need to decide whether the inability present case relates to the question of (as appears to follow from the wording of whether a worker in a position such as the Convention) of a worker who is a that of Mr Thelen may rely on the rules of national of a Member State other than the the Treaty concerning the freedom of Federal Republic of Germany to rely on the movement of workers as well as on general same provisions as Mr Thelen constitutes principles of Community legislation such as discrimination contrary to Article 6 of the the protection of legitimate expectations. It EC Treaty (now, after amendment, Arti- therefore concerns the scope of the rights cle 12 EC).
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Conclusion
69. For the foregoing reasons, I propose that the following answer be given to the question referred by the Bundessozialgericht:
Articles 6 and 7 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 to members of their families moving within the Community, as amended by Council Regulation (EEC) No 1248/92 of 30 April 1992, must be interpreted as meaning that they do not preclude the continued application of a convention concluded between States in the field of unemployment insurance which is more advantageous to the insured person, even though in consequence of the reference period entitlement to unemployment insurance benefits can no longer be derived from the period before the entry into force of the Regulation.
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