C-277/99

2. Regulation No 1408/71 came into force for the Republic of ropean Economic Area

1 — Original language: French. 2 — OJ 1992 L 136, p. 7.

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Article 67 shall be subject to the condition that the person concerned should have completed lastly:

Aggregation of periods of insurance or employment — in the case of paragraph 1, periods of insurance,

tory of a Member State other than the application of Article 67(1) and (2) of competent State shall receive benefits in Regulation No 1408/71 as follows: accordance with the following provisions:

'Acquisition of the right (ii) a worker, other than a frontier worker, who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he resides, 1. A right to unemployment insurance is or who returns to that territory, shall acquired for the first time when the unem- receive benefits in accordance with the ployed person has been employed in a job legislation of that State as if he had last subject to compulsory unemployment been employed there; the institution of insurance in Austria for a total of 52 weeks the place of residence shall provide in the last 24 months before bringing the such benefits at its own expense. How- claim (the reference period). ever, if such a worker has become entitled to benefits at the expense of the competent institution of the Member State to whose legislation he was last subject, he shall receive benefits under the provisions of Article 69. Receipt of benefits under the legislation of the 5. Periods of employment or insurance State in which he resides shall be completed abroad shall be taken into suspended for any period during which account for acquisition of the right in so the unemployed person may, under the far as this is governed by conventions provisions of Article 69, make a claim between States or international treaties. for benefits under the legislation to When thus taking account of periods of which he was last subject.' employment or insurance abroad, comple- tion of a minimum period of employment in Austria before making the claim for unemployment benefit is not required if the unemployed person B — National law — Arbeitslosenver- sicherungsgesetz 1977

Inclusion of periods of employment subject to compulsory contributions completed in accordance with the legislation of the other contracting State: and in either case registers as unemployed in Austria within three months of the end of the employment or the insurance obli- gation abroad. (1) Periods of employment subject to com- pulsory contributions which have been completed in accordance with the legis- lation of the other contracting State shall be taken into account when assessing whether 6. In order to determine when the right was the qualifying period for acquisition of the acquired, the periods mentioned in sub- right has been completed and when deter- paragraphs 4 and 5 shall be taken into mining the duration of entitlement, the account once only.' claimant possesses the nationality of the contracting State in which the claim is made and has his habitual place of stay in the territory of that contracting State. The same applies if the claimant has moved to the contracting State in which the claim is made for the purpose of reuniting the family and his spouse already living there possesses the nationality of that contracting C — Convention on unemployment State. between the Federal Republic of Germany and the Republic of Austria

(2) For other unemployed persons, periods of employment subject to compulsory con- 4. The Republic of Austria and the Federal tributions which have been completed in Republic of Germany concluded a Con- accordance with the legislation of the other vention on unemployment, which entered contracting State shall be taken into

I I — Facts and the questions referred for a preliminary ruling 7. Ms Kaske made an appeal against that decision, which the defendant dismissed as unfounded by the decision of 28 November 1996 which forms the subject of the main proceedings before the national court. In 5. Ms Kaske, who was born in Germany, the grounds for its decision, the Office has been an Austrian national since 1968. stated that Paragraph 14(1) of the A1VG, She was an employee in Austria from 1972 adopted for the implementation of to 31 December 1982 subject to compul- Article 67 of Regulation No 1408/71, did sory pension, sickness, accident and unem- not apply in her case because she had not ployment insurance. She moved to Ger- been able to show periods of employment many in 1983, and was an employee there subject to compulsory unemployment until April 1995 subject, inter alia, to insurance in Austria in the 24 months compulsory unemployment insurance; she before the claim was made; it also stated then received unemployment benefit from that, since the claimant had neither resided 1 May 1995 to 14 February 1996. She was in Austria for 15 years before the acquisi- employed from 15 February to 31 May tion of German periods of insurance nor 1996, again subject to compulsory unem- moved to Austria for the purpose of reunit- ployment insurance. She then returned to ing a family, Paragraph 14(5) of the A1VG Austria and applied to the regional office of did not apply. Accordingly, her periods of the Arbeitsmarktservice (the Labour and employment abroad could not be taken Employment Office, 'the Office') for unem- into account in respect of acquisition of the ployment benefit on 12 June 1996. right.

2. If the answer to Question 1 is affirm- ative: 4. If the answer to either Question 1 or Question 2 is negative or if the answer to Question 3 is affirmative:

Does application of the Rönfeldt judg- ment to the insured risk of unemploy- Is it permissible from the point of view ment mean that a migrant worker may of the prohibition of discrimination rely on a legal position more favour- under Article 39 EC (formerly able than Regulation No 1408/71 Article 48 of the EC Treaty) in con- which derives from a bilateral conven- junction with Article 3(1) of Regu- tion between two Member States of the lation No 1408/71 if a Member State European Union (in this case, the provides in its legal system, as regards Austro-German Convention on unem- the inclusion of periods of insurance ployment insurance) for the further completed in another Member State, a

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provision more favourable than Regu- Articles 48(2) and 51 EC (now, after lation No 1408/71 (in this case, waiver amendment, Articles 39 and 42 EC). of the requirement of immediately preceding insurance within the mean- ing of Article 67(3) of Regulation No 1408/71), but makes its application dependent — apart from the case of reuniting a family — on 15 years' 11. Both the Commission and the Austrian residence in that State before the Government have expounded views chall- acquisition of the periods of insurance enging the need for questions to be referred in the other Member State?' to the Court.

12. The Commission asserts that Article 71(1)(b)(ii) of Regulation No 1408/71 may be applicable in the main Analysis proceedings. Although the national court did not mention in the questions referred for a preliminary ruling the possibility of the applicant in the main proceedings basing her claim on this provision, the 9. The following preliminary observations Commission takes the view that this could provide a solution to the dispute. should be made.

15. There can be no doubt that, if the facts of the case were analogous to those of the Bergemann case, Article 71(1)(b)(ii) would apply to Ms Kaske, in accordance with the approach taken by the Court in that case. 19. Furthermore, the Commission has pointed out that, in the Bergemann case, the Court accepted the existence of a right to apply to the employment services in either the State of residence or the State of employment, based inter alia on the fact that, in such circumstances, the person 16. However, it is apparent from the order concerned may enjoy more favourable con- for reference that, contrary to the situation ditions for seeking a new job in the State of in the Bergemann case, it was only after the employment. end of her employment relationship that the applicant in the main proceedings left Germany to go and live in Austria.

20. The Commission asserts consequently that it may also be for the national court to decide, in this case, whether the applicant will find conditions in the current State of 17. I do not see, therefore, how she could residence more favourable to getting back be considered to be an 'unemployed person into work. who, during [her] last employment, was residing in the territory of a Member State other than the competent State' and thus covered by Article 71(1)(b)(ii).

21. But it is clear that the case-law cited by the Commission concerned workers who, during their last employment, had actually 18. The Commission has argued, however, that there could be an indirect application 5 — Case 1/85 [1986] ECR 1837.

28. However, it should be remembered that, according to settled case-law, it is for the referring court to determine both the necessity and the relevance of the 24. The Austrian Government puts for- questions referred to the Court. ward two arguments to show that the answer to the questions referred by the Verwaltungsgerichtshof on the applicabil- ity of the Rönfeldt judgment is irrelevant to the main proceedings. 29. Therefore, the Court cannot be pre- vented from answering them by the fact that the Member State of the defendant in the main proceedings applies a different analysis to its national provisions than does 25. Firstly, it challenges the referring the referring court, with the implicit but court's assertion that Ms Kaske could be necessary inference that there is, according entitled to unemployment benefit in Austria to that Member State, no need to raise the if her periods of employment in Germany questions submitted to the Court.

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30. Secondly, however, the Austrian Gov- Court did not apply Rönfeldt there, on the ernment pleads that, since Ms Kaske has ground that, under Article 118(1) of Regu- already benefited from the application of lation (EEC) No 574/72, 7a comparison Regulation No 1408/71, by this fact alone, between the advantages arising from a she can no longer benefit from the rule in convention and the advantages arising from Rönfeldt. the regulation showed that the regulation was more favourable for the applicants.

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36. The determining factor for applicability The first question of the Rönfeldt judgment is, therefore, the existence of a worker's rights, which he would still enjoy under the convention but lose by application of the regulation. Therefore, only after all rights which the worker derives from the convention have been exhausted can substitution of the 40. The referring court argues that, since convention for the provisions of the regu- the Thévenon judgment,8 the case-law of lation be precluded once and for all. the Court relating to the application of bilateral conventions made prior to the entry into force of Regulation 1408/71 may be understood as being directed at pro- tecting legitimate expectations derived from Article 39 et seq. EC. A worker who, relying on the existing legal position under a bilateral convention, went before the 37. It is not apparent from the file that that entry into force of Regulation No 1408/71 is the case. to a Member State bound by that con- vention and there exercised his rights under Article 39 et seq. EC is not to have those expectations frustrated as a result of the fact that the regulation lays down stricter conditions for benefits or results in smaller benefits than the convention.

38. Finally, I wish to point out that the governments which have submitted their observations in connection with these pro- ceedings have examined the issue of the application of the Rönfeldt judgment to unemployment benefits under the first 41. Therefore, according to the referring question referred for a preliminary ruling. court, the question arises as to whether this case-law applies also to a case in which a person has moved, before the entry into force of the Treaty and hence also of Article 39 et seq. EC, from his home State to another Member State.

44. The case-law of the Court therefore does not permit the inference that it is to apply only where the Treaty has come into force in the home State of the worker in 'The case-law of the Court relating to question. retaining the validity of social security conventions which have been replaced by Regulation No 1408/71 applies also where a migrant worker has made use of "free- dom of movement" (or more precisely, has anticipated it) before the entry into force of Regulation No 1408/71, but also before the 45. I share the Commission's view that this EC Treaty came into effect in his home is explained by the fact that the case-law State, that is, at a time when he could not does not rest essentially on the legal basis of yet rely on Article 39 et seq. EC in the State the exercise of a 'right to freedom of of employment.' movement', but above all on the need, connected with the protection of legitimate expectations, to avoid existing rights and advantages being withdrawn from a worker on the entry into effect of Regu- lation No 1408/71. 48. Since the subsequent questions were to be asked if the answer to Question 1 was affirmative, they must be considered. 9 — Case C-153/97 1998] ECR I-8645. 10 — See Joined Cases C-31/96 to C-33/96 Naranjo Arjona and Others [1997] ECR I-5501, Gómez Rodriguez and Grajera Rodríguez, cited above. 11 — Case C-75/99 [2000] ECR I-9399.

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The second and third questions materialisation of the risk must be taken into account.

49. Both the second and the third questions relate to the same issue, namely that of the 53. In particular, the Austrian Government consequences deriving from the applicabil- takes the view that, if the person concerned ity of the Rönfeldt judgment to unemploy- has received unemployment benefit, then ment benefits in this case. Therefore, it is the immediately preceding period of hardly surprising that these questions have employment and all other relevant periods been considered together by those parties have been used, and a new right to who have made representations on this unemployment benefits may be acquired point, and I propose to do the same. only by a new period of employment of sufficient length.

57. The Spanish Government explains this difference by the nature of unemployment benefits. In this regard, it points out that entitlement to them is not a complete or full 60. As regards the consequences of this right, as are rights to retirement or dis- judgment for the present case, there are two ability pensions. By contrast, the right to opposing points of view. these benefits is a potential right, in the course of being acquired, which is trans- formed into a real entitlement immediately and without any transitional period, in the strict legal sense, if the person loses his employment and if the conditions to which 61. As we have seen, the Austrian Govern- the benefit is subject are satisfied. It con- ment is of the opinion that the bilateral cludes that the Rönfeldt judgment is not convention applies only for periods before applicable to benefit rights in the course of the regulation came into force and preced- being acquired, which, by their very nature, ing the first period of unemployment. are never complete, as is the case for unemployment benefits.

62. By contrast, the Commission, the Por- 58. However, in Thelen the Court clearly tuguese Government and the applicant in held that the replacement of the convention the main proceedings submit that such a by the regulation cannot deprive a worker restriction would be contrary to the case- of the rights and advantages accruing to law of the Court. him from the convention, even where these relate to an unemployment insurance scheme, which has special characteristics as regards the qualifying period, and not, as in previous judgments, to a retirement or invalidity pension scheme. 12 63. I share this analysis.

68. The same reasoning holds good for the 65. In this regard, the terms of the Rönfeldt third question referred for a preliminary judgment should be borne in mind, in ruling. which the Court held that the Treaty would be infringed 'if, as a consequence of the exercise of their right to freedom of move- ment, workers were to lose advantages in the field of social security guaranteed to 69. To take the view that a worker's them in any event by the legislation of a entitlements could be determined under single Member State', 13 including advan- the more favourable terms of the bilateral tages under bilateral conventions incorpor- convention only in so far as they are based ated in national law. on periods of compulsory unemployment insurance completed in the State of employ- ment before Regulation No 1408/71 comes into force would likewise lead to the loss of the worker's advantages under the conven- tion and is, therefore, precluded by the 66. If the only period to be taken into Rönfeldt judgment. account under the convention, which is by definition more favourable, is the period when the right was exercised before the regulation came into force, this will indis- putably have precisely the consequence rejected by the Court, namely the loss of 70. Having regard to the above consider- advantages under the convention and this ations, I propose that the Court give the loss will relate to the period of exercise of following answer to the second and third the right after the regulation comes into questions referred for a preliminary ruling: force.

77. It is indisputable that nothing prevents 73. Therefore, I will make the following a Member State from adopting more observations only in the alternative. favourable legislation than that provided for by Regulation No 1408/71.

74. The rule at issue allows a worker who, after exercising his right to freedom of movement, returns to live in Austria, to 78. However, the advantage in question is receive unemployment benefits even if he subject to a 15-year residence condition or has not, as Article 67(3) of Regulation to reuniting a family.

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79. As both the Commission and the refer- 80. Since the above remarks have been ring court have noted, the residence made only in the alternative, I propose that requirement is easier for Austrian nationals the Court give the following answer to the to satisfy than for nationals of other fourth question referred for a preliminary Member States, and therefore constitutes ruling: indirect discrimination. No objective rea- son has been put forward to justify this requirement. 'There is no need to answer the question.'

Conclusion

Provisions under a convention between two Member States, more favourable than the scheme deriving from the application of Regulation No 1408/71, are applicable in the present case for the whole period of exercise of freedom of movement within the meaning of Article 39 et seq. EC, even if, inter alia, the claims involved are raised after the return from the State of employment to the home State. Claims based on periods of insurance which were acquired before the entry into force of Regulation No 1408/71 must also be assessed in accordance with the more favourable convention.

The fourth question:

There is no need to answer the fourth question.

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