C-373/02

ÖZTÜRK

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 12 February 2004 1

1. The Oberster Gerichtshof — the Aus- whether the worker may rely on the trian Supreme Court — has referred two aggregation rule in Article 45(1) of Regula- questions to the Court of Justice for a tion No 1408/71. 3 preliminary ruling under Article 234 EC on the interpretation of the 1963 Agreement establishing an Association between the European Economic Community and Tur- key. 2

I — The facts in the main proceedings

From 20 July 1998 to 31 December 1999 could not be regarded as equivalent to he was registered unemployed in Germany receipt of unemployment benefit in Austria. and drew the relevant unemployment ben- Nor could a different conclusion be drawn, efit from the Arbeitsamt (Employment in that court's view, from the bilateral Office), Bremen. On 2 December 1999, agreements with Germany or from Regula- the Landesversicherungsanstalt Oberbayern tion N o 1408/71. (Regional Insurance Office, Upper Bavaria) granted him a German early old-age pen- sion on account of his unemployment as from 1 January 2000. In the 15 months preceding that date, M r Oztiirk had not drawn any cash benefits from the unem- 5. The judgment was upheld on appeal. M r ployment insurance scheme in Austria nor Oztiirk immediately lodged an appeal on a been in any of the circumstances regarded point of law, seeking a judgment in his by the Austrian Law on Social Insurance as favour and a reference to the Court of equivalent to the drawing of such a benefit. Justice for a preliminary ruling.

3. By decision of 10 April 2 0 0 0 , the Pensionsversicherungsanstalt der Arbeiter I I— The questions referred to the Court ( W o r k e r s ' Pension I n s u r a n c e Office) for a preliminary ruling refused to grant M r Sakir Oztiirk an early old-age pension in the event of unemploy- ment pursuant to Article 253a of the Allgemeines Sozialversicherungsgesetz (Austrian General Law on Social Insurance) 6. The Oberster Gerichtshof acceded to the on the ground that the applicant had not claimant's latter request and referred two drawn a cash benefit from the Austrian questions to the Court of Justice in the u n e m p l o y m e n t scheme during the 15 following terms: months preceding the qualifying date, 1 January 2000.

I I I — National legislation

1. proves that he or she has received unemployment cash benefits during the period of unemployment; 7. Under Austrian law, the purpose of early old-age pensions in the event of unemploy- ment is to grant a retirement benefit to persons who, on account of old age or sickness, have limited employment oppor- tunities. The fact that the insured person 2. has, by the qualifying date, paid at has drawn 52 weeks of unemployment cash least 180 monthly compulsory old-age benefits from the unemployment insurance insurance contributions; and

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3. has met the requirement laid down in will ultimately facilitate the accession of Article 253b(1)(4) by the qualifying that State. date and has drawn a minimum 52 weeks of unemployment cash benefits from the unemployment insurance scheme, within the 15 months preced- ing the qualifying date.

10. In order to give effect to those commit- ments it was decided to impose gradually a customs union which would comprise a five-year preparatory phase, a transitional phase of a maximum of 12 years and a final phase, in order to strengthen the coordina- tion of the economic policies of the contracting parties.

14. In 1980 the Association Council adopted Decision No 3/80 5on the basis of Article 39 of the Protocol, the aim of which is to enable Turkish citizens who have worked in the Community, members of their families and their survivors to enjoy benefits in the traditional branches of social security. To that end, it refers to a series of provisions in Regulation No 1408/71. 16. The matters covered by Decision No 3/80, which are defined in Article 4, extend to all legislation concerning the branches of social security relating to invalidity benefits, including benefits designed to maintain or 15. Article 3 of Decision No 3/80 is improve earning capacity, old-age benefits worded as follows: and unemployment benefits.

' 1 . Subject to the special provisions of this Decision, persons resident in the territory of one of the Member States to whom this

17. The customs union between the Eur- opean Community and Turkey came into 4 — Confirmed by Council Regulation (EEC) No 2760/72 of 19 December 1972 concluding the additional protocol and the force on 31 December 1995, thus marking financial protocol signed on 23 November 1970 and annexed to the Agreement establishing an Association the final phase of the Association. 6 between the European Economic Community and Turkey and relating to the measures to be taken for their implementation (OJ 1972 1.293, p. 1). 5 — Decision No 3/80 of 19 September 1980 concerning the application of the social security schemes of the Member 6 — See Decision No 1/95 of the EC-Turkey Association Council States to Turkish workers and the members of their families of 22 December 199S on implementing the final phase of the (OJ 1983 C 110, p. 60). Customs Union (OJ 1996 I. 35, p. I).

At the present time Mr Öztürk receives a benefit of that kind in Germany, where he last worked; the amount is calculated on the A — The first question basis of the contribution periods completed in that country. If, as he hopes, it were also granted to him in Austria, the amount would be determined according to the time 19. By the first of its two questions, the worked in that country. If all his occupa- national court wishes to ascertain whether tional activity had been confined to the the prohibition of discrimination on same State, he would have been paid a grounds of nationality, established by the pension proportionate to the total length of Association Agreements between the Eur- his working life. According to the decisions opean Community and Turkey, precludes adopted by the Austrian courts up to now, the application of a provision of a Member for the period worked in Germany he State which makes the grant of an early old- would only be allowed to obtain a pension age pension in the event of unemployment in Germany, and the amount payable to

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him would be reduced accordingly. He legislation of one or both countries — therefore feels that he is being discriminated under which Regulation No 1408/71 is against because he has worked in more than applicable by analogy to numerous circum- one Member State. stances, amongst them the aggregation of insurance periods, but that application by analogy docs not extend to unemployment insurance, to the prohibition of discrimina- tion on grounds of nationality, or to the possibility of exporting pensions.

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2. Analysis of the first question referred to the Member States or whether it should the Court extend to Turkish nationals, working in the Community, when they claim recognition of entitlement to social security payments.

24. The Austrian Supreme Court, and those who have submitted their views in these preliminary proceedings, acknowl- edge that the unresolved issue is whether (a) The scope of the principle of non- Mr Öztürk may successfully rely on the discrimination on grounds of nationality prohibition of discrimination on grounds of in relation to social security nationality and on its corollary, the princi- ple of equal treatment. 8Opinions differ, however, as to the specific provision on which he should rely. The Austrian Supreme Court and the Commission main- tain that Article 3 of Decision No 3/80 only 25. In Article 9 of the Association Agree- places a duty on the State of residence, in ment, the contracting parties prohibit, this case Germany, and therefore suggest without prejudice to any special measures that the matter be resolved only on the basis which may be adopted pursuant to Article of Article 9 of the Agreement. The German 8, any discrimination on grounds of nation- Government and the Austrian Government ality, in accordance with Article 7 of the coincide in the view that it should be Article EEC Treaty, subsequently Article 6 of the 3 of Decision No 3/80 although, in their EC Treaty (now, after amendment, Article opinion, that provision does not serve to 12 EC). uphold the claim of the party concerned.

only in situations governed by Community vides any basis for inferring that the law in respect of which the Treaty lays Member State of residence is the only State down no specific rules against discrimina- required to grant the Turkish worker and tion. 10 With regard to freedom of move- his family the same treatment as that ment for workers, the principle is governed accorded to its own nationals. 12 It is true by Articles 39 EC to 42 EC, and by the that, in most cases, the insured person Community acts implementing them, in invokes that principle in the country in particular by Regulation No 1612/68 and which he lives, 13particularly since Turkish Regulation No 1408/71. 11 workers do not yet enjoy freedom of movement within the Community, 14 but that tendency does not release other Mem- ber States in which he has acquired social security rights from the duty to afford him the same treatment as to its own nationals.

27. The Court of Justice has also declared that Article 3(1) of Decision No 3/80 constitutes the implementation and precise expression, in the area of social security, of the principle of non-discrimination on grounds of nationality stated in Article 9 29. According to Article 2, Decision No of the Agreement. Consequently, before 3/80 applies to Turkish workers who are, applying the latter provision, which is of or have been, subject to the legislation of general scope, it is necessary to check one or more Member States, to the members whether it is appropriate to invoke the of their families resident in the territory of equal treatment rule contained in Article 3 one of the Member States and to their of Decision No 3/80. survivors. Despite the fact that they cannot move freely within the Community in order to engage in an economic activity, the rule

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does not preclude them from doing so question referred to it for a preliminary because it recognises that they may have ruling, the Court of Justice must interpret joined social security schemes in more than Article 3 of Decision No 3/80, not Article 9 one Member State. Furthermore, Article 3 of the Association Agreement, as has been provides that, subject to the special provi- suggested in these proceedings. sions of the decision, persons residing in one of those countries to whom Decision No 3/80 applies are to be subject to the same obligations and to enjoy the same benefits under the legislation of any Mem- ber State 15 as the nationals of that State.

(b) Article 3 of Decision No 3/80 and the judgment in Sürül

It should be pointed out that the specific 31. In 1999 it was held in Sürül 17 that aim of Decision No 3/80 is to guarantee the Article 3(1) of Decision No 3/80 had payment of social security benefits to established a precise and unconditional migrant workers of Turkish nationality in principle such as is capable of being applied the Community. 16 by a national court and, consequently, of governing the legal situation of individuals. The direct effect of that provision means that individuals are entitled to rely on it before the courts of the Member States.

30. In the light of those rules, given that Mr Öztürk was employed in Austria for As happened in the Sürül case with family four-and-a-half years before moving to allowances, Decision No 3/80 likewise does Germany, and had acquired social security not provide for any exception to or restric- rights in that country, the Austrian autho- tion of the principle of equal treatment laid rities must treat him in the same way as it down in Article 3(1) when it refers, in treats its own nationals when he applies for Chapter 4, to old-age pensions. As for recognition of the benefits corresponding to unemployment benefits, although they are the contribution periods completed. There- included within the substantive scope of the fore, in order to give a useful answer to the decision, they have not been assigned any special rule. Therefore, there is nothing to

32. The provision at issue, Article 253a(1) (3) of the Austrian Law on Social Insur- ance, requires claimants of the early old-age pension in the event of unemployment to have drawn a minimum of 52 weeks of 34. Unless they are justified and propor- unemployment cash benefits from the tionate to the aim pursued, conditions unemployment insurance scheme within imposed by national law must be regarded the 15 months preceding the qualifying as indirectly discriminatory where, date. As worded, the rule makes no although applicable irrespective of nation- distinction with regard to the country to ality, they affect essentially migrant work- which the social security institution making ers or the great majority of those affected the payments belongs. In practice, however, are migrant workers, in general Community the implication is that the beneficiary must nationals or, in the situation covered by have received them in Austria. Article 3(1) of Decision No 3/80, Turkish nationals, and where they are indistinctly applicable but can more easily be satisfied by nationals or where they are liable to operate to the particular detriment of migrant workers. 20 33. I think that there is unquestionably no direct discrimination, because no different 19 —Joined Cases C-102/98 and C-211/98 Kocak and Ors [2000] ECR I-1287, paragraph 39. In the context of the Treaty, see Case 41/84 Pinna [1986] ECR 1, paragraph 23; 18 — Verschueren, H., 'L'arrêt Sürül: égalité de traitement en Case 20/85 Roviello [1988] ECR 2805, paragraph 14; matière de sécurité sociale pour les travailleurs turcs', Case C-349/87 Paroseni [1991] ECR I-4501, paragraph Revue du droit des étrangers, 1999, p. 282 et seq., 16; Case C-27/91 Hostellerie Le Manoir [1991] ECR I- especially p. 291: '... This judgment paves the way for 5531, paragraph 10; Case C-419/92 Scholz [1994] ECR I- the direct application of other provisions of Decision No 505, paragraph 7; Case C-57/96 Meints [1997] ECR 3/80, and more specifically of the principle of the I-6689, Daragraph 45; and Case C-190/98 Volker Graf exportation of pensions or the principle of equal treatment [2000] ECR I-493, paragraph 14. in other areas falling within the scope of the Association 20 — Case C-237/94 O'Flynn [1996] ECR I-2617, paragraphs Agreement'. 18 and 19.

38. The facts in D'Amico are very similar to those described by Mr Öztürk before the Austrian courts. The claimant was an 36. By contrast, migrant workers, whether Italian miner who had worked in Germany Community or Turkish nationals, often from 1941 to 1943 and in France, the find it difficult, not to say impossible, to country in which he became unemployed show that the Austrian unemployment when he was 61 years old and was unable insurance scheme has paid them the corre- to find another job. Two-and-a-half years sponding benefits during a specific period. later he applied in Germany for an early old-age pension, which was refused because, although he was over 60, had paid contributions for the required length of time and had been unemployed without a break for more than a year, he had not, during that period, been registered with the German Employment Office. Since what is required, in practice, is residence, the aforementioned scheme affects migrant workers to a greater extent because it is more likely that they will have carried on their occupational activity in other States. If Community nationals or, as The national court asked the Court of in this case, a Turkish national covered by Justice whether the provisions of Regula- Article 3(1) of Decision No 3/80, the scope tion No 3 23 and of Regulation No 1408/71 of which is the same as that of Article 3(1) of Regulation No 1408/71, are adversely affected, the difference in treatment, pro- 21 — Cited above. vided that it is not justified, may entail 22 — Case C-277/94 Taflan-Met and Others [1996] ECR i-4085. covert discrimination on grounds of nation- 23 — Regulation No 3 of the Council of 25 September 1958 on social security for migrant workers (Journal Officiel ality. 1958 30, p. 561).

39. Advocate General Trabucchi, in his Opinion in that case, 2 4 suggested that the answer should be a definite yes. Without going so far as to describe the rule of the territorial application of the national social legislation to migrant workers as behind the times, he considered it unacceptable for a 40. However, in its judgment the Court of Member State to deny from the outset that Justice interpreted the Community social events occurring beyond its frontiers have legislation restrictively; there are several any relevance. He pointed out that registra- reasons for this. tion with national employment offices differs according to whether the aim in view is the receipt of unemployment benefit or the calculation of a period of inactivity, for the purposes of entitlement to an early old-age pension, particularly when the duration of unemployment is unimportant when it comes to determining the amount of the pension, which is calculated on the basis of the insurance periods completed. First, it treated the pension applied for in Germany as if it were an unemployment benefit whereas in fact its characteristics made it more similar to an old-age pension. In that connection, it stressed that Chapter 6 of Regulation No 1408/71, and in particular Articles 69 and 7 1 , are based on a territorial link, so that, with rare He also pointed out that the fact that the exceptions, they envisage only the right of period of unemployment in another Mem- the unemployed person to obtain unem-

24 — T h e Opinion was delivered on 12 June 1975 [1975] ECR 901. 25 — Case 2/72 Murru [1972] ECR 3 3 3 pragraph 1 1 .

41. The case-law has evolved considerably since then; it now states that the principle of equal treatment requires that, for the purpose of recognising the right of migrant workers to social security or other benefits, each Member State should take into account certain facts arising in the others, in order to equate them with those which arise in their own territory. I can cite some examples. Secondly, it confined itself to interpreting the rule mechanically, without concerning itself with the question whether there was any other provision of Community law relevant to the judgment on the merits. 27 At no time did the judgment refer to the principle of equal treatment, even though the Advocate General had suggested that there might be covert discrimination on 42. The judgment in Bronzino stated that grounds of nationality. 28 where a national law imposes a condition of entitlement to certain family benefits whereby a worker's child must be available 26 — Not that there is any shortage of examples in the case-law. to the employment office of the Member The Court of Justice had already stated, in Case 15/69 State providing the benefits and, accord- Ugliola [1969] ECR 363, that the principle of equal treatment enshrined in the provisions governing freedom of ingly, reside within the territory of that movement for workers entitles a migrant worker who is a national of a Member State and who has had to interrupt State, that requirement comes within the his employment with an undertaking in another Member State in order to fulfil his obligations for military service in scope of Article 73 of Regulation No the country of which he is a national to have the period of 1408/71 29 and must therefore be consid- his military service taken into account in the calculation of his seniority in that undertaking, to the extent to which the ered to be fulfilled where the child is periods of military service in the country of employment are also taken into account for the benefit of national available, as an unemployed worker, to workers. It is true, however, that the Court of Justice has been more generous when applying the principle in that sphere than in the sphere of social security in the strict sense.

the employment office of the Member State 45. The Court's judgment in Roviello in which he resides. 30 annulled Point 15 of Section C in Annex VI to Regulation No 1408/71 in so far as it permitted that, where under Ger- man legislation entitlement to certain pen- sions was determined by the nature of the occupation hitherto pursued, that entitle- ment was to be determined by taking account only of activities subject to com- pulsory insurance under German legisla- 43. In Mora Romero, the son of a Spaniard tion. 3 2That rule had been inserted in 1983 who died in Germany following an accident because the system for classifying appli- at work had been refused an extension of cants for an occupational invalidity pension his orphan's benefit beyond the age of 25, made it necessary to check whether the in respect of the time for which it was claimant's earning capacity had been suspended while he completed his military reduced to less than half having regard to service in Spain. The judgment interpreted the occupation pursued up to that time, Article 3(1) of Regulation No 1408/71 as which required the competent German meaning that where the legislation of a institutions to carry out long and difficult Member State provides for the extension of inquiries in the country of origin in order to orphan's benefit beyond the specified age determine the true nature of the experience for recipients of benefits whose training is which migrant workers whose invalidity interrupted by their military service, that arose when they were working in Germany State is required to assimilate to its own claimed to have. 33 Mr Roviello, an Italian military service the military service in national, declared that he had worked as a another Member State. 31 tiler for 14 years in his native country and had subsequently been employed for four years in Germany. He was refused the pension for which he applied in Germany

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because he had no qualification as a tiler lity of a prolongation where the events and had not pursued that occupation occur in another Member State. 34 continuously. Under the system of classifi- cation described above, he fell into the category of unskilled worker, which did not entitle him to a pension.

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48. In Kauer it was established that, for suffered an industrial accident in Germany calculating the old-age pension, the Aus- when he was 20 years old and had since trian legislation assimilated insurance peri- then drawn a German pension correspond- ods to the time during which the insured ing to a reduced capacity for work of 5 0 % , person had been the person mainly respon- because the claimant had not completed the sible for rearing her children, in national qualifying period of 60 months during the territory. Mrs Kauer had worked in Aus- reference period of 120 months; they tria, where she had three children with refused to take into account the insurance whom she moved to Belgium, where she periods completed in Germany following devoted herself to bringing them up; after the accident. returning to her native c o u n t r y , she resumed paid employment. The old-age insurance institution refused to recognise the time spent in Belgium as equivalent to time spent bringing up children. It was held in the judgment that Articles 39 (2) EC and 42 EC preclude a national provision which takes into account, for the purposes of the prolongation of the refer- ence period during which the qualifying period for acquisition of the right to a pension must have been completed, only those periods during which the insured person has received a disability pension The judgment found that that national paid under a national accident insurance provision contained a difference of treat- scheme, without providing for the possibi- ment because it unconditionally took into lity of prolonging it where it has been paid account child-raising periods completed in under the legislation of another Member national territory and because it made the State. For the same reason, it declared taking into account of child-raising periods that Article 9a of Regulation No 1408/71 spent in another State of the European was invalid. Union subject to receipt of cash maternity allowance or equivalent allowances under federal Austrian legislation. 36

51. Mrs Gottardo was Italian by birth and, as a result of her marriage in February 1953, acquired French nationality. She had paid 100 weekly social security contribu- tions in Italy, 252 in Switzerland and 429 in (g) The judgment in Saint-Gobain ZN France. She was in receipt of Swiss and French old-age pensions which were granted to her without any need for aggregation of periods. She applied for an old-age pension in Italy, which was refused because she was a French national, and 52. The bases for the change in the Court therefore the Italo-Swiss Social Security of Justice's approach with regard to work- Convention 38 was inapplicable for aggre- ers had been outlined in the judgment in gation of her contributions. Saint-Gobain ZN, 41which concerned the right of establishment and freedom to provide services, in relation to the tax concessions granted to companies limited by shares.

It was stated in the judgment that, when a Member State concludes a convention on social security with a non-member country which provides for account to be taken of The decision stated that the national treat- periods of insurance completed in that ment principle requires the Member State country for acquisition of entitlement to which is party to a double-taxation treaty old-age benefits, the fundamental principle concluded with a non-member country, to of equal treatment requires it to grant grant to permanent establishments of non- nationals of other States in the Union the resident companies the fiscal advantages same advantages as those which its own provided for by that Treaty on the same nationals enjoy under that convention

55. Nor is it possible to invoke, for the 53. The evolution in the case-law which I purpose of establishing that the Austrian have described shows that, when it comes legislation is consistent with the aforemen- to interpreting the prohibition of discrimi- tioned principle, the judgment in Taflan- nation on grounds of nationality, there is a Met, according to which, so long as the clear tendency to declare unlawful any supplementary measures essential for obstacles raised, in national social legisla- implementing Decision No 3/80 have not tion, to prevent application of the principle been adopted by the Council, Articles 12 of assimilation of facts, the main aim of and 13 of that decision, which govern, which is to ensure that situations arising in respectively, the entitlement to disability a Member State are assessed in the same and to old-age pensions of Turkish workers way as if they had arisen in the State in in the Community, do not have direct effect which they must take effect. 43 in the territory of the Member States and may therefore not be relied on before the national courts. 44

54. I therefore agree with the Commission that, since the D'Amico judgment was delivered 28 years ago, the case-law has

58. It is true that one of the arguments most frequently used by the Court of Justice, when referring to the principle of That difference from the legislation of other equal treatment, has been the dissuasive Member States made it necessary to include effect which the lack of assimilation would many provisions in the paragraph devoted have on a worker who intended to exercise to that State in Annex VI to Regulation N o his right to freedom of movement. It is also 1408/71, in order to impose measures to true that Turkish nationals w h o have adjust the territoriality of Netherlands law moved to one of the Community States in and coordinate it with the laws of the other order to engage in an economic activity do States in the European Union. At that date, not enjoy that freedom. the Council had not adopted comparable provisions to assist Turkish workers, so the principle of equality together with assimila- tion of events and circumstances occurring in other Member States, which was appar- ently applied by Belgium and Germany, would not have made up for the absence of coordinating measures in that specific case. 59. However, the first paragraph of Article 8 of Decision N o 1/80 of the Association Council, 45 included in Chapter II, Section 1, which is devoted to employment and the free movement of workers, provides that, when a vacancy in the Community cannot be filled by a worker in the employment market of the Member States and non- Community workers are contracted, an 57. There is no apparent reason why the effort must be made to give priority to national treatment rule, as stated in Article 3(1) of Decision N o 3/80, should not be applied by the Member States with the same scope as that stated in Article 3(1) of 45 — Cited above.

62. For the German Government, the difference in treatment described is justified as it pursues a lawful social policy objective 60. It remains to be decided whether the because although, technically, the pension condition imposed by the Austrian legisla- at issue is paid by the old-age insurance tion for entitlement to the early old-age scheme, in practice it is a measure of social pension in the event of unemployment protection, which arises out of the unem- constitutes covert discrimination on ployment situation and assists the unem- grounds of nationality, which is prohibited ployed. For that reason it is not granted to by Article 3(1) of Decision No 3/80, or people who, because they live abroad, whether it is justified. cannot, even in theory, obtain a position in Austria through the national employ- ment office. The possibility of exporting this type of pension runs counter to its specific aim, which is closely linked to the employment market. The German Govern- ment takes the view that the condition imposed by the Austrian legislation is an 61. The benefit at issue is designed to bring objective criterion, since it shows that it is forward the old-age pension to the moment not feasible for the unemployed person to when it is established that it would be very find another job in Austria. However, that difficult to reintegrate the insured person evidence may only be assessed at its true into working life owing to age, illness, a worth if the national employment office has reduction in his capacity to work or other been able to use the aforementioned period similar causes. The only evidence required in order to find him a job, it being the body for that condition to be deemed fulfilled is that has information about available posts that the claimant has drawn unemployment and maintains contacts with Austrian benefit during the requisite number of employers.

64. To judge from the information pro- vided in these proceedings, it is merely an old-age pension the benefit of which is granted before the age at which it would normally start to be paid, if it is shown that it is extremely unlikely that the applicant will find another job.

65. For all the foregoing reasons, the reply to the first question should be that the rule requiring equal treatment contained in Article 3(1) of Decision N o 3/80 precludes a national provision which makes the grant of an early old-age pension in the event of If the rule which requires the claimant to unemployment conditional on the worker receive unemployment benefit for 52 weeks having received national insurance benefits

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during a specific period prior to the 68. Observations on this matter have been application for a pension if it excludes received only from the German Govern- consideration of the fact that the claimant ment and the Austrian Government. They has received unemployment benefit in both favour a negative reply and refer to the another Member State during the same nature of the pension and the decision in period. D'Amico.

69. First of all, I agree with the two 66. In view of the fact that I suggest that governments, although my attitude is based the first question be answered in the on other arguments. affirmative, there is no need to deal with the second, since the Oberster Gerichtshof only raises it in the event of the Court of Justice answering the first one in the negative. However, I shall examine it, in the alternative, in case it has to be considered. 70. Article 45 of Regulation No 1408/71 governs the consideration of periods of insurance or of residence completed under the legislations to which an employed person or self-employed person was subject, for the acquisition, retention or recovery of the right to benefits.

72. The condition that unemployment ben- efit must have been received in the circum- stances described, on the other hand, does 71. I infer, from the facts in the main not involve completion of any insurance or proceedings and from Austrian law, pro- residence period which has to be aggregated vided by both the national court and the in order for entitlement to arise, but is Commission, that that State does not have merely a condition which introduces covert any objection to applying Article 45(1) of discrimination on grounds of nationality Regulation No 1408/71 to Mr Öztürk for which, as I stated when dealing with the regarding entitlement to an old-age pension first question, there is no justification. in the event of unemployment. Indeed, it is pointed out that, of the three conditions imposed by Article 253a(1) of the General Law on Social Insurance, the only one which the claimant does not fulfil is that of having received 52 weeks of unemployment benefit in Austria.

(2) Article 45(1) of Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community does not preclude legislation of a Member State which requires, as a condition of entitlement to an early old-age pension in the event of unemployment, that the worker concerned must have drawn a cash benefit on account of his unemployment from the unemployment insurance scheme of that Member State within a certain period prior to the qualifying date.

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