Case C-372/02

Roberto Adanez-Vega

v

Bundesanstalt für Arbeit

(Reference for a preliminary ruling from the Bundessozialgericht)

(Regulation (EEC) No 1408/71 – Determination of the applicable legislation – Unemployment benefits – Conditions governing aggregation of periods of insurance or employment – National measure not taking into account a period of compulsory military service completed in another Member State)

Summary of the judgment

1.        Social security for migrant workers – Applicable legislation – Worker unemployed in his Member State of residence after having performed his compulsory military service in another Member State – Applicability of the legislation of the Member State of residence

(Council Regulation No 1408/71, Art. 13(2)(f))

2.        Social security for migrant workers – Unemployment – Special rules governing connecting factors – Unemployed person who, during his last employment, resided in the territory of a Member State other than the competent State – Concept of ‘employment’

(Council Regulation No 1408/71, Art. 71(1))

3.        Social security for migrant workers – Unemployment – Legislation making the grant of benefits subject to completion of periods of insurance or employment – Aggregation of periods of insurance or employment – Certified statement specifying the periods of insurance or employment completed under the legislation of a Member State – Evidentiary value for social security institutions in other Member States – Limits

(Art. 10 EC; Council Regulation No 574/72, Art. 80)

4.        Social security for migrant workers – Unemployment – Special rules governing connecting factors – Unemployed person who, during his last employment, resided in the territory of a Member State other than the competent State – Concept of ‘residence’

(Council Regulation No 1408/71, Art. 71(1))

5.        Social security for migrant workers – Unemployment – Special rules governing connecting factors – Article 71(1)(b)(ii) of Regulation No 1408/71 – Scope – Non-application of the general rules governing connecting factors – Condition – For the national court to determine

(Council Regulation No 1408/71, Art. 71(1)( b)(ii))

6.        Social security for migrant workers – Community legislation – Scope ratione personae – Worker within the meaning of Regulation No 1408/71 – Definition – Person carrying out his military service – Included – Condition

(Council Regulation No 1408/71, Art. 1(a))

7.        Social security for migrant workers – Unemployment – Legislation making the grant of benefits subject to the completion of periods of insurance – Aggregation of periods of insurance – Taking into account of periods of insurance or employment completed under the legislation of another Member State – Periods of employment – Definition

(Council Regulation No 1408/71, Art. 67(1))

8.        Social security for migrant workers – Unemployment – Legislation making the grant of benefits subject to the completion of periods of insurance – Aggregation of periods of insurance – Taking into account of periods of insurance or employment completed under the legislation of another Member State – Conditions – Completion lastly of periods of insurance in the Member State seised of the claim for benefits – Assessment to be made by the national court

(Council Regulation No 1408/71, Art. 67(3))

9.        Social security for migrant workers – Equal treatment – Not applicable to unemployment benefits governed by the special provisions of Regulation No 1408/71

(Council Regulation No 1408/71, Arts 3 and 67)

1.        Article 13(2)(f) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, must be interpreted as meaning that a person residing in a Member State and unemployed there after performing his compulsory military service in another Member State is subject to the legislation of the Member State of residence.

(see paras 26, 41, operative part 1)

2.        The concept of ‘employment’, within the meaning of Article 71(1) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, a provision which determines the legislation applicable, in relation to unemployment benefit, to a worker who, during his last employment, resided in a Member State other than the competent State, must be interpreted having regard to the definition laid down in national social security legislation. ‘Employment’ within the meaning of that provision is therefore employment which is regarded as such for the purposes of the application of the social security legislation of the Member State in which it is carried on.

(see para. 33)

3.        As long as a certified statement issued, under Article 80 of Regulation No 574/72, by the competent institution of a Member State and specifying the periods of insurance or employment completed by a worker under the legislation of that State has not been withdrawn or declared invalid, the competent institution of another Member State must take account of it for the purposes of the aggregation of periods of insurance or employment. However, under the principle of loyal cooperation laid down in Article 10 EC, it is incumbent on the social security institutions correctly to appraise the relevant facts, in particular for the application of the rules concerning determination of the applicable legislation or the rules on aggregation of periods of insurance or employment and thus to guarantee the correctness of the information contained in the certified statements which they issue. They must therefore reconsider the grounds for the issue of those statements and, if necessary, withdraw them in the event of doubts as to the correctness of the facts on which they are based and, consequently, of the information contained therein.

(see paras 34, 36)

4.        The place of residence of a worker, within the meaning of Article 71(1) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, a provision which determines the legislation applicable, in relation to unemployment benefit, to a worker who, during his last employment, resided in a Member State other than the competent State, is constituted by the place where the habitual centre of his interests is situated. In that regard it is important to consider the family situation of the worker as well as the reasons that have led him to move, and the nature of the work.

(see para. 37)

5.        Article 71(1)(b)(ii) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, a provision which determines the legislation applicable, in relation to unemployment benefit, to workers other than frontier workers who are wholly unemployed and who, during their last employment, resided in a Member State other than the competent State, must be interpreted as meaning that it is a special provision concerning the determination of the legislation applicable in regard to unemployment benefits with the result that if the conditions determining its application are met the applicable legislation is that provided for in that provision and not by the general rules governing connecting factors of Title II of that regulation. It is for the referring court to determine whether the conditions governing application of that provision are met.

(see para. 41, operative part 1)

6.        The concept of ‘worker’ employed by Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, includes all persons who are insured, if only against one risk, under compulsory or optional insurance with a general or specific social security scheme mentioned in Article 1(a) of that regulation, irrespective of whether there is an employment relationship.

Consequently, for the purposes of the application of Regulation No 1408/71, as amended, a person who carries out his military service must be classified as a worker, as long as he is insured, within the meaning of Article 1a of that regulation, with a social security scheme.

(see paras 46-47, 54, operative part 2)

7.        A period of compulsory military service completed in a Member State constitutes a completed period of employment under the legislation of that State, for the purposes of Article 67(1) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, where it is so defined or recognised by that legislation or treated as such and regarded by the latter as a period equivalent to a period of employment. Similarly, the competent institution of another Member State the legislation of which makes the grant of unemployment benefit subject to the completion of periods of insurance must take account of that period when aggregating periods of insurance or employment.

(see paras 47, 54, operative part 2)

8.        It is for the national courts to assess whether the condition laid down by Article 67(3) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, is met, according to which a person who has completed periods of insurance or employment in a Member State can rely on those periods to obtain unemployment benefit in another Member State only if they have completed lastly periods of insurance in accordance with the provisions of the legislation of that latter Member State.

In that respect, a period of insurance must be deemed to have been completed ‘lastly’ in a Member State if, regardless of the lapse of time between completion of the last period of insurance and the application for benefit, no other period of insurance was completed in another Member State in the interim.

(see paras 52-53, operative part 2)

9.        Article 3 of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, which lays down the principle of equality of treatment in the application of that regulation, does not preclude a competent institution, when examining a worker’s entitlement to unemployment benefit, from not taking into account, in calculating periods of insurance completed, a period of compulsory military service performed in another Member State, even if the legislation under which the benefits are claimed provides for this, where that results from the application of Article 67 of that regulation, a special provision which governs a worker’s entitlement to unemployment benefit.

(see paras 57-58, operative part 3)

JUDGMENT OF THE COURT (First Chamber)
11 November 2004(1)

(Regulation (EEC) No 1408/71 – Determination of the applicable legislation – Unemployment benefits – Conditions governing aggregation of periods of insurance or employment – National measure not taking into account a period of compulsory military service completed in another Member State)

In Case C-372/02,REFERENCE for a preliminary ruling under Article 234 EC from the Bundessozialgericht (Germany), made by decision of 15 August 2002, received at the Court on 16 October 2002, in the proceedings

Roberto Adanez-Vega

v

Bundesanstalt für Arbeit,

THE COURT (First Chamber),,

composed of P. Jann (Rapporteur), President of the Chamber, A. Rosas and S. von Bahr, Judges,

Advocate General: F.G. Jacobs,
Registrar: R. Grass,

after considering the observations submitted on behalf of:

–

Mr Adanez-Vega, by J. López Lerma,

–

the German Government, by M. Lumma, acting as Agent,

–

the Portuguese Government, by L.I. Fernandes and S. da Nóbrega Pizarro, acting as Agents,

–

the Commission of the European Communities, by H. Michard and H. Kreppel, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 March 2004,

gives the following

Judgment

1

This request for a preliminary ruling concerns the interpretation of Articles 3, 13(2), 67 and 71 of Regulation (EEC) No 1408/71 of the Council 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, in the version updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended by Council Regulation (EEC) No 2195/91 of 25 June 1991 (OJ 1991 L 206, p. 2, hereinafter ‘Regulation No 1408/71’).

2

It arises in the context of a dispute between Mr Adanez-Vega and the Bundesanstalt für Arbeit (Federal Office for Employment) concerning the latter’s refusal to grant him unemployment benefit or assistance.

Legal framework

Community legislation

Definitions

3

Under Article 1(s) of Regulation No 1408/71 ‘“periods of employment” and “periods of self-employment” mean periods so defined or recognised by the legislation under which they were completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of employment or of self-employment.’

Conflict rules

4

Under Article 13 of Regulation No 1408/71:

‘1.    … persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

2. Subject to Articles 14 to 17:

(a)     a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

…

(e)     a person called up or recalled for service in the armed forces, or for civilian service, of a Member State shall be subject to the legislation of that State. …;

(f)     a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.’

5

Under Article 71(1)(b)(ii) of Regulation No 1408/71 an employed person, other than a frontier worker, who is wholly unemployed, ‘who, during his last employment, was residing in the territory of a Member State other than the competent State’ and ‘who makes himself available for work to the employment services in the territory of the Member State in which he resides, or who returns to that territory, shall receive benefits in accordance with the legislation of that State ... ; the institution of the place of residence shall provide such benefits at its own expense …’.

Substantive rules

6

Under Article 3(1) of Regulation No 1408/71, ‘[s]ubject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.’

7

With regard to unemployment benefits, Article 67(1) and (3) of Regulation No 1408/71 entitled ‘Aggregation of periods of insurance or employment’ provides:

‘(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 completed under that legislation.

...

(3)     Except in the cases referred to in Article 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:

–

in the case of paragraph 1, periods of insurance,

–

in the case of paragraph 2, periods of employment,

in accordance with the provisions of the legislation under which the benefits are claimed.’

National legislation

8

Paragraph 100(1) of the Arbeitsförderungsgesetz (Law on the promotion of employment, ‘AFG’), in its version in force in 1996, provides that a person is entitled to unemployment benefit if, inter alia, he has completed the qualifying period. Paragraph 104 provides that the qualifying period is completed where a person has been in employment subject to compulsory contributions for 360 days during the reference period of three years immediately preceding the first day of the period of unemployment as from which the other conditions for entitlement to unemployment benefit are fulfilled.

9

Under Paragraph 134 of the AFG unemployment assistance is awarded on an ancillary basis to unemployed persons who are in a financially weak situation and satisfy the other conditions provided for in Paragraph 100 of the AFG, on the proviso that they must justify, instead of a qualifying period of 360 days, only a period of employment subject to compulsory contribution of at least 150 days within a shorter reference period of one year.

10

Paragraph 107 provides that periods of military service are to be treated as periods of employment subject to compulsory contributions.

The main dispute and questions referred

11

The applicant is a Spanish national who, since he was born in 1974, has had his principal place of residence registered in Germany.

12

Between 1 September 1991 and 4 December 1992 he undertook training in Spain, subject to social security (including unemployment insurance). Then, from 3 to 31 August 1994 and from 3 November 1994 to 20 April 1995 the applicant was employed in Germany likewise subject to social security (including unemployment insurance). On 21 April 1995 he left for Spain, where he undertook his compulsory military service from 18 May 1995 to 15 February 1996. At the end of his military service he returned to Germany.

13

On his return to Germany Mr Adanez-Vega registered with the defendant as unemployed on 25 April 1996 and applied for unemployment benefit. On 30 May 1996 he found a new job.

14

By decision of 31 May 1996 the defendant refused to grant him unemployment benefit for the period from 25 April to 29 May 1996 on the ground that the conditions governing the qualifying period laid down in Paragraphs 104 and 134 of the AFG conferring entitlement to unemployment benefits (unemployment benefit or unemployment assistance) had not been met. Since according to the defendant no account was to be taken of the period of military service completed in Spain, Mr Adanez-Vega satisfied neither the condition of affiliation for 360 days during the course of the reference period of three years referred to in Paragraph 104 of the AFG, nor the condition of affiliation for 150 days during the reference period of one year referred to in Paragraph 134 of the AFG.

15

Mr Adanez-Vega’s complaint against that decision was rejected by the defendant by decision of 16 July 1996. The appeal against that decision brought by Mr Adanez-Vega before the Sozialgericht (Social Court), Hanover (Germany), was upheld by judgment of 26 February 1998. The defendant’s appeal to the Landessozialgericht Niedersachsen (Lower Saxony Regional Social Court) (Germany) was dismissed by judgment dated 23 October 2001. The defendant then brought an appeal on a point of law before the Bundessozialgericht (Federal Social Court).

16

Under those circumstances, the Bundessozialgericht decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1.     Is a person who claims benefits under German unemployment insurance more than two months after completing his compulsory national service in Spain subject to

          (a) Spanish legislation under Article 13(2)(e) of Regulation No 1408/71 …

          or

          (b) German legislation under Article 13(2)(f) of Regulation No 1408/71?

2.       If the answer to Question 1(a) is affirmative:

          (a) does compulsory national service undertaken in Spain constitute “last employment … in the territory of a Member State other than the competent State” within the meaning of Article 71(1) of Regulation No 1408/71?

          (b) If the answer to Question 2(a) is affirmative:

          does the first sentence of Article 71(1)(b)(ii) of Regulation No 1408/71 also mean that the last employment completed in the territory of a Member State other than the competent State is to be taken into account for the purposes of benefits to unemployed persons as if it had been completed in the State of residence, without regard to the requirements stated in Article 67 of Regulation No 1408/71?

          (c) If the answer to Question 2(b) is negative:

          in what circumstances is a period of national service that, under national (Spanish) law, does not constitute a period of insurance for unemployment insurance purposes or is not treated as such, to be considered a period of employment completed as an employed person under the legislation of another Member State in accordance with Article 67(1) of Regulation No 1408/71?

3.       If the answer to Question 1(b) is affirmative:

          (a) has a person whose last period of insurance in Germany came to an end more than one year previously, after which he carried out compulsory national service in Spain for nine months, completed “lastly” periods of insurance under German law within the meaning of Article 67(3) of Regulation [No 1408/71]?

          (b) If the answer to Question 3(a) is affirmative:

          in what circumstances is a period of national service that, under national (Spanish) law, does not constitute a period of insurance for unemployment insurance purposes or is not treated as such, to be considered a period of employment completed as an employed person under the legislation of another Member State in accordance with Article 67(1) of Regulation No 1408/71 (as per Question 2(c))?

          (c) If Article 67(1) of Regulation No 1408/71 should not apply to the claimant (Questions 3(a) and (b)):

(i)     does compulsory national service undertaken in Spain constitute “last employment … in the territory of a Member State other than the competent State” within the meaning of Article 71(1) of Regulation No 1408/71 (as per Question 2(a))?

(ii)   If the answer to Question 3(c)(i) is affirmative:

          does the first sentence of Article 71(1)(b)(ii) of Regulation No 1408/71 also mean that the last employment completed in the territory of a Member State other than the competent State is to be taken into account for the purposes of benefits to unemployed persons as if it had been completed in the State of residence, without regard to the requirements stated in Article 67 of Regulation No 1408/71 (as per Question 2(b))?

4.       If the period of Spanish compulsory national service cannot be taken into account under Articles 71 or 67 of Regulation No 1408/71 for the purposes of the claimant’s entitlement to benefit under German unemployment insurance, is there any such entitlement under the principle of equality of treatment in Article 3 of Regulation No 1408/71 or under any other general provisions of European law?’

Questions referred

First question: determination of the applicable legislation (Articles 13 and 71 of Regulation No 1408/71)

17

By its first question the referring court essentially asks whether under Articles 13 and 71 of Regulation No 1408/71 the legislation applicable to a person who is residing in a Member State and is unemployed there having performed his compulsory military service in another Member State is the legislation of the Member State of residence or that of the Member State in which he performed his military service.

18

It should first be pointed out that, according to settled case-law, the provisions of Regulation No 1408/71 determining the applicable legislation constitute a complete system of conflict rules the effect of which is to divest the national legislatures of the power to determine the ambit and the conditions for the application of their national legislation on the subject so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (see to that effect inter alia Case 302/84 Ten Holder [1986] ECR 1821, paragraph 21, and Case 60/85 Luijten [1986] ECR 2365, paragraph 14).

19

In that connection Regulation No 1408/71 provides, in Title II thereof, rules for determining the ‘legislation applicable’. In certain areas those general rules governing connecting factors are however subject to exceptions (see to that effect Case 58/87 Rebmann [1988] ECR 3467, paragraph 13). It is plain from the scheme of Regulation No 1408/71 that the application of those special rules governing connecting factors none the less presupposes the prior determination of the applicable legislation in accordance with the provisions of Title II of that regulation.

20

It is therefore necessary to determine first of all which is the applicable legislation under the general rules governing connecting factors in Title II of Regulation No 1408/71. Next it is necessary to decide whether the special rules governing connecting factors in that regulation provide for the application of any other legislation.

General rules governing connecting factors (Article 13 of Regulation No 1408/71)

21

It must be observed that under Article 13(2)(e) of Regulation No 1408/71 the person called up for service in the armed forces of a Member State is subject to the legislation of that State.

22

Thus, in the main proceedings Mr Adanez-Vega was subject to the legislation of Spain while performing his military service in Spain. However, that legislation ceased to apply when he finished his military service.

23

It is clear from Article 13(2)(f) of Regulation No 1408/71 that a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with the provisions laid down in Article 13(2)(a) to (d) or Articles 14 to 17 of that Regulation, is to be subject to the legislation of the Member State in whose territory he resides.

24

According to the Court’s case-law Article 13(2)(f) of Regulation No 1408/71 applies both to persons who have definitively ceased all occupational activity and to those who have merely temporarily ceased their occupational activity (Case C‑275/96 Kuusijärvi [1998] ECR I-3419, paragraphs 39 and 40).

25

Accordingly, the legislation applicable to unemployed persons under the general jurisdictional rules in Title II of Regulation No 1408/71 is therefore in principle that of the Member State of residence.

26

With regard to the main proceedings it follows that a person who, like Mr Adanez-Vega, resides in a Member State and is unemployed thereafter having performed his compulsory military service in another Member State is, under Article 13(2)(f) of Regulation No 1408/71, subject to the legislation of the Member State of residence. Under the general rules governing connecting factors in Title II of Regulation No 1408/71, it is therefore necessary to apply the German legislation to determine whether Mr Adanez-Vega fulfils the conditions for entitlement to unemployment benefit.

27

However, it must also be determined whether Article 71(1)(b)(ii) of Regulation No 1408/71, which contains special rules on determining the applicable legislation in relation to unemployment benefit, alters the foregoing considerations.

28

The applicability of Article 71(1)(b)(ii) of Regulation No 1408/71, even if it also has the effect of designating the legislation of the State of residence as the applicable legislation in the same way as Article 13(2)(f) thereof, is of particular interest in relation to the main proceedings in so far as it is relevant to the interpretation of Article 67(3) thereof in regard to aggregation of periods of insurance or employment.

Special rules governing connecting factors (Article 71(1) of Regulation No 1408/71)

29

Article 71(1) of Regulation No 1408/71 relates to employed persons who are unemployed and who, during their last employment, were residing in a Member State other than the State competent at that time.

30

Under Article 71(1)(b)(ii) of that regulation, an employed person, 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, or who returns to that territory, is to receive benefits in accordance with the legislation of that State as if he had last been employed there.

31

Determination of the legislation of the State of residence as the applicable legislation under Article 71(1) of Regulation No 1408/71 therefore requires that during his last employment the person concerned was residing in a Member State other than the Member State competent at that time.

32

With regard to the facts in the main proceedings, it must therefore be determined whether

–

the compulsory military service completed in Spain may be regarded as ‘employment’ for the purposes of Article 71(1) of Regulation No 1408/71;

–

Mr Adanez-Vega was in fact ‘residing’ in Germany during that period, and

–

the Kingdom of Spain was the ‘competent State’ within the meaning of that article during the period when he was performing his compulsory military service.

33

With regard to the first of those conditions, it must be recalled that the concept of ‘employment’ is not defined in Regulation No 1408/71. However as the regulation is not a Community measure harmonising national social security systems but an enactment intended to coordinate those systems, it is clear from its presentation and scheme that the concept of ‘employment’ within the meaning of Article 71(1) must be interpreted by having regard to the definition laid down in national social security legislation. ‘Employment’ within the meaning of Article 71(1) of Regulation No 1408/71 is therefore employment which is regarded as such for the purposes of the application of the social security legislation of the Member State in which it is carried on.

34

In that context if that national legislation referred, for the definition of the concept of ‘employment’, to those activities which give rise to a period of insurance or employment, a certified statement under Article 80 of Regulation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71 issued by the competent institution of that State and specifying the periods of insurance or employment completed under that legislation could serve as a factor for determining whether compulsory military service must be regarded as ‘employment’.

35

It is clear from the file that in the main proceedings the Spanish social security institution issued a certified statement under Article 80 of Regulation No 574/72 indicating that Mr Adanez-Vega completed a period of insurance or employment in Spain from 1 December 1991 to 4 December 1992 only, which is to say outside the period of his compulsory military service. That could suggest that the latter period cannot be considered to be ‘employment’ under the Spanish legislation.

36

According to the Court’s case-law, as long as a certified statement issued by an institution of a Member State has not been withdrawn or declared invalid, the competent institution of another Member State must take account of it. However, under the principle of loyal cooperation laid down in Article 10 EC, it is incumbent on the social security institutions correctly to appraise the relevant facts, in particular for the application of the rules concerning determination of the applicable legislation or the rules on aggregation of periods and thus to guarantee the correctness of the information contained in the certified statements. They must therefore reconsider the grounds for the issue of those statements and, if necessary, withdraw them in the event of doubts as to the correctness of the facts on which they are based and, consequently, of the information contained therein (see to that effect Case C-202/97 FTS [2000] ECR I-883, paragraph 56, and Case C-178/97 Banks and Others [2000] ECR I‑2005, paragraph 43).

37

With regard to the second condition for the application of Article 71(1) of Regulation No 1408/71 it is clear from settled case-law that the place of ‘residence’ is determined by the place where the habitual centre of interests is situated. In that regard it is important to consider the family situation of the worker as well as the reasons that have led him to move, and the nature of the work (see in particular Case 76/76 Di Paolo [1977] ECR 315, paragraphs 17 and 20).

38

Finally, as to the third criterion for the application of Article 71(1) of Regulation No 1408/71, it is clear from paragraph 22 hereof that Spanish legislation was indeed the applicable legislation during the course of the period of military service in accordance with Article 13(2)(e) of that regulation.

39

In the main proceedings it is for the referring court to determine whether Mr Adanez-Vega satisfies the conditions for the application of Article 71(1)(b)(ii) of Regulation No 1408/71.

40

If so, the legislation applicable to him would, under that provision, likewise be the legislation of the Member State of residence, namely German legislation.

41

In light of all the foregoing considerations, the appropriate reply to the first question is that Article 13(2)(f) of Regulation No 1408/71 must be interpreted as meaning that a person residing in a Member State and unemployed there after performing his compulsory military service in another Member State is subject to the legislation of the Member State of residence.

Article 71(1)(b)(ii) of Regulation No 1408/71 must be interpreted as meaning that it is a special provision concerning the determination of the legislation applicable in regard to unemployment benefits with the result that if the conditions determining its application are met the applicable legislation is that provided for in that provision.

It is for the referring court to determine whether in the main proceedings the conditions governing application of Article 71(1)(b)(ii) are met.

If in the main proceedings the conditions governing the application of Article 71(1)(b)(ii) of Regulation No 1408/71 were satisfied, the legislation applicable to a person residing in a Member State and unemployed there after performing his compulsory military service in another Member State would, under that provision, also be the legislation of the Member State of residence.

42

In light of the reply to the first question there is no need to reply to the second question.

Third question: obligation on the competent institution to take account of periods of insurance and periods of employment completed under the legislation of another Member State (Article 67(1) of Regulation No 1408/71)

43

By its third question the referring court is essentially asking whether, for the purposes of examining the right to unemployment benefit, a competent institution is obliged, under Article 67 of Regulation No 1408/71, to take into account in the calculation of periods of insurance completed a period of compulsory military service performed in another Member State.

In that context the referring court asks, first, under what conditions a period of compulsory military service performed in another Member State constitutes a ‘[period of employment] completed as an employed person under the legislation of [that] other Member State’ for the purposes of Article 67(1) of Regulation No 1408/71.

Secondly, it seeks to ascertain whether the condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’ for the purposes of Article 67(3) of that regulation precludes the obligation to aggregate periods of employment where the person concerned terminated his last period of insurance under that legislation more than a year previously and then completed compulsory military service of nine months in another Member State.

44

As a preliminary matter it should be pointed out that it is clear from the structure and wording of Articles 67 and 71 of Regulation No 1408/71 that the application of the aggregation rules in Article 67 is independent of the application of the rules in Article 71 concerning designation of the applicable legislation (see Case 388/87 Warmerdam-Steggerda [1989] ECR 1203, paragraph 18). That means that the aggregation rules contained in Article 67 are applicable even where the legislation applicable in regard to unemployment benefits would have been determined under the rules in Article 71. Moreover such an eventuality is provided for in Article 67(3) of that regulation.

Classification as a ‘[Period of employment] completed as an employed person under the legislation of [another] Member State’ for the purposes of Article 67(1) of Regulation No 1408/71

45

In that regard it is clear from Article 1(s) of Regulation No 1408/71 that classification of a period of work as a ‘period of employment’ is dependent on the national legislation under which it was completed.

46

Furthermore, the concept of ‘worker’ employed by Regulation No 1408/71 includes all persons who are insured, if only against one risk, under compulsory or optional insurance with a general or specific social security scheme mentioned in Article 1(a) of Regulation No 1408/71, irrespective of whether there is an employment relationship (judgments in Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 36, and Kuusijärvi, paragraph 21).

47

In the main proceedings the period of military service performed by Mr Adanez-Vega in Spain must therefore be regarded as a ‘[period of employment] completed as an employed person under the legislation of [that] Member State’ for the purposes of Article 67(1) of Regulation No 1408/71 where, first, it is so defined or recognised by Spanish legislation or treated as such and regarded by that legislation as a period equivalent to a period of employment and where, second, Mr Adanez-Vega was insured for the purposes of Article 1(a) of Regulation No 1408/71 during his military service. It is for the referring court to examine whether those conditions are met.

48

In that context it may plainly be inferred from Article 80 of Regulation No 574/72 that, in order to benefit from the provisions of Article 67 of Regulation No 1408/71, the person concerned is required to submit to the competent institution a certified statement specifying the periods of insurance or employment completed as an employed person under the legislation of another Member State. None the less, it is plain from paragraph 36 hereof that such a statement issued by the competent Spanish institution does not constitute irrefutable evidence as regards the competent German institution or as regards the German courts (see also to that effect Case C-102/91 Knoch [1992] ECR I-4341, paragraph 54).

The condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’ for the purposes of Article 67(3) of Regulation No 1408/71

49

As a preliminary matter it should be pointed out that the condition in Article 67(3) of Regulation No 1408/71 is not applicable in the main proceedings if Mr Adanez-Vega turns out to come within the scope of Article 71(1)(b)(ii) thereof.

50

Under Article 67(3) of Regulation No 1408/71 the obligation on the competent institution to take account, in the calculation of periods of insurance completed, of a period of insurance or employment completed as an employed person under the legislation of another Member State is subject to the condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’, except in the case of unemployed persons mentioned in Article 71(1)(a)(ii) and (b)(ii) of that regulation because they were residing during the course of their last employment outside the State competent at that time.

51

It is clear from the case-law that the condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’ is designed to encourage such persons to seek work in the Member State where they last paid unemployment insurance contributions, and to make that State bear the burden of providing the unemployment benefits (see to that effect Case C-62/91 Gray [1992] ECR I-2737, paragraph 12).

52

Consequently, as stated by the Advocate General at paragraphs 79 and 80 of his Opinion, a period of insurance must be deemed to have been completed ‘lastly’ in a Member State if, regardless of the lapse of time between completion of the last period of insurance and the application for benefit, no other period of insurance was completed in another Member State in the interim.

53

In the main proceedings it is for the referring court to verify whether Mr Adanez-Vega has completed periods of insurance in Germany and whether no other period of insurance has been completed in another Member State in the interim.

54

In light of the foregoing considerations the appropriate reply to the third question is, first, that a period of compulsory military service in another Member State constitutes a ‘[period of employment] completed as an employed person under the legislation of [that] other Member State’ for the purposes of Article 67(1) of Regulation No 1408/71 where, first, it is so defined or recognised by the legislation of that other Member State or treated as such and regarded by that legislation as a period equivalent to a period of employment and where, second, the person concerned was insured within the meaning of Article 1(a) of Regulation No 1408/71 during his military service.

Secondly, the condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’ for the purposes of Article 67(3) of Regulation No 1408/71 precludes the obligation to aggregate periods of employment only where a period of insurance was completed in another Member State after the last period of insurance completed under the legislation under which the benefits are claimed.

Fourth question: principle of equality of treatment (Article 3(1) of Regulation No 1408/71)

55

By its fourth question the referring court is essentially asking whether, in circumstances such as those in the main proceedings, Article 3 of Regulation No 1408/71 precludes a competent institution, when examining entitlement to unemployment benefit, from not taking account, in calculating periods of insurance completed, of a period of compulsory military service performed in another Member State.

56

In that connection it should be stated that Article 3 of Regulation No 1408/71 applies only ‘subject to the special provisions of [the] Regulation.’

57

For the reasons stated by the Advocate General at paragraphs 94 and 97 of his Opinion, Article 3 of Regulation No 1408/71 is not applicable in the main proceedings because the regulation contains special provisions, namely Article 67 which governs an unemployed person’s entitlement to unemployment benefit.

58

In light of the foregoing, the appropriate reply to the fourth question is that, in circumstances such as those of the main proceedings, Article 3 of Regulation No 1408/71 does not preclude a competent institution, when examining entitlement to unemployment benefit, from not taking into account, in calculating periods of insurance completed, a period of compulsory military service performed in another Member State.

Costs

59

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) rules as follows:

1.

Article 13(2)(f) of Regulation No 1408/71 of the Council 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, in the version updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended by Council Regulation (EEC) No 2195/91 of 25 June 1991, must be interpreted as meaning that a person residing in a Member State and unemployed there after performing his compulsory military service in another Member State is subject to the legislation of the Member State of residence.

Article 71(1)(b)(ii) of Regulation No 1408/71, as amended, must be interpreted as meaning that it is a special provision concerning the determination of the legislation applicable in regard to unemployment benefits with the result that if the conditions determining its application are met the applicable legislation is that provided for in that provision.

It is for the referring court to determine whether in the main proceedings the conditions governing application of Article 71(1)(b)(ii) are met.

If in the main proceedings the conditions governing the application of Article 71(1)(b)(ii) of Regulation No 1408/71, as amended, are satisfied, the legislation applicable to a person residing in a Member State and unemployed there after performing his compulsory military service in another Member State would, under that provision, also be the legislation of the Member State of residence.

2.

A period of compulsory military service in another Member State constitutes a ‘[period of employment] completed as an employed person under the legislation of [that] other Member State’ for the purposes of Article 67(1) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, where, first, it is so defined or recognised by the legislation of that other Member State or treated as such and regarded by that legislation as a period equivalent to a period of employment and where, second, the person concerned was insured within the meaning of Article 1(a) of Regulation No 1408/71 during his military service.

The condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’ for the purposes of Article 67(3) of Regulation No 1408/71, as amended, precludes the obligation to aggregate periods of employment only where a period of insurance was completed in another Member State after the last period of insurance completed under the legislation under which the benefits are claimed.

3.

In circumstances such as those of the main proceedings, Article 3 of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, does not preclude a competent institution, when examining entitlement to unemployment benefit, from not taking into account, in calculating periods of insurance completed, a period of compulsory military service performed in another Member State.

Signatures.

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Language of the case: German.