61975J0020

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1 . SOCIAL SECURITY OF MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS - LEGISLATION APPLICABLE - PLACE AT WHICH A WORKER BECOMES UNEMPLOYED

( REGULATION NO 1408/71 OF THE COUNCIL, ARTICLE 69 )

2 . SOCIAL SECURITY OF MIGRANT WORKERS - ACQUISITION OF RIGHT TO BENEFIT - INSURANCE PERIODS - PERIODS TREATED AS SUCH - PERIODS OF UNEMPLOYMENT - EARLY RETIREMENT - UNEMPLOYMENT - SPECIAL CONDITION - COMPLETION WITHIN TERRITORY OF STATE WHERE RIGHT TO RETIREMENT IS ACQUIRED - PERIODS OF UNEMPLOYMENT COMPLETED WITHIN THE TERRITORY OF OTHER MEMBER STATES - EXCLUSION

( REGULATION NO 3 OF THE COUNCIL, ARTICLES 1 ( R ) AND 27 ( 1 )) ( REGULATION NO 1408/71 OF THE COUNCIL, ARTICLES 1 ( S ) AND 45 ( 1 ))

1 . COMMUNITY LAW DOES NOT IN PRINCIPLE PROVIDE FOR THE RIGHT OF AN UNEMPLOYED WORKER TO CLAIM UNEMPLOYMENT BENEFITS UNDER THE LEGISLATION OF A MEMBER STATE OTHER THAN THE STATE IN WHICH HE BECAME UNEMPLOYED .

2 . THE INSURANCE PERIODS TO BE AGGREGATED FOR THE ACQUISITION OF THE RIGHT TO A RETIREMENT PENSION MAY INCLUDE A PERIOD OF UNEMPLOYMENT WHICH IS REGARDED AS EQUIVALENT TO A PERIOD OF EMPLOYMENT BY THE LEGISLATION UNDER WHICH IT WAS COMPLETED .

ON THE OTHER HAND, WHEN NATIONAL LEGISLATION MAKES THE EARLY ACQUISITION OF THE RIGHT TO A RETIREMENT PENSION CONDITIONAL UPON THE PERSON CONCERNED HAVING BEEN UNEMPLOYED FOR A CERTAIN TIME AS WELL AS UPON THE COMPLETION OF A PERIOD OF MEMBERSHIP OF A SOCIAL INSURANCE SCHEME AND WHEN THEREFORE THE LENGTH OF THE PERIOD OF UNEMPLOYMENT IS NOT INTENDED TO BE AGGREGATED TO OBTAIN THE MINIMUM PERIOD OF MEMBERSHIP REQUIRED OR TO BE USED IN THE CALCULATION OF THE BENEFIT THERE ARE NO GROUNDS FOR TAKING INTO ACCOUNT A PERIOD OF UNEMPLOYMENT COMPLETED IN ANOTHER MEMBER STATE .

IN CASE 20/75

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT, KASSEL, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN :

GAETANO D'AMICO

AND

LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ

ON THE INTERPRETATION OF ARTICLE 27 ( 1 ) OF EEC REGULATION NO 3 AND OF ARTICLE 45 ( 1 ) OF REGULATION ( EEC ) NO 1408/71,

1 BY ORDER OF 18 DECEMBER 1974, RECEIVED AT THE COURT REGISTRY ON 12 FEBRUARY 1975, THE BUNDESSOZIALGERICHT REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 27 ( 1 ) OF EEC REGULATION NO 3 ( OJ 1958, NO 561 ) AND OF ARTICLE 45 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 ( OJ ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THIS QUESTION ASKS WHETHER, UNDER ARTICLE 27 ( 1 ) OF EEC REGULATION NO 3 AND ARTICLE 45 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 ACCOUNT IS TO BE TAKEN, FOR THE ACQUISITION OF THE RIGHT TO BENEFITS, OF INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE, WHICH IN ESSENCE ARE EQUIVALENT PERIODS BUT WHICH ARE NOT RECKONABLE UNDER THE NATIONAL LAW OF THE FEDERAL REPUBLIC OF GERMANY TOWARDS THE QUALIFYING INSURANCE PERIOD FOR THE ACQUISITION OF THE RIGHT TO BENEFIT OR IN CALCULATING THE BENEFIT, BUT THE COMPLETION OF WHICH BEFORE A CLAIM IS MADE IS SIMPLY AN ADDITIONAL CONDITION OF THE RIGHT TO BENEFITS .

3 IT EMERGES FROM THE FILE THAT UNDER THE GERMAN LEGISLATION IN FORCE AT THAT TIME, A PERSON WHO, INTER ALIA, HAS BEEN CONTINUOUSLY UNEMPLOYED FOR AT LEAST ONE YEAR SHALL BE ENTITLED TO EARLY RETIREMENT BENEFIT BEFORE ATTAINING 65 YEARS OF AGE .

THE PLAINTIFF IN THE MAIN ACTION, WHO IS OF ITALIAN NATIONALITY, WAS EMPLOYED IN THE GERMAN REICH FROM JUNE 1941 TO JULY 1943, FOR THE FIRST THREE MONTHS OF WHICH HE WAS EMPLOYED WITHIN THE TERRITORY OF WHAT IS NOW THE FEDERAL REPUBLIC OF GERMANY; FROM 1947 HE WAS EMPLOYED IN THE FRENCH REPUBLIC WHERE HE WAS REGISTERED AS UNEMPLOYED WITH A FRENCH EMPLOYMENT BUREAU IN DECEMBER 1968 .

IN THE MAIN ACTION, HE CLAIMS THAT THE DEFENDANT SHOULD GRANT HIM EARLY RETIREMENT BENEFIT, ON A PROPORTIONAL BASIS, ON THE GROUND OF THOSE THREE MONTHS' WORK AND MEMBERSHIP OF THE SOCIAL INSURANCE SCHEME WITHIN THE TERRITORY OF WHAT IS NOW THE FEDERAL REPUBLIC OF GERMANY, AGGREGATED WITH THE PERIODS COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES .

THE DEFENDANT IN THE MAIN ACTION REFUSED THIS APPLICATION ON THE GROUND THAT UNDER GERMAN LAW THE TERM 'UNEMPLOYMENT' IMPLIES THAT THE UNEMPLOYED PERSON IS AVAILABLE TO THE GERMAN EMPLOYMENT BUREAU AND ON THE GROUND THAT THERE IS NO PROVISION OF COMMUNITY LAW WHICH CALLS FOR ANY DIFFERENT INTERPRETATION .

4 THE RIGHT TO UNEMPLOYMENT BENEFIT PRESUPPOSES THAT THE UNEMPLOYED PERSON IS AVAILABLE TO THE EMPLOYMENT BUREAU AT WHICH HE IS REGISTERED, AS APPEARS FROM CHAPTER 6 OF REGULATION NO 1408/71, IN PARTICULAR ARTICLES 69 AND 71 THEREOF .

BECAUSE VACANT POSTS VARY FROM ONE REGION OF THE COMMUNITY TO ANOTHER, UNEMPLOYMENT BENEFITS ARE LINKED TO THE GEOGRAPHICAL REGION IN WHICH THE PERSON CONCERNED BECAME UNEMPLOYED .

5 TO ENABLE AN UNEMPLOYED WORKER TO MOVE TO SEEK WORK, COMMUNITY LAW HAS PROVIDED THAT AN UNEMPLOYED WORKER MAY UNDER CERTAIN CONDITIONS MOVE WITHIN THE COMMUNITY WHILST RETAINING THE RIGHT TO UNEMPLOYMENT BENEFIT .

THUS, ACCORDING TO THE NINTH RECITAL IN THE PREAMBLE TO REGULATION NO 1408/71, IN ORDER TO FACILITATE SEARCH FOR EMPLOYMENT IN THE VARIOUS MEMBER STATES, IT IS APPROPRIATE TO GRANT TO AN UNEMPLOYED WORKER, FOR A LIMITED PERIOD, THE UNEMPLOYMENT BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE MEMBER STATE TO WHICH HE WAS LAST SUBJECT .

6 ARTICLE 69 OF THIS REGULATION LAYS DOWN THE CONDITIONS WHICH THE PERSON SEEKING WORK MUST SATISFY IN ORDER TO BE ABLE TO RETAIN THE RIGHT TO THESE BENEFITS FOR A MAXIMUM OF THREE MONTHS, IN PARTICULAR BY REQUIRING THAT HE REGISTER WITHIN SEVEN DAYS WITH THE EMPLOYMENT SERVICES OF THE MEMBER STATES TO WHICH HE GOES AND THAT HE BE SUBJECT TO THE CONTROL PROCEDURE ORGANIZED THEREIN .

THE LINK WITH THE STATE WHERE THE WORKER BECAME UNEMPLOYED IS RETAINED BY THESE PROVISIONS BY THE FACT THAT THE COMPETENT INSTITUTION OF THAT STATE MUST STILL REIMBURSE THE AMOUNT OF UNEMPLOYMENT BENEFITS PROVIDED BY THE COMPETENT INSTITUTION OF ANOTHER MEMBER STATE . THEREFORE, WITH CERTAIN EXCEPTIONS, COMMUNITY LAW DOES NOT PROVIDE FOR THE RIGHT OF AN UNEMPLOYED WORKER TO CLAIM UNEMPLOYMENT BENEFITS UNDER THE LEGISLATION OF A MEMBER STATE OTHER THAN THE STATE IN WHICH HE BECAME UNEMPLOYED .

7 IT IS NECESSARY, THEREFORE, TO EXAMINE WHETHER THE PROVISIONS OF COMMUNITY LAW QUOTED BY THE NATIONAL COURT REQUIRE THIS TERRITORIAL LINK TO BE DISREGARDED IN RESPECT OF THE BENEFITS AT ISSUE IN THE MAIN ACTION .

8 ARTICLE 27 ( 1 ) OF REGULATION NO 3 PROVIDES THAT FOR THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFITS, WHERE AN INSURED PERSON HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES, THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES SHALL BE AGGREGATED IN SO FAR AS THEY DO NOT OVERLAP .

9 ARTICLE 45 ( 1 ) OF REGULATION NO 1408/71 PROVIDES THAT AN INSTITUTION OF A MEMBER STATE WHOSE LEGISLATION MAKES THE ACQUISITION, RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS CONDITIONAL UPON THE COMPLETION OF INSURANCE PERIODS SHALL TAKE INTO ACCOUNT, TO THE EXTENT NECESSARY, INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF ANY MEMBER STATE AS THOUGH THEY HAD BEEN COMPLETED UNDER THE LEGISLATION WHICH IT ADMINISTERS .

10 THE SAID ARTICLES, LIKE THE ENTIRE SYSTEM OF WHICH THEY FORM PART, HAVE AS THEIR BASIS, THEIR FRAMEWORK AND THEIR BOUNDS ARTICLES 48 TO 51 OF THE TREATY, WHICH ARE AIMED AT SECURING FREEDOM OF MOVEMENT FOR WORKERS .

UNDER ARTICLE 51, IMPLEMENTING REGULATIONS MUST SECURE FOR MIGRANT WORKERS AGGREGATION, FOR THE PURPOSE OF ACQUIRING THE RIGHT TO BENEFIT, OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES .

THE AIM OF THIS PROVISION IS TO ALLOW THE MIGRANT WORKER TO ACQUIRE THE RIGHT TO BENEFIT FOR ALL PERIODS OF EMPLOYMENT OR PERIODS TREATED AS SUCH WHICH HAVE BEEN COMPLETED BY HIM IN VARIOUS MEMBER STATES, WITHOUT DISCRIMINATION AS AGAINST OTHER WORKERS BY REASON OF THE EXERCISE OF HIS RIGHT TO FREEDOM OF MOVEMENT .

THE PERIODS WHICH MUST BE TREATED AS THOUGH THEY WERE PERIODS OF EMPLOYMENT AS REGARDS AGGREGATION MAY UNDER ARTICLE 1 ( R ) OF REGULATION NO 3 AND UNDER ARTICLE 1 ( S ) OF REGULATION NO 1408/71 INCLUDE PERIODS OF UNEMPLOYMENT TO THE EXTENT TO WHICH THEY ARE REGARDED AS EQUIVALENT TO PERIODS OF EMPLOYMENT BY THE LEGISLATION UNDER WHICH THEY WERE COMPLETED .

11 ON THE OTHER HAND, WHEN NATIONAL LEGISLATION MAKES THE EARLY ACQUISITION OF THE RIGHT TO RETIREMENT BENEFIT CONDITIONAL UPON THE PERSON CONCERNED HAVING BEEN UNEMPLOYED FOR A CERTAIN TIME, AS WELL AS UPON THE COMPLETION OF A PERIOD OF MEMBERSHIP OF A SOCIAL INSURANCE SCHEME, AND WHEN THEREFORE THE LENGTH OF THIS PERIOD OF UNEMPLOYMENT IS NOT INTENDED TO BE INCLUDED IN THE PERIOD OF MEMBERSHIP REQUIRED OR TO BE USED IN THE CALCULATION OF THE BENEFIT, BUT CONSTITUTES A SEPARATE ADDITIONAL CONDITION, IT DOES NOT FOLLOW FROM THE PROVISIONS OF THE REGULATIONS THAT COMMUNITY LAW REQUIRES THE FACT THAT THE PERSON CONCERNED IS REGISTERED AS UNEMPLOYED IN ANOTHER MEMBER STATE TO BE TAKEN INTO CONSIDERATION IN SUCH A CASE .

12 THEREFORE THE ANSWER TO BE GIVEN TO THE NATIONAL COURT IS THAT THE PROVISIONS OF ARTICLE 27 ( 1 ) OF REGULATION NO 3 AND ARTICLE 45 ( 1 ) OF REGULATION NO 1408/71 DO NOT PROHIBIT A RULE OF NATIONAL LAW WHICH REQUIRES, FOR THE ACQUISITION OF THE RIGHT TO EARLY RETIREMENT PENSION, THAT THE PERSON CONCERNED SHALL HAVE BEEN UNEMPLOYED FOR A CERTAIN TIME AND THUS AVAILABLE TO THE EMPLOYMENT BUREAU OF THE MEMBER STATE IN QUESTION .

13 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESSOZIALGERICHT KASSEL BY ORDER OF 18 DECEMBER 1974 HEREBY RULES :

THE PROVISIONS OF ARTICLE 27 ( 1 ) OF REGULATION NO 3 AND OF ARTICLE 45 ( 1 ) OF REGULATION NO 1408/71 DO NOT PROHIBIT A RULE OF NATIONAL LAW WHICH REQUIRES, FOR THE ACQUISITION OF THE RIGHT TO EARLY RETIREMENT PENSION, THAT THE PERSON CONCERNED SHALL HAVE BEEN UNEMPLOYED FOR A CERTAIN TIME AND THUS AVAILABLE TO THE EMPLOYMENT BUREAU OF THE MEMBER STATE IN QUESTION .