JUDGMENT OF THE COURT (Second Chamber)
20 January 2005(1)

(Social security of migrant workers – Old age – Unemployment – Minimum periods of insurance – Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits – Periods of unemployment – Aggregation)

In Case C-225/02,

REFERENCE for a preliminary ruling under Article 234 EC from the Juzgado de lo Social n ^o 3 de Orense (Spain), made by decision of 30 March 2002, received at the Court on 17 June 2002, in the proceedings

Rosa García Blanco

v

Instituto Nacional de la Seguridad Social (INSS),
Tesorería General de la Seguridad Social (TGSS),

THE COURT (Second Chamber),,

composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, R. Schintgen (Rapporteur), P. Kūris and G. Arestis, Judges,

Advocate General: J. Kokott,
Registrar: M. Múgica Arzamendi, Principal Administrator,

having regard to the written procedure and further to the hearing on
15 September 2004,
after considering the observations submitted on behalf of:

–

Mrs García Blanco, by A. Vázquez Conde, abogado,

–

Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS), by A.R. Trillo García and A. Llorente Alvarez, acting as Agents,

–

the Spanish Government, by E. Braquehais Conesa, acting as Agent,

–

the German Government, by W.-D. Plessing, acting as Agent,

–

the Commission of the European Communities, by H. Michard, I. Martínez del Peral and D. Martin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 October 2004,

gives the following

Judgment

(a)

the competent institution shall calculate the theoretical amount of the benefit to which the person concerned could lay claim provided all periods of insurance and/or of residence, which have been completed under the legislation of the Member States to which the employed person or self-employed person was subject, have been completed in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of the benefit is independent of the duration of the periods completed, the amount shall be regarded as being the theoretical amount referred to in this paragraph;

(b)

the competent institution shall subsequently determine the actual amount of the benefit on the basis of the theoretical amount referred to in the preceding paragraph in accordance with the ratio of the duration of the periods of insurance or of residence completed before the materialisation of the risk under the legislation which it administers to the total duration of the periods of insurance and of residence completed before the materialisation of the risk under the legislations of all the Member States concerned.’

–

the duration of the said periods does not amount to one year,

and

–

taking only these periods into consideration, no right to benefit is acquired by virtue of the provisions of that legislation.’

–

185 days, representing a period completed between 1 June and 2 December 1984 during which she received the contributory unemployment benefit, contributions having been paid in respect of all branches of Spanish statutory social insurance, including old-age insurance, by INEM on her behalf;

–

4 080 days, representing a period completed by Mrs García Blanco between 9 August 1989 and 9 October 2000, during which she received the unemployment allowance for unemployed persons over 52 years of age, contributions having been paid by INEM on her behalf, in respect of old-age insurance only.

‘1.

Do Article 12 EC and Articles 39 EC to 42 EC … and Article 45 of … Regulation … No 1408/71 … preclude a national provision under which retirement contributions which the unemployment benefit agency paid on behalf of a worker during the period in which he received certain unemployment benefits are not to be taken into account for the purposes of completing the various qualifying periods established in the national legislation and of conferring entitlement to the old-age pension, when, because of a long period of unemployment, supposedly protected, it is absolutely impossible for that worker to obtain credit for retirement contributions other than those which are invalidated by law, with the result that only workers who have exercised the right to freedom of movement are affected by that provision of national law and are unable to qualify for the national retirement pension, despite the fact that, under Article 45 of the aforementioned … regulation, those qualifying periods would have to be regarded as completed?

2.

Do Article 12 EC and Articles 39 EC to 42 EC … and Article 48(1) of … Regulation … No 1408/71 … preclude national provisions under which retirement contributions which the unemployment benefit agency paid on behalf of a worker during the period in which he received certain unemployment benefits are not to be taken into account for the purposes of determining whether the total duration of insurance periods or periods of residence covered by the legislation of that Member State amounts to one year, when, because of a long period of unemployment, supposedly protected, it is absolutely impossible for that worker to obtain credit for retirement contributions other than those which fall due and are paid during unemployment, so that only workers who have exercised the right to freedom of movement are affected by that provision of national law and are unable to qualify for the national retirement pension, despite the fact that, under Article 48(1) of the aforementioned … regulation, the national benefit agency could not be relieved of the obligation to award national benefits?’