Keywords
Summary

Keywords

++++

1. Social security for migrant workers ° Community regulations ° Scope ratione materiae ° Benefits covered and benefits excluded ° Distinguishing criteria ° Benefit awarded, on the basis of objective and legally defined criteria, to unemployed persons who are elderly or suffering from partial incapacity for work ° Inclusion ° Non-contributory benefit ° Not relevant

(Council Regulation No 1408/71, Art. 4(2))

2. 2. Social security for migrant workers ° Unemployment ° Calculation of benefits ° National legislation varying the amount of benefit according to family situation ° Account to be taken of family members living in another Member State

(Council Regulation No 1408/71, Art. 68(2))

Summary

1. The distinction between benefits excluded from the scope of Regulation No 1408/71 and benefits which come within it is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for granting it, and not on whether it is classified as a social security benefit by national legislation.

A benefit may be regarded as an unemployment benefit within the meaning of Regulation No 1408/71 where it is granted ° without any individual and discretionary assessment of personal needs ° on the basis of a legally defined position, solely to unemployed persons who are elderly or suffering from partial incapacity for work and, where applicable, to their spouses, and where it takes the place of public unemployment benefit, is paid only until the person concerned reaches the statutory retirement age and only if he is available for employment.

The fact that such a scheme is financed by the public authorities is irrelevant because Article 4(2) of the regulation provides that the regulation applies to non-contributory schemes.

2. 2. Pursuant to the first sentence of Article 68(2) of Regulation No 1408/71, the competent institution of a Member State whose legislation provides that the amount of unemployment benefits varies with the number of members of the family must also take into account, for the calculation of benefits, members of the family of the person concerned who are residing in the territory of another Member State as though they were residing in the territory of the competent State. If the amount of an unemployment benefit provided for by national legislation may vary according to the family situation of the person concerned, the national legislation in question comes within the scope of that provision, irrespective of the methods of calculation used. Subject to the case described in the second sentence of Article 68(2), that provision precludes benefits granted to a national of another Member State from being calculated without taking account of his spouse who lives in another Member State.