Keywords
Summary

Keywords

1 Social security for migrant workers - Community legislation - Scope ratione materiae - Mention or absence of mention of a national law or regulation in the declaration made by a Member State pursuant to Article 5 of Regulation No 1408/71 - Effects

(Council Regulation No 1408/71, Art. 4(1))

2 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 - Taking account of periods of employment or insurance completed under the legislation of another Member State - Application of Article 67 of Regulation No 1408/71 only

(Council Regulation No 1408/71, Arts 48 and 67)

3 Social security for migrant workers - Unemployment - Legislation making the grant of benefits subject to completion of periods of insurance - Aggregation of periods of insurance - Taking account of periods of insurance or employment completed under the legislation of another Member State - Conditions - Periods of insurance last completed in the Member State concerned - To be determined by the national court applying its own law

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

4 Social security for migrant workers - Equal treatment - National provision making the grant of unemployment benefit conditional upon the person concerned having paid contributions to a retirement pension scheme in one or more Member States for a period of 15 years - No discrimination - Permissible

(EC Treaty, Arts. 48 and 51; Council Regulation No 1408/71)

Summary

5 Whilst the fact that a national law or regulation has not been mentioned by a Member State in its declaration on the scope of Regulation No 1408/71 made pursuant to Article 5 of that regulation is not of itself proof that the law or regulation does not fall within the field of application of the regulation, the fact that a Member State has specified a law in its declaration must be accepted as proof that the benefits granted on the basis of that law or regulation are social security benefits within the meaning of Regulation No 1408/71.

Since the law introducing the benefit for unemployed persons of more than 52 years of age was mentioned by Spain in its declaration, that benefit must be regarded as an unemployment benefit within the meaning of Article 4(1) of Regulation No 1408/71.

6 Since none of the provisions of Chapter 6, `Unemployment benefits', of Title III of Regulation No 1408/71 refers to Article 48 of that regulation, which appears in Chapter 3, `Old age and death (pensions)', of Title III and relates to periods of insurance or residence of less than one year, that article does not apply to unemployment benefits, with the result that the taking into account by a Member State of periods of employment or insurance completed by the person concerned under the legislation of another Member State for the purposes of the award of unemployment benefit is governed solely by Article 67 of the regulation.

7 Since Regulation No 1408/71 does not determine the conditions under which periods of employment or insurance are constituted, those conditions are determined solely by the legislation of the Member State in which benefits are applied for. It is therefore for the national court, applying its own law, to determine whether the condition laid down by Article 67(3) of Regulation No 1408/71, according to which a person who has completed periods of insurance in another Member State may not rely on those periods in order to obtain unemployment benefit in the State concerned unless he last completed periods of insurance in accordance with the provisions of that State's legislation, is fulfilled where the person concerned has never been in employment in that State, but contributions have been paid on his behalf to the sickness insurance and family benefits schemes by the competent unemployment institution.

8 It is not contrary to Articles 48 and 51 of the Treaty, or to Regulation No 1408/71, for national legislation to require the person concerned to have paid contributions for a 15-year period to a pension scheme in one or more Member States in order to qualify for the grant of an unemployment allowance for claimants of over 52 years of age. This is because the Member States remain competent to define the conditions for granting social security benefits, even if they make them more strict, provided that the conditions adopted do not give rise to overt or disguised discrimination between Community workers.