CELEX: 62002CJ0372
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

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’).
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
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
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.’
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
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.’
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
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.
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.
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
The applicant is a Spanish national who, since he was born in 1974, has had his principal place of residence registered in
Germany.
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.
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.
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.
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).
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)
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.
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).
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.
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)
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.
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.
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.
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).
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.
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.
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.
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)
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.
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.
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.
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.
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.
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’.
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.
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).
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).
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.
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.
If so, the legislation applicable to him would, under that provision, likewise be the legislation of the Member State of residence,
namely German legislation.
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.
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)
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.
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
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.
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).
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.
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
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.
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.
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).
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.
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.
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)
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.
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.’
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.
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
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.
–
Language of the case: German.