# C_2005019EN.01000201.xml

| 22.1.2005 | EN | Official Journal of the European Union | C 19/2 |
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22.1.2005

EN

Official Journal of the European Union

C 19/2

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 11 November 2004

in Case C-372/02 (reference for a preliminary ruling from the Bundessozialgericht): Roberto Adanez-Vega v Bundesanstalt für Arbeit (1)

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(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)

(2005/C 19/03)

Language of the case: German

In Case C-372/02: reference for a preliminary ruling under Article 234 EC from the Bundessozialgericht (Germany), made by decision of 15 August 2002, received at the Court on 16 October 2002, in the proceedings between Roberto Adanez-Vega and Bundesanstalt für Arbeit – the Court (First Chamber), composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas and S. von Bahr, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 11 November 2004, in which it has ruled:

| 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. |
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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. |
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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. |
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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.

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(1)  OJ C 7 of 11.1.2003.

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