Judgment — ECLI:EU:C:2005:51
Date: 2005-01-20
Language of the case: Dutch
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Concepts: Periods to be taken into account;Matters covered by the regulations
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Social security for migrant workers – Community legislation – Material scope – Services covered and services excluded – Distinguishing criteria – Holiday pay given to the recipient of a retirement pension – Benefit granted on the basis of objective criteria showing elements constituting an old-age benefit – Included (Council Regulation No 1408/71, Art. 4(1)) 2. Social security for migrant workers – Unemployment – Fully unemployed cross-border worker – Right to old-age pension from the Member State of residence – Taking into account of period of unemployment in accordance with the legislation of that State (Council Regulation No 1408/71, Art. 45(1) and (6)) 1. A benefit can be regarded as a social security benefit falling within the material scope of Regulation No 1408/71 only if, first, it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and, secondly, it relates to one of the risks expressly listed in Article 4(1) of that regulation. With regard to the second condition, the distinction between benefits excluded from the scope of that regulation and those which fall within it is based essentially on the constituent elements of each particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation. It follows that a benefit, such as holiday pay granted to the recipient of a retirement pension, meets those two conditions if the provisions governing its grant confer on the recipients a legally defined right, that right is granted automatically to the persons meeting certain objective criteria and the elements constituting the benefit show that it may be considered an old-age pension. (see paras 21, 23-24, operative part 1) 2. Article 45(6) of Regulation No 1408/71 must be interpreted as meaning that the competent institution of the Member State of residence is to take account, for the purposes of the grant of a benefit such as holiday pay granted to the recipient of a retirement pension, of a period of full unemployment during which the former employed worker received unemployment benefits under Article 71(1)(a)(ii) of that regulation, as if the legislation administered by that institution applied to that worker during his last employment. (see paras 34, 36, operative part 2)