Opinion of the Advocate General — ECLI:EU:C:2004:185
Date: 2004-03-25
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of conclusions on the first three questions 84. It may be helpful at this point to have a summary of my conclusions on Articles 13(2), 67 and 71 as they apply to the applicant’s case. 85. If in accordance with Kuusijärvi (46) the applicable legislation is that of Germany pursuant to Article 13(2)(f): (a) If the military service was ‘employment’ within the meaning of Article 71(1) (which by virtue of Article 1(s) depends on its qualification under Spanish legislation, to be attested to by certified statement in accordance with Article 80 of Regulation No 574/72) and during his military service he was residing in Germany within the meaning of Article 71(1) as interpreted by the Court, (47) the applicant will fall within the scope of Article 71(1)(b)(ii), which entitles him to claim unemployment benefit in Germany even though his last employment was in another Member State. (b) If the applicant falls within the scope of Article 71(1)(b)(ii), the German institution will be required to take account of the period of military service in determining his entitlement to unemployment benefit if (i) it was a ‘period of … employment completed as an employed person’ within the meaning of Article 1(a) and (s), which adds an additional requirement to that which he has already satisfied in order to fall within the scope of Article 71(1); that question is also a matter of Spanish law to be attested to in accordance with Article 80; and (ii) it would have been counted as a period of insurance had it been completed under German legislation as required by Article 67(1). (c) If the applicant does not fall within the scope of Article 71(1)(b)(ii), he can none the less claim unemployment benefit in Germany (because its legislation will be applicable by virtue of Article 13(2)(f)); the German institution will be required to take account of the period of military service in determining his entitlement to unemployment benefit provided (i) that the conditions in (b) above are satisfied and (ii) that he ‘completed lastly’ periods of insurance in accordance with German legislation as required by Article 67(3). 86. If the applicable legislation is that of Spain pursuant to Article 13(2)(e) by analogy with the pre-Article 13(2)(f) case-law on Article 13(2)(a): the conclusions at (a) and (b) of the preceding paragraph above remain unchanged. If the applicant does not fall within the scope of Article 71(1)(b)(ii), however, he will not be able to claim unemployment benefit in Germany, but could have done so in Spain (which pursuant to Article 67(1) would in principle have been required to aggregate his previous periods of insurance and/or employment in Germany, provided that he ‘completed lastly’ periods of insurance in accordance with Spanish legislation). The principle of equal treatment 87. Article 3(1) of the Regulation provides: ‘Subject 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.’ 88. By its fourth question, the referring court asks whether, if the applicant’s period of military service cannot be taken into account under the provisions of the Regulation concerning unemployment benefit (namely Articles 67 and 71), he has any such entitlement under that article or any other general provision of Community law. 89. The applicant and the Portuguese Government submit that the applicant may derive such entitlement by virtue of Article 3(1); the German Government and the Commission disagree. 90. The Portuguese Government bases its view on the decision of the Court in Mora Romero. (48) 91. In that case, the Court ruled that Article 3(1) meant that ‘where the legislation of a Member State provides for extension of the right to orphan’s benefit beyond the age of 25 for recipients of benefits whose training has been interrupted by their military service, that State is required to assimilate military service in another Member State to military service under its own legislation’. (49) 92. In my view that ruling cannot be transposed to the present case. Mora Romero concerned entitlement to orphan’s benefit. The applicant, a Spanish national, was in receipt of such benefit under German legislation, which provided for payment until the age of 25, extended by the period equivalent to any period of military service. The applicant completed a period of military service in Spain before he was 25. The German competent institution stopped paying his orphan’s benefit when he turned 25 and refused to extend it for a period equivalent to the period of his military service. 93. Although both the applicant and the benefit concerned were clearly within the scope of the Regulation, the situation in that case was none the less in a material respect different from that in the present case: in Mora Romero there was no specific provision of the Regulation governing the issue. In particular, the only provision in the Regulation concerning aggregation in the context of orphan’s benefit (Article 79) solely required account to be taken in determining entitlement to such benefit of periods of insurance, employment, self-employment or residence completed by the deceased parent in another Member State. 94. In the absence of any provision in the Regulation governing the applicant’s situation, in which he was clearly disadvantaged in comparison with a German national in the same position, it was clearly appropriate for the Court to apply the principle of equal treatment articulated in Article 3(1). 95. That provision however is expressed to be ‘subject to the special provisions of [the] Regulation’, and in the present case, in contrast to Mora Romero, the Regulation contains special provisions, namely Articles 67 and 71, which are designed to govern the entitlement to unemployment benefits of an unemployed person who has completed periods of insurance or employment under the legislation of another Member State. As both the German Government and the Commission submit, those special provisions displace the general principle of equality enshrined in Article 3(1). 96. If it were otherwise the effect would be to rewrite the detailed provisions of Article 67(1) and in particular change the definition of ‘period of employment’ for the purpose thereof. 97. It might be argued that if the applicant has no entitlement to aggregation in accordance with Article 67(1), that demonstrates a lacuna in the scheme of the Regulation which should be filled by invoking Article 3(1). 98. I do not accept that view. If the applicant does not fall within the scope of Article 67(1), that is because his period of military service does not constitute a period of insurance or employment completed as an employed person within the meaning of that provision. If that is so, it is because Spanish legislation does not recognise military service as such. It is entirely consistent with the scheme and objectives of the Regulation that a period of military service not regarded as a period of insurance or employment or equivalent by the legislation under which it was completed should not be aggregated for the purpose of entitlement to unemployment benefit. 99. The conclusion would in my view be the same if other general principles of equal treatment were invoked, such as for example that in Article 39(2) EC, mentioned in the order for reference. Conclusion 100. The answer to the question whether the legislation applicable to a person who, having been employed in Member State A, completes a period of compulsory military service in Member State B before returning to Member State A where he seeks unemployment benefit is that of Member State A or Member State B depends on whether the interpretation of Article 13(2)(f) of Council Regulation (EEC) No 1408/71 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 which the Court gave in Case C-275/96 Kuusijärvi [1998] ECR I-3419 applies to applicants for unemployment benefit. If the interpretation in Kuusijärvi applies, such a person is subject to the legislation of Member State A as the State of residence by virtue of Article 13(2)(f) of Regulation No 1408/71. If the interpretation in Kuusijärvi does not apply, such a person will be subject to the legislation of Member State B as the State to whose legislation he was subject during his period of military service by virtue of Article 13(2)(e) of Regulation No 1408/71. 101. The remaining questions referred by the Bundessozialgericht should be answered as follows: (1) A period of compulsory military service is to be regarded as ‘employment’ within the meaning of the first sentence of Article 71(1) of Regulation No 1408/71 only if it is so defined or recognised by the legislation under which it was completed or both treated as such and regarded by that legislation as equivalent to a period of employment within the meaning of Article 1(s) of the Regulation. (2) A period of compulsory military service is to be regarded as a ‘period … of employment completed as an employed person’ within the meaning of Article 67(1) of Regulation No 1408/71 only if (i) it is defined or recognised as a period of employment by the legislation of Spain or both treated as such and regarded by that legislation as equivalent within the meaning of Article 1(s) of the Regulation and (ii) the applicant was insured within the meaning of Article 1(a) of the Regulation when he carried out the military service. (3) Article 67(1) of Regulation No 1408/71 is applicable to an applicant who falls within the scope of Article 71(1)(b)(ii) of the Regulation. (4) Where a person completes a period of insurance under the legislation of a Member State and subsequently applies for unemployment benefit in that State, that period of insurance is ‘completed lastly’ within the meaning of Article 67(3) of Regulation No 1408/71 even where it did not immediately precede the application for benefit provided that no other period of insurance has intervened. ANNEX Questions referred by the Bundessozialgericht ‘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 Council Regulation (EEC) No 1408/71 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, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ L 230, p. 6), as amended by Council Regulation (EEC) No 2195/91 of 25 June 1991 (OJ L 206, p. 2) – hereinafter, “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 MemberState 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)): (aa) does compulsory national service undertaken in Spain constitute “last employment in the territory of a MemberState other than the competent State” within the meaning of Article 71(1) of Regulation No 1408/71 (as per Question 2(a))? (bb) If the answer to Question 3(c)(aa) 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?’ 1 – Original language: English. 2 – Council Regulation (EEC) No 1408/71 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. The text of the Regulation incorporating amendments made to the end of 1995 may be found in Part I of Annex A to Council Regulation (EC) No 118/97 of 2 December 1996 amending and updating Regulation (EEC) No 1408/71, OJ 1997 L 28, p. 1. 3 – Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71. The text of the Regulation as at the end of 1995 may be found in Part II of Annex A to Council Regulation (EC) No 118/97, cited in note 2. 4 – Council Regulation (EEC) No 2195/91 of 25 June 1991 amending Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72, OJ 1991 L 206, p. 2. 5 – See for example Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 28 of the judgment. 6 – Cited in note 5, paragraph 33 of the judgment. 7 – Paragraph 34 of the judgment. 8 – See paragraphs 35 and 39 to 50, in particular paragraphs 39 and 40. 9 – Paragraph 29 of the judgment 10 – For further discussion of Article 67, see paragraphs 54 to 82 below. 11 – See for example Case 145/84 Cochet [1985] ECR 801, paragraph 11 of the judgment, and Case C-454/93 Van Gestel [1995] ECR I-1707, paragraphs 13 and 14. 12 – Cited in note 4. 13 – Case 150/82 Coppola [1983] ECR 43 and Case 302/84 Ten Holder [1986] ECR 1821. 14 – See for example Cochet, cited in note 11, paragraphs 14 and 15 of the judgment, Case C-131/95 Huijbrechts [1997] ECR I-1409, paragraph 26, and most recently Case C-311/01 Commission v Netherlands, judgment of 6 November 2003, paragraph 32. 15 – See for example Case 1/85 Miethe [1986] ECR 1837, paragraph 16 of the judgment. 16 – Case 76/76 Di Paolo [1977] ECR 315, paragraph 11 of the judgment. 17 – See further paragraph 30 above. 18 – See for example Miethe, cited in note 1511, paragraph 23. 19 – At paragraphs 55 to 61. 20 – Case 66/77 [1977] ECR 2311, paragraph 19 of the judgment. 21 – Case C-248/96 [1997] ECR I-6407, paragraph 31 of the judgment. 22 – Paragraph 26 of the judgment. 23 – Cited in note 21, paragraph 31 of the judgment. 24 – See paragraphs 69 and 70. 25 – Cited in note 3. 26 – See the case-law cited in note 11. 27 – Di Paolo, cited in note Error! Bookmark not defined., paragraphs 17 to 22 of the judgment; see also paragraph 9 of the Opinion of Advocate General Mancini in Case 41/84 Pinna [1986] ECR 1. 28 – That provision is considered further below; see paragraphs 74 to 82. 29 – Member States whose legislation makes such entitlement subject to the completion of periods of employment, as opposed to periods of insurance, are covered by the parallel provisions of Article 67(2). 30 – See paragraph 37. 31 – Case 388/87 [1989] ECR 1203, paragraph 18 of the judgment. 32 – Set out in paragraph 32 above. 33 – See paragraphs 74 to 82. 34 – Cited in note 31 above, paragraph 21 of the judgment. 35 – The proviso does not apply to periods of insurance: see Case 126/77 Frangiamore [1978] ECR 725. 36 – Cited in note 3; the relevant provisions of Article 80 are summarised in paragraph 4 above. 37 – Case C-102/91 Knoch [1992] ECR I-4341, paragraph 54 of the judgment. 38 – Knoch, cited in note 37, paragraph 53 of the judgment. 39 – Case C-178/97 Banks and Others [2000] ECR I-2005, paragraph 43 of the judgment. 40 – See paragraphs 33 and 37 above. 41 – Case C-62/91 Gray [1992] ECR I-2737, paragraph 12 of the judgment. 42 – Gray, cited in note 41, paragraph 5 of the Opinion of Advocate General Tesauro. 43 – For example, ‘senest’ (Danish), ‘laatstelijk’ (Dutch), ‘viimeksi’ (Finnish), ‘da ultimo’ (Italian), ‘en ultimo lugar’ (Spanish) and ‘senast’ (Swedish). 44 – See paragraph 66. 45 – I do not consider that my conclusion and the preceding analysis are affected by the order of the Court in Case C-175/00 Verwayen-Boelen [2002] ECR I-2141. Although that order appears to assume that the applicant’s period in the Netherlands from 1987 to 1995, where she was in receipt of benefits but did not complete periods of insurance or employment, precluded her preceding period of employment in Belgium from 1977 to 1986 from being ‘completed lastly’ in Belgium within the meaning of Article 67(3) on her application in 1997 for unemployment benefit in Belgium, the issue was not expressly considered by the Court. 46 – Cited in note 5. 47 – No question has been referred on the latter point. 48 – Case C-131/96 [1997] EC I-3659. 49 – Paragraph 36 of the judgment.