Case C-372/02

Roberto Adanez-Vega

v

Bundesanstalt für Arbeit

(Reference for a preliminary ruling from the Bundessozialgericht)

(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)

Summary of the judgment

1. Social security for migrant workers – Applicable legislation – Worker unemployed in his Member State of residence after having performed his compulsory military service in another Member State – Applicability of the legislation of the Member State of residence

(Council Regulation No 1408/71, Art. 13(2)(f))

2. Social security for migrant workers – Unemployment – Special rules governing connecting factors – Unemployed person who, during his last employment, resided in the territory of a Member State other than the competent State – Concept of ‘employment’

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

3. 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 – Certified statement specifying the periods of insurance or employment completed under the legislation of a Member State – Evidentiary value for social security institutions in other Member States – Limits

(Art. 10 EC; Council Regulation No 574/72, Art. 80)

4. Social security for migrant workers – Unemployment – Special rules governing connecting factors – Unemployed person who, during his last employment, resided in the territory of a Member State other than the competent State – Concept of ‘residence’

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

5. Social security for migrant workers – Unemployment – Special rules governing connecting factors – Article 71(1)(b)(ii) of Regulation No 1408/71 – Scope – Non-application of the general rules governing connecting factors – Condition – For the national court to determine

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

6. Social security for migrant workers – Community legislation – Scope ratione personae – Worker within the meaning of Regulation No 1408/71 – Definition – Person carrying out his military service – Included – Condition

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

7. Social security for migrant workers – Unemployment – Legislation making the grant of benefits subject to the completion of periods of insurance – Aggregation of periods of insurance – Taking into account of periods of insurance or employment completed under the legislation of another Member State – Periods of employment – Definition

(Council Regulation No 1408/71, Art. 67(1))

8. Social security for migrant workers – Unemployment – Legislation making the grant of benefits subject to the completion of periods of insurance – Aggregation of periods of insurance – Taking into account of periods of insurance or employment completed under the legislation of another Member State – Conditions – Completion lastly of periods of insurance in the Member State seised of the claim for benefits – Assessment to be made by the national court

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

9. Social security for migrant workers – Equal treatment – Not applicable to unemployment benefits governed by the special provisions of Regulation No 1408/71

(Council Regulation No 1408/71, Arts 3 and 67)

1. Article 13(2)(f) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, 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.

(see paras 26, 41, operative part 1)

2. The concept of ‘employment’, within the meaning of Article 71(1) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, a provision which determines the legislation applicable, in relation to unemployment benefit, to a worker who, during his last employment, resided in a Member State other than the competent State, must be interpreted having regard to the definition laid down in national social security legislation. ‘Employment’ within the meaning of that provision 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.

(see para. 33)

3. As long as a certified statement issued, under Article 80 of Regulation No 574/72, by the competent institution of a Member State and specifying the periods of insurance or employment completed by a worker under the legislation of that State has not been withdrawn or declared invalid, the competent institution of another Member State must take account of it for the purposes of the aggregation of periods of insurance or employment. 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 of insurance or employment and thus to guarantee the correctness of the information contained in the certified statements which they issue. 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 paras 34, 36)

4. The place of residence of a worker, within the meaning of Article 71(1) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, a provision which determines the legislation applicable, in relation to unemployment benefit, to a worker who, during his last employment, resided in a Member State other than the competent State, is constituted by the place where the habitual centre of his 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 para. 37)

5. Article 71(1)(b)(ii) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, a provision which determines the legislation applicable, in relation to unemployment benefit, to workers other than frontier workers who are wholly unemployed and who, during their last employment, resided in a Member State other than the competent State, 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 and not by the general rules governing connecting factors of Title II of that regulation. It is for the referring court to determine whether the conditions governing application of that provision are met.

(see para. 41, operative part 1)

6. The concept of ‘worker’ employed by Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, 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 that regulation, irrespective of whether there is an employment relationship.

Consequently, for the purposes of the application of Regulation No 1408/71, as amended, a person who carries out his military service must be classified as a worker, as long as he is insured, within the meaning of Article 1a of that regulation, with a social security scheme.

(see paras 46-47, 54, operative part 2)

7. A period of compulsory military service completed in a Member State constitutes a completed period of employment under the legislation of that 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 it is so defined or recognised by that legislation or treated as such and regarded by the latter as a period equivalent to a period of employment. Similarly, the competent institution of another Member State the legislation of which makes the grant of unemployment benefit subject to the completion of periods of insurance must take account of that period when aggregating periods of insurance or employment.

(see paras 47, 54, operative part 2)

8. It is for the national courts to assess whether the condition laid down by Article 67(3) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, is met, according to which a person who has completed periods of insurance or employment in a Member State can rely on those periods to obtain unemployment benefit in another Member State only if they have completed lastly periods of insurance in accordance with the provisions of the legislation of that latter Member State.

In that respect, 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.

(see paras 52-53, operative part 2)

9. Article 3 of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, which lays down the principle of equality of treatment in the application of that regulation, does not preclude a competent institution, when examining a worker’s 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, even if the legislation under which the benefits are claimed provides for this, where that results from the application of Article 67 of that regulation, a special provision which governs a worker’s entitlement to unemployment benefit.

(see paras 57-58, operative part 3)