5.

At this point the classification of the retirement guarantee becomes a question of crucial importance inasmuch as the decision as to which rules govern the overlapping of benefits paid to a migrant worker by the social security institutions of two or more Member States depends on that classification. It is important to note that in establishing the field of application of Regulation No 1408/71, Article 4 thereof lists the nine traditional sectors established by the International Labour Organization Convention on minimum standards of social security (No 102, 28 June 1952). However, with the exception of a few cases (family benefits, death grants and the like) it does not define the various benefits. Nevertheless, as we shall see at a later stage, useful criteria for the classification of the benefit in question may be extracted from its wording and from the interpretation which the Court has given to it. That benefit is of recent origin and despite that fact is granted in the social security systems of almost all the Member States. It should be stated immediately that it possesses a decidedly hybrid nature. Thus it reveals a complex mixture of typical elements of an unemployment benefit and features peculiar to an old-age pension. The benefit and the pension are mentioned in Article 4 (1) (c) and (g) respectively. On the question of whether one overrides the other, the defendant in the main proceedings, two Member States and the Commission are in disagreement. Those who see in the retirement guarantee a simple, if unusual, benefit (the Association and the French Government) or who, whilst recognizing the hybrid nature thereof, propose that it be assimilated to unemployment benefit (the Commission), produce arguments of an institutional nature and point to certain characteristics of the benefit in question. Thus, for the former, special importance is attached to the fact that it is integrated into the unemployment insurance scheme; to the fact that it is financed by the funds of that scheme and that it is administered by the institutions which pay unemployment benefit; to the fact that the legislation making it compulsory. appears under the “Code du Travail” rather than the “Code de la Sécurité Sociale”. For the latter the fact that the principles which justify or govern the payment of the benefit and that of the unemployment benefit are identical is considered conclusive. The two benefits were introduced in the light of a specific economic situation. They are calculated on the same basis (though the amount of the “guarantee” is generally higher than that of the old-age pension). They are temporary in nature and are suspended when the recipient resumes work or reaches pensionable age. There is no doubt that the retirement guarantee is linked to the unemployment insurance scheme. Indeed, it was both appropriate and inevitable that it should be; appropriate inasmuch as such a connection would permit the use of existing structures and funds and therefore only require a small increase in the charges payable by workers and undertakings. It was inevitable for reasons which we may call both historical and organizational. Inasmuch as it aimed to improve the lot of older workers who became redundant, who were therefore at a disadvantage in seeking fresh employment, the redundancy guarantee was inevitably identified with the unemployment allowance. As I have already stated, the retirement allowance is the offshoot of that benefit and represents an extension thereof to workers accepting retirement. Only those who are not familiar with the highways and byways in which social security systems evolve can imagine that it was possible for it not to be associated for administrative purposes with benefit of which it is the offspring. Despite all those considerations, a more careful examination of the retirement guarantee reveals the weakness of the arguments which I have listed. In particular, they do not seem to me to be conclusive for the classification of that guarantee. The point of departure for that examination is the principle which the Court has repeatedly upheld in assessing social security benefits granted by various Member States. The Court has stated that arguments based on national rights and national definitions are irrelevant. The benefit must be analysed in the light of Community law and on the basis of its constituent elements, in particular its purpose and the conditions in which it is granted (judgments of 6 July 1978, Case 9/78 Gillard [1978] ECR 1661 and now that of 5 May 1983, Case 139/82 Piscitello [1983] ECR paragraph 10 of the decision). Only in that way does it become possible to define coherently the limits within which the Council regulations apply. If that criterion is taken as. a standard, the political, social and economic motives which led to the introduction of the retirement guarantee, its administrative organization, its financing and the fact that it is governed by one code rather than another, seem suddenly to be facts of tenuous or dubious relevance. Such factors are linked essentially by events and conditions which are specifically French or which are at least not always in evidence in the systems of other States. They cannot therefore be regarded as factors which are conclusive for the classification of the benefit if, as is essential, it is sought to provide a coherent assessment of that benefit. To do that other factors must be adduced: in particular the fundamental features, that is, those which are common to the systems of the different States, characterizing the two benefits, old-age pension and unemployment benefit, between which the retirement guarantee maintains a delicate balance.