Opinion of Mr Advocate General Alber delivered on 11 June 1998. - José Ferreiro Alvite v Instituto Nacional de Empleo (Inem) and Instituto Nacional de la Seguridad Social (INSS). - Reference for a preliminary ruling: Juzgado de lo Social de Santiago de Compostela - Spain. - Article 51 of the EC Treaty - Article 67 of Regulation (EEC) No 1408/71 - Unemployment allowance for claimants of more than 52 years of age. - Case C-320/95.



European Court reports 1999 Page I-00951



Opinion of the Advocate-General

A - Introduction

1 This reference for a preliminary ruling is similar to Joined Cases C-88/95, C-102/95 and C-103/95 (Martínez Losada and Others), in which the Court of Justice gave judgment on 20 February 1997. (1) This action was suspended until judgment in those cases had been given. The national court, having immediately been provided with the judgment in Martínez, maintained the reference for a preliminary ruling, but reformulated the questions in the light of the Opinion and judgment.

2 The facts in the main proceedings in this case are comparable to those in Martínez. To that extent, reference may be made to the Opinion of my predecessor, Advocate General Lenz, (2) and the judgment in that case.

3 The plaintiff in the main proceedings was born in 1936 and had made social security contributions as an employee in the United Kingdom for 1 303 weeks before returning to Spain. He received an unemployment allowance there for returning migrant workers for a limited period. As in Martínez, his case relates to the payment of a follow-up allowance, specifically an unemployment allowance for claimants of more than 52 years of age. Persons claiming this allowance must be eligible for a retirement pension under the social security scheme, for which it is in turn necessary to have paid contributions for a minimum period. The plaintiff has not paid any contributions into the Spanish pension scheme.

4 It is therefore necessary to determine the requirements and scope of Article 67 of Regulation (EEC) No 1408/71 (3) with regard to the conditions of eligibility for the unemployment allowance structured as a follow-up allowance under Spanish law. The questions to be answered in the light of the judgment already given are as follows:

1. Is Article 67(1) of Regulation (EEC) No 1408/71 (in its present version) to be interpreted, as regards the particular facts to which it is to be applied, as meaning that periods of insurance or of employment completed under the legislation of any other Member State must be taken into account for the purposes of obtaining the unemployment allowance for persons over 52 years of age provided for by Article 215(3) of Royal Legislative Decree No 1/94 of 20 June 1994, which approves the consolidated version of the General Law on Social Security, to the extent that, subject to age requirements, contributions paid during such periods give a right to a retirement pension in a Member State other than that of the competent institution?

2. If the provisions of Article 67 of Regulation (EEC) No 1408/71 are not applicable because the requirement to be met is one which is necessary in order to be entitled to a retirement pension, should Article 51 of the Treaty establishing the European Community apply directly so that the competent institution is obliged to take account of future retirement pension rights acquired in another Member State when deciding whether the requirement laid down in Article 215 of the consolidated version of the General Law on Social Security, that the claimant must, subject to age requirements, be entitled to a retirement pension, is met?

3. Whether Article 67 of Regulation No 1408/71 or Article 51 of the EC Treaty applies, if the competent institution is obliged to take account of future retirement pension rights acquired in another Member State, provided that the worker has been entitled to social security benefits, either under the national rules alone or pursuant to the Community rules, would it be sufficient in order to obtain the unemployment allowance for persons of more than 52 years of age, for a worker to have completed, either through contributions made in another Member State alone or by cumulating those made in Spain with those made in such other Member State or States, the qualifying period required by one or other Member State or, on the contrary, would it be necessary to complete the qualifying periods laid down in Article 161(1)(b) of the consolidated version of the General Law on Social Security?

5 The Spanish Government and the Commission made written submissions. In addition, the plaintiff's representative in the main proceedings and a representative of the Government of the United Kingdom appeared at the hearing. I will come back to the arguments put forward by the parties in the context of the legal analysis.

B - Analysis

I. The first question

6 The first question has the same wording as the second question in Martínez, which the Court of Justice has already answered in paragraphs 29 to 38 of its judgment. Both the Court and the Advocate General understood this question to relate to the applicability of Article 67 of Regulation (EEC) No 1408/71, although they each found different solutions. In the end, the Advocate General took the view that the issue to be resolved did not relate to the scope of Article 67, because Article 67 confers eligibility for an unemployment allowance which was no longer an issue in the case in question as a result of the availability under national law of the unemployment allowance for returning migrant workers. In the Advocate General's view, the only outstanding question related to the conditions of eligibility for the follow-up allowance. The Court of Justice, on the other hand, considered that the applicability of Article 67 depended on a question of national law which had to be determined first.

7 The judgment states: `It is therefore for the national court to determine whether the periods during which the competent Spanish institution paid contributions to the sickness insurance and family benefits schemes on behalf of the plaintiffs in the main proceedings constitute periods of insurance under its domestic legislation'. (4)

8 If the plaintiff's request is taken as a claim that he qualifies for unemployment allowance, then the reply given by the Court of Justice is only logical. As Article 67(3) of Regulation (EEC) No 1408/71 states:

`... application of the provisions of paragraphs 1 and 2 shall be subject to the condition that the person concerned should have completed lastly:

- in the case of paragraph 1, periods of insurance,

- in the case of paragraph 2, periods of employment,

in accordance with the provisions of the legislation under which the benefits are claimed.'

9 The term `periods of insurance' is defined in Article 1(r) of Regulation No 1408/71 as `periods of contribution or periods of employment or self-employment as defined or recognised as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance'. (5)

10 In maintaining the first question with an express reference to Article 67(1) of Regulation (EEC) No 1408/71, the national court is asking a question which goes beyond that of the applicability of the Article. The question could therefore also be understood to be asking: In the event that Article 67 of Regulation (EEC) No 1408/71 is applicable, must account be taken of periods of insurance or employment completed in another Member State for the purposes of obtaining a retirement pension?

11 In Martínez, inter alia, the Court of Justice construed the conditions for the grant of the unemployment allowance at issue not as requiring the person concerned to be entitled to a retirement pension as such, but as requiring him to have completed a period of 15 years' contributions to a retirement pension scheme. (6)

12 Article 67(1) of Regulation (EEC) No 1408/71 is unambiguous on the question whether the completion of periods of insurance gives rise to a claim: `The competent institution ... shall take into account ... periods of insurance or employment completed as an employed person under the legislation of any other Member State, as though they were periods of insurance completed under the legislation which it administers ...'.

13 The first question should therefore be answered as follows: Article 67(1) of Regulation (EEC) No 1408/71 is to be interpreted, in relation to the unemployment allowance for claimants of more than 52 years of age provided for by Article 215(3) of Royal Legislative Decree No 1 of 20 June 1994 which approves the consolidated version of the General Law on Social Security, as requiring that periods of insurance or employment completed under the legislation of another Member State be aggregated to the extent that those contributions give rise to an entitlement to a retirement pension - subject to age requirements - in a Member State other than that of the competent institution.

II. The second question

14 The second question is clearly based on the premiss that, under Article 215 of the General Law on Social Security, one of the requirements for the allowance in question is `entitlement to a retirement pension'.

15 Despite the fact that, as mentioned above, the Court of Justice took the view in Martínez that the claimant need not be entitled to a retirement pension as such, (7) the national court appears to interpret the conditions laid down for the grant of the allowance under Spanish law differently.

16 The temporary nature of the unemployment allowance for claimants of more than 52 years of age at issue in my view suggests that it is not simply a question of completing a minimum period of contributions but of actually qualifying for a pension. It is, then, an allowance which is replaced by an entitlement to a pension when the age of retirement is reached. Such a condition would serve to ensure that persons were not in need when they reached retirement age.

17 This view is confirmed by the submissions made on behalf of the Spanish Government. The Government emphasises that the maintenance allowance in question displays some of the features of pre-retirement provision which, under Spanish law, serves to maintain a person's entitlement to a pension to which he has already gained entitlement. That is why, in the view of the Spanish Government, future entitlement to a Spanish pension is a prerequisite.

18 Although the Spanish Government places the emphasis on the purpose of granting the unemployment allowance at issue as being to maintain future entitlement to pension rights, it ought not to be forgotten that the unemployment allowance for claimants of more than 52 years of age is a form of financial support. There is no doubt that the purpose of the allowance is to secure an income for a specific category of workers, namely those who have been employed and subject to compulsory contributions for considerable periods, thereby earning a pension entitlement, have become unemployed and whose entitlement to regular unemployment benefits has been exhausted. The fact that the grant of the allowance also enables a person's position in terms of any entitlement he has already earned to be maintained with respect to a future pension is coincidental.

19 Accordingly, there can be no doubt that the benefit claimed is a type of unemployment allowance. First, it is described as such by the Spanish Government under Article 5, read in conjunction with Article 97 of Regulation (EEC) No 1408/71. Secondly, a claimant must be available to the unemployment authorities as a person seeking work. The latter is a typical requirement for unemployment allowances and distinguishes it as different in principle from pre-retirement provision. Furthermore, the fact that the allowance is referred to as an unemployment allowance implies that if a person's unemployed status terminates (say, by his being successfully placed through the employment authorities), his entitlement to unemployment benefit will lapse.

20 Whether Spanish law requires that a person have a future entitlement to a pension in order to qualify for the unemployment allowance here at issue is a question which arises at an earlier stage and must be answered according to national law. In my view, Article 67 of Regulation (EEC) No 1408/71 is not applicable to that issue.

21 If Spanish law requires that a person be entitled to a pension in order to qualify for the unemployment allowance in question, then a pension entitlement acquired in another Member State should be equally acceptable. It should be taken into account as a circumstance of fact or law arising in another Member State. There is extensive case-law on the duty under Community law, based on Article 51 of the EC Treaty, to take such factors into account. In this respect, I refer to the explanation in the Opinion in Martínez, paragraphs 48 to 58. In principle, therefore, a pension entitlement acquired in another Member State must, pursuant to Article 51 of the EC Treaty, be taken into account.

22 I therefore suggest that the second question be answered as follows: To the extent that it is necessary to be entitled to a retirement pension under Article 215 of the General Law on Social Security, the competent institution must, under Article 51 of the EC Treaty, take into account an entitlement to a retirement pension acquired in another Member State.

III. The third question

23 It would be an entirely different matter if, to ensure financial equity, Spanish law laid down a minimum contribution period (8) as a precondition for claiming an unemployment allowance. In this case, the periods completed in other Member States must also be taken into account under Article 67(1) of Regulation (EEC) No 1408/71. (9)

24 I should make it clear here that the view I have expressed does not answer the question of eligibility for the allowance. Article 67(3) of Regulation (EEC) No 1408/71 establishes that this is necessarily bound up with the national law of the country under which the allowance is being claimed. However, it should not be forgotten, for the purposes of this action, that a person's first-time eligibility for temporary unemployment allowance is governed exclusively by national law. If national law does not answer the question, however, then for the purposes of Community law it will be necessary to rely on the principle, based on the judgment of the Court of Justice in Martínez, that it is for the national court to determine whether the periods during which the competent Spanish institution paid contributions to the sickness insurance and family benefits schemes on behalf of the plaintiffs constitute periods of insurance under its domestic legislation. (10) As far as I can judge they do, because it is the periods of insurance as such which matter, the question of who paid the contributions being less important.

25 This view also answers the concern expressed during the course of the proceedings that overly generous recognition of contribution periods completed in other Member States could lead to a form of welfare tourism whereby workers over the age of 52 move to Spain in order to spend their pre-retirement years there at the expense of the Spanish unemployment insurance system. If the view set out herein is followed, only those migrant workers who have already benefited from unemployment allowances under Spanish law can benefit from the allowance.

26 I suggest that the third question be answered as follows: If minimum periods of contribution are required under Article 161(1)(b) of the General Law on Social Security, in so far as entitlement to an unemployment allowance under Article 215 of that Law is conditional upon their having been completed, then periods completed in other Member States must also be taken into account under Article 67(1) of Regulation No 1408/71.

C - Conclusion

27 To conclude the foregoing considerations, I propose that the Court answer the preliminary questions as follows:

(1) Article 67(1) of Regulation (EEC) No 1408/71 is to be interpreted, in relation to the unemployment allowance for claimants of more than 52 years of age provided for by Article 215(3) of Royal Legislative Decree No 1 of 20 June 1994 which approves the consolidated version of the General Law on Social Security, as requiring that periods of insurance or employment completed under the legislation of another Member State be aggregated to the extent that those contributions give rise to an entitlement to a retirement pension - subject to age requirements - in a Member State other than that of the competent institution.

(2) To the extent that it is necessary to be entitled to a retirement pension under Article 215 of the General Law on Social Security, the competent institution must, under Article 51 of the Treaty, take into account an entitlement to a retirement pension acquired in another Member State.

(3) If minimum periods of contribution are required under Article 161(1)(b) of the General Law on Social Security, in so far as entitlement to an unemployment allowance under Article 215 of that Law is conditional upon their having been completed, then periods completed in other Member States must also be taken into account under Article 67(1) of Regulation No 1408/71.

(1) - See Joined Cases C-88/95, C-102/95 and C-103/95 [1997] ECR I-869.

(2) - Opinion in Joined Cases C-88/95, C-102/95 and C-103/95 Martínez Losada and Others [1997] ECR I-869, at p. 872.

(3) - Council Regulation (EEC) No 1408/71 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 by Regulation (EC) No 118/97 (OJ 1997 L 28, p. 1).

(4) - Paragraph 37 of the Martínez judgment.

(5) - Emphasis added.

(6) - Paragraph 40 of the Martínez judgment.

(7) - Paragraph 40 of the judgment.

(8) - See Article 161(1)(b) of the General Law on Social Security.

(9) - See Joined Cases C-88/95, C-102/95 and C-103/95 (Martínez Losada and Others, paragraph 27).

(10) - See Joined Cases C-88/95, C-102/95 and C-103/95 (Martínez Losada and Others, paragraph 37).