Opinion of Mr Advocate General Lenz delivered on 12 September 1996. - Bernardina Martínez Losada, Manuel Fernández Balado and José Paredes v Instituto Nacional de Empleo (INEM) and Instituto Nacional de la Seguridad Social (INSS). - Reference for a preliminary ruling: Juzgado de lo Social n. 2 de Santiago de Compostela - Spain. - Articles 48 and 51 of the EC Treaty - Articles 4, 48 and 67 of Regulation (EEC) No 1408/71 - Unemployment benefit for persons over 52 years of age. - Joined cases C-88/95, C-102/95 and C-103/95.



European Court reports 1997 Page I-00869



Opinion of the Advocate-General

A - Introduction

1 Joined Cases C-88/95, C-102/95 and C-103/95 relate to three orders for reference from the Juzgados de lo Social (Social Courts) Nos 1 and 2, Santiago de Compostela (La Coruña). The proceedings are concerned with the applicability of provisions of Regulation (EEC) No 1408/71 (1) (`the Regulation') to satisfying the conditions for entitlement to an unemployment allowance.

2 The facts of the cases before the national court are comparable in so far as all three involve applicants for a Spanish unemployment allowance who were employed for considerable periods in the Federal Republic of Germany or the Netherlands, received unemployment benefit once he or she had returned to Spain and is now claiming a hybrid follow-up benefit that has features of a social assistance benefit.

The facts of each case are as follows:

3 Case C-88/95 concerns the claim for unemployment benefit by a plaintiff born on 13 June 1938 who was employed in the Federal Republic of Germany for various periods between 1 March 1966 and 17 February 1992, where she made 165 months' social security contributions. During her working life she did not complete any periods of insurance under the Spanish social security scheme. She received unemployment benefit in Germany from February to August 1992. In August 1992 she returned to Spain where initially, from 15 August 1992 to 14 November 1992, she received unemployment benefit on the basis of Article 69 of the Regulation. She was subsequently granted entitlement to unemployment benefit under Spanish law for the period from 15 December 1992 to 14 July 1994 since she could show that she had family responsibilities. When that entitlement ran out, she applied for the unemployment allowance for persons above 52 years of age with which this case is concerned.

4 Case C-102/95 concerns the claim for unemployment benefit by a plaintiff born on 12 April 1937 who was employed between 1 October 1971 and 30 November 1992 in the Federal Republic of Germany, where he paid 194 months' social security contributions. (2) Since 5 April 1993 he has been continuously registered as seeking work. From 30 July 1993 to 29 January 1995 he was granted, for the maximum period of 18 months, unemployment assistance under Spanish law for returning migrant workers. He applied as long ago as 30 July 1993 for the grant and payment of the unemployment allowance for persons above 52 years of age, which he now hopes to receive as a follow-up benefit.

5 Case C-103/95 concerns the claim for unemployment benefit by a plaintiff born on 11 January 1936 who is a seaman by trade. Between 20 July 1961 and 29 May 1982 he paid 20 years, 10 months and 7 days' contributions into the Netherlands social security scheme. Since 1 July 1992 he has been continuously registered as seeking work. From 2 July 1992 until 1 January 1994 he was granted unemployment assistance under Spanish law for returning migrant workers. He is now arguing for the grant of the unemployment allowance for persons above 52 years of age.

6 In all three cases, the claimant has no employment-based periods of contribution under the Spanish social security scheme. Each claimant was nevertheless granted Spanish unemployment benefit on different legal grounds, but was refused the follow-up allowance for persons above 52 years of age. The unemployment allowance at issue is a hybrid benefit.

7 For a better understanding of that type of benefit, it should be noted that the protection provided under Spanish law in the event of unemployment divides into a contributions-based element and a support element. The objective of the former is to provide benefits in place of income lost as a result of loss of employment or reduction in the working day. Those benefits are supplemented by the support element, whose objective is to protect workers falling within categories defined by statute. Although this benefit is defined as constituting assistance and the amount of benefit does not depend on how much one was previously paid, Spanish law requires that certain contributions-related conditions be fulfilled. For a claimant to obtain such benefit, the law requires him, in addition to registering as a person seeking work, to have made a minimum of six years' unemployment insurance contributions during his working life and to prove that he satisfies all conditions, save those relating to age, for entitlement to a contributions-based retirement pension under the social security scheme.

8 The national court assumes that the unemployment allowance for persons above 52 years of age within the meaning of the Spanish legislation constitutes an unemployment benefit within the meaning of Article 67(1) and Article 4(1)(g) of the Regulation. It points out that the defendant Spanish institution is refusing to grant the plaintiffs the unemployment allowance for persons above 52 years of age because they do not satisfy `the minimum period of contribution required in order to be entitled to a retirement pension under the social security scheme'. In this regard, it has been shown that each of the plaintiffs was affiliated to the social security scheme of another Member State (Germany or the Netherlands) and has made the contributions and completed the period required under the scheme in question in order to receive, on reaching retirement age, a retirement pension payable under the social security scheme of the relevant Member State. The inference is, therefore, that the Instituto Nacional de Empleo (National Employment Institute) requires that a claimant must be able to retire in due course with a pension payable under the Spanish social security scheme if he is to be entitled to the unemployment allowance at issue.

9 That condition, the national court goes on to state is admittedly fulfilled by persons entitled, pursuant to Article 45 et seq. of the Regulation, to a pro rata pension under the Spanish social security scheme. In the event of periods of contribution amounting to less than one year which, in accordance with Article 48 of the Regulation, are to be ignored under the Spanish pension insurance scheme, the same dilemma arises as in cases were no contributions at all have been made to that scheme.

10 The Tribunal Supremo (Supreme Court) sitting as a full court held on 28 February 1994, in a judgment concerning entitlement to the unemployment allowance at issue in this case, that persons who were neither affiliated to the Spanish social security scheme nor had made any contributions to it did not qualify for the benefit. A duty to pay it could not arise, because the plaintiff in that case was not entitled to a retirement pension in Spain.

11 The national court doubts whether that interpretation is compatible with Community law. It refers the following questions to the Court of Justice for a preliminary ruling, the first of which is asked only in the orders for reference in Cases C-102/95 and C-103/95 while the second, third and fourth questions appear in identical terms in all three orders.

1. Must the unemployment allowance for persons over 52 years of age applied for by the plaintiff, provided for by Article 13.2 of Law 31/84 of 2 August 1984, as amended by Royal Decree Law 3/89 of 31 March 1989 (now Article 215(3) of Royal Legislative Decree 1/1994 of 20 June 1994) be considered an unemployment benefit within the meaning of Article 4(1) of Regulation (EEC) No 1408/71?

If the foregoing question is answered in the affirmative:

2. Must Article 67(1) of Regulation No 1408/71 (in its present version) 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 1/1994 of 20 June 1994, which approves the consolidated version of the General Law on Social Security, to the extent to which the right to a retirement pension may be obtained on the basis of such contributions, subject to age requirements, in a Member State other than that of the competent institution?

3. Can that be the case even though the worker has not paid contributions in Spain or has paid contributions for less than one year, provided that he is entitled to a retirement pension in any Member State?

4. Is the requirement that, for migrant workers to receive the unemployment allowance available for persons of more than 52 years of age, it must be shown that, subject to age requirements, they are entitled to a retirement pension payable by the Spanish social security scheme (persons having such an entitlement in any other Member State being precluded from receiving such allowance) contrary to Articles 48(2) and 51 of the EC Treaty?

12 The plaintiffs before the national court, the Spanish Government and the Commission took part in the proceedings. I shall return to their observations in my appraisal of the law.

B - Opinion

I. The first question

13 The interested parties all suggest that the first question be answered in the affirmative.

14 The plaintiffs in the proceedings before the national court first rely on Article 4 of the Regulation, which sets out the matters covered by the Regulation. Article 4(1), which states that the Regulation is to apply to all legislation concerning the branches of social security listed therein, includes, as Article 4(1)(g), `unemployment benefits'. The plaintiffs also submit that the benefit at issue forms part of a non-contributory social security scheme for the purposes of Article 4(2) (however, whether the benefit falls within the scope of the Regulation is, in fact, not determined by its qualifying as such). They base their view, first, on the declaration of the Spanish Government, (3) giving notice that the benefit falls under the Regulation. They then rely on the case-law of the Court, according to which such a declaration is sufficient to establish that a benefit falls within the scope of the Regulation. (4) The Court has in any event already referred to the benefit at issue as falling within the scope of the Regulation.(5) Spanish legislation, for its part, proceeds on the basis that it is an unemployment allowance in the nature of assistance. The Tribunal Supremo,(6) finally, has had no doubt that the benefit falls within the scope of the Regulation.

15 The Spanish Government points out that it amended its declaration under Article 5 of the Regulation so that there would be no doubt that the Regulation applied to the unemployment allowance at issue. (7)

16 The Commission refers to its observations in Joined Cases C-422/93, C-423/93 and C-424/93 on the designation of the benefit at issue in this case, in which it argued that the Regulation applied. It also relies on the Opinion in that case of Advocate-General Elmer, delivered on 21 February 1995. (8) As a result it also is of the view for the purpose of these proceedings that there is no doubt that the benefit falls within the scope ratione materiae of the Regulation.

17 For the sound reasons set out in detail by the interested parties, I too am of the opinion that the allowance at issue falls within the scope of the Regulation and is not excluded from its scope because, for instance, it constitutes social assistance within the meaning of Article 4(4) of the Regulation.

18 I propose the following answer to the first question:

An unemployment allowance for persons over 52 years of age, such as the one applied for by the plaintiffs under Article 13.2 of Law 31/84 of 2 August 1984, as amended by the Royal Decree Law of 31 March 1989 (now Article 215(3) of Royal Legislative Decree 1/1994 of 20 June 1994), must be considered to be an unemployment benefit within the meaning of Article 4(1) of Regulation (EEC) No 1408/71.

II. The second question

19 The plaintiffs' position as regards the second question is as follows. Starting from the general principle laid down in Articles 48 to 51 of the Treaty that migrant workers are not to be prejudiced by exercising their right to freedom of movement, they refer to the case-law of the Court. On the basis of the judgments in Ulgiola,(9) Kaufmann, (10) Galati, (11) Paraschi, (12) Bronzino (13) and Gatto, (14) they submit that where, under the legal system of a Member State, acquisition of entitlement to benefit is linked to the existence of certain facts, and those factual requirements are fulfilled under the legal system of another Member State, that must also be taken into account under the legal system of the first State. Applying this principle, the question is to be answered in the affirmative.

20 Accordingly, if entitlement to the allowance in question is dependent on all conditions for the right to a retirement pension, other than that of having reached retirement age, being satisfied when the allowance is applied for, it cannot be the case that that pension must necessarily be a pension under Spanish law (whether full or pro rata).

21 If, on the other hand, one wished to argue that such a restriction applies, there would be no explanation as to why the Spanish legislature, despite the provision granting the entitlement being amended on two occasions, (15) never inserted the word `Spanish'. Furthermore, a Member State is not permitted to introduce unilaterally such a restriction on the right to freedom of movement. Finally, such a restriction would have the effect of a territorial provision incompatible with Community law. (16)

22 The Spanish Government begins by raising a question precedent in two parts. The Community coordinating legislation allows different social security schemes to exist, which confer different benefit entitlements payable by different institutions, whether on the basis of national law alone or national law supplemented by Community law. In order to obtain an entitlement to benefit under a Member State's legal system, it is necessary to satisfy basic minimum requirements in accordance with its national law. Those requirements must be founded on contributions, periods of insurance or periods of employment under that legal system. Only in those circumstances can national law be supplemented by Community law.

23 The plaintiffs in the main proceedings, however, were never affiliated to the Spanish social security scheme and never paid contributions to it. In those circumstances, they could never supplement any periods of contribution in Spain with periods completed in another Member State, for the simple reason that the former do not exist.

24 Article 67(3) of the Regulation must be seen in that light. Under that provision, periods of insurance or of employment can be aggregated, pursuant to Article 67(1), only if the person concerned has completed periods of insurance or of employment immediately prior thereto in accordance with the provisions of the legislation under which he claims benefit. None of the plaintiffs in these cases has ever paid Spanish social security contributions or completed periods of insurance or of employment in Spain, whether immediately before or earlier.

25 The Spanish Government concludes therefrom that to grant benefit to the plaintiffs would be contrary to the objective of Article 67 of the Regulation. Article 67 accordingly precludes taking account of periods of insurance or of employment completed in another Member State:

- if the claimant has paid no contributions and has not completed any periods of insurance or of employment in the Member State in which he claims the benefit; or

- if he did not complete his last period of insurance or pay his last contribution under the legal system of that Member State.

26 The Spanish Government takes the view that, following that interim conclusion, the second question (17) no longer needs answering and its further observations are purely hypothetical.

27 This case does not, the Spanish Government continues, simply relate to the recognition of periods of insurance for the purpose of receiving unemployment benefit. It relates rather to recognition of a right to a future pension, acquired under another legal system. Various problems are raised by this:

- It cannot, in any event, be based on Article 67(1) of the Regulation since it falls outside the ambit of that provision.

- A further difficulty is that the competent institution of a Member State must decide whether there is a right to a pension under another legal system, which is contrary to the principle laid down in Article 13 of the Regulation that the legislation of a single Member State only should be applicable.

- Finally, a difficulty is evident in that the condition for entitlement to the unemployment allowance is having a right not to a future pension of any type but to a contributory pension under the social security scheme.

28 In conclusion, it must be pointed out that the permeability of schemes results in artificial entitlements. It cannot be right that any worker who has reached 52 years of age and has acquired a right to a future pension under the legal system of any Member State can go to Spain and draw unemployment benefit there without ever having paid Spanish social security contributions.

29 The Commission takes the view that Article 67 of the Regulation must be interpreted as a whole. It is of fundamental importance to examine whether Article 67 of the Regulation can be applied at all to the cases before the national court. At issue in particular is whether the criterion of `periods of insurance completed lastly' laid down in Article 67(3) is satisfied. It has to be assumed that the plaintiffs did not complete any periods of employment in Spain. However, during the periods when they received unemployment benefit in Spain, all three paid contributions to different branches of the social security scheme, that is to say sickness insurance and family protection contributions.

30 With regard to the branch of social security to which contributions are made, the Commission refers to the judgment in Warmerdam-Steggerda (18) to argue that it does not matter whether periods of insurance can be established in the same branch of social security. The fact that the plaintiffs did not pay Spanish unemployment insurance contributions therefore cannot preclude taking account of periods of contribution to an unemployment insurance fund in another Member State.

31 It is for the national court to assess whether Article 67(3) of the Regulation is satisfied. If it is, nothing prevents periods of insurance from being aggregated within the meaning of Article 67(1). The Commission accordingly concludes that the second question should be answered in the affirmative.

32 The wording and context of the second question suggest that the Court may answer the question whether the condition for entitlement to the unemployment allowance under Spanish law for persons above 52 years of age that all the criteria, other than age, for a retirement pension under the social security scheme (right to a future pension) be fulfilled can be met by possessing a right to a future pension under the legal system of another Member State.

33 The conditions for entitlement to the unemployment allowance at issue include two contributions-based tests, in relation to which Article 67(1) of the Regulation may come into play. First, the claimant must have paid six years' unemployment contributions during his working life. Secondly, he must have a right to a future pension.

34 In its observations the Commission appears throughout to be referring to the first of the two tests. It seems however, in view of the arguments of the national court and of the other interested parties before Spanish authorities and courts, that that test does not give rise to a problem. The Spanish legislation does not require that the six years' contributions must have been paid immediately before the application. Since the test of six years' unemployment contributions has evidently not been raised as an issue in the proceedings before the national court, I assume that such contributions are, in accordance with Community law, equally recognized if they are paid under the legal system of another Member State.

35 This appraisal therefore concentrates on the second test, the right to a future pension. The Spanish Government has also made this the fundamental point at issue.

36 In my view, one must consider first the question of the applicability of Article 67 of the Regulation in this context and then the question of which factual elements may be recognized in the Spanish legal system through the medium of that provision. It is significant that Article 67 of the Regulation does not appear in the plaintiffs' observations on the second question. The Commission has discussed the applicability of Article 67 to the facts of these cases in both its written observations and its oral submissions at the hearing. The Spanish Government takes the view that Article 67 precludes the outcome sought by the plaintiffs, on the ground that taking account of a right to a future pension acquired in another Member State falls outside the scope of Article 67.

37 The starting point is the position of Article 67 in the Regulation. It is the first article in Chapter 6, `Unemployment Benefits'. (19) It constitutes one of the bases for access to unemployment benefit. It requires account to be taken of periods of insurance (20) or periods of employment (21) completed in another Member State in so far as periods of employment or insurance determine acquisition of entitlement to unemployment benefit. The link to the competent State is created by Article 67(3), which lays down that the person concerned should have completed lastly periods of insurance or periods of employment in accordance with the provisions of the legislation under which the benefits are claimed.

38 It should be recognized that the requirement `lastly' is no longer of relevance for access to unemployment benefit on the facts of the cases before the national court. All three plaintiffs have received unemployment benefit on the basis of Spanish national law alone. For them to be entitled to benefit, it was not necessary for the basis of entitlement under national law to be `supplemented' by Community law. All three plaintiffs have already been subject to the Spanish social security scheme for some time and have been drawing unemployment benefit. It is therefore highly questionable whether Article 67 can come into play on a claim for a follow-up benefit that has features of a social assistance benefit for persons approaching retirement.

39 The Commission's argument, which clearly proceeds on the basis that Article 67 is applicable, and then overcomes the obstacle posed by Article 67(3) by relying on periods of insurance completed by the plaintiffs while subject to Spanish social security, is ultimately based on the fact that the plaintiffs had already gained access to Spanish unemployment benefits.

40 The Commission's approach has the merits of clarity and transparency. Indeed the Court held in Warmerdam-Steggerda (22) that Article 67(1) of the Regulation did not make the aggregation, by the competent institution of a Member State, of periods of employment completed in another Member State subject to the condition that such periods should be treated as periods of insurance for the same branch of social security by the legislation under which they were completed.

41 Unlike the cases to be ruled on now, in Warmerdam-Steggerda the application was in fact preceded by periods of active employment. In that respect the case concerned access to unemployment benefit. The fact that there is a preceding period of employment should be taken into account as a condition for entitlement under the law of another Member State under which unemployment benefit is claimed.

42 The Commission is admittedly right that the expression `periods of insurance' in Article 67(3) of the Regulation does not necessarily have to be construed as `periods of unemployment insurance'. Article 1, which contains the general definitions for the Regulation, defines `periods of insurance' in Article 1(r) as `periods of contribution or periods of employment or self-employment as defined or recognized 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'.

43 Notwithstanding that general definition, the position and the spirit and purpose of the expression `periods of insurance' in Article 67(3) of the Regulation should not be overlooked. If one does not necessarily wish to infer therefrom that what is meant is `periods of unemployment insurance', periods of insurance under a social security scheme of a Member State should in the broadest sense also afford protection against the risk of unemployment.

44 If that criterion is applied to the periods of insurance completed, in the cases before the national court, under the Spanish social security scheme, it is clear that they do not fulfil the above purpose. If the contributions paid by the employment service on the grant of unemployment benefit to the sickness fund and the family protection contributions were to be regarded as periods of insurance for the purposes of Article 67(3), granting benefit per se would, paradoxically, operate to establish entitlement to benefits of the equivalent type. (23) On the basis of the above considerations, I have at least reservations about whether the solution advanced by the Commission should be followed.

45 In my opinion, we should pause at this point and remind ourselves what the issue actually is in these proceedings. It is not the aggregation of previous periods of insurance under an unemployment insurance fund of any Member State (the requisite six years' contributions are evidently recognized even if they were paid under the law of another Member State). Nor is it the aggregation of periods of insurance or employment for the purpose of access to unemployment insurance. It is no more than the aggregation of periods of insurance for the purpose of acquiring a right to a future pension.

46 The acquisition and calculation of pension rights under Community law is governed by the rules of Chapter 3 `Old Age and Death (Pensions)' (24) of the Regulation. In particular, consideration of periods of insurance is regulated by Article 45. The aggregation of periods of insurance for establishing pension rights is therefore not governed by Article 67 of the Regulation. In my view therefore, there is no need to decide whether, adopting the approach adopted by the Commission, the contributions paid, when unemployment benefit was granted, to other branches of social security are to be recognized as periods of insurance within the meaning of Article 67(3). This view also bypasses the argument put forward by the Spanish Government that Article 67 constitutes an obstacle to recognition of a right to a future pension that has been conferred in another Member State.

47 In this context, it is unnecessary to settle whether and how a right to a future pension arises, but whether fulfilling that criterion under the law of one Member State may, by virtue of Community law, result in entitlement to an unemployment allowance being established under the law of a second Member State.

48 The emphasis on the requirement for `a right to a future pension' is consonant with the purpose of the Spanish benefit claimed as it has been explained in this case. The unemployment allowance in the nature of assistance gives financial support to a category of persons who, in view of their age, are unlikely to be reintegrated into gainful employment, were for a considerable period in employment in respect of which social security contributions were due, but have not yet reached retirement age. The right to a future pension assumes such importance as a condition for entitlement because of a desire to be sure that one is dealing with a transitional solution which will become superfluous once retirement age is reached. In this respect the origin of the benefits which can be claimed on reaching retirement age is immaterial.

49 If a right to a future pension that has been acquired in another Member State cannot be read into Spanish law on the basis of Article 67(1) of the Regulation, the question arises as to whether, and if so, on what basis there is nevertheless an obligation under Community law to recognize such a right acquired in one or more other Member States.

50 In the field of the legislation on free movement of workers there is a wide-ranging body of case-law concerning recognition of factual or legal circumstances occurring in another Member State. The cases are based predominantly on legislation dealing with the various branches of social security. The judgment in Warmerdam-Steggerda (25) referred to above concerned recognition of actual periods of employment, which had certain legal effects in another Member State, for the purpose of obtaining unemployment benefit.

51 The judgments in Bronzino (26) and Gatto (27) concern a condition for payment of family benefits. In order to be entitled to family allowance under German law in respect of dependent children who were unemployed, the children had to be registered as persons seeking employment. That requirement could, the Court held, be complied with under the law of a Member State other than the one in which the benefit was granted. The judgment in Treaty infringement proceedings against the Grand Duchy of Luxembourg, (28) where the Court held that a residence requirement was contrary to Community law, also falls within the field of family benefits.

52 With regard to conditions for invalidity pension entitlement, (29) the Court has held that it is incompatible with Community law for events and circumstances which can prolong the reference period to be taken into account only if they occurred in the State of employment and not in the State of origin of a migrant worker. The Court held in relation to the legislation at issue in that case:

`Even if it applies, formally, to every Community worker and can thus lead to a prolongation of his reference period, nevertheless, in so far as it makes no provision for any possibility of prolongation where events or circumstances corresponding to those which enable the period to be prolonged occur in another Member State, it is liable to have a much greater adverse effect on migrant workers since they above all, particularly in case of sickness or unemployment, tend to return to their countries of origin.

Consequently, such legislation has the effect of dissuading migrant workers from exercising their right of free movement.' (30)

53 Invalidity benefits were likewise dealt with in the judgment in Moscato, (31) where the issue was the effect, for the purposes of establishing benefit entitlement, of periods of insurance completed in another Member State. The circumstances of that case are therefore similar to those of the case before the Court. The Court held in Moscato: `... where the applicable legislation of a Member State makes the grant of invalidity benefits subject, inter alia, to the condition that at the time of his joining the scheme established by that legislation the worker's state of health must not have been such as to make it foreseeable that incapacity for work followed by invalidity would occur in the near future, the competent authority must also take into account periods of insurance completed by that worker under the legislation of another Member State, as if those periods had been completed under the legislation which it administers.' (32)

54 The Court delivered a very similar judgment in Klaus, (33) which concerned the grant of sickness benefits. The Court held: `... where the applicable legislation of a Member State makes the grant of cash sickness benefits subject to the condition that the insured person was not already unfit for work at the time when he became insured under the scheme which it establishes, the competent institution must also take into account periods of insurance completed by that person under the legislation of another Member State, as if those periods had been completed under the legislation which it administers.' (34)

55 The last judgment to which I would like to refer in this short analysis of the case-law is that in Vougioukas. (35) This concerned taking account of periods of employment actually completed under the law of another Member State which required such periods to satisfy certain requirements for them to be relevant to acquisition of a right to a future pension. The Court held: `Articles 48 and 51 of the EC Treaty must be interpreted as precluding refusal to take into account, for the acquisition of the right to a pension, periods of employment completed by a person subject to a special scheme for civil servants or persons treated as such ... in public hospitals in another Member State, where the relevant national legislation allows such periods to be taken into account if they have been completed in comparable establishments within that State.' (36)

56 Article 51 of the EC Treaty - the legal basis for the Regulation - postulates, as a minimum requirement of the measures necessary to provide freedom of movement for workers in the field of social security, securing `aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries'. This ever-recurring idea, which runs right the way through the Regulation, also finds expression in Article 67(1) thereof. Even if, for the reasons already given, Article 67(1) cannot apply directly, a worker can, in my opinion, rely directly on the principle laid down in Article 51 of the Treaty.

57 To defeat this argument by referring to Article 67(3), when for the reasons already given Article 67 is no longer substantively relevant, would amount to reversing the intent of the Regulation. It does not correspond to the legislative purpose of Article 67, or accord with the aims of the Regulation, to erect additional obstacles to access to social security benefits.

58 In my opinion, therefore, Article 51 of the EC Treaty obliges the competent institutions of a Member State to take account of a right to a future pension which has actually been acquired.

59 The Spanish Government has rightly pointed out that there must be a connection in law to the social security scheme of the Member State under which benefits can be claimed. It is not right, it adds, if anybody who has acquired a right to a future pension under the law of any Member State can go to Spain and draw there, until he reaches retirement age, the unemployment allowance for persons above 52 years of age. That view must be accepted. Such circumstances do not feature, however, in the matter now before the Court for a ruling. In each of the three cases before the national court, access was gained to the Spanish social security scheme by means of national law alone. There is therefore a connection to Spanish law without assistance from Community law being required. The fact that unemployment benefit, whether benefit for returning migrant workers or for workers who can show family responsibilities, was granted previously must be regarded as material under Community law.

60 The Spanish Government's further objection, that recognizing a right to a future pension acquired under the law of another Member State would require the Spanish authorities to determine whether such entitlement exists, is only partly right. It is true that the claimant would have to be able to prove that he was so entitled under the social security scheme of another Member State.

61 The cooperation that takes place between the competent institutions of individual Member States in the field of application of the Regulation, whether through setting up formal information procedures or the issue of uniform forms throughout the Community, is sufficiently well-known. With regard to the grant of pensions, it must in principle be assumed in accordance with Article 44(2) of the Regulation that the processing of a claim for an award of a benefit submitted under the law of a Member State has regard to all the legislations to which the claimant has been subject. Awarding the benefit necessarily presupposes an inter-authority information procedure. For the purposes of determining pensions, that is set out in greater detail in Articles 36 and 41 to 43 of Regulation (EEC) No 574/72.(37)

62 The competent Spanish institution therefore does not need to determine whether there is a right to a future pension under the law of another Member State, but could, relying on the opportunities for cooperation described, take account of the information provided by the competent institution of another Member State.

63 Finally, the objection that there is a problem, not in so far as any right to a future pension is required, but in so far as only the right in the future to a contributory pension under the social security scheme is required, must likewise be rejected. In my opinion, that criterion is not an obstacle in the least. The information procedures between authorities referred to above apply precisely to cooperation between the social security schemes of individual Member States. Restricting the rights to be taken into account to pension rights under social security schemes therefore simplifies matters.

64 I would like to state as an intermediate answer that Community law, under Article 51 of the Treaty if not directly by means of Article 67(1) of the Treaty, requires account to be taken of a right to a future pension that has been acquired in another Member State.

65 I therefore propose the following answer to the second question:

With regard to an unemployment allowance for persons over 52 years of age, provided for by Article 215(3) of Royal Legislative Decree 1/1994 of 20 June 1994, which approves the consolidated version of the General Law on Social Security, the competent institution is required to take account of periods completed in another Member State, to the extent to which the right to a retirement pension is, subject to age requirements, obtained on the basis of those periods of contribution in that other Member State.

III. The third question

66 The third question concerns the relevance of an applicant for the unemployment allowance at issue not having the right to even a pro rata pension under Spanish law. The national court is here making an implied reference to the Community legislation on the award and calculation of old-age benefits where the legal system of more than one Member State is involved. The phrase `contributions for less than one year' is to be understood as a reference to Article 48 of the Regulation. Article 48(1) provides that an institution is not to be required to award benefits in respect of periods completed under the legislation it administers if the duration of the said periods does not amount to one year and, taking only those periods into consideration, no right to benefit can be acquired by virtue of the provisions of that legislation. It must therefore be assumed that, even in the case of employment subject to social security contributions in Spain of less than one year, a right to a future pension is not acquired.

67 Central to the plaintiffs' observations on the third question referred by the national court is the distinction that this case concerns the grant of an unemployment allowance, and that there is therefore no room for application of Article 48 of the Regulation, which relates solely to the calculation of retirement pensions. This argument is supported by a reference to the judgment in Ventura. (38)

68 The plaintiffs also contend that making grant of the unemployment allowance in question subject to the requirement that the claimant has acquired a right to a future pension under Spanish law - even if only to a pro rata pension - by virtue of periods of employment in Spain of more than a year, would be tantamount to introducing an additional condition for entitlement to the allowance which cannot be inferred from the law in force.

69 The Spanish Government doubts the proposition that Article 48 of the Regulation cannot be applied to Chapter 6 `Unemployment Benefits'. The judgment in Ventura concerned orphans' pensions, which has nothing in common with this case. Accordingly, there is nothing to prevent Article 48 from being applied in the sphere of application of Article 67 in so far as eligibility conditions for pension rights are concerned.

70 The Commission, on the other hand, is decidedly of the view that the judgment in Ventura must apply by analogy, so that there is no room in this case for taking account of Article 48.

71 As can already be gathered from the observations on the second question, the provisions on the accrual of pension rights can in any event be relevant to Article 67 only to the extent that their application leads to the positive result of establishing a right to a future pension. This is because holding such a right is one of the conditions for entitlement to the unemployment allowance at issue.

72 In the final analysis, the third question also concerned with the problem, already touched on when discussing the second question, of whether Spanish law can recognize only a right to a future pension under the Spanish social security scheme as establishing entitlement. It follows from my conclusion on the second question that this approach is too narrow. It does not matter that no contributions were paid in Spain or that they were paid for less than a year, because the result is the same: an absence of any future claim against the Spanish pension insurance scheme.

73 The question does not include an element which is nonetheless significant as far as the consequences of the answer are concerned, namely that there must be some form of eligibility for Spanish social security benefits - if not necessarily as a result of payment of pension insurance contributions.

74 I therefore propose the following answer to the third question:

If a worker is eligible for benefits under the Spanish social security scheme, whether on the basis of national law alone or under Community law, the competent institution is required to take account of entitlement to old-age benefits in another Member State even if he has paid no contributions in Spain or has paid them for less than a year.

IV. The fourth question

75 The plaintiffs begin by suggesting that the wording of the question (39) be made more precise. The phrase `persons having such an entitlement in any other Member State being precluded from receiving such allowance' should be amplified so that it reads: `persons having such an entitlement in any other Member State but not under Spanish legislation being precluded from receiving such allowance'. They explain that it has never been disputed that workers who have acquired a right to a future pension in another Member State but at the same time have also completed periods of employment subject to social security contributions of at least one year in Spain can qualify for the unemployment allowance at issue.

76 The competent authorities have always required, in addition to a right to at least a pro rata future Spanish pension, payment of 180 months' contributions, irrespective of whether the worker making the claim already has a right to a future pension in another Member State.

77 The plaintiffs' observations on the fourth question are largely based on their observations on the second question. They conclude by proposing that the fourth question be answered in the affirmative on the ground that a strict interpretation of the Spanish legislation would be contrary to Articles 48(2) and 51 of the Treaty and the case-law appertaining thereto. To require a right to a future Spanish pension as a condition for entitlement would constitute both discrimination contrary to Community law and a restriction on freedom of movement.

78 When answering the fourth question, the Spanish Government expressly relies on its observations on the second question. In order to obtain the unemployment allowance under Spanish law, claimants do not need to show that they satisfy all the requirements, other than age, for a pension under the Spanish social security scheme, which would exclude automatically persons who fulfil all requirements, other than age, for a pension in another Member State. Instead, they must satisfy all requirements, other than age, laid down by Spanish law for obtaining a pension, for example minimum contribution periods. Spanish law thus requires claimants to show at least 15 years' contributions, of which at least two must be in the preceding eight years. That requirement is objective, not discriminatory. It does not matter whether the 15 years' contributions were paid exclusively under the Spanish scheme, or only partly under Spanish law with the remainder being paid under that of another Member State. It is in any event consistent with Article 67(3) of the Regulation for the claimant to have had to pay lastly at least one month's contribution to the Spanish scheme.

79 The Commission, on the other hand, sees in the minimum contributions period a requirement bearing relation solely to completion of those periods under Spanish social security. It bases its view on Article 161b of the Spanish Social Security Code. To preclude workers who have acquired rights to a future pension under the law of Member States other than Spain from receiving the aforementioned unemployment allowance would be tantamount to an unlawful refusal of a social benefit within the meaning of the case-law and would thereby constitute an obstacle to the exercise of freedom of movement. The requirement to fulfil all conditions, other than age, for entitlement to a retirement pension under the Spanish social security scheme must be treated as fulfilled even if it has been met under another legal system. Any other interpretation would be contrary to the objective of Articles 48 and 51 of the Treaty.

80 The parties' respective references to their observations on the second question show that the answer to the fourth question is a corollary of the answer to the second.

81 The comment made, in my view entirely justifiably, by the plaintiffs on the wording of the fourth question should be considered at the outset. The question is ambiguously worded in so far as it could be thought that a right to a future pension in another Member State has the effect of excluding grant of the unemployment allowance applied for. It follows from what has already been said that that is not so. Instead it is persons unable to show any entitlement at all to a pro rata pension in Spain who are excluded. The fourth question could therefore be worded `... persons having such an entitlement in any other Member State only being precluded from receiving such allowance ...'. It does not matter whether this wording or that suggested by the plaintiffs is preferred. It is clear that the substantive purpose of the question is whether the requirement to have at least a pro rata Spanish pension on reaching retirement age can, under Community law, be a valid condition for entitlement to the unemployment allowance for persons over 52 years of age.

82 The argument put forward by the Spanish Government is in fact liable to cause confusion. For the purposes of further appraisal, the Spanish Government's understanding of the legal position must be assumed to be that a claimant has to show as a minimum that he will in any event have a pro rata pension under Spanish law on reaching retirement age. He must also prove 180 months' contributions, of which at least 24 must have been paid in the preceding eight years. Accordingly, even if a right to a future pension can be acquired in another Member State with fewer months' contributions and a claimant can demonstrate acquisition thereof, that is not sufficient to comply with the eligibility requirement under Spanish law for the unemployment allowance.

83 The reference made by the Spanish Government to the requirement, justified under Article 67(3) of the Regulation, that at least one month's contribution be paid to the Spanish scheme, is of a purely hypothetical nature. First, that factor plays no part in any of the cases before the national court. Secondly, according to the argument put forward by the Spanish Government even making a single payment would not improve the plaintiffs' position, since periods of contribution of at least one year must be completed in order to obtain through Community law at least a pro rata pension under Spanish law. That objection can therefore be disregarded for the purposes of this appraisal.

84 Against the background set out, potential prejudice to workers who have been employed in a Member State other than Spain is apparent in two respects. First, a right to a future pension acquired in another Member State is not sufficient if it does not coincide with a right to a future Spanish pension. Secondly, the unemployment allowance applied for can be refused even in cases where a right to a pro rata future Spanish pension coincides with a future right acquired in another Member State, that is to say where 180 months' contributions including the temporal component cannot be shown.

85 The Spanish Government considers that the second of the two factors constitutes an objective condition that is non-discriminatory. If, on the other hand, one starts from the requirement that pension entitlement be actually available when retirement age is reached, the condition appears in a different light. Admittedly workers who have spent their entire active working life in Spain must equally show 180 months' contributions. That is, however, precisely one of the constitutive elements for acquiring future Spanish pension rights.

86 If a right to a future pension has already been established, on the basis of the law of another Member State, by fulfilling shorter periods of contribution, the desired result - a pension starting at retirement age - has been achieved. The origin of the benefits claimable on retirement is of no more than secondary importance. It must be assumed that a migrant worker who has acquired a right to a future pension under the law of a Member State other than Spain will no longer be a burden on the Spanish social security scheme once he reaches retirement age.

87 The potential prejudice, described above, to migrant workers whose employment within the European Community has been wholly or partly outside Spain is, in my view, contrary to the objectives pursued by Articles 48 and 51 of the Treaty.

88 In the result, taking future Spanish pension rights as a minimum requirement for acquisition, by workers who have already become eligible for Spanish social security benefits on the basis of national law alone, of the unemployment allowance sought is, in my opinion, incompatible with the objectives laid down in Articles 48 and 51 of the Treaty.

89 I therefore propose the following answer to the fourth question:

A requirement such as the one that, for migrant workers to receive the unemployment allowance available for persons of more than 52 years of age, it must be shown that, subject to age requirements, they are entitled to a retirement pension payable by the Spanish social security scheme (persons having such an entitlement in any other Member State only being precluded from receiving such allowance) is contrary to Articles 48(2) and 51 of the EC Treaty if and in so far as access of the category of persons concerned to social security benefits was granted on the basis of national law alone.

C - Conclusions

90 In the light of the foregoing, I propose that the answer to the questions submitted by the national court should be:

(1) An unemployment allowance for persons over 52 years of age, such as the one applied for by the plaintiffs under Article 13.2 of Law 31/84 of 2 August 1984, as amended by the Royal Decree Law of 31 March 1989 (now Article 215(3) of Royal Legislative Decree 1/1994 of 20 June 1994), must be considered to be an unemployment benefit within the meaning of Article 4(1) of Regulation (EEC) No 1408/71.

(2) With regard to an unemployment allowance for persons over 52 years of age, provided for by Article 215(3) of Royal Legislative Decree 1/1994 of 20 June 1994, which approves the consolidated version of the General Law on Social Security, the competent institution is required to take account of periods completed in another Member State, to the extent to which the right to a retirement pension is, subject to age requirements, obtained on the basis of those periods of contribution in that other Member State.

(3) If a worker is eligible for benefits under the Spanish social security scheme, whether on the basis of national law alone or under Community law, the competent institution is required to take account of entitlement to old-age benefits in another Member State even if he has paid no contributions in Spain or has paid them for less than a year.

(4) A requirement such as the one that, for migrant workers to receive the unemployment allowance available for persons of more than 52 years of age, it must be shown that, subject to age requirements, they are entitled to a retirement pension payable by the Spanish social security scheme (persons having such an entitlement in any other Member State only being precluded from receiving such allowance) is contrary to Articles 48(2) and 51 of the EC Treaty if and in so far as access of the category of persons concerned to social security benefits was granted on the basis of national law alone.

(1) - Consolidated version 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 (OJ 1992 C 325, p. 1).

(2) - That information is derived from the documents before the Court. By my calculations, there are only 134 months in the period from 1 October 1971 to 30 November 1982, so that presumably either the years or the number of months' contributions is wrong.

(3) - See OJ 1993 C 321, p. 2.

(4) - See Case 35/77 Beerens v Rijksdienst voor Arbeidsvoorziening [1977] ECR 2249, paragraph 9; see also Case 70/80 Vigier v Bundesversicherungsanstalt für Angestellte [1981] ECR 229, paragraph 15.

(5) - Joined Cases C-422/93, C-423/93 and C-424/93 Zabala Erasun and Others v Instituto Nacional de Empleo [1995] ECR I-1567.

(6) - See, for example, judgment no 1567/91 of 29 December 1992.

(7) - See OJ 1993 C 321, p. 2.

(8) - Zabala Erasun and Others v Instituto Nacional de Empleo [1995] ECR I-1567, at p. 1569.

(9) - Case 15/69 Südmilch v Ugliola [1969] ECR 363.

(10) - Case 184/73 Bestuur van de Nieuwe Algemene Bedrijfsvereniging v Kaufmann [1974] ECR 517.

(11) - Case 33/75 Galati v Landesversicherungsanstalt Schwaben [1975] ECR 1323.

(12) - Case C-349/87 Paraschi v Landesversicherungsanstalt Württemberg [1991] ECR I-4501.

(13) - Case C-228/88 Bronzino v Kindergeldkasse [1990] ECR I-531.

(14) - Case C-12/89 Gatto v Bundesanstalt für Arbeit [1990] ECR I-557.

(15) - The original legislation goes back to Article 13(2) of Law 31/84 of 2 August 1984; that was amended by Royal Decree 3/89 of 31 March 1989 and most recently also by Royal Decree 1/1994 of 20 June 1994.

(16) - Case 61/65 Vaassen v Beambtenfonds Mijnbedrijf [1966] ECR 261.

(17) - See section 11 above.

(18) - Case 388/87 Bestuur van de Nieuwe Algemene Bedrijfsvereniging v Warmerdam-Steggerda [1989] ECR 1203.

(19) - This chapter falls within Title III of the Regulation.

(20) - See Article 67(1) of the Regulation.

(21) - See Article 67(2) of the Regulation.

(22) - Cited in footnote 18.

(23) - It should be noted that I am not referring here to periods treated as being equivalent by law, for example where under the legal system of a Member State account can be taken of periods of unemployment to establish expectancies under a pension inurance scheme.

(24) - This chapter falls within Title III of the Regulation.

(25) - Case 388/87 (cited in footnote 18).

(26) - Case C-228/88 (cited in footnote 13).

(27) - Case C-12/89 (cited in footnote 14).

(28) - Case C-111/91 Commission v Luxembourg [1993] ECR I-817.

(29) - Case C-349/87 (cited in footnote 12).

(30) - See paragraphs 24 and 25 of the judgment in Case C-349/87.

(31) - Case C-481/93 Moscato v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1995] ECR I-3525.

(32) - See the operative part of the judgment in Moscato.

(33) - Case C-482/93 Klaus v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1995] ECR I-3551.

(34) - See paragraph 2 of the operative part of the judgment in Klaus.

(35) - Case C-443/93 Vougioukas v IKA [1995] ECR I-4033.

(36) - Paragraph 3 of the operative part of the judgment.

(37) - Consolidated version of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing 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 (OJ 1992 C 325, p. 96).

(38) - Case 269/87 Ventura v Landesversicherungsanstalt Schwaben [1988] ECR 6411.

(39) - See section 11 above.