Case C-373/02: Reference for a preliminary ruling by the Oberster Gerichtshof (Austria) by order of that Court of 17 September 2002 in the appeal between Sakir Öztürk and Pensionsversicherungsanstalt der Arbeiter
Date: 2003-01-11
Institutions: Court of Justice
Subjects: Community migration, Türkiye, association agreement (EU), interpretation of the law, pension scheme, social security, unemployment insurance, worker (EU)

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Official Journal of the European Communities

11.1.2003

(b) German legislation under Article 13(2)(f) of Regu-

bb)

If the answer to Question 3(c)(aa) is affirmative:

lation 1408/71?

2.

If the answer to Question 1(a) is affirmative:

(a)

does compulsory national service undertaken in
Spain constitute ‘last employment in the territory of
a Member State other than the competent State’
within the meaning of Article 71(1) of Regulation
1408/71?

(b)

If the answer to Question 2(a) is affirmative:

does the first sentence of Article 71(1)(b)(ii) of
Regulation 1408/71 also mean that the last employ-
ment completed in the territory of a Member State
other than the competent State is to be taken into
account for the purposes of benefits to unemployed
persons as if it had been completed in the State of
residence, without regard to the requirements stated
in Article 67 of Regulation 1408/71?

c)

If the answer to Question 2(b) is negative:

in what circumstances is a period of national
service that, under national (Spanish) law, does not
constitute a period of insurance for unemployment
insurance purposes or is not treated as such, to be
considered a period of employment completed as
an employed person under the legislation of another
Member State in accordance with Article 67(1) of
Regulation 1408/71?

3.

If the answer to Question 1(b) is affirmative:

a)

has a person whose last period of insurance in
Germany came to an end more than one year
previously, after which he carried out compulsory
national service in Spain for nine months, ‘com-
pleted lastly’ periods of insurance under German law
within the meaning of Article 67(3) of Regulation
1408/71

b)

If the answer to Question 3(a) is affirmative:

in what circumstances is a period of national
service that, under national (Spanish) law, does not
constitute a period of insurance for unemployment
insurance purposes or is not treated as such, to be
considered a period of employment completed as
an employed person under the legislation of another
Member State in accordance with Article 67(1) of
Regulation 1408/71? (as per Question 2(c)).

c)

If Article 67(1) of Regulation 1408/71 should not
apply to the claimant (Questions 3(a) and (b)):

aa) does compulsory national service undertaken
in Spain constitute ‘last employment in the
territory of a Member State other than the
competent State’ within the meaning of
Article 71(1) of Regulation 1408/71? (as per
Question 2(a)).

does the first sentence of Article 71(1)(b)(ii) of
Regulation 1408/71 also mean that the last
employment completed in the territory of a
Member State other than the competent State
is to be taken into account for the purposes of
benefits to unemployed persons as if it had
been completed in the State of residence,
without regard to the requirements stated in
Article 67 of Regulation 1408/71? (as per
Question 2(b)).

4.

If the period of Spanish compulsory national service
cannot be taken into account under Articles 71 or 67 of
Regulation 1408/71 for the purposes of the claimant’s
to benefit under German unemployment
entitlement
insurance,
is there any such entitlement under the
principle of equality of treatment in Article 3 of Regu-
lation 1408/71 or under any other general provisions of
European law?

(1) OJ L 149 of 05.07.1971, p. 2.
(2) OJ L 230 of 22.08.1983, p. 6.
(3) OJ L 206 of 29.07.1991, p. 2.

Reference for a preliminary ruling by the Oberster
Gerichtshof (Austria) by order of that Court of 17 Septem-
ber 2002 in the appeal between Sakir Öztürk and Pen-
sionsversicherungsanstalt der Arbeiter

(Case C-373/02)

(2003/C 7/14)

Reference has been made to the Court of
Justice of the
European Communities by order of the Oberster Gerichtshof
(Austria) (Supreme Court) of 17 September 2002, received at
the Court Registry on 17 October 2002, for a preliminary
ruling in the appeal between Sakir Öztürk and Pensionsversich-
erungsanstalt der Arbeiter on the following questions:

1.

Is the law concerning the association between the Euro-
pean Economic Community and Turkey (in particular
Article 9 of the Agreement establishing an Association
between the European Economic Community and Turkey
of 12 September 1963) to be interpreted as precluding a
rule of a Member State which requires inter alia, as a
condition of entitlement to an early old-age pension in
the event of unemployment, that the worker concerned
must have drawn a cash benefit on account of his
insurance
unemployment
scheme of that Member State within a certain period
prior to the qualifying date?

from the unemployment

11.1.2003

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Official Journal of the European Communities

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If the answer to the first question is in the negative:

2.

Is Article 45(1) of Regulation (EEC) No 1408/71 of the
Council of 14 June 1971 (1) on the application of social
security schemes to employed persons, to self-employed
persons and to members of their families moving within
the Community, as amended and updated by Council
Regulation (EC) No 118/97 of 2 December 1996 (2), to
be interpreted as precluding a rule of a Member State
which requires inter alia, as a condition of entitlement to
an early old-age pension in the event of unemployment,
that the worker concerned must have drawn a cash
benefit on account of his unemployment from the
unemployment insurance scheme of that Member State
within a certain period prior to the qualifying date?

( 1) OJ L 149 [1971], p. 2.
( 2) OJ L 28 [1997], p. 1.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 18 October
2002 in the case of Stichting ‘Goed Wonen’ against
Staatssecretaris van Financiën

(Case C-376/02)

(2003/C 7/15)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 18 Octo-
ber 2002, received at the Court Registry on 21 October 2002,
for a preliminary ruling in the case of Stichting ‘Goed
Wonen’ against Staatssecretaris van Financiën on the following
question:

Under circumstances such as those set out at paragraph 6.3.4.
above, do Articles 17 and 20 of the Sixth Directive or
the European law principles of the protection of legitimate
expectations and of legal certainty preclude — in a case not
involving fraud or abuse or any question of a change in
planned use, as mentioned in paragraphs 50 and 51 of the
judgment of the Court of Justice in Schloßstraße — the
adjustment of VAT not deducted by a taxable person which he
paid in respect of (immovable) property which is supplied to
him and which he originally intended for letting (which is not
subject
to VAT), but subsequently used for a transaction
subject to VAT (in the present case, the grant of a usufructuary

right in rem), being revoked on the sole ground that, as a result
of a legislative amendment which had not yet taken effect at
the time at which the abovementioned transaction was carried
out, that transaction is regarded with retroactive effect as an
exempt transaction establishing no right to deduct?

Reference for a preliminary ruling by the Raad van State
— IXe Kamer (Belgium) by judgment of that Court of
18 October 2002 in the case of NV Firma Leon van Parys
against Belgisch Interventie- en Restitutiebureau (BIRB)

(Case C-377/02)

(2003/C 7/16)

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Raad van State
(Council of State) of 18 October 2002, received at the Court
Registry on 21 October 2002, for a preliminary ruling in the
case of NV Firma Leon van Parys against Belgisch Interventie-
en Restitutiebureau (BIRB) (Belgian Intervention and Refund
Bureau) on the following questions:

1. Do Council Regulation (EEC) No 404/93 (1) of 13 Febru-
ary 1993 on the common organisation of the market in
bananas, as amended by Council Regulation (EC)
No 1637/98 (2) of 20 July 1998, Commission Regulation
(EC) No 2362/98 (3) of 28 October 1998 laying down
detailed rules for the implementation of Council Regu-
lation (EEC) No 404/93 regarding imports of bananas into
the Community, Commission Regulation (EC) No 2806/
98 (4) of 23 December 1998 on the issuing of import
licences for bananas under the tariff quotas and for
traditional ACP bananas for the first quarter of 1999 and
on the submission of new applications, Commission
Regulation (EC) No 102/99 (5) of 15 January 1999 on the
issuing of import licences for bananas under the tariff
quotas and for traditional ACP bananas for the first
quarter of 1999 (second period) and Regulation (EC)
No 608/1999 (6) of 19 March 1999 on the issuing of
import licences for bananas under the tariff quotas and
for traditional ACP bananas for the second quarter of
1999 and on the submission of new applications infringe
Article I, Article XIII:1 and Article XIII:2(d) of GATT
1994, taken separately or together, inasmuch as they:

— introduce to the benefit of twelve countries named
in the annex to Regulation No 1637/98 a joint
quota of a maximum of 857 700 kg [sic] of bananas
(‘traditional ACP bananas’) and, moreover, in that
that quota does not accord with a distribution of