CELEX: C1997/108/05
Language: en
Date: 1997-04-05 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 20 February 1997 in Joined Cases C-88/95, C-102/95 and C-103/95 (references for a preliminary ruling from the Juzgado de lo Social de Santiago de Compostela): Bernardina Martínez Losada, Manuel Fernández Balado, José Paredes v. Instituto Nacional de Empleo (Inem) and Instituto Nacional de la Seguridad Social (INSS) (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)

5 . 4 . 97           P EN                  Official Journal of the European Communities                                   No C 108/3
               JUDGMENT OF THE COURT                                                  JUDGMENT OF THE COURT
                       ( Second Chamber)                                                       (Fifth Chamber )
                      of 20 February 1997                                                    of 20 February 1997
in Case C-114/94: Intelligente systemen, Database toepas­             in Joined Cases C-88/95 , C-102/95 and C-103/95
singen, Elektronische diensten BV (IDE ) v. Commission of             ( references for a preliminary ruling from the Juzgado de lo
                 the European Communities (')                         Social de Santiago de Compostela): Bernardina Martínez
                                                                      Losada, Manuel Fernández Balado, José Paredes v. Institu­
(Arbitration clause — Software development contract —                 to Nacional de Empleo (Inem ) and Instituto Nacional de
Claim for payment of balance outstanding and for                                        la Seguridad Social (INSS ) (')
damages — Counterclaim for repayment of amounts paid
                             on account)                              (Articles 48 and 51 of the EC Treaty — Articles 4, 48 and
                                                                      67 of Regulation (EEC) No 1408/71 — Unemployment
                           ( 97/C 108/04 )                                        benefit for persons over 52 years of age)
                                                                                                 ( 97/C 108/05 )
                 (Language of the case: Dutch)
                                                                                       (Language of the case: Spanish)
   (Provisional translation; the definitive translation will be
           published in the European Court Reports)
                                                                         (Provisional translation; the definitive translation will be
                                                                                 published in the European Court Reports)
In Case C-l 14/94: Intelligente systemen, Database toepas­
singen, Elektronische diensten BV ( IDE ), a company
incorporated under Netherlands law, established in                    In Joined Cases C-88/95 , C-102/95 and C-103/95 :
Maassluis ( Netherlands ), represented by J. A. M. van de             references to the Court under Article 177 of the EC Treaty
Sande, of the Rotterdam Bar, 102 Wijnhaven, Rotterdam                 from the Juzgado de lo Social ( Social Court), Santiago de
v. Commission of the European Communities ( Agents:                   Compostela ( Spain ), for a preliminary ruling in the
A. C. Jessen and M. van der Woude ) — application for                 proceedings pending before that court between Bernardina
payment of the balance of the maximum contribution                    Martinez Losada, Manuel Fernandez Balado, Jose Paredes
provided for in the contract concluded between the parties            and Institute Nacional de Empleo ( Inem ) and Instituto
and for damages and counterclaim for repayment of the                 Nacional de la Seguridad Social ( INSS ) — on the
amounts paid on account by the Commission — the Court                 interpretation of Articles 4, 48 and 67 of Council
( Second Chamber ), composed of: G. F. Mancini, President             Regulation ( EEC ) No 1408/71 of 14 June 1971 on the
of the Chamber, G. Hirsch and R. Schintgen ( Rapporteur ),            application of social security schemes to employed
Judges; G. Cosmas, Advocate-General; H. A. Rühl ,                     persons, to self-employed persons and to members of their
Principal Administrator, for the Registrar, has given a               families moving within the Community, as amended and
judgment on 20 February 1997, in which it:                            updated by Council Regulation ( EEC ) No 2001 /83 of
                                                                      2 June 1983 ( OJ No L 230, 22 . 8 . 1983 , p. 6 ), as
                                                                      amended by Council Regulation ( EEC) No 1248/92 of
                                                                      30 April 1992 ( OJ No L 136 , 19 . 5 . 1992, p. 7 ), and of
 1 . dismisses the action brought by Intelligente systemen,           Articles 48 and 51 of the EC Treaty — the Court ( Fifth
      Database toepassingen, Elektronische diensten BV                Chamber ), composed of: J. C. Moitinho de Almeida,
      (IDE);                                                          President of the Chamber, C. Gulmann, D. A. O. Edward
                                                                       ( Rapporteur ), J. -P. Puissochet and M. Wathelet, Judges;
                                                                       C. O. Lenz, Advocate-General ; H. von Holstein , Deputy
                                                                       Registrar, for the Registrar, has given a judgment on
2 . orders IDE to repay to the Commission ECU
                                                                       20 Febuary 1997, in which it has ruled:
      533 456, together with interest at 7,97% per annum
      as from 29 July 1994;
                                                                       1 . An allowance such as that provided for by the Spanish
 3. orders IDE to pay the costs.                                            General L"w °» Social Security for unemployed
                                                                            persons of more than 52 years of age constitutes an
                                                                            unemployment benefit within the meaning of Article 4
     OJ No C 146, 28 . 5 . 1994.                                            (I ) 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, as amended and updated by
 ---pagebreak--- No C 108/4            ΓΕΝ !                   Official Journal of the European Communities                                       5 . 4 . 97
       Council Regulation (EEC) No 2001 /83 of 2 June                    Convention of 9 October 1978 on the accession of the
       1983, as amended by Council Regulation (EEC)                      Kingdom of Denmark, Ireland and the United Kingdom of
       No 1248/92 of 30 April 1992 .                                     Great Britain and Northern Ireland ( OJ No L 304, 30 . 10 .
                                                                         1978, p. 1 ; amended version of the Convention at p. 77)
2 . Article 48 of the aforementioned regulation is not                   — the Court ( Sixth Chamber ), composed of: J. L. Murray,
       applicable to unemployment benefits.                              President of the Fourth Chamber, acting for the President
                                                                         of the Sixth Chamber, C. N. Kakouris ( Rapporteur ), P. J. G.
3 . It is for the national court to determine whether the                Kapteyn, G. Hirsch and H. Ragnemalm, Judges; G.
       condition laid down by Article 67 (3) of the                      Tesauro, Advocate-General; L. Hewlett, Administrator, for
       aforementioned regulation to the effect that a person             the Registrar, has given a judgment on 20 February 1997,
                                                                         in which it has ruled :
       who has completed periods of insurance in another
       Member State cannot rely on those periods in order to
       obtain unemployment benefit in the State concerned                1 . The third hypothesis in the second sentence of the first
       unless he last completed periods of insurance in                       paragraph of Article 17 of the Convention of
       accordance with the provisions of the legislation of                   27 September 1968 on jurisdiction and the
       that State, is fulfilled where the person concerned has                enforcement of judgments in civil and commercial
       never been in employment in that State but                             matters, as amended by the Convention of 9 October
       contributions have been paid on his behalf to the                      1978 on the accession of the Kingdom of Denmark,
       sickness insurance and familiy benefits schemes by the                 Ireland and the United Kingdom of Great Britain and
       competent unemployment institution.                                    Northern Ireland, must be interpreted as meaning
                                                                              that, under a contract concluded orally in
4 . It is not contrary to Articles 48 and 51 of the EC                        international trade or commerce, an agreement
       Treaty, or to the aforementioned regulation, for                       conferring jurisdiction will be deemed to have been
       national legislation to require the person concerned to                validly concluded under that provision by virtue of the
       have paid contributions for a IS-year period to a                      fact that one party to the contract did not react to a
       pension scheme in one or more Member Stateis in                        commercial letter of confirmation sent to it by the
       order to qualify for the grant of an unemployment                      other party to the contract or repeatedly paid invoices
       allowance for claimants of over 52 years of age.                       without objection where those documents contained a
                                                                              pre-printed reference to the courts having jurisdiction,
(') OJ No C 137, 3 . 6 . 1995 .                                               provided that such conduct is consistent with a
                                                                              practice in force in the field of international trade or
                                                                              commerce in which the parties in question operate and
                                                                              the latter are aware or ought to have been aware of
                                                                              the practice in question. It is for the national court to
                                                                              determine whether such a practice exists and whether
                 JUDGMENT OF THE COURT                                        the parties to the contract were aware of it. A practice
                                                                              exists in a branch of international trade or commerce
                           ( Sixth Chamber)                                   in particular where a particular course of conduct is
                        of 20 February 1997                                   generally followed by contracting parties operating in
                                                                               that branch when they conclude contracts of a
 in Case C-106/95 (reference for a preliminary ruling from                    particular type. The fact that the contracting parties
 the Bundesgerichtshof): Mainschiffahrts-Genossenschaft                        were aware of that practice is made out in particular
           eG (MSG ) v. Les Gravieres Rhenanes Sari ( ] )                      where they had previously had trade or commercial
 (Brussels Convention — Agreement on the place of                              relations between themselves or with other parties
 performance of the obligation in question — Agreement                         operating in the branch of trade or commerce in
                       conferring jurisdiction)                                question or where, in that branch, a particular course
                                                                               of conduct is generally and regularly followed when
                              ( 97/C 108/06 )
                                                                               concluding a certain type of contract, with the result
                                                                               that it may be regarded as being a consolidated
                  (Language of the case: German)                               practice.
     (Provisional translation; the definitive translation will be
             published in the European Court Reports)                     2 . The Convention of 27 September 1968 must be
                                                                               interpreted as meaning that an oral agreement on the
                                                                               place of performance which is designed not to
  In Case C-106/95 : reference to the Court under Article 177
                                                                                determine the place where the person liable is actually
  of the EC Treaty from the Bundesgerichtshof ( Federal                         to perform the obligations incumbent upon him, but
  Court of Justice ) for a preliminary ruling in the                            solely to establish that the courts for a particular place
  proceedings pending before that court between                                 have jurisdiction, is not governed by Article 5 (1 ) of
  Mainschiffahrts-Genossenschaft eG ( MSG) and Les                              the Convention, but by Article 1 7, and is valid only if
  Gravieres Rhenanes Sari — on the interpretation of                            the requirements set out therein are complied with.
  Article 5 ( 1 ) and the third hypothesis mentioned in the
  second sentence of the first paragraph       of Article 17 of the
                                                                           H OJ No C 137, 3 . 6 . 1995 .
  Convention of 27 September 1968 on           jurisdiction and the
  enforcement of judgments in civil and        commercial matters
   ( OJ No L 304, 30. 10 . 1978 , p. 36 ),      as amended by the