Roberto Adanez-Vega v Bundesanstalt für Arbeit.
Date: 2004-11-11
18. It should first be pointed out that, according to settled case-law, the provisions of Regulation No 1408/71 determining the applicable legislation constitute a complete system of conflict rules the effect of which is to divest the national legislatures of the power to determine the ambit and the conditions for the application of their national legislation on the subject so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (see to that effect inter alia Case 302/84 Ten Holder  [1986] ECR 1821, paragraph 21, and Case 60/85 Luijten  [1986] ECR 2365, paragraph 14).
19. In that connection Regulation No 1408/71 provides, in Title II thereof, rules for determining the ‘legislation applicable’. In certain areas those general rules governing connecting factors are however subject to exceptions (see to that effect Case 58/87 Rebmann [1988] ECR 3467, paragraph 13). It is plain from the scheme of Regulation No 1408/71 that the application of those special rules governing connecting factors none the less presupposes the prior determination of the applicable legislation in accordance with the provisions of Title II of that regulation.
24. According to the Court’s case-law Article 13(2)(f) of Regulation No 1408/71 applies both to persons who have definitively ceased all occupational activity and to those who have merely temporarily ceased their occupational activity (Case C‑275/96 Kuusijärvi [1998] ECR I-3419, paragraphs 39 and 40).
33. With regard to the first of those conditions, it must be recalled that the concept of ‘employment’ is not defined in Regulation No 1408/71. However as the regulation is not a Community measure harmonising national social security systems but an enactment intended to coordinate those systems, it is clear from its presentation and scheme that the concept of ‘employment’ within the meaning of Article 71(1) must be interpreted by having regard to the definition laid down in national social security legislation. ‘Employment’ within the meaning of Article 71(1) of Regulation No 1408/71 is therefore employment which is regarded as such for the purposes of the application of the social security legislation of the Member State in which it is carried on.
36. According to the Court’s case-law, as long as a certified statement issued by an institution of a Member State has not been withdrawn or declared invalid, the competent institution of another Member State must take account of it. However, under the principle of loyal cooperation laid down in Article 10 EC, it is incumbent on the social security institutions correctly to appraise the relevant facts, in particular for the application of the rules concerning determination of the applicable legislation or the rules on aggregation of periods and thus to guarantee the correctness of the information contained in the certified statements. They must therefore reconsider the grounds for the issue of those statements and, if necessary, withdraw them in the event of doubts as to the correctness of the facts on which they are based and, consequently, of the information contained therein (see to that effect Case C-202/97 FTS  [2000] ECR I-883, paragraph 56, and Case C-178/97 Banks and Others [2000] ECR I‑2005, paragraph 43).
37. With regard to the second condition for the application of Article 71(1) of Regulation No 1408/71 it is clear from settled case-law that the place of ‘residence’ is determined by the place where the habitual centre of interests is situated. In that regard it is important to consider the family situation of the worker as well as the reasons that have led him to move, and the nature of the work (see in particular Case 76/76 Di Paolo [1977] ECR 315, paragraphs 17 and 20).
46. Furthermore, the concept of ‘worker’ employed by Regulation No 1408/71 includes all persons who are insured, if only against one risk, under compulsory or optional insurance with a general or specific social security scheme mentioned in Article 1(a) of Regulation No 1408/71, irrespective of whether there is an employment relationship (judgments in Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 36, and Kuusijärvi, paragraph 21).
48. In that context it may plainly be inferred from Article 80 of Regulation No 574/72 that, in order to benefit from the provisions of Article 67 of Regulation No 1408/71, the person concerned is required to submit to the competent institution a certified statement specifying the periods of insurance or employment completed as an employed person under the legislation of another Member State. None the less, it is plain from paragraph 36 hereof that such a statement issued by the competent Spanish institution does not constitute irrefutable evidence as regards the competent German institution or as regards the German courts (see also to that effect Case C-102/91 Knoch [1992] ECR I-4341, paragraph 54).
The condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’ for the purposes of Article 67(3) of Regulation No 1408/71
51. It is clear from the case-law that the condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’ is designed to encourage such persons to seek work in the Member State where they last paid unemployment insurance contributions, and to make that State bear the burden of providing the unemployment benefits (see to that effect Case C-62/91 Gray  [1992] ECR I-2737, paragraph 12).
57. For the reasons stated by the Advocate General at paragraphs 94 and 97 of his Opinion, Article 3 of Regulation No 1408/71 is not applicable in the main proceedings because the regulation contains special provisions, namely Article 67 which governs an unemployed person’s entitlement to unemployment benefit.