JUDGMENT OF 9. 7. 1975 — CASE 20/75 D'AMICO v LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ

In Case 20/75 Reference to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht, Kassel, for a preliminary ruling in the action pending before that court between:

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart (Rapporteur), Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore, H. Kutscher, M. Serensen and A. O'Keeffe, Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Summary of the written observations

III — Oral procedure

Grounds of Judgment

Costs

I —. Facts and procedure

(1). has attained 60 years of age:

(2). has completed 180 insurance months, called the waiting period: and

(3). has been continuously unemployed for at least one year:

II —. Summary of the written observations

III —. Oral procedure

1. By order of 18 December 1974, received at the Court Registry on 12 February 1975, the Bundessozialgericht referred to the Court under Article 177 of the EEC Treaty a question on the interpretation of Article 27 (1) of EEC Regulation No 3 (OJ 1958, No 561) and of Article 45 (1) of Regulation (EEC) No 1408/71 (OJ English Special Edition 1971 (II), p. 416).

2. This question asks whether, under Article 27 (1) of EEC Regulation No 3 and Article 45 (1) of Regulation (EEC) No 1408/71 account is to be taken, for the acquisition of the right to benefits, of insurance periods completed in another Member State, which in essence are equivalent periods but which are not reckonable under the national law of the Federal Republic of Germany towards the qualifying insurance period for the acquisition of the right to benefit or in calculating the benefit, but the completion of which before a claim is made is simply an additional condition of the right to benefits.

3. It emerges from the file that under the German legislation in force at that time, a person who, inter alia, has been continuously unemployed for at least one year shall be entitled to early retirement benefit before attaining 65 years of age.

4. The right to unemployment benefit presupposes that the unemployed person is available to the employment bureau at which he is registered, as appears from Chapter 6 of Regulation No 1408/71, in particular Articles 69 and 71 thereof.

5. To enable an unemployed worker to move to seek work, Community law has provided that an unemployed worker may under certain conditions move within the Community whilst retaining the right to unemployment benefit.

6. Article 69 of this regulation lays down the conditions which the person seeking work must satisfy in order to be able to retain the right to these benefits for a maximum of three months, in particular by requiring that he register within seven days with the employment services of the Member States to which he goes and that he be subject to the control procedure organized therein.

7. It is necessary, therefore, to examine whether the provisions of Community law quoted by the national court require this territorial link to be disregarded in respect of the benefits at issue in the main action.

8. Article 27 (1) of Regulation No 3 provides that for the acquisition, maintenance or recovery of the right to benefits, where an insured person has been successively or alternately subject to the legislation of two or more Member States, the insurance periods and assimilated periods completed under the legislation of each of the Member States shall be aggregated in so far as they do not overlap.

9. Article 45 (1) of Regulation No 1408/71 provides that an institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of insurance periods shall take into account, to the extent necessary, insurance periods completed under the legislation of any Member State as though they had been completed under the legislation which it administers.

10. The said articles, like the entire system of which they form part, have as their basis, their framework and their bounds Articles 48 to 51 of the Treaty, which are aimed at securing freedom of movement for workers.

11. On the other hand, when national legislation makes the early acquisition of the right to retirement benefit conditional upon the person concerned having been unemployed for a certain time, as well as upon the completion of a period of membership of a social insurance scheme, and when therefore the length of this period of unemployment is not intended to be included in the period of membership required or to be used in the calculation of the benefit, but constitutes a separate additional condition, it does not follow from the provisions of the regulations that Community law requires the fact that the person concerned is registered as unemployed in another Member State to be taken into consideration in such a case.

12. Therefore the answer to be given to the national court is that the provisions of Article 27 (1) of Regulation No 3 and Article 45 (1) of Regulation No 1408/71 do not prohibit a rule of national law which requires, for the acquisition of the right to early retirement pension, that the person concerned shall have been unemployed for a certain time and thus available to the employment bureau of the Member State in question.

13. The costs incurred by the Government of the Italian Republic and the Commission of the European Communities which have submitted their observations to the Court are not recoverable. As the proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the question referred to it by the Bundessozialgericht Kassel by order of 18 December 1974 hereby rules: