Opinion of Advocate General

Mr President,

Members of the Court,

1. In requesting a preliminary ruling in this case, the Social Security Appeal Tribunal, Bognor Regis, is asking the Court about the validity of Articles 67(3) and 69(1) of Council Regulation No 1408/71. In particular, the national tribunal raises the question whether those provisions are compatible with Article 51 of the EEC Treaty.

2. After working in England, Mr Gray, a United Kingdom national, settled in 1971 on the island of Grand Canary with his wife, where he worked as the manager of the restaurant owned by her. This continued until 11 January 1990, when Mr Gray's wife sold the restaurant. During that time, therefore, he had been paying social security contributions under Spanish law.

3. It should be noted that Article 67(1) and (2) of Regulation No 1408/71 provide that, for the purposes of acquiring, retaining or recovering the right to unemployment benefits, account is to be taken, to the extent necessary, of periods of insurance or employment completed under the legislation of any other Member State. Nevertheless, under Article 67(3) unemployment benefits are granted on condition that the unemployed person has most recently completed periods of insurance or employment in accordance with the provisions of the legislation under which benefits are claimed o in other words, on condition that he has most recently completed periods of insurance or employment in the State where hè claims the benefit.

4. I would first point out that, in the Testa judgment, the Court ruled that (Article 51) does not prohibit the Community legislature from attaching conditions to the rights and advantages which it accords in order to ensure freedom of movement for workers or from determining the limits thereto. More generally, and still in the context of freedom of movement for workers, the Court has recently ruled in the Antonissen judgment that restrictive conditions are permitted so long as they are not such as to jeopardize the effectiveness of the principle of free movement.

5. Indeed, the fact that the institution responsible for granting unemployment benefits can, for the purposes of Article 67(3), only be the institution of the State in which the worker has most recently completed periods of insurance or employment stems from the broader principle — emphasized by this Court on several occasions — that an unemployed person is governed by the laws of the State in which he was last employed.

6. Having said that, I must point out that the question before the Court has been partly settled by the recent Van Noorden judgment. In that judgment the Court held that a person seeking work who has never been subject to the social security legislation of the Member State in which he claims entitlement to unemployment benefits and thus has not most recently completed periods of insurance or employment under the laws of that Member State cannot claim unemployment benefits pursuant to Article 67 of Regulation No 1408/71 but only under Article 69 thereof (paragraph 10). In the same judgment the Court dismissed the thesis that Article 67 was incompatible with the other relevant provisions of Community law, including Articles 7 and 58 to 66 of the EEC Treaty (paragraph 11).

7. In the light of the foregoing I therefore propose that the Court give the following answer to the questions raised by the Social Security Tribunal, Bognor Regis :

1 Original language: Italian.

2 OJ, English Special Edition 1971(II), p. 416.

3 Judgment in Joined Cases 41, 121 and 796/79 Testa v Bundesanstalt flir Arbeit [1980] ECR 1979, at paragraph

4 Judgment in Case C-292/89 The Queen v Immigration Appeal Tribunal, ex parte Gustaff D. Antonissen [1991] ECR I-745, at paragraph 21.

5 See judgments in Cases 145/84 Cochet v Bedrijfsvereniging voor de Gezondheid [1985] ECR 801 and 302/84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging [1986] ECR 1821.

6 Judgment in Case C-272/90 Van Noorden v Association pour l'Emploi [1991] ECR I-2543.