OPINION OF ADVOCATE GENERAL

delivered on 12 February 2004(1)

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(EEC-Turkey Association Agreement – Principle of equal treatment – Direct effect – Social security for migrant workers – Early old-age pension for unemployed workers – Requirement that a claimant must have received unemployment benefit in the Member State in which he applies for the pension)

That court wishes to ascertain whether a Turkish worker who is unemployed in Germany may invoke the prohibition of discrimination on grounds of nationality, laid down in the rules governing that Association, in order to receive in Austria, where he had previously worked, an early old-age pension in the event of unemployment, the grant of which is conditional upon the applicant’s having been unemployed in that country for a certain time. If the answer is no, the court then asks whether the worker may rely on the aggregation rule in Article 45(1) of Regulation No 1408/71. 3 –Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Regulation No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1).

I – The facts in the main proceedings

From 20 July 1998 to 31 December 1999 he was registered unemployed in Germany and drew the relevant unemployment benefit from the Arbeitsamt (Employment Office), Bremen. On 2 December 1999, the Landesversicherungsanstalt Oberbayern (Regional Insurance Office, Upper Bavaria) granted him a German early old-age pension on account of his unemployment as from 1 January 2000. In the 15 months preceding that date, Mr Öztürk had not drawn any cash benefits from the unemployment insurance scheme in Austria nor been in any of the circumstances regarded by the Austrian Law on Social Insurance as equivalent to the drawing of such a benefit.

II – The questions referred to the Court for a preliminary ruling

6. The Oberster Gerichtshof acceded to the claimant’s latter request and referred two questions to the Court of Justice in the following terms:

‘1. Is the law concerning the association between the European Economic Community and Turkey (in particular Article 9 of the Agreement establishing that Association ...) 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?

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

III – National legislation

If the pension is granted, it is paid for as long as the person remains unemployed; when he reaches the age of 65, for men, or 60, for women, it becomes an old-age pension.

‘1. Entitlement to an early old-age pension in the event of unemployment shall accrue to insured men on reaching the age of 60 and to insured women on reaching the age of 55 provided that the person insured:

The pension under Paragraph 1 of this provision shall be discontinued as from the day on which the person insured pursues gainful employment such as to preclude acquisition of a right under Paragraph 253b(1)(4).’

IV – Community legislation

10. In order to give effect to those commitments it was decided to impose gradually a customs union which would comprise a five-year preparatory phase, a transitional phase of a maximum of 12 years and a final phase, in order to strengthen the coordination of the economic policies of the contracting parties.

11. Article 6 provides that, to ensure the progressive development of the Association, the contracting parties are to meet in a Council of Association acting within the powers conferred on it by the Agreement. Under Article 22, the Council has the power to take decisions in order to achieve the desired objectives, in the circumstances specified for that purpose. Each of the two parties is required to incorporate the subsequent measures.

13. In 1970 an additional Protocol was signed; it came into force in 1973 (4) and fixed the procedure and timetable for introducing the customs union in three phases over a period of 22 years. Title II is devoted to freedom of movement for persons and the freedom to provide services, Chapter 1 being concerned with workers.

15. Article 3 of Decision No 3/80 is worded as follows:

‘1. Subject to the special provisions of this Decision, persons resident in the territory of one of the Member States to whom this Decision applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.

V – Procedure before the Court of Justice

18. The claimant in the main proceedings, the German Government, the Austrian Government and the Commission submitted written observations to the Court within the period laid down for that purpose by Article 23 of the Statute of the Court of Justice.

Since none of the interested parties asked to present oral argument, on 9 December 2003 the Court decided, pursuant to Article 104(4) of its Rules of Procedure, not to hold a hearing.

VI – Consideration of the questions referred to the Court for a preliminary ruling

A – The first question

19. By the first of its two questions, the national court wishes to ascertain whether the prohibition of discrimination on grounds of nationality, established by the Association Agreements between the European Community and Turkey, precludes the application of a provision of a Member State which makes the grant of an early old-age pension in the event of unemployment conditional on the worker receiving cash benefits from the unemployment scheme of that Member State during a certain period prior to the application.

At the present time Mr Öztürk receives a benefit of that kind in Germany, where he last worked; the amount is calculated on the basis of the contribution periods completed in that country. If, as he hopes, it were also granted to him in Austria, the amount would be determined according to the time worked in that country. If all his occupational activity had been confined to the same State, he would have been paid a pension proportionate to the total length of his working life. According to the decisions adopted by the Austrian courts up to now, for the period worked in Germany he would only be allowed to obtain a pension in Germany, and the amount payable to him would be reduced accordingly. He therefore feels that he is being discriminated against because he has worked in more than one Member State.

21. The German Government thinks it is reasonable that a Turkish national who has worked in Austria should lose his entitlement to an early old-age pension in the event of unemployment if he settles in another Member State before receiving unemployment cash benefits for 52 weeks, since that result conforms with the rules governing the Association between the Community and Turkey in so far as there has been no infringement of the principle of equal treatment.

22. The Austrian Government maintains, first, that a Turkish worker who is subject to the Association Agreement and the provisions implementing it in the field of social insurance is only protected by the general principle of equal treatment and cannot invoke the right to aggregation of insurance periods, since the system under Decision No 3/80 is not as complete as the coordination provided for by Regulation No 1408/71. Secondly, he may rely on the bilateral Social Security Convention between Austria and Germany – applicable to nationals of third States who have been subject for a certain period to the legislation of one or both countries – under which Regulation No 1408/71 is applicable by analogy to numerous circumstances, amongst them the aggregation of insurance periods, but that application by analogy does not extend to unemployment insurance, to the prohibition of discrimination on grounds of nationality, or to the possibility of exporting pensions.

23. The Commission, for its part, points out that the case-law since the judgment in D’Amico (7) has developed significantly in the area of social security for migrant workers, evincing a concern to eradicate legal obstacles to the assimilation – for establishing entitlement to benefits – of events and circumstances arising in any of the Member States. When considering whether that advance could benefit Turkish workers, it refers to Article 9 of the Agreement, which enshrines the principle of non-discrimination on grounds of nationality. It takes the view that Article 9 is a clear, precise and unconditional provision, which imposes on Member States an obligation as to the result to be achieved, so that individuals are entitled to rely on it before national courts, in order to call for non-application of a discriminatory national provision.

24. The Austrian Supreme Court, and those who have submitted their views in these preliminary proceedings, acknowledge that the unresolved issue is whether Mr Öztürk may successfully rely on the prohibition of discrimination on grounds of nationality and on its corollary, the principle of equal treatment. (8) Opinions differ, however, as to the specific provision on which he should rely. The Austrian Supreme Court and the Commission maintain that Article 3 of Decision No 3/80 only places a duty on the State of residence, in this case Germany, and therefore suggest that the matter be resolved only on the basis of Article 9 of the Agreement. The German Government and the Austrian Government coincide in the view that it should be Article 3 of Decision No 3/80 although, in their opinion, that provision does not serve to uphold the claim of the party concerned. As the Commission points out, the issue in this case is, in essence, whether the principle of assimilation of facts, established by the case-law, applies exclusively to nationals of the Member States or whether it should extend to Turkish nationals, working in the Community, when they claim recognition of entitlement to social security payments.

a) The scope of the principle of non-discrimination on grounds of nationality in relation to social security

25. In Article 9 of the Association Agreement, the contracting parties prohibit, without prejudice to any special measures which may be adopted pursuant to Article 8, any discrimination on grounds of nationality, in accordance with Article 7 of the EEC Treaty, subsequently Article 6 of the EC Treaty (now, after amendment, Article 12 EC).

26. According to the settled case-law of the Court of Justice, the prohibition of discrimination applies within the scope of application of the Treaty, without prejudice to any special provisions contained in it. By the latter expression, Article 12 EC refers in particular to other primary legislation in which that general principle is given concrete form in respect of specific situations. (9) That provision takes effect independently only in situations governed by Community law in respect of which the Treaty lays down no specific rules against discrimination. (10) With regard to freedom of movement for workers, the principle is governed by Articles 39 EC to 42 EC, and by the Community acts implementing them, in particular by Regulation No 1612/68 and Regulation No 1408/71. (11)

27. The Court of Justice has also declared that Article 3(1) of Decision No 3/80 constitutes the implementation and precise expression, in the area of social security, of the principle of non-discrimination on grounds of nationality stated in Article 9 of the Agreement. Consequently, before applying the latter provision, which is of general scope, it is necessary to check whether it is appropriate to invoke the equal treatment rule contained in Article 3 of Decision No 3/80.

28. The Commission’s restrictive interpretation of that rule in its written observations appears to be incorrect. Neither its wording, which is based on Article 3(1) of Regulation No 1408/71, nor its aim provides any basis for inferring that the Member State of residence is the only State required to grant the Turkish worker and his family the same treatment as that accorded to its own nationals. (12) It is true that, in most cases, the insured person invokes that principle in the country in which he lives, (13) particularly since Turkish workers do not yet enjoy freedom of movement within the Community, (14) but that tendency does not release other Member States in which he has acquired social security rights from the duty to afford him the same treatment as to its own nationals.

29. According to Article 2, Decision No 3/80 applies to Turkish workers who are, or have been, subject to the legislation of one or more Member States, to the members of their families resident in the territory of one of the Member States and to their survivors. Despite the fact that they cannot move freely within the Community in order to engage in an economic activity, the rule does not preclude them from doing so because it recognises that they may have joined social security schemes in more than one Member State. Furthermore, Article 3 provides that, subject to the special provisions of the decision, persons residing in one of those countries to whom Decision No 3/80 applies are to be subject to the same obligations and to enjoy the same benefits under the legislation of any Member State as the nationals of that State. It should be pointed out that the specific aim of Decision No 3/80 is to guarantee the payment of social security benefits to migrant workers of Turkish nationality in the Community. 16 –Case C-262/96 Sürül [1999] ECR I-2685, paragraph 71.

30. In the light of those rules, given that Mr Öztürk was employed in Austria for four-and-a-half years before moving to Germany, and had acquired social security rights in that country, the Austrian authorities must treat him in the same way as it treats its own nationals when he applies for recognition of the benefits corresponding to the contribution periods completed. Therefore, in order to give a useful answer to the question referred to it for a preliminary ruling, the Court of Justice must interpret Article 3 of Decision No 3/80, not Article 9 of the Association Agreement, as has been suggested in these proceedings.

b) Article 3 of Decision No 3/80 and the judgment in Sürül

31. In 1999 it was held in Sürül (17) that Article 3(1) of Decision No 3/80 had established a precise and unconditional principle such as is capable of being applied by a national court and, consequently, of governing the legal situation of individuals. The direct effect of that provision means that individuals are entitled to rely on it before the courts of the Member States.

As happened in the Sürül case with family allowances, Decision No 3/80 likewise does not provide for any exception to or restriction of the principle of equal treatment laid down in Article 3(1) when it refers, in Chapter 4, to old-age pensions. As for unemployment benefits, although they are included within the substantive scope of the decision, they have not been assigned any special rule. Therefore, there is nothing to prevent Mr Öztürk from invoking in Austria the right to be treated on an equal footing with the nationals of that country. 18 –Verschueren, H., ‘L’arrêt Sürül: égalité de traitement en matière de sécurité sociale pour les travailleurs turcs’, Revue du droit des étrangers, 1999, p. 282 et seq., especially p. 291: ‘... This judgment paves the way for the direct application of other provisions of Decision No 3/80, and more specifically of the principle of the exportation of pensions or the principle of equal treatment in other areas falling within the scope of the Association Agreement’.

c) Article 3 of Decision No 3/80 and the covert discrimination inherent in the Austrian social security system

32. The provision at issue, Article 253a(1)(3) of the Austrian Law on Social Insurance, requires claimants of the early old-age pension in the event of unemployment to have drawn a minimum of 52 weeks of unemployment cash benefits from the unemployment insurance scheme within the 15 months preceding the qualifying date. As worded, the rule makes no distinction with regard to the country to which the social security institution making the payments belongs. In practice, however, the implication is that the beneficiary must have received them in Austria.

33. I think that there is unquestionably no direct discrimination, because no different treatment is imposed by reference to the origin of the person receiving the benefit. However, in relation to Article 3(1) of Decision No 3/80, the Court of Justice has held that the rule of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by adopting other distinguishing criteria, achieve in practice the same result. (19) It is therefore necessary to examine whether the condition imposed constitutes a covert exclusion and whether there is any excuse for it.

34. Unless they are justified and proportionate to the aim pursued, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or the great majority of those affected are migrant workers, in general Community nationals or, in the situation covered by Article 3(1) of Decision No 3/80, Turkish nationals, and where they are indistinctly applicable but can more easily be satisfied by nationals or where they are liable to operate to the particular detriment of migrant workers. (20)

35. The contested legislation applies equally to all unemployed workers who fulfil certain conditions, irrespective of nationality. However, the Austrian Government itself has acknowledged that most of its nationals work in the country and pay Austrian social security contributions throughout their working lives so that, if they become unemployed after reaching the age of 55, for women, or 60, for men, they have no difficulty in satisfying the aforementioned conditions.

36. By contrast, migrant workers, whether Community or Turkish nationals, often find it difficult, not to say impossible, to show that the Austrian unemployment insurance scheme has paid them the corresponding benefits during a specific period. Since what is required, in practice, is residence, the aforementioned scheme affects migrant workers to a greater extent because it is more likely that they will have carried on their occupational activity in other States. If Community nationals or, as in this case, a Turkish national covered by Article 3(1) of Decision No 3/80, the scope of which is the same as that of Article 3(1) of Regulation No 1408/71, are adversely affected, the difference in treatment, provided that it is not justified, may entail covert discrimination on grounds of nationality.

d) The Opinion and the judgment in D’Amico

are very similar to those described by Mr Öztürk before the Austrian courts. The claimant was an Italian miner who had worked in Germany from 1941 to 1943 and in France, the country in which he became unemployed when he was 61 years old and was unable to find another job. Two‑and-a-half years later he applied in Germany for an early old-age pension, which was refused because, although he was over 60, had paid contributions for the required length of time and had been unemployed without a break for more than a year, he had not, during that period, been registered with the German Employment Office.

The national court asked the Court of Justice whether the provisions of Regulation No 3 23 –Regulation No 3 of the Council of 25 September 1958 on social security for migrant workers (Journal Officiel 1958 30, p. 561). and of Regulation No 1408/71 relating to the aggregation of insurance periods completed in different Member States should be interpreted as meaning that, for the grant of the early old-age pension at issue, periods of unemployment in another Community State should be assimilated to those spent in the country in which the benefit is claimed.

39. Advocate General Trabucchi, in his Opinion in that case, suggested that the answer should be a definite yes. Without going so far as to describe the rule of the territorial application of the national social legislation to migrant workers as behind the times, he considered it unacceptable for a Member State to deny from the outset that events occurring beyond its frontiers have any relevance. He pointed out that registration with national employment offices differs according to whether the aim in view is the receipt of unemployment benefit or the calculation of a period of inactivity, for the purposes of entitlement to an early old-age pension, particularly when the duration of unemployment is unimportant when it comes to determining the amount of the pension, which is calculated on the basis of the insurance periods completed.

He also pointed out that the fact that the period of unemployment in another Member State was not taken into account could constitute covert discrimination. If, according to the case-law of the Court of Justice, he added, when one Member State assimilates a period of unemployment to an insurance period, the rest must do the same, then, with all the more reason, if the situation of enforced inactivity is regarded merely as a fact for application of the national provision, they are required to take account of the real factor of the claimant’s unemployment.

First, it treated the pension applied for in Germany as if it were an unemployment benefit whereas in fact its characteristics made it more similar to an old-age pension. In that connection, it stressed that Chapter 6 of Regulation No 1408/71, and in particular Articles 69 and 71, are based on a territorial link, so that, with rare exceptions, they envisage only the right of the unemployed person to obtain unemployment benefit in the State in which he has lost his job. Next, it held merely that Article 1(s) of Regulation No 1408/71 does not require it to be determined, in the circumstances stated, whether the claimant has registered with the Employment Office of another Member State.

26 –Not that there is any shortage of examples in the case-law. The Court of Justice had already stated, in Case 15/69 Ugliola [1969] ECR 363, that the principle of equal treatment enshrined in the provisions governing freedom of movement for workers entitles a migrant worker who is a national of a Member State and who has had to interrupt his employment with an undertaking in another Member State in order to fulfil his obligations for military service in the country of which he is a national to have the period of his military service taken into account in the calculation of his seniority in that undertaking, to the extent to which the periods of military service in the country of employment are also taken into account for the benefit of national workers. It is true, however, that the Court of Justice has been more generous when applying the principle in that sphere than in the sphere of social security in the strict sense.

Secondly, it confined itself to interpreting the rule mechanically, without concerning itself with the question whether there was any other provision of Community law relevant to the judgment on the merits. This is not the only case in which the Court of justice has provided differing solutions to the national courts – when the circumstances are practically the same and the Community provisions in force are identical – as a result of the different wording of the questions referred for a preliminary ruling. See the Opinion I delivered in Gottardo, cited above, particularly point 30 et seq., in which I give a few examples of that worrying divergence. At no time did the judgment refer to the principle of equal treatment, even though the Advocate General had suggested that there might be covert discrimination on grounds of nationality.

28 –A term which the Court of Justice had coined not long before in Case 152/73 Sotgiu [1974] ECR 153.

e) The development of the case-law of the Court of Justice in this area

41. The case-law has evolved considerably since then; it now states that the principle of equal treatment requires that, for the purpose of recognising the right of migrant workers to social security or other benefits, each Member State should take into account certain facts arising in the others, in order to equate them with those which arise in their own territory. I can cite some examples.

42. The judgment in Bronzino stated that where a national law imposes a condition of entitlement to certain family benefits whereby a worker’s child must be available to the employment office of the Member State providing the benefits and, accordingly, reside within the territory of that State, that requirement comes within the scope of Article 73 of Regulation No 1408/71 and must therefore be considered to be fulfilled where the child is available, as an unemployed worker, to the employment office of the Member State in which he resides.

43. In Mora Romero, the son of a Spaniard who died in Germany following an accident at work had been refused an extension of his orphan’s benefit beyond the age of 25, in respect of the time for which it was suspended while he completed his military service in Spain. The judgment interpreted Article 3(1) of Regulation No 1408/71 as meaning that where the legislation of a Member State provides for the extension of orphan’s benefit beyond the specified age for recipients of benefits whose training is interrupted by their military service, that State is required to assimilate to its own military service the military service in another Member State.

44. In some circumstances the Court of Justice has held that facts or situations concerning the grant of social security benefits should be assimilated on the basis of the prohibition of discrimination contained in primary law provisions.

46. Mr Roviello, an Italian national, declared that he had worked as a tiler for 14 years in his native country and had subsequently been employed for four years in Germany. He was refused the pension for which he applied in Germany because he had no qualification as a tiler and had not pursued that occupation continuously. Under the system of classification described above, he fell into the category of unskilled worker, which did not entitle him to a pension.

47. Mrs Paraschi, a Greek national, paid 102 monthly contributions to the pension scheme in Germany, where she fell ill. Two years later she returned to her country of origin where, because of a deterioration in her health, she was unable to find employment or, because she had paid Greek pension contributions for only five months, to receive an invalidity pension. In Germany she was refused the benefit because she had not paid at least 36 monthly contributions during the period of 60 months preceding the occurrence of the invalidity, known as the reference period. In the main proceedings it was established that that period of time could be extended owing to illness or unemployment if those circumstances had given rise to the receipt of benefits granted under the German legislation.

According to the judgment, Articles 39(2) EC and 42 EC preclude national legislation which, subject to certain conditions, permits the reference period to be prolonged but does not provide for the same possibility of a prolongation where the events occur in another Member State.

34 –Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 27.

48. In May 1981 Mrs Elsen, who was of German nationality, moved with her husband to France, where their son was born in 1984. Until March 1985 she was employed in France as a frontier worker. She interrupted her occupational activity between July 1984 and February 1985 in order to take maternity leave; from then on she did not have any remunerated activity. In September 1994, she applied in Germany for the first 10 years of her son’s life, which she had devoted to bringing him up, to be taken into consideration as periods of insurance for the purpose of an old-age pension. That request was refused because the child had been brought up abroad.

The Court of Justice decided that Articles 18 EC, 39 EC and 42 EC require that, for the grant of an old-age pension, the competent institution of a Member State must take into account, as though they had been completed in the national territory, periods devoted to child-rearing completed in another country in the Union by a woman who, when she gave birth, was a frontier worker employed in the territory of the first Member State and residing in the territory of the second Member State.

35 –Case C-135/99 Elsen [2000] ECR I-10409, paragraph 36.

49. In Kauer it was established that, for calculating the old-age pension, the Austrian legislation assimilated insurance periods to the time during which the insured person had been the person mainly responsible for rearing her children, in national territory. Mrs Kauer had worked in Austria, where she had three children with whom she moved to Belgium, where she devoted herself to bringing them up; after returning to her native country, she resumed paid employment. The old-age insurance institution refused to recognise the time spent in Belgium as equivalent to time spent bringing up children.

The judgment found that that national provision contained a difference of treatment because it unconditionally took into account child-raising periods completed in national territory and because it made the taking into account of child-raising periods spent in another State of the European Union subject to receipt of cash maternity allowance or equivalent allowances under federal Austrian legislation.

36 –Case C-28/00 Kauer [2002] ECR I-1343, paragraph 43.

50. In the Duchon case, the Austrian authorities refused to pay a disability pension to an Austrian national who had suffered an industrial accident in Germany when he was 20 years old and had since then drawn a German pension corresponding to a reduced capacity for work of 50%, because the claimant had not completed the qualifying period of 60 months during the reference period of 120 months; they refused to take into account the insurance periods completed in Germany following the accident.

It was held in the judgment that Articles 39(2) EC and 42 EC preclude a national provision which takes into account, for the purposes of the prolongation of the reference period during which the qualifying period for acquisition of the right to a pension must have been completed, only those periods during which the insured person has received a disability pension paid under a national accident insurance scheme, without providing for the possibility of prolonging it where it has been paid under the legislation of another Member State.

37 –Case C-290/00 Duchon [2002] ECR I-3567, paragraph 46. For the same reason, it declared that Article 9a of Regulation No 1408/71 was invalid.

f) The judgment in Gottardo

51. Recently there has been a radical change in the case-law of the Court of Justice, when interpreting, for Member States which have concluded a bilateral agreement with a third State, the meaning of the prohibition of discrimination on grounds of nationality in the area of social security rights.

52. Mrs Gottardo was Italian by birth and, as a result of her marriage in February 1953, acquired French nationality. She had paid 100 weekly social security contributions in Italy, 252 in Switzerland and 429 in France. She was in receipt of Swiss and French old-age pensions which were granted to her without any need for aggregation of periods. She applied for an old-age pension in Italy, which was refused because she was a French national, and therefore the Italo-Swiss Social Security Convention was inapplicable for aggregation of her contributions.

It was stated in the judgment that, when a Member State concludes a convention on social security with a non-member country which provides for account to be taken of periods of insurance completed in that country for acquisition of entitlement to old-age benefits, the fundamental principle of equal treatment requires it to grant nationals of other States in the Union the same advantages as those which its own nationals enjoy under that convention unless there is objective justification for refusing to do so.

39 –Cited above, paragraph 34. It added that neither the possible increase in the financial burden nor the administrative difficulties in liaising with the non-member country could justify the Member State’s failure to comply with its Treaty obligations.

g) The judgment in Saint-Gobain ZN

52. The bases for the change in the Court of Justice’s approach with regard to workers had been outlined in the judgment in Saint-Gobain ZN, which concerned the right of establishment and freedom to provide services, in relation to the tax concessions granted to companies limited by shares.

The decision stated that the national treatment principle requires the Member State which is party to a double-taxation treaty concluded with a non-member country, to grant to permanent establishments of non-resident companies the fiscal advantages provided for by that Treaty on the same conditions as those which apply to resident companies.

42 –In my Opinion in the Gottardo case, I stated, in order to persuade the Court of Justice that it should depart from the previous case-law, that the prohibition against discrimination laid down in Article 39 EC for workers cannot be viewed less favourably than the prohibition against discrimination provided for in Article 43 EC for the right of establishment or in Article 50 EC for the freedom to provide services ([2002] ECR I-415, point 29).

h) The principle of assimilation of facts

53. The evolution in the case-law which I have described shows that, when it comes to interpreting the prohibition of discrimination on grounds of nationality, there is a clear tendency to declare unlawful any obstacles raised, in national social legislation, to prevent application of the principle of assimilation of facts, the main aim of which is to ensure that situations arising in a Member State are assessed in the same way as if they had arisen in the State in which they must take effect.

54. I therefore agree with the Commission that, since the D’Amico judgment was delivered 28 years ago, the case-law has undergone a considerable change. It cannot therefore serve as a reference for settling the present case, not only because of the aforementioned changes but also, and mainly, because in 1975 the Court of Justice did not consider the question from the point of view of the principle of equal treatment.

55. Nor is it possible to invoke, for the purpose of establishing that the Austrian legislation is consistent with the aforementioned principle, the judgment in Taflan-Met, according to which, so long as the supplementary measures essential for implementing Decision No 3/80 have not been adopted by the Council, Articles 12 and 13 of that decision, which govern, respectively, the entitlement to disability and to old-age pensions of Turkish workers in the Community, do not have direct effect in the territory of the Member States and may therefore not be relied on before the national courts.

According to the statement of facts in paragraphs 9 and 10 of the judgment, the claimants in the main actions were refused, in the Netherlands, the widow’s and disability pensions which they had been granted in Belgium and Germany.

56. In my view, the reply given by the Court of Justice is accounted for by the particular characteristics of the branches of insurance relating to old-age, widowhood and incapacity for work in the Netherlands, for which residence in that country is the main condition of cover, since it is required that, when the operative event occurs, the claimant is subject to the national social security legislation.

That difference from the legislation of other Member States made it necessary to include many provisions in the paragraph devoted to that State in Annex VI to Regulation No 1408/71, in order to impose measures to adjust the territoriality of Netherlands law and coordinate it with the laws of the other States in the European Union. At that date, the Council had not adopted comparable provisions to assist Turkish workers, so the principle of equality together with assimilation of events and circumstances occurring in other Member States, which was apparently applied by Belgium and Germany, would not have made up for the absence of coordinating measures in that specific case.

57. There is no apparent reason why the national treatment rule, as stated in Article 3(1) of Decision No 3/80, should not be applied by the Member States with the same scope as that stated in Article 3(1) of Regulation No 1408/71. It would be difficult to justify not applying to the former the broad interpretation which the Court of Justice has adopted for the latter, bearing in mind that they have the same wording and that, as regards the persons covered, they pursue the same aims.

58. It is true that one of the arguments most frequently used by the Court of Justice, when referring to the principle of equal treatment, has been the dissuasive effect which the lack of assimilation would have on a worker who intended to exercise his right to freedom of movement. It is also true that Turkish nationals who have moved to one of the Community States in order to engage in an economic activity do not enjoy that freedom.

59. However, the first paragraph of Article 8 of Decision No 1/80 of the Association Council, included in Chapter II, Section 1, which is devoted to employment and the free movement of workers, provides that, when a vacancy in the Community cannot be filled by a worker in the employment market of the Member States and non-Community workers are contracted, an effort must be made to give priority to Turkish workers. It is indisputable that Mr Öztürk moved within the Community, since he exercised his occupational activity, perhaps under the protection of Article 8(1), in at least two Member States.

i) Assessment of the condition imposed by the Austrian social security legislation. Covert discrimination

60. It remains to be decided whether the condition imposed by the Austrian legislation for entitlement to the early old-age pension in the event of unemployment constitutes covert discrimination on grounds of nationality, which is prohibited by Article 3(1) of Decision No 3/80, or whether it is justified.

61. The benefit at issue is designed to bring forward the old-age pension to the moment when it is established that it would be very difficult to reintegrate the insured person into working life owing to age, illness, a reduction in his capacity to work or other similar causes. The only evidence required for that condition to be deemed fulfilled is that the claimant has drawn unemployment benefit during the requisite number of weeks. The early old-age pension is paid for as long as that situation lasts, that is to say, provided that he does not take up an economic activity, either self-employed or employed.

62. For the German Government, the difference in treatment described is justified as it pursues a lawful social policy objective because although, technically, the pension at issue is paid by the old-age insurance scheme, in practice it is a measure of social protection, which arises out of the unemployment situation and assists the unemployed. For that reason it is not granted to people who, because they live abroad, cannot, even in theory, obtain a position in Austria through the national employment office. The possibility of exporting this type of pension runs counter to its specific aim, which is closely linked to the employment market. The German Government takes the view that the condition imposed by the Austrian legislation is an objective criterion, since it shows that it is not feasible for the unemployed person to find another job in Austria. However, that evidence may only be assessed at its true worth if the national employment office has been able to use the aforementioned period in order to find him a job, it being the body that has information about available posts and maintains contacts with Austrian employers.

63. I only partly agree with those views. There is no doubt that to bring forward by five years the retirement age of people who have lost the ability to find a job is a State social policy measure. However, the pension claimed by Mr Öztürk in Austria is not unemployment benefit. Under current Community law, that type of benefit is only exportable to a limited extent, in specific circumstances which are minutely governed by Title III, Chapter 6, of Regulation No 1408/71. So far as concerns Turkish workers, although, under Article 4(1)(g), unemployment benefit is included in the substantive scope of Decision No 3/80, the rest of the article does not even mention it, so it would seem pointless to consider that a worker of that nationality might be entitled to receive it in a State other than that in which he has been unemployed.

64. To judge from the information provided in these proceedings, it is merely an old-age pension the benefit of which is granted before the age at which it would normally start to be paid, if it is shown that it is extremely unlikely that the applicant will find another job.

If the rule which requires the claimant to receive unemployment benefit for 52 weeks during the 15 months preceding the application is designed to establish that the claimant is unable to find a new job, I see no objective reason why the Austrian authorities should refuse to accept that a worker who has registered with the employment office of another Member State during the same period is in exactly the same position. It is true that he will not have entered the employment market in Austria, so the Austrian employment office is denied the opportunity of trying to place him, but, since he has been registered as unemployed in Germany without finding a job, it must be considered that he fulfils that condition. Indeed, there is no reason to believe that the German employment office would be less efficient than the Austrian office. Furthermore, although the unemployment rate varies from one State to another, it also differs between the regions of each State.

65. For all the foregoing reasons, the reply to the first question should be that the rule requiring equal treatment contained in Article 3(1) of Decision No 3/80 precludes a national provision which makes the grant of an early old-age pension in the event of unemployment conditional on the worker having received national insurance benefits during a specific period prior to the application for a pension if it excludes consideration of the fact that the claimant has received unemployment benefit in another Member State during the same period.

66. In view of the fact that I suggest that the first question be answered in the affirmative, there is no need to deal with the second, since the Oberster Gerichtshof only raises it in the event of the Court of Justice answering the first one in the negative. However, I shall examine it, in the alternative, in case it has to be considered.

B – The second question

67. By this question, the national court wishes to ascertain the meaning of Article 45(1) of Regulation No 1408/71 in relation to the legislation of a Member State which requires a worker, in order to be entitled to an early old-age pension in the event of unemployment, to have received unemployment benefit in that State during a specific period prior to that qualifying date.

68. Observations on this matter have been received only from the German Government and the Austrian Government. They both favour a negative reply and refer to the nature of the pension and the decision in D’Amico.

69. First of all, I agree with the two governments, although my attitude is based on other arguments.

70. Article 45 of Regulation No 1408/71 governs the consideration of periods of insurance or of residence completed under the legislations to which an employed person or self-employed person was subject, for the acquisition, retention or recovery of the right to benefits.

Under Article 45(1), where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme according to paragraph 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State is required to take account, to the extent necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general scheme or under a special scheme and either as an employed person or a self-employed person; it must take account of those periods as if they had been completed under its own legislation.

I also note that the second of those conditions requires that, on the date of the application, at least 180 contributions have been paid in respect of compulsory old-age insurance. If it is considered that Mr Öztürk satisfies that condition, it must be assumed that Article 45(1) of Regulation No 1408/71, to which the Social Security Agreement between Austria and Germany refers, has been applied, since in Austria only 54 months of contributions may be required.

72. The condition that unemployment benefit must have been received in the circumstances described, on the other hand, does not involve completion of any insurance or residence period which has to be aggregated in order for entitlement to arise, but is merely a condition which introduces covert discrimination on grounds of nationality for which, as I stated when dealing with the first question, there is no justification.

VII – Conclusion

74.In the light of the foregoing considerations, I propose that the Court of Justice reply as follows to the questions referred to it by the Oberster Gerichtshof:

The rule requiring equal treatment contained in Article 3(1) of Decision No 3/80 of the Association Council of 19 September 1980 concerning the application of the social security schemes of the Member States to Turkish workers and the members of their families precludes a national provision which makes the grant of an early old-age pension in the event of unemployment conditional on the worker having received national insurance benefits during a specific period prior to the application for a pension, if it excludes consideration of the fact that the claimant has received unemployment benefit in another Member State during the same period.

(2)

Article 45(1) of Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community does not preclude legislation of a Member State which requires, 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.

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Original language: English.

Approved by Council Decision 64/732/EEC of 23 December 1963 (Journal Officiel 1964 B 217, p. 3685).

Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Regulation No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1).

Confirmed by Council Regulation (EEC) No 2760/72 of 19 December 1972 concluding the additional protocol and the financial protocol signed on 23 November 1970 and annexed to the Agreement establishing an Association between the European Economic Community and Turkey and relating to the measures to be taken for their implementation (OJ 1972 L 293, p. 1).

Decision No 3/80 of 19 September 1980 concerning the application of the social security schemes of the Member States to Turkish workers and the members of their families (OJ 1983 C 110, p. 60).

See Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union (OJ 1996 L 35, p. 1).

Case 20/75 D’Amico [1975] ECR 891.

In Sophocles’s tragedy Antigone, after the chorus has said: ‘There is much that is strange, yet nothing is stranger than man’ (verses 332 and 333), Antigone replies to Creon: ‘But Hades longs for egalitarian laws’ (verse 519) (free translation).

Case C-55/00 Gottardo [2002] ECR I-413, paragraph 21.

Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929, paragraph 20; Case C‑131/96 Mora Romero [1997] ECR I-3659, paragraph 10; and Case C-100/01 Oteiza Olazábal [2002] ECR I-10981, paragraph 25.

Case 1/78 Kenny [1978] ECR 1489, paragraph 9; and Case C-336/96 Gilly [1998] ECR I-2793, paragraph 38.

Case C-124/99 Borawitz [2000] ECR I-7293, paragraph 28.

Peers, S., ‘Social security equality for Turkish nationals’, European Law Review, 1999, p. 627 et seq., especially p. 629: ‘In practice, [equal access for Turkish workers and their family members to each Member State’s social security system] is far more important for Turks living in the Community; since they lack the right to move freely between Member States, their social security disputes largely concern the application of the equality principle in the individual Member States’.

Article 36 of the Additional Protocol of 1970, cited above, provides that freedom of movement for workers between the Member States of the Community and Turkey will be achieved gradually, in accordance with the principles laid down in Article 12 of the Association Agreement, between the end of the 12th and the 22nd years following the entry into force of the Agreement, and it will be for the Association Council to adopt the necessary detailed rules. Decision No 1/80 of the Council, which concerns the implementation of the Association, confines itself to governing, in Article 6 et seq., the entry of Turkish workers into the employment market of a Member State.

Emphasis added.

Case C-262/96 Sürül [1999] ECR I-2685, paragraph 71.

Ibid.

Verschueren, H., ‘L’arrêt Sürül: égalité de traitement en matière de sécurité sociale pour les travailleurs turcs’, Revue du droit des étrangers, 1999, p. 282 et seq., especially p. 291: ‘... This judgment paves the way for the direct application of other provisions of Decision No 3/80, and more specifically of the principle of the exportation of pensions or the principle of equal treatment in other areas falling within the scope of the Association Agreement’.

Joined Cases C-102/98 and C-211/98 Kocak and Örs [2000] ECR I-1287, paragraph 39. In the context of the Treaty, see Case 41/84 Pinna [1986] ECR 1, paragraph 23; Case 20/85 Roviello [1988] ECR 2805, paragraph 14; Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 16; Case C-27/91 Hostellerie Le Manoir [1991] ECR I-5531, paragraph 10; Case C-419/92 Scholz [1994] ECR I-505, paragraph 7; Case C-57/96 Meints [1997] ECR I-6689, paragraph 45; and Case C-190/98 Volker Graf [2000] ECR I-493, paragraph 14.

Case C-237/94 O’Flynn [1996] ECR I-2617, paragraphs 18 and 19.

Cited above.

Case C-277/94 Taflan-Met and Others [1996] ECR I-4085.

Regulation No 3 of the Council of 25 September 1958 on social security for migrant workers (Journal Officiel 1958 30, p. 561).

The Opinion was delivered on 12 June 1975 [1975] ECR 901.

Case 2/72 Murru [1972] ECR 333, paragraph 11.

Not that there is any shortage of examples in the case-law. The Court of Justice had already stated, in Case 15/69 Ugliola [1969] ECR 363, that the principle of equal treatment enshrined in the provisions governing freedom of movement for workers entitles a migrant worker who is a national of a Member State and who has had to interrupt his employment with an undertaking in another Member State in order to fulfil his obligations for military service in the country of which he is a national to have the period of his military service taken into account in the calculation of his seniority in that undertaking, to the extent to which the periods of military service in the country of employment are also taken into account for the benefit of national workers. It is true, however, that the Court of Justice has been more generous when applying the principle in that sphere than in the sphere of social security in the strict sense.

This is not the only case in which the Court of justice has provided differing solutions to the national courts – when the circumstances are practically the same and the Community provisions in force are identical – as a result of the different wording of the questions referred for a preliminary ruling. See the Opinion I delivered in Gottardo, cited above, particularly point 30 et seq., in which I give a few examples of that worrying divergence.

A term which the Court of Justice had coined not long before in Case 152/73 Sotgiu [1974] ECR 153.

Kokott, J., in The American Journal of International Law, 1990, p. 926 et seq., especially p. 929, takes the view that the Court of Justice should not have gone further: ‘... The Court should have limited itself to ruling that payments based on the fact that the children are available to the placement service are ‘family benefits’ in the sense of EEC Law and, as such, must not depend upon their availability to a domestic service. Formulating the operative part of the judgment along these lines would have been more consistent with the principle that it rests with the national court to interpret and apply the national law’.

Case C-228/88 Bronzino [1990] ECR I-531, paragraph 12. In the judgment of the same date in Case C-12/89 Gatto [1990] ECR I-557, the Court of Justice drew the same conclusion with regard to Article 74 of Regulation No 1408/71, which governed family benefits for unemployed persons whose relatives lived in another Member State.

Case C-131/96, cited above, paragraph 36.

Case 20/85, cited above, paragraph 18. This solution was suggested to the Court by Advocate General Mancini in the second Opinion he delivered in that case. In the first, he had already stressed that the Court of Justice had to rule on the validity of a legislative provision and had suggested that the Court refer the case to the Full Court for it to decide after hearing the Council and the Parliament.