Case C-373/02

Sakir Öztürk

v

Pensionsversicherungsanstalt der Arbeiter

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

(Article 9 of the EEC-Turkey Association Agreement – Article 3 of Decision No 3/80 – Principle of equal treatment – Article 45(1) of Regulation (EEC) No 1408/71 – Social security for migrant workers – Retirement pension – Early pension in the event of unemployment – Condition whereby the worker must have received unemployment benefits in the Member State concerned)

Summary of the Judgment

International agreements – EEC-Turkey Association Agreement – Social security for migrant workers – Early old-age pension in the event of unemployment – National legislation making entitlement conditional on the worker’s having received benefits under national unemployment insurance over a certain period prior to his application – Not permissible

(Decision No 3/80 of the EC Turkey Association Council, Art. 3(1))

Article 3(1) of Decision No 3/80 of the EEC-Turkey Association Council on the application of the social security schemes of the Member States to Turkish workers and members of their families must be interpreted as precluding the application of legislation of a Member State which makes entitlement to an early old-age pension in the event of unemployment conditional upon fulfilment of the requirement that the person concerned has received, within a certain period prior to his application for the pension, unemployment insurance benefits from that Member State alone.

(see para. 68, operative part)

JUDGMENT OF THE COURT (Grand Chamber) 28 April 2004 (1)

(Article 9 of the EEC-Turkey Association Agreement – Article 3 of Decision No 3/80 – Principle of equal treatment – Article 45(1) of Regulation (EEC) No 1408/71 – Social security for migrant workers – Retirement pension – Early pension in the event of unemployment – Condition whereby the worker must have received unemployment benefits in the Member State concerned)

In Case C-373/02,

REFERENCE to the Court under Article 234 EC by the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 9 of the Agreement establishing an Association between the European Economic Community and Turkey signed on 12 September 1963 at Ankara by the Republic of Turkey, on the one hand, and the Member States of the EEC and the Community, on the other, which was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 on the conclusion of the Agreement establishing an Association between the European Economic Community and Turkey (Journal Officiel 1964 217, p. 3685), and of Article 45(1) 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 Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1),

THE COURT (Grand Chamber),,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann and J. Cunha Rodrigues (Presidents of Chambers), J.-P. Puissochet, R. Schintgen (Rapporteur), F. Macken, N. Colneric, S. von Bahr and K. Lenaerts, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 12 February 2004,

gives the following

‘The Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.’

‘The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.’

‘1. Before the end of the first year after the entry into force of this Protocol the Council of Association shall adopt social security measures for workers of Turkish nationality moving within the Community and for their families residing in the Community.

2. These provisions must enable workers of Turkish nationality, in accordance with arrangements to be laid down, to aggregate periods of insurance or employment completed in individual Member States in respect of old‑age pensions, death benefits and invalidity pensions, and also as regards the provision of health services for workers and their families residing in the Community. These measures shall create no obligation on Member States to take into account periods completed in Turkey.’

‘This Decision shall apply;

‘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.’

‘This Decision shall apply to all legislation concerning the following branches of social security:

...

...’

‘Turkey and the Community shall, each to the extent to which they are concerned, take the necessary steps to implement this Decision.’

‘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 within the meaning of paragraph 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, where 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. For that purpose, it shall take account of these periods as if they had completed under its own legislation.’

‘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:

‘(1) The present agreement shall apply to the persons to whom ... Regulation [No 1408/71] applies.

(2) The present agreement shall also apply to the persons to whom ... Regulation [No 1408/71] does not apply and

‘(1) Regulation [No 1408/71], the implementing regulation and the agreements for its implementation shall apply by analogy to the persons mentioned in Article 3(2) in relations between the two Contracting States, unless otherwise provided in this agreement.

(2) Articles 3 and 10 of Regulation [No 1408/71] shall apply to the persons mentioned in Article 3(2) only if they are nationals of the Contracting States, refugees or stateless persons, or family members or survivors of such persons.’

On those grounds,

THE COURT (Grand Chamber),

in answer to the questions referred to it by the Oberster Gerichtshof by decision of 17 September 2002, hereby rules:

Skouris

Jann

Timmermans

Gulmann

Cunha Rodrigues

Puissochet

Schintgen

Macken

Colneric

von Bahr

Lenaerts

Delivered in open court in Luxembourg on 28 April 2004.

R. Grass

V. Skouris

Registrar

President