Case C-225/02

Rosa García Blanco

v

Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)

(Reference for a preliminary ruling from the Juzgado de lo Social nº 3 de Orense)

(Social security of migrant workers – Old age – Unemployment – Minimum periods of insurance – Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits – Periods of unemployment – Aggregation)

Opinion of Advocate General Kokott delivered on 28 October 2004

Judgment of the Court (Second Chamber), 20 January 2005

Summary of the Judgment

Preliminary rulings – Jurisdiction of the Court – Case pending before the national court rendered devoid of purpose – No need to give a ruling

(Art. 234 EC)

It is clear from both the wording and the scheme of Article 234 EC that a national court or tribunal is not empowered to bring a matter before the Court of Justice by way of a reference for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling.

The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute.

Where the claims of the claimant in the main proceedings have been met in their entirety, an answer by the Court to the questions put by the national court would be of no use to that court.

(see paras 27-28, 30-31)

JUDGMENT OF THE COURT (Second Chamber) 20 January 2005 (1)

(Social security of migrant workers – Old age – Unemployment – Minimum periods of insurance – Periods of insurance taken into account for calculating the amount of benefits but not for acquiring the right to those benefits – Periods of unemployment – Aggregation)

In Case C-225/02, REFERENCE for a preliminary ruling under Article 234 EC from the Juzgado de lo Social n

v

THE COURT (Second Chamber),,

composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, R. Schintgen (Rapporteur), P. Kūris and G. Arestis, Judges,

Advocate General: J. Kokott,

having regard to the written procedure and further to the hearing on

after hearing the Opinion of the Advocate General at the sitting on 28 October 2004,

gives the following

‘[P]eriods of contribution or periods of employment or self-employment as defined or recognised as period[s] of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance’.

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

‘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 paragraphs 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 [been] completed under its own legislation.’

‘Where the conditions required by the legislation of a Member State for entitlement to benefits are satisfied only after application of Article 45 and/or Article 40(3), the following rules shall apply:

‘Notwithstanding Article 46(2), the institution of a Member State shall not be required to award benefits in respect of periods completed under the legislation it administers which are taken into account when the risk materialises, if:

‘In the case of an unemployment allowance for workers over 52 years of age, the benefit agency must also contribute to old-age insurance.’

‘Retirement contributions paid by the benefit agency in accordance with Article 218(2) of this law shall be taken into account in calculating the basic amount of the retirement pension and the percentage to be applied to it. Such contributions shall in no case have validity and legal effect for the purpose of accrediting the minimum period of contribution required under Article 161(1)(b) of this law, which, in accordance with Article 215(1)(3), must have been completed by the time an application is made for the [unemployment] allowance for [unemployed] persons over 52 years of age.’

On those grounds, the Court (Second Chamber) rules as follows:

[Signatures]