Biagio Valentini v ASSEDIC de Lyon (171/82)

2. Observations of the French Government

The French Government does not deny that the unemployment insurance scheme set up by the agreements falls within the scope of Regulation No 1408/71 of the Council inasmuch as the Agreement of 31 December 1958 was notified to the President of the Council of the European Communities and published on 6 April 1973, in accordance with Articles 1 (j) and 96 of Regulation No 1408/71. However, it takes the view that Article 46 of that regulation cannot apply in this instance, since the benefit in question is not an old-age pension but an unemployment benefit, which comes under Chapter 6 of the regulation. That follows from the fact that the benefit is paid and financed by the institutions of the unemployment insurance scheme which, in France, are separate from the social security institutions, which administer old-age pensions.In addition, the rules for awarding the benefit are identical to those applicable for unemployment benefit and its recipients must be registered with the Agence Nationale pour l'Emploi. In that respect, the Court has expressly held that such registration was necessary in the context of unemployment, in particular in its judgments of 9 July 1975 (Case 20/75 Gaetano d'Amico [1975] ECR 891) and of 17 May 1982 (Case 227/81, Aubin v Union National Interprofessionnelle [1982] ECR 1991).The French Government refers also to the fact that the payment of the benefit ceases on the day on which the recipient recommences an occupation, whether for an employer or not — which does not exclude old-age pensions. The characteristics of the guaranteed income scheme show that it is an integral part of the unemployment benefit scheme, of which it represents only a variation. On the other hand, the provisions concerning the non-overlapping of old-age, invalidity and death benefits and the case-law of the Court relating thereto are not applicable inasmuch as they are set out in Chapter 3 of Regulation No 1408/71, whilst the provisions on unemployment come under Chapter 6 and lay down no rule requiring the aggregation of such benefit. Indeed they exclude it, inasmuch as they offer the worker the choice of either joining the scheme of unemployment benefits of the State in which he was last employed, or of claiming the benefits of the State in which he resides.Finally, it maintains that in respect of the overlapping of an unemployment benefit with benefits paid under the legislation of another Member State, the relevant provisions of Article 12 (2), which are the only provisions applicable in this instance, show that Community law does not preclude the adoption by a Member State of legislative provisions for reduction, suspension or withdrawal of benefits, as has recently been confirmed by the Court.It would therefore be appropriate for the Court to rule that Article 46 of Regulation No 1408/71 cannot apply to unemployment benefits referred to in Chapter 6 of that regulation and that it follows, both from the case-law of the Court on the overlapping of unemployment benefits and from the Court's interpretation of the first sentence of Article 12 (2) of the regulation, which concerns the overlapping of different categories of benefit, that a Member State is justified in applying its national provisions prohibiting the overlapping of benefits to a Community citizen who is entitled to an old-age pension paid by the authorities of one Member State and is in receipt of a guaranteed income allowance in another.