CELEX: 61994CJ0243
Social security for migrant workers
Family benefits
Article 74 of Regulation (EEC) No 1408/71

By order of 29 August 1994, received at the Court on 8 September 1994, the Sozialgericht (Social Court) Stuttgart referred
to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 74 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 (OJ, English Special Edition 1971 (II),
p. 416), as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) and subsequently
by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1, hereinafter
Regulation No 1408/71).
That question has arisen in a dispute between Mr Moreno and the Bundesanstalt für Arbeit (Federal Labour Office) concerning
the latter's refusal to pay family benefits to Mr Moreno for the months of January and February 1993.
Mr Moreno, who is a Spanish national, was employed in Germany from 1966 to 15 December 1992 and on that basis received family
benefits from the Bundesanstalt für Arbeit for his two sons, who were studying in Spain.
Mr Moreno was dismissed from his employment on 15 December 1992.  In view of the length of his employment contract, its termination
was subject under German legislation to expiry of a period of notice.  With Mr Moreno's agreement, however, that notice was
waived and his employer paid him compensation on account of dismissal.
In the light of that fact, the Bundesanstalt für Arbeit adopted two decisions in respect of Mr Moreno under the Arbeitsförderungsgesetz
(Law on Employment Promotion) of 25 June 1969 (hereinafter the
AFG) (
Bundesgesetzblatt
I, p. 582), as amended.
The Bundesanstalt für Arbeit first decided to suspend Mr Moreno's entitlement to unemployment benefit for the period from
16 December 1992 to 21 February 1993, pursuant to Paragraph 117(2) and (3) of the AFG.  Under those provisions, an unemployed
person whose employment contract has been terminated without observance of a period of notice and who receives compensation
from his employer is subject to suspension of his entitlement to unemployment benefit for a period the duration of which depends
on the amount of compensation paid.
Secondly, the Bundesanstalt für Arbeit decided that benefit should be withheld from Mr Moreno for the period from 16 December
1992 to 9 March 1993 pursuant to the combined provisions of Paragraphs 119 and 119a of the AFG.  Those provisions state that
if an unemployed person has terminated the employment relationship or if his conduct in breach of the employment contract
has given rise to termination of the employment relationship and thus brought about his unemployment either intentionally
or through gross negligence, that person is to be excluded from unemployment benefit for a specified period.
However, during the suspension or temporary exclusion, the unemployed person is covered by sickness insurance under the combined
provisions of Paragraph 19(2) of the Sozialgesetzbuch V (Social Security Code, Book V) and Paragraphs 155 and 155a of the
AFG, as well as by the guarantee of accident insurance provided for by Paragraph 165 of the AFG.
By decision of 6 April 1993, the Bundesanstalt für Arbeit refused to pay family benefits to Mr Moreno for the months of January
and February 1993 on the ground that Article 74 of Regulation No 1408/71 required, for the granting of family benefits, that
the recipient should in fact be drawing unemployment benefit.  Since Mr Moreno had not been drawing any unemployment benefit
during the disputed period by reason of the measures which it had adopted in his regard, the Bundesanstalt für Arbeit took
the view that there was no reason to pay family benefits to him either.
Following rejection of his complaint, Mr Moreno brought proceedings before the Sozialgericht Stuttgart in which he submits
essentially that during both the suspension and exclusion periods his entitlement to family benefits ought to have been maintained,
since those periods are deducted from the total period during which he is entitled to unemployment benefits, with the result
that he must be regarded as a person drawing such benefits within the meaning of Article 74 of Regulation No 1408/71.  This,
he submits, must
a fortiori
be the case during the temporary exclusion inasmuch as he remains compulsorily insured against sickness under the above provisions
of the Sozialgesetzbuch and the AFG.
Since it took the view that the outcome of the dispute depended on how Article 74 of Regulation No 1408/71 was to be interpreted,
the Sozialgericht Stuttgart decided to stay the proceedings and refer the following question to the Court for a preliminary
ruling: Must Article 74 of Regulation (EEC) No 1408/71 be interpreted as meaning that unemployed persons who were formerly employed
and who draw unemployment benefits under the legislation of a Member State include unemployed persons registered with the
Arbeitsamt (Labour Office) whose entitlement to unemployment benefit is suspended because compensation was paid to them by
their employer on termination of their employment, under Paragraph 117 of the Arbeitsförderungsgesetz (Law on employment promotion,
AFG), or because of a temporary exclusion under Paragraph 119 of the AFG?
Article 74 of Regulation No 1408/71 provides that
an unemployed person who was formerly employed ... and who draws unemployment benefits under the legislation of a Member State
shall be entitled, in respect of the members of his family residing in another Member State, to the family benefits provided
for by the legislation of the former State, as if they were residing in that State ... .
It follows from that provision that, in order to be entitled to family benefits in respect of the members of his family residing
in another Member State, the unemployed person must be drawing unemployment benefits under the legislation of a Member State,
in this case under German legislation.
It is necessary here to ask whether, although the Bundesanstalt für Arbeit did not, during the disputed period, pay to Mr Moreno
any unemployment benefit in cash by reason of the suspension and exclusion measures, he must be regarded as having drawn unemployment
benefits within the meaning of that provision.
Suspension
Regarding the period of suspension, it should be pointed out that although Mr Moreno did not draw any unemployment benefit
in cash from the competent authority, he did receive compensation from his employer when his contract of employment was terminated.
The question therefore arises as to whether that compensation should be treated as an unemployment benefit for the purposes
of Article 74 of Regulation No 1408/71.
The Court has stated on numerous occasions that a benefit may be regarded as a social security benefit in so far as it is
granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined
position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see,
inter alia
, Case C-66/92
Acciardi
v
Commissie Beroepszaken Administratieve Geschillen in de Provincie Noord-Holland
[1993] ECR I-4567, paragraph 14; Case C-111/91
Commission
v
Luxembourg
[1993] ECR I-817, paragraph 29; Case C-78/91
Hughes
v
Chief Adjudication Officer
[1992] ECR I-4839, paragraph 15, and Joined Cases 379/85, 380/85, 381/85 and 93/86
Caisse Régionale d'Assurance Maladie Rhône-Alpes and Others
v
Giletti and Others
[1987] ECR 955, paragraph 11).
It appears in this connection from the case-file that, within the German legal system, a worker who loses his job is in principle
entitled to unemployment benefit.  Paragraph 117 of the AFG, however, provides for suspension of this right where the employer
has terminated the employment relationship without observing a period of notice and the unemployed worker has consequently
received compensation or is required to enforce his right to compensation.
Next, it must be pointed out, on the one hand, that the amount of this compensation is, under Paragraph 117 of the AFG, to
be taken into consideration in determining the period of suspension and, on the other, that the very concept of suspension
of benefits implies that the entitlement to such benefits remains but that payment of them by the competent body can resume
only on expiry of the period of suspension.
Finally, as the German Government has argued, the compensation referred to in Paragraph 117 of the AFG partially replaces
the unemployment benefit to which the unemployed worker is in principle entitled.  It follows that it relates directly to
the risk of unemployment referred to in Article 4(1) of Regulation No 1408/71 and that consequently it can be treated as an
unemployment benefit within the meaning of Article 74 of Regulation No 1408/71.
It follows that compensation paid by reason of dismissal, such as that referred to in Paragraph 117 of the AFG, must be regarded
as an unemployment benefit within the meaning of Article 74 of Regulation No 1408/71.
Temporary exclusion
With regard to the temporary exclusion of Mr Moreno, it is necessary to consider whether that measure prevents him from drawing
any unemployment benefit.
It should be noted that Article 74 of Regulation No 1408/71 uses the term
unemployment benefits without drawing any distinction between cash benefits and other benefits and without requiring, as a condition of its application,
that the person concerned draws all of the benefits provided for under the legislation of the competent State during the period
of unemployment.  It follows that this provision does not impose any condition with regard to the nature of the unemployment
benefits.
Consequently, in so far as the unemployed worker excluded from unemployment benefits in cash continues, under the legislation
of the competent State, to be covered against the risks of sickness and accidents, the expression
unemployment benefits under the legislation of a Member State used in Article 74 of Regulation No 1408/71 must be understood as covering these types of benefit as well.
It follows that an unemployed person who continues, during a period of temporary exclusion, to be covered, pursuant to national
legislation, in respect of sickness and accidents must be regarded as drawing unemployment benefits within the meaning of
Article 74 of Regulation No 1408/71.
In the light of all the foregoing, the answer to the question submitted by the national court should be that Article 74 of
Regulation No 1408/71 must be interpreted as meaning that the expression
unemployed person ... who draws unemployment benefits under the legislation of a Member State also covers unemployed persons registered with the competent national authority whose entitlement to unemployment benefit
has been suspended because compensation was paid to them by their employer by reason of the fact that the employment relationship
was terminated without observance of a period of notice, or because payment of unemployment benefits in cash was temporarily
excluded, in cases where, during that period of exclusion, they are covered against the risks of sickness and accidents under
the legislation of the competent State.
Costs
The costs incurred by the German and Spanish Governments, the United Kingdom and the Commission of the European Communities,
which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main
proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the question referred to it by the Sozialgericht Stuttgart by order of 29 August 1994, hereby rules:
Kakouris
Schockweiler
Kapteyn
Murray
Ragnemalm
Delivered in open court in Luxembourg on 28 March 1996.
R. Grass
C.N. Kakouris
Registrar
President of the Sixth Chamber
–
Language of the case: German.