Opinion of the Advocate General — ECLI:EU:C:2017:920
Date: 2017-11-29
Language of the case: Dutch
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Netherlands

Summary — Judgment of the Court (First Chamber), 21 March 2018 Social security — Migrant workers — Unemployment — Unemployed person going to another Member State — Retention of entitlement to benefits — Period of three months — Extension — Discretion of the national authorities — Limits — National measure requiring the competent institution to refuse any extension request except where there is a risk of an unreasonable result — Lawfulness (European Parliament and Council Regulation No 883/2004, Art. 64(1)(c)) Article 64(1)(c) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems must be interpreted as not precluding a national measure, such as that at issue in the main proceedings, that requires the competent institution to refuse, as a matter of principle, any request to extend the unemployment benefit export period beyond three months, provided the institution does not consider that refusing that request would lead to an unreasonable result. In that regard, it must be noted that that regulation does not set up a common scheme of social security, but allows different national social security schemes to exist, and its sole objective is to ensure the coordination of those schemes in order to guarantee that free movement of persons can be exercised effectively. That regulation thus allows different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by EU law (see, to that effect, judgments of 19 September 2013, Brey, C‑140/12, EU:C:2013:565, paragraph 43, and of 14 June 2016, Commission v United Kingdom, C‑308/14, EU:C:2016:436, paragraph 67). Moreover, it must be noted that, under Regulation No 1408/71 the Court had already ruled that the right to retain unemployment benefits for a period of three months helps to ensure the free movement of workers (see, to that effect, judgment of 19 June 1980, Testa and Others, 41/79, 121/79 and 796/79, EU:C:1980:163, paragraph 14). Such a conclusion applies equally to Regulation No 883/2004 since, in addition to guaranteeing the export of unemployment benefits for a period of three months, it also allows that period to be extended up to a maximum of six months. It follows that Article 64(1)(c) of Regulation No 883/2004 guarantees export of unemployment benefits for three months only; however it allows that period to be extended up to a maximum of six months under national law. As regards the criteria on the basis of which the competent institution may extend the unemployment benefit export period up to a maximum of six months, it must be noted that, when, as in the present case, the Member State concerned has exercised the power provided for in the second limb of Article 64(1)(c) of Regulation No 883/2004, it is for that Member State, failing any criteria laid down in that regulation, to adopt, in accordance with EU law, national measures regulating the competent institution’s discretion, in particular by specifying the conditions on which extension of the unemployment benefit export period beyond three months and up to a maximum of six months is or is not to be granted to an unemployed person who goes to another Member State in order to seek work there. (see paras 44-46, 51, 54, operative part)