Opinion of the Advocate General — ECLI:EU:C:2003:113
Date: 2003-02-27
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Action for failure to fulfil obligations - successful
Origin: Netherlands

Summary 79. Overall, it may be concluded, therefore, that on application of Article 71(1)(a)(ii) of the Regulation there is a change of governing law and the legislation of the State of residence alone forms the legal basis for, and the means of determining, unemployment benefits for wholly unemployed frontier workers. The legislation of the State of residence is thus also applicable where wholly unemployed frontier workers are temporarily resident in another Member State in order to seek work. 80. Article 69 applies to wholly unemployed frontier workers, and a Member State must support the search for work in another Member State in accordance with this provision if its preconditions are satisfied. 81. A Member State which refuses to pay unemployment benefits to wholly unemployed frontier workers who go to another Member State, in compliance with the conditions of Article 69 of the Regulation, in order to seek employment there, or whose institutions fail to take the measures necessary for the exercise of rights under Article 69 of the Regulation, is thus in breach of Article 71(1)(a)(ii) and Article 69 of the Regulation. VI - Conclusion 82. It is, therefore, recommended that the Court: - declare that, by refusing to allow wholly unemployed frontier workers to make use of the possibility under Article 69 of Regulation (EEC) No 1408/71 of the Council 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 of seeking employment in one or more other Member States while retaining entitlement to unemployment benefit under the conditions laid down in that article, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 69 and 71 of the Regulation; - order the Kingdom of the Netherlands to pay the costs of the proceedings. 1: - Original language: German. 2: - OJ, English Special Edition 1971 (II), p. 416. 3: - Case 145/84 [1985] ECR 801. 4: - Case C-131/95 [1997] ECR I-1409. 5: - Case 1/85 Miethe [1986] ECR 1837, Case C-444/98 De Laat [2001] ECR I-2229 and Case C-201/91 Grisvard and Kreitz [1992] ECR I-5009. 6: - Case 39/76 Mouthaan [1976] ECR 1901, Case 227/81 Aubin [1982] ECR 1991, Case 92/63 Nonnenmacher [1964] ECR 281, Case 58/87 Rebmann [1988] ECR 3467, Case C-215/00 Rydergård [2002] ECR I-1817, Miethe (cited in footnote 5), De Laat (cited in footnote 5) and Grisvard and Kreitz (cited in footnote 5). 7: - Case C-454/93 [1995] ECR I-1707. 8: - CNS 96/0004 (OJ 1996 C 68, p. 11). 9: - Cited in footnotes 3 and 4. 10: - Case 27/75 [1975] ECR 971. 11: - Joined Cases 41/79, 121/79 and 796/79 [1980] ECR 1979. 12: - Cited in footnote 6. 13: - Cited in footnotes 3 and 4. 14: - Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159). 15: - Article 19a(2), the second paragraph of Article 23, Article 31(2) and Article 93(2). 16: - Cited in footnote 11. 17: - Cited in footnote 10. 18: - Case C-59/95 [1997] ECR I-1071. 19: - Case 24/75 [1975] ECR 1149. 20: - This is the case, however, only if it cannot be concluded from Article 69 itself that that provision is not to apply to wholly unemployed frontier workers - see point 73 et seq. 21: - Emphasis added. 22: - The provision does not, however, govern the obligations of Member States under Article 69 towards unemployed persons (e.g. the issue of the necessary E303/0 - E303/5 certificates in accordance with Article 83 of the Implementing Regulation). 23: - See point 39 above. 24: - Cited in footnote 8. 25: - Cited in footnotes 3 and 4. 26: - Cited in footnote 4, paragraph 26. 27: - Cited in footnote 3, paragraph 15. 28: - Cited in footnotes 10 and 11. 29: - Cited in footnote 6. 30: - Furthermore, it is apparent from the Regulation itself that it fundamentally allows for the possibility of exportation of benefits, resulting in the simultaneous application of two national legal orders. One example of this is how Article 69 normally applies. The legislation of the State which the worker leaves provides the legal basis for benefits, while the legislation of the Member State in which the worker seeks employment governs, to a certain extent, their determination. 31: - All cited in footnote 5. 32: - Cited in footnote 5, paragraph 16. 33: - Case 67/79 [1980] ECR 535. In its judgment, the Court determined that for wholly unemployed frontier workers whose entitlement is ascertained by aggregating periods of insurance or of employment in accordance with Article 67 of the Regulation the assessment of benefits is to be based, in derogation from Article 68 of the Regulation, on the last salary paid in the State of employment. 34: - Grisvard and Kreitz cited in footnote 5, paragraph 16. 35: - Petroni (cited in footnote 19) and Bastos Moriana (cited in footnote 18). 36: - Mouthaan (cited in footnote 6). 37: - Unlike the genuine frontier workers in this case, wholly unemployed non-genuine frontier workers have a right of election in this respect (Article 71(1)(b)(ii) of the Regulation and Miethe (cited in footnote 5)). 38: - It is assumed that, as a rule, workers become frontier workers when the overseas employment market generally seems more attractive. 39: - Van Gestel (cited in footnote 7), paragraph 26: However, that is a consequence intended by the Community legislature which meant to ensure that workers were given the best chance of finding new employment. 40: - In particular, the usual place of residence, in the sense of the focal point of one's life - see Aubin (cited in footnote 6). 41: - See also above, point 61 et seq. 42: - It should also be noted that under Article 69(2) those affected lose their entire remaining entitlement to benefits if they do not make themselves available again to the employment service of the State of residence within three months.