Opinion of the Advocate General — ECLI:EU:C:2001:549
Date: 2001-10-18
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Limits — Manifestly irrelevant 
questions and questions regarding hypothetical problems in a context which precludes 
any useful answer — Questions not related to the purpose of the main proceedings 
(Art. 234 EC) 
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SUMMARY — CASE C-277/99 
2. Social security for migrant workers — Community rules — Replacing social security 
conventions concluded between Member States — Limit — Retention, solely in 
favour of workers who exercised their right to freedom of movement before the entry 
into force of Regulation No 1408/71 and before the Treaty became applicable in their 
State of origin, of the advantages previously provided by a combination of domestic 
law and the law of the relevant convention — Detailed rules 
(Articles 48(2) and 51 of the EC Treaty (now, after amendment, Arts 39(2) EC and 42 
EC); Council Regulation No 1408/71, Arts 6 and 7) 
3. Freedom of movement for persons — Workers — Equal treatment — Rule in a 
Member State which, for the purposes of the criteria for entitlement to unemployment 
benefit, favours workers who have spent a certain period in that Member State — 
Incompatibility 
(Art. 48 of the EC Treaty (now, after amendment, Art. 39 EC)) 
1. In the context of the cooperation 
between the Court of Justice and the 
national courts provided for by 
Article 234 EC, it is solely for the 
national court before which the dispute 
has been brought, and which must 
assume responsibility for the sub­
sequent judicial decision, to determine 
in the light of the particular circum­
stances of the case both the need for a 
preliminary ruling in order to enable it 
to deliver judgment and the relevance 
of the questions which it submits to the 
Court. Consequently, where the ques­
tions submitted by the national court 
concern the interpretation of Commu­
nity law, the Court of Justice is, in 
principle, bound to give a ruling. 
However, in exceptional circumstances 
the Court of Justice can examine the 
conditions in which the case was 
referred to it by the national court, in 
order to determine whether it has 
jurisdiction. The Court may refuse to 
rule on a question referred for a 
preliminary ruling by a national court 
only where it is quite obvious that the 
interpretation of Community law that 
is sought bears no relation to the facts 
of the main action or its purpose, 
where the problem is hypothetical, or 
where the Court does not have before it 
the factual or legal material necessary 
to give a useful answer to the questions 
submitted to it. 
(see paras 18-19) 
2. The principles laid down by the Court 
in Rönfeldt (Case C-277/89) permitting 
non-application of the provisions of 
Regulation No 1408/71 of the Council 
on the application of social security 
schemes to employed persons and their 
families moving within the Commu­
nity, to allow for continued application 
of a bilateral convention which that 
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KASKE 
regulation would otherwise have 
replaced to a worker who is a national 
of a Member State also apply where the 
worker exercised the right to freedom 
of movement before the regulation 
entered into force and before the 
Treaty became applicable in his 
Member State of origin. 
If periods of insurance or employment 
that entitle a worker who is a national 
of a Member State to the unemploy­
ment benefit claimed by him began to 
run before the entry into force of 
Regulation No 1408/71, his situation 
must be assessed in the light of the 
provisions of the bilateral convention 
for the entire period during which he 
was exercising his right to freedom of 
movement, and taking into account all 
the periods of insurance or employ­
ment completed by him regardless of 
whether those periods preceded or 
succeeded the entry into force of the 
Treaty and of Regulation No 1408/71 
in his Member State of origin. If, 
however, after having exhausted all 
his rights under the convention, he 
exercises his right to freedom of move­
ment anew, and if he completes further 
periods of insurance or employment 
entirely after the entry into force of 
Regulation No 1408/71, his new situ­
ation is governed by that regulation. 
(see paras 28, 35, operative part 1-2) 
3 . National law may contain more 
favourable rules than Community law 
provided that they comply with the 
principles of Community law. A rule in 
a Member State which, for the pur­
poses of the criteria for entitlement to 
unemployment benefit, favours 
workers who spent 15 years in that 
Member State before their last employ­
ment abroad is incompatible with 
Article 48 of the Treaty (now, after 
amendment, Article 39 EC). 
(see para. 39, operative part 3) 
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