61983C0128
OPINION OF MR ADVOCATE GENERAL MANCINI
DELIVERED ON22 MARCH 1984 (
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Mr President,
Members of the Court,
1.
The Court is called upon to interpret Regulation No 1408/71 of the Council of 14 June 1971 on the social security schemes applicable to migrant workers (Official Journal, English Special Edition 1971 (II), p. 416) in the context of a reference for a preliminary ruling on a question relating to sickness and maternity benefits for unemployed people.
On 30 June 1977 Mrs Antje Guyot, a German national, resigned from the job she held in the Federal Republic, and on 1 August she registered with the German employment authorities as being unemployed. A month later she went to live permanently in France so as to be with her husband, a French national, and on 5 September 1977, since she was still unemployed, she registered with the Agence Nationale pour l'Emploi [National Employment Agency].
For a period of three months, that is, until 1 December, Mrs Guyot received unemployment benefits from the German social security authorities. However, from that date, benefits were paid to her by the Association pour l'Emploi dans les Industries et le Commerce (Assedie) [Association for Employment in Industry and Commerce] on the basis of a provision which, since it does not employ as a criterion the State in which the person was last employed, is more favourable than the relevant Community rules (see circular No 73-8 of 19.3.1973 issued by the Union Nationale Interprofessionnelle pour l'Emploi dans l'Industrie et le Commerce, known as Unedic [National Interprofessional Association for Employment in Industry and Commercel].
On 21 March 1980, the Caisse Primaire d'Assurance Maladie [Local Sickness Insurance Fund, hereinafter referred to as “the Fund”] refused to reimburse Mrs Guyot for medical expenditure incurred in the period from January to March 1978, or to pay her the daily allowances provided for under the sickness and maternity insurance schemes. Mrs Guyot appealed against that decision to the Commission de Première Instance de Sécurité Sociale [Socicäl Security Board of First Instance], Rouen, which, by a decision of 28 April 1981, ordered the Fund to pay the abovementioned benefits.
The Fund appealed against that decision. By an order of 30 June 1983, the court before which the appeal had been brought (the Cour d'Appel [Court of Appeal], Rouen) stayed the proceedings and referred the following question to this Court for a preliminary ruling under Article 177 of the EEC Treaty:
“In the case envisaged by Article 71 (1) (b) (ii) of Regulation (EEC) No 1408/71 of the Council of the European Communities of 14 June 1971, is residence in the competent State prior to the end of the period of last employment in the Member State other than the competent State one of the conditions for obtaining the benefits referred to in Article 71?”
2.
As I have said, the object of the main action is to establish the right of an unemployed migrant worker to obtain sickness and maternity benefits from a social security organization in the Member State in which she resides. Article 25 of Regulation No 1408 makes payment of such benefits dependent upon the conditions of eligibility for unemployment benefit being met. The latter benefit is in its turn governed by Chapter 6 of the same regulation, in which is to be found Article 71, the article that the court making the reference has asked this Court to interpret. Let us therefore examine the principles of that provision.
The general rule laid down by it is that benefits are paid by the country in which the worker was last employed. It is only by applying to the social security authorities of that country that workers may aggregate periods of insurance and periods of employment completed in the territory of other Member States and in accordance with their legislation (Article 67 (3)). If the unemployed person leaves the State in which he was last employed and goes to another State in search of fresh employment, the State in which he was last employed is obliged to pay him benefits for a period of three months (Article 69).
The reason for that limit is set out in the preamble to the proposal for a regulation containing measures for the benefit of unemployed workers, which the Commission submitted to the Council in 1980 (Official Journal 1980, C 169, p. 22). It is stated there that Chapter 6 of Regulation No 1408 was adopted at a time of great prosperity in which it was easy to find work in a short time. Guaranteeing the right to benefits for more than three months outside the State in which the worker was last employed thus seemed excessive. In order to continue to receive benefits beyond that date, the unemployed person had only to return to the country where he had been last employed.
3.
Article 71 (1) (a) (ii) and (b) (ii) provide an exception to the rule that benefits are to be paid by the country in which the person was last employed. It applies only to an unemployed person who, during the period when he was last employed, resided in a Member State other than that in which he worked and, once the employment relationship had ceased to exist, had registered with the employment authorities of his country of residence. In that case, benefits are paid by the social security authorities of that country on the same basis as if the worker had last been employed there.
The reason for that exception is clear. It is intended to deal with marginal cases: it safeguards the rights of workers such as frontier workers, seasonal workers, workers employed in international transport and those who work in undertakings located on frontiers, that is, persons who normally live and work in the territory of several Member States. The Court has observed, with regard to such persons, that “the transfer of liability for payment of unemployment benefits from the Member State of last employment to the Member State of residence is justified [by the] close ties [of the workers] with the country where they have settled and habitually reside”. In fact, habitual residence proves that the worker has the centre of his interests in the State in which he has settled. Thus, the presumption that the worker resides in the State in which he is employed prevails “even if he has left his family in another State” (judgment of 17 February 1977 in Case 76/76 Di Paolo v Office National de l'Emploi [1977] ECR 315, paragraphs 12, 17 and 19).
4.
On the basis of those facts, I propose that the Court reply as follows to the request for a preliminary ruling presented by the Cour d'Appel, Rouen, by a judgment of 30 June 1983 in the case brought by the Caisse Primaire d'Assurance Maladie, Rouen against Mrs Antje Guyot:
Article 71 of Regulation No 1408/71, in the circumstances envisaged in paragraph 1 (b) (ii), applies only to the case of unemployed persons who, during their last period of employment, resided in a Member State other than that in which they worked.
(
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)	Translated from the Italian.