62022CO0030
ORDER OF THE COURT (Seventh Chamber)
24 March 2023 (
*1
)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Migrant workers – Unemployment – Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community – Social security – Article 30 – Determination of entitlement to unemployment benefits – Regulation (EC) No 883/2004 – Article 65(2) – Member State national who has been employed in the United Kingdom – Termination of his or her employment contract after the United Kingdom’s withdrawal and the end of the transition period set by that agreement – Entitlement of that national to unemployment benefit under the legislation of that Member State upon his or her return to that Member State)
In Case C‑30/22,
REQUEST for a preliminary ruling under Article 267 TFEU from the Administrativen sad Veliko Tarnovo (Administrative Court, Veliko Tarnovo, Bulgaria), made by decision of 20 December 2021, received at the Court on 12 January 2022, in the proceedings
DV
v
Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut – Veliko Tarnovo,
THE COURT (Seventh Chamber),
composed of M.L. Arastey Sahún, President of the Chamber, F. Biltgen (Rapporteur) and N. Wahl, Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–
the Bulgarian Government, by M. Georgieva, T. Mitova and E. Petranova, acting as Agents,
–
the Czech Government, by O. Serdula, M. Smolek and J. Vláčil, acting as Agents,
–
the European Commission, by D. Martin and N. Nikolova, acting as Agents,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1
This request for a preliminary ruling concerns the interpretation of Articles 30 and 31 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7; ‘the Withdrawal Agreement’), which was signed in Brussels (Belgium) and in London (United Kingdom) on 24 January 2020 and entered into force on 1 February 2020, and of Article 65(2) 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 (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012 (OJ 2012 L 149, p. 4) (‘Regulation No 883/2004’).
2
The request has been made in proceedings between DV, on the one hand, and the Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut – Veliko Tarnovo (Head of the Regional Department of the National Social Security Institute, Veliko Tarnovo, Bulgaria) on the other, concerning the latter’s refusal to grant DV unemployment benefits following the termination of her employment relationship in the United Kingdom on 29 March 2021.
Legal context
European Union law
The Withdrawal Agreement
3
The Withdrawal Agreement was approved on behalf of the European Union and the European Atomic Energy Community by Council Decision (EU) 2020/135 of 30 January 2020 (OJ 2020 L 29, p. 1).
4
According to the sixth paragraph of the preamble to that agreement:
‘Recognising that it is necessary to provide reciprocal protection for [European] Union citizens and for United Kingdom [of Great Britain and Northern Ireland] nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable and based on the principle of non-discrimination; recognising also that rights deriving from periods of social security insurance should be protected’.
5
Article 7(1) of that agreement states:
‘For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be understood as including the United Kingdom and its competent authorities, except as regards:
…’
6
Article 10(1)(a) of that regulation is worded as follows:
‘Without prejudice to Title III, this Part shall apply to the following persons:
(a)
Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter’.
7
Title III of Part Two of the Withdrawal Agreement, entitled ‘Coordination of social security systems’, comprises Articles 30 to 36 thereof.
8
Article 30(1) to (4) of that agreement provides:
‘1.   This Title shall apply to the following persons:
(a)
Union citizens who are subject to the legislation of the United Kingdom at the end of the transition period, as well as their family members and survivors;
…
(c)
Union citizens who reside in the United Kingdom and are subject to the legislation of a Member State at the end of the transition period, as well as their family members and survivors;
…
(e)
persons who do not fall within points (a) to (d) but are:
(i)
Union citizens who pursue an activity as an employed or self-employed person in the United Kingdom at the end of the transition period, and who, based on Title II of [Regulation No 883/2004], are subject to the legislation of a Member State, as well as their family members and survivors …
…
2.   The persons referred to in paragraph 1 shall be covered for as long as they continue without interruption to be in one of the situations set out in that paragraph involving both a Member State and the United Kingdom at the same time.
3.   This Title shall also apply to persons who do not, or who no longer, fall within points (a) to (e) of paragraph 1 of this Article but who fall within Article 10 of this Agreement, as well as their family members and survivors.
4.   The persons referred to in paragraph 3 shall be covered for as long as they continue to have a right to reside in the host State under Article 13 of this Agreement, or a right to work in their State of work under Article 24 or 25 of this Agreement.’
9
The first subparagraph of Article 31(1) of that agreement provides:
‘The rules and objectives set out in Article 48 TFEU, [Regulation No 883/2004] and Regulation (EC) No 987/2009 of the European Parliament and of the Council [of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1)] shall apply to the persons covered by this Title.’
10
As set out in Paragraph 32(1)(a) of that agreement.
‘The following rules shall apply in the following situations to the extent set out in this Article, in so far as they relate to persons not or no longer covered by Article 30:
(a)
the following persons shall be covered by this Title for the purposes of reliance on and aggregation of periods of insurance, employment, self-employment or residence, including rights and obligations deriving from such periods in accordance with [Regulation No 883/2004]:
(i)
Union citizens … who have been subject to the legislation of the United Kingdom before the end of the transition period, as well as their family members and survivors;
…
for the purposes of the aggregation of periods, periods completed both before and after the end of the transition period shall be taken into account in accordance with [Regulation No 883/2004]’.
11
Article 126 of the Withdrawal Agreement is worded as follows:
‘There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.’
Regulation No 883/2004
12
Article 1(j) of Regulation No 883/2004 defines, for the purposes of that regulation, the term ‘residence’ as the place where a person habitually resides.
13
Chapter 6 of Title III of that regulation, entitled ‘Unemployment benefits’, contains Articles 61 to 65a thereof.
14
Article 61 of that regulation, entitled ‘Special rules on aggregation of periods of insurance, employment or self-employment’, provides:
‘1.   The competent institution of a Member State whose legislation makes the acquisition, retention, recovery or duration of the right to benefits conditional upon the completion of either periods of insurance, employment or self-employment shall, to the extent necessary, take into account periods of insurance, employment or self-employment completed under the legislation of any other Member State as though they were completed under the legislation it applies.
However, when the applicable legislation makes the right to benefits conditional on the completion of periods of insurance, the periods of employment or self-employment completed under the legislation of another Member State shall not be taken into account unless such periods would have been considered to be periods of insurance had they been completed in accordance with the applicable legislation.
2.   Except in the cases referred to in Article 65(5)(a), the application of paragraph 1 of this Article shall be conditional on the person concerned having the most recently completed, in accordance with the legislation under which the benefits are claimed:
–
periods of insurance, if that legislation requires periods of insurance,
–
periods of employment, if that legislation requires periods of employment, or
–
periods of self-employment, if that legislation requires periods of self-employment.’
15
Article 65(2) and (5) of that regulation provides as follows:
‘2.   A wholly unemployed person who, during his/her last activity as an employed or self-employed person, resided in a Member State other than the competent Member State and who continues to reside in that Member State or returns to that Member State shall make himself/herself available to the employment services in the Member State of residence. Without prejudice to Article 64, a wholly unemployed person may, as a supplementary step, make himself/herself available to the employment services of the Member State in which he/she pursued his/her last activity as an employed or self-employed person.
…
5.
(a)
The unemployed person referred to in the first and second sentences of paragraph 2 shall receive benefits in accordance with the legislation of the Member State of residence as if he/she had been subject to that legislation during his/her last activity as an employed or self-employed person. Those benefits are to be provided by the institution of the place of residence.
…’
Bulgarian law
16
Article 54a(1) of the Kodeks za sotsialno osiguriavane (Social Security Code) (DV No 77 of 16 September 2021; ‘the KSO’) provides:
‘Persons entitled to unemployment benefit shall be persons in respect of whom compulsory insurance contributions to the “Unemployment” Fund have been paid for at least 12 of the last 18 months prior to the termination of the insurance and who:
1.   are registered as unemployed with the Employment Agency;
2.   have not acquired entitlement to a pension on the basis of periods of insurance and old age in the Republic of Bulgaria or to an old-age pension in another State, do not receive a pension on the basis of periods of insurance and old age in a reduced amount pursuant to Article 68a or an occupational pension pursuant to Article 168;
3.   do not perform an employment activity which is subject to compulsory insurance under this Code or under the legislation of another State, with the exception of the persons referred to in Article 114a(1) of the Kodeks na truda [(Bulgarian Labour Code)].’
The dispute in the main proceedings and the questions referred for a preliminary ruling
17
DV is a Bulgarian national. From 1 December 2014 to 29 March 2021, she was employed in the United Kingdom by various employers in the field of social and healthcare services.
18
On 2 April 2021, DV, as an unemployed person, made an application for unemployment benefits in Bulgaria under the KSO. In support of her application, DV produced certain documents, including a declaration of residence for the purposes of the application of Article 65(2) of Regulation No 883/2004. In addition, an electronic exchange of information concerning DV’s situation took place between the United Kingdom and the Republic of Bulgaria.
19
By decision of 18 August 2021, the Bulgarian unemployment insurance institution refused to grant that application on the ground that DV had periods of insurance in the United Kingdom until 29 March 2021 and no periods of insurance in Bulgaria after that point. According to that authority, Article 30 of the Withdrawal Agreement was not applicable, since DV had interrupted, by returning to Bulgaria, the cross-border situation she was in on the end date of the transition period laid down in Article 126 of the Withdrawal Agreement (‘the transition period’), namely 31 December 2020, and that, consequently, her situation did not involve both a Member State and the United Kingdom at the same time. Furthermore, as regards Article 32 of that agreement, which concerns the aggregation of periods of insurance completed before and after the end of the transition period, DV did not engage in any employment activity in Bulgaria, the termination of which would have made it possible to assess whether she met the requirements of the Bulgarian law governing entitlement to unemployment benefits.
20
On 27 September 2021, DV’s appeal against that decision was dismissed by the defendant in the main proceedings. DV subsequently brought an action against that dismissal before the referring court, the Administrativen sad Veliko Tarnovo (Administrative Court, Veliko Tarnovo, Bulgaria).
21
According to that court, the assessment of the lawfulness of that rejection decision is linked to, or even conditional upon, the applicability of the rules laid down in Articles 61 to 65 of Regulation No 883/2004 and the provisions of Regulation No 987/2009 specifying those rules to the situation at issue in the main proceedings, taking into account Article 31(1) of the Withdrawal Agreement, or the applicability of Article 32 of that agreement only for the purposes of the aggregation of the periods concerned.
22
That court takes the view that DV’s situation does not correspond to the situation referred to in Article 30(1)(c) of that agreement, which the defendant in the main proceedings considers relevant, but to that provided for in Article 30(1)(a), which applies to Union citizens who are subject to the legislation of the United Kingdom at the end of the transition period.
23
As regards the applicability of Article 31(1) of the Withdrawal Agreement and, therefore, of the provisions of Regulation No 883/2004, the referring court states that, according to the defendant in the main proceedings, DV’s situation does not fall within the scope of the situations referred to in Article 30(1) of that agreement, since their application is subject to Article 30(2) of that agreement, under which the persons referred to in Article 30(1) are covered ‘for as long as’ they continue without interruption to be in one of the situations set out in Article 30(1) involving both a Member State and the United Kingdom at the same time. The termination of DV’s employment in the United Kingdom on 29 March 2021 brought her situation to an end.
24
In that regard, the referring court asks whether the words ‘for as long as’ must be interpreted as meaning that the persons referred to in Article 30(1) fall within one of the situations set out in that provision only in so far as they are in that situation or as meaning that, taking into account the logic of the relevant provisions of the Withdrawal Agreement and the objective pursued by that agreement, those persons continue to fall within the scope of that provision where they were in that situation throughout the transition period, with the result that a change of situation occurring after that period has no effect on the applicability of that provision.
25
In the alternative, the referring court raises the question of the possible applicability of Article 30(3) of the Withdrawal Agreement to the dispute in the main proceedings, given that, in its view, DV’s situation is covered by Article 10(1)(a) of that agreement, to which paragraph 3 refers. In that regard, it asks whether the limitation laid down in Article 30(4) of that agreement precludes the application of paragraph 3 to DV, since she no longer has a right of residence in the United Kingdom since the end of her employment relationship, or whether that limitation relates to the existence of a right to reside or work exercised after the expiration of the transition period, without the time at which that right came to an end after that period being relevant.
26
In those circumstances, the Administrativen sad Veliko Tarnovo (Administrative Court, Veliko Tarnovo) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must the provision of Article 30(2) of the [Withdrawal Agreement], read in conjunction with Article 30(1)(a) thereof, be interpreted as meaning that the persons referred to in the second provision are covered by the scope ratione personae of Article 31(1) of the agreement if they were nationals of a Member State without interruption throughout the transitional period and were at the same time subject to the legislation of the United Kingdom, or must it be interpreted as meaning that the persons referred to in Article 30(1)(a) of the agreement are covered by Article 31(1) [of that agreement] only for as long as they are employed in the United Kingdom at and/or after the end of the transitional period?
(2)
Must the provision of Article 30(2) of the [Withdrawal Agreement], read in conjunction with Article 30(1)(c) thereof, be interpreted as meaning that the persons referred to in the second provision are covered by Article 31(1) of the agreement if they resided as [European] Union citizens in the United Kingdom without interruption throughout the transitional period and were at the same time subject to the legislation of a single Member State throughout the transitional period, until the end of that period, or must it be interpreted as meaning that the persons referred to in Article 30(1)(c) are not covered by Article 31(1) [of that agreement] if they ceased to reside in the United Kingdom after the end of the transitional period?
(3)
If it follows from the interpretation of the provisions of Article 30(2) of the [Withdrawal Agreement], read in conjunction with Article 30(1)(a) and (c) thereof, that those provisions are not applicable to the facts of the main proceedings because a [European] Union citizen ceased to reside in the United Kingdom after the end of the transitional period, must the provisions of Article 30(4) of [that agreement], read in conjunction with Article 30(3) thereof, be interpreted as meaning that persons residing or working in the host State or in the State of employment are no longer covered by the provision of Article 31(1) [of that agreement] if their legal relationships as employed [workers] have been terminated and, as a result, they have lost their right of residence and have left the State of employment or the host State after the end of the transitional period, or must those provisions be interpreted as meaning that the restriction laid down by Article 30(4) [of that agreement] relates to the right of residence and the right of employment exercised after the end of the transitional period, without it being relevant when the rights were terminated, provided that they still existed after the end of the transitional period?’
Procedure before the Court
27
In the first place, the referring court has requested that the present reference for a preliminary ruling be dealt with under the expedited preliminary ruling procedure provided for in Article 105(1) of the Rules of Procedure of the Court of Justice. In support of its claim, that court points out that DV has not received any income since the end of her employment in the United Kingdom and that she may find it necessary to claim entitlement to unemployment benefit in that State, within the time limits and in accordance with the conditions laid down by the legislation of that State.
28
By decision of 25 February 2022, the President of the Court of Justice, after hearing the Judge-Rapporteur and the Advocate General, rejected that request on the ground, first, that, in accordance with the settled case-law of the Court, neither an individual’s simple interest – regardless of how important and legitimate that interest may be – in having the scope of his or her rights under EU law determined as quickly as possible, nor the economically or socially sensitive nature of the case in the main proceedings means that that case must be dealt with within a short time, within the meaning of Article 105(1) of the Rules of Procedure (order of the President of the Court of 27 February 2019, M.V. and Others, C‑760/18, not published, EU:C:2019:170, paragraph 18 and the case-law cited) and, secondly, that, as regards the possible need for DV to assert her right to unemployment benefits in the United Kingdom, the referring court had not specified what the time limit laid down for that purpose by the legislation of that State was, nor had it set out the reasons why DV was prevented from exercising that right before the Court ruled on the present request for a preliminary ruling.
29
In the second place, on 30 September 2022, the Court of Justice sent to the referring court a request for information as to what DV’s State of residence was, within the meaning of Article 1(j) and Article 65(2) of Regulation No 883/2004, during the period of employment in the United Kingdom between 1 December 2014 and 29 March 2021.
30
On 11 October 2022, that court replied to that request that, throughout that period, DV’s State of residence was the United Kingdom, as was apparent both from the electronic exchanges of information between that State and the Republic of Bulgaria and from the declaration of residence produced by DV for the purposes of the application of Article 65(2) of Regulation No 883/2004.
Consideration of the questions referred
31
Pursuant to Article 99 of the Rules of Procedure, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.
32
It is appropriate to apply that provision in the present case.
33
As a preliminary point, it should be borne in mind that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may not only have to reformulate the question referred to it, but also to consider provisions of EU law which the national court has not referred to in its questions (judgment of 12 January 2023, RegioJet, C‑57/21, EU:C:2023:6, paragraph 92 and the case-law cited).
34
In the present case, the questions referred concern the interpretation of only Articles 30 and 31 of the Withdrawal Agreement and seek to determine their applicability to a situation, such as that at issue in the main proceedings, in which a person who has worked in the territory of the United Kingdom for a number of years returns to Bulgaria after the end of the transition period and applies, in that Member State, for unemployment benefits.
35
In that regard, it is apparent from the sixth paragraph of the preamble to that agreement that it is necessary to provide reciprocal protection for European Union citizens and for United Kingdom nationals who have exercised free movement rights before a date set in that agreement, in particular those deriving from periods of social security insurance.
36
In addition, Article 7(1) of the Withdrawal Agreement states that, for the purposes of that agreement, all references to Member States and competent authorities of Member States in provisions of EU law made applicable by that agreement are to be understood, except for certain exceptions, as including the United Kingdom and its competent authorities.
37
It follows that the objective of the Withdrawal Agreement is not to create rights that are independent of EU law, but to protect the rights that have been exercised under that law before the end of the transition period, by making the provisions of that law referred to in the Withdrawal Agreement applicable to the situations defined in that agreement, which involve the nationals, legislation or territory of the United Kingdom.
38
More specifically, Article 31(1) of the Withdrawal Agreement, which is part of Title III of Part Two of that agreement entitled ‘Coordination of social security systems’, provides that the rules and objectives set out, inter alia, by Regulation No 883/2004 apply to the persons covered by that title.
39
It follows that, before examining whether the provisions of the Withdrawal Agreement may be applied to a situation such as that at issue in the main proceedings, it is necessary to determine whether the provisions of Regulation No 883/2004 on which DV relies would have been applicable to her irrespective of the withdrawal of the United Kingdom from the European Union or of the fact that she had been employed in that State rather than in an EU Member State. If that were not the case, the existence of a right acquired under that regulation in respect of DV’s period of employment in the United Kingdom, which the Withdrawal Agreement is intended to protect, would be lacking.
40
In the present case, it is apparent from the order for reference, first, that the Bulgarian unemployment insurance institution refused to grant unemployment benefits to DV on the ground that, after having completed periods of insurance in the United Kingdom by virtue of pursuing an activity as an employed person in the territory of that State, DV returned to Bulgaria, where she applied for such benefits without having pursued an activity as an employed person or completed periods of insurance in the territory of that Member State. Second, the referring court considers that, under Article 31(1) of the Withdrawal Agreement, the legality of that refusal decision is subject to the applicability of the provisions of Articles 61 to 65a of Regulation No 883/2004 to such circumstances.
41
In that regard, it must be borne in mind that Article 61(1) of that regulation provides, inter alia, that the competent institution of a Member State whose legislation makes the acquisition of the right to unemployment benefits conditional upon the completion of periods of insurance is to, to the extent necessary, take into account periods of insurance completed under the legislation of any other Member State as though they were completed under the legislation it applies. However, it is apparent from Article 61(2) that, except in cases referred to in Article 65(5)(a) of that regulation, the application of Article 61(1) is conditional on the person concerned having the most recently completed, in accordance with the legislation under which the benefits are claimed, periods of insurance, if that legislation requires them.
42
Consequently, since it follows from Article 54a(1) of the KSO that Bulgarian legislation makes the acquisition of the right to unemployment benefits conditional upon the completion of periods of insurance and since DV has not completed any of them on her return to Bulgaria, she could claim unemployment benefits under Regulation No 883/2004 by the aggregation of periods of insurance completed in another State, in this case the United Kingdom, only if her situation corresponded to that referred to in Article 65(5)(a) of that regulation, read in conjunction with Article 65(2) thereof.
43
In that regard, the first sentence of Article 65(2) of that regulation provides that a wholly unemployed person who, during his or her last activity as an employed or self-employed person, resided in a Member State other than the competent Member State and who continues to reside in that Member State or returns to that Member State is to make himself or herself available to the employment services in the Member State of residence. Such a person is entitled, in accordance with Article 65(5)(a), to receive unemployment benefits in accordance with the legislation of the Member State of residence as if he or she had been subject to that legislation during his or her last activity as an employed or self-employed person. Those benefits are to be provided by the institution of the place of residence.
44
It is clear from the reply to the request for information, referred to in paragraphs 29 and 30 of the present order, provided by the referring court, which alone has jurisdiction in the context of the procedure provided for in Article 267 TFEU, to assess the facts of the dispute before it (see, to that effect, judgment of 15 September 2022, Fossil (Gibraltar), C‑705/20, EU:C:2022:680, paragraph 37 and the case-law cited), that, during DV’s entire employment period in the territory of the United Kingdom, she resided, within the meaning of Article 1(j) and of Article 65(2) of Regulation No 883/2004, in that State, which was the competent State, within the meaning of the latter provision, during that period. It was only after the termination of that employment that DV returned to Bulgaria in order to claim unemployment benefits from the competent authority of that Member State.
45
It follows that the answer to the preliminary question raised in paragraph 39 of this order is that Article 65(2) of Regulation No 883/2004 must be interpreted as not applying to a situation in which a person seeks unemployment benefits from the competent authority of a Member State in which he or she has not completed periods of insurance, employment or self-employment and to the territory of which he or she returns after a period of insurance, employment or self-employment completed in another State, in which he or she resided, within the meaning of that provision, throughout that period.
46
In view of the answer given to that preliminary question, there is no need to answer the questions asked by the referring court.
Costs
47
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Seventh Chamber) hereby rules:
Article 65(2) 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, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012,
must be interpreted as not applying to a situation in which a person seeks unemployment benefits from the competent authority of a Member State in which he or she has not completed periods of insurance, employment or self-employment and to the territory of which he or she returns after a period of insurance, employment or self-employment completed in another State, in which he or she resided, within the meaning of that provision, throughout that period.
[Signatures]
(
*1
)	Language of the case: Bulgarian.