61984CJ0145_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 145/84
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RAAD VAN BEROEP ( SOCIAL SECURITY COURT ), AMSTERDAM FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
H . J . E . COCHET, AMSTERDAM,
AND
BESTUUR VAN DE BEDRIJFSVERENIGING VOOR DE GEZONDHEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN ( BOARD OF THE TRADE ASSOCIATION FOR HEALTH, SPIRITUAL AND SOCIAL MATTERS ), ZEIST,
Subject of the case
ON THE INTERPRETATION OF SECTION 2 OF CHAPTER 6 OF TITLE III OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),
Grounds
1 BY AN ORDER OF 5 JUNE 1984, WHICH WAS RECEIVED AT THE COURT ON 12 JUNE 1984, THE RAAD VAN BEROEP ( SOCIAL SECURITY COURT ), AMSTERDAM, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF SECTION 2 OF CHAPTER 6 OF TITLE III OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY, IN THE VERSION IN FORCE FROM 1 JULY 1982 ( OFFICIAL JOURNAL L 230, P . 8 ) ( HEREINAFTER REFERRED TO AS ' REGULATION NO 1408/71 ' ).
2 THE QUESTION WAS RAISED IN THE CONTEXT OF AN ACTION BROUGHT BY MR COCHET AGAINST THE BEDRIJFSVERENIGING VOOR DE GEZONDHEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN ( TRADE ASSOCIATION FOR HEALTH, SPIRITUAL AND SOCIAL MATTERS ) ( HEREINAFTER REFERRED TO AS ' THE ASSOCIATION ' ), WHICH IS AN ORGANIZATION RESPONSIBLE IN PARTICULAR FOR THE APPLICATION OF NETHERLANDS SOCIAL SECURITY LAW CONCERNING THE GRANT OF UNEMPLOYMENT BENEFITS .
3 IT EMERGES FROM THE DOCUMENTS BEFORE THE COURT THAT MR COCHET WAS EMPLOYED FROM 1 AUGUST 1975 TO 28 FEBRUARY 1982 BY THE STICHTING VOOR KINDERPENSIONS ( CHILDRENS '
HOMES FOUNDATION ), AMSTERDAM, AND WORKED AT NIEUWSTADT, PROVINCE OF LIMBOURG, NETHERLANDS ALTHOUGH HE LIVED IN BELGIUM .
4 WHEN HE BECAME UNEMPLOYED AS FROM 1 MARCH 1982 MR COCHET MADE HIMSELF AVAILABLE TO THE EMPLOYMENT SERVICES IN BELGIUM AND WAS PAID UNEMPLOYMENT BENEFIT IN ACCORDANCE WITH ARTICLE 71 ( 1 ) ( A ) ( II ) OF REGULATION NO 1408/71, WHICH PROVIDES THAT :
' A FRONTIER WORKER WHO IS WHOLLY UNEMPLOYED SHALL RECEIVE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY HE RESIDES AS THOUGH HE HAD BEEN SUBJECT TO THAT LEGISLATION WHILE LAST EMPLOYED ; THESE BENEFITS SHALL BE PROVIDED BY THE INSTITUTION OF THE PLACE OF RESIDENCE AT ITS OWN EXPENSE ' .
5 ON 1 AUGUST 1982 MR COCHET MOVED TO THE NETHERLANDS AND AS A RESULT HE REQUESTED THE ASSOCIATION TO AWARD HIS UNEMPLOYMENT BENEFIT ON THE BASIS OF THE WERKLOOSHEIDSWET ( LAW ON UNEMPLOYMENT ) OF 9 SEPTEMBER 1949 ( STAATSBLAD J 423 ), AS AMENDED, A NETHERLANDS LAW ON COMPULSORY INSURANCE AGAINST THE FINANCIAL CONSEQUENCES OF INVOLUNTARY UNEMPLOYMENT .
6 THE NETHERLANDS AUTHORITIES AWARDED HIM THE ALLOWANCES HE SOUGHT ON THE BASIS NOT OF THE AFOREMENTIONED NETHERLANDS LEGISLATION BUT OF ARTICLE 69 ( 1 ) OF REGULATION NO 1408/71, CONTAINED IN SECTION 2 OF CHAPTER 6 OF TITLE III THEREOF, WHICH PROVIDES THAT :
' AN EMPLOYED OR SELF-EMPLOYED PERSON WHO IS WHOLLY UNEMPLOYED AND WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF A MEMBER STATE FOR ENTITLEMENT TO BENEFITS AND WHO GOES TO ONE OR MORE OTHER MEMBER STATE IN ORDER TO SEEK EMPLOYMENT THERE SHALL RETAIN HIS ENTITLEMENT TO SUCH BENEFITS UNDER THE FOLLOWING CONDITIONS AND WITHIN THE FOLLOWING LIMITS : '
AMONGST THOSE CONDITIONS AND LIMITS SUBPARAGRAPH ( C ) PROVIDES THAT :
' ENTITLEMENT TO BENEFITS SHALL CONTINUE FOR A MAXIMUM PERIOD OF THREE MONTHS FROM THE DATE WHEN THE PERSON CONCERNED CEASED TO BE AVAILABLE TO THE EMPLOYMENT SERVICES OF THE STATE WHICH HE LEFT . '
7 AS A RESULT OF THE APPLICATION OF THOSE PROVISIONS THE AMOUNT OF THE ALLOWANCES AWARDED TO MR COCHET DID NOT CORRESPOND TO 80% OF HIS FINAL SALARY RECEIVED IN THE NETHERLANDS, AS IS PROVIDED BY NETHERLANDS LEGISLATION, BUT TO THE EQUIVALENT IN NETHERLANDS CURRENCY OF THE FAR LOWER BENEFITS PAID IN BELGIUM . IN ADDITION HIS ENTITLEMENT TO THOSE BENEFITS WAS LIMITED TO A PERIOD OF THREE MONTHS .
8 MR COCHET APPEALED AGAINST THAT DECISION TO THE RAAD VAN BEROEP, AMSTERDAM, WHICH DECIDED TO REFER THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' IS SECTION 2 OF CHAPTER 6 OF REGULATION NO 1408/71 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES APPLICABLE TO A WHOLLY UNEMPLOYED FRONTIER WORKER WHO RECEIVED UNEMPLOYMENT BENEFIT UNDER THE LEGISLATION OF THE MEMBER STATE IN WHICH
HE WAS RESIDENT AND AFTER BECOMING UNEMPLOYED SETTLED IN THE TERRITORY OF THE MEMBER STATE IN WHICH HE WAS LAST EMPLOYED?
'
9 IT MUST BE STATED THAT THE PROVISIONS OF SECTION 2 OF CHAPTER 6 OF TITLE III OF REGULATION NO 1408/71 AND IN PARTICULAR ARTICLE 69, WHICH IS ONE OF THEM, ARE APPLICABLE, AS THE HEADING TO SECTION 2 STATES, TO ' UNEMPLOYED PERSONS GOING TO A MEMBER STATE OTHER THAN THE COMPETENT STATE ' .
10 THE QUESTION REFERRED TO THE COURT BY THE RAAD VAN BEROEP MUST THEREFORE BE UNDERSTOOD AS ASKING, IN SUBSTANCE, WHETHER THE MEMBER STATE IN WHICH THE UNEMPLOYED PERSON IS RESIDENT AND WHERE HE IS PAID UNEMPLOYMENT BENEFIT IN ACCORDANCE WITH ARTICLE 71 ( 1 ) ( A ) ( II ) OF REGULATION NO 1408/71 OF THE COUNCIL AFTER HIS EMPLOYMENT IN ANOTHER MEMBER STATE HAS TERMINATED, IS TO BE REGARDED AS ' THE COMPETENT STATE '
FOR THE PURPOSES OF THE PROVISIONS OF THAT REGULATION AND WHETHER, CONSEQUENTLY, ARTICLE 69 IS APPLICABLE TO THAT UNEMPLOYED PERSON WHEN HE SUBSEQUENTLY SETTLES IN THE MEMBER STATE IN WHICH HE WAS LAST EMPLOYED .
11 AS THE NETHERLANDS GOVERNMENT RIGHTLY EMPHASIZES THE TERM ' COMPETENT STATE '
MUST BE DEFINED IN CONFORMITY WITH THE GENERAL RULES SET OUT IN ARTICLE 13 OF REGULATION NO 1408/71, WHICH IS PART OF TITLE II THEREOF HEADED ' DETERMINATION OF THE LEGISLATION APPLICABLE ' .
12 ARTICLE 13 ( 1 ) STATES THAT ' PERSONS TO WHOM THIS REGULATION APPLIES SHALL BE SUBJECT TO THE LEGISLATION OF A SINGLE MEMBER STATE ONLY '
AND THAT ' THAT LEGISLATION SHALL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE ' . ARTICLE 13 ( 2 ) ( A ) THEN PROVIDES THAT :
' A PERSON EMPLOYED IN THE TERRITORY OF ONE MEMBER STATE SHALL BE SUBJECT TO THE LEGISLATION OF THAT STATE EVEN IF HE RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE . '
13 IT THEREFORE FOLLOWS FROM THE GENERAL RULE LAID DOWN BY ARTICLE 13 OF TITLE II OF REGULATION NO 1408/71 THAT THE COMPETENT STATE IN RELATION TO SOCIAL SECURITY BENEFITS IS THE STATE OF EMPLOYMENT .
14 THAT GENERAL RULE IS DEFINED MORE PRECISELY IN THE PROVISIONS OF THE REGULATION CONCERNED WITH UNEMPLOYMENT BENEFITS FROM WHICH IT IS CLEAR THAT ' THE COMPETENT
STATE '
IN THAT CONNECTION IS THE STATE WHERE THE UNEMPLOYED PERSON WAS LAST EMPLOYED . THAT IS THE POSITION IN RELATION TO THE COMMON PROVISIONS CONTAINED IN ARTICLES 67 AND 68 WHICH LAY DOWN THE METHOD OF CALCULATING UNEMPLOYMENT BENEFITS, IN RELATION TO ARTICLE 69 WHICH, SUBJECT TO CERTAIN CONDITIONS, PRESERVES ENTITLEMENT TO UNEMPLOYMENT BENEFITS IN THE STATE WHERE THE PERSON WAS LAST EMPLOYED WHEN HE GOES TO ONE OR MORE OTHER MEMBER STATES IN ORDER TO SEEK EMPLOYMENT THERE, AND IN RELATION TO ARTICLE 71 ( 1 ) ( A ) ( I ) AND ( B ) ( I ) ACCORDING TO WHICH A FRONTIER WORKER WHO IS PARTIALLY OR INTERMITTENTLY UNEMPLOYED OR AN EMPLOYED PERSON, OTHER THAN A FRONTIER WORKER, WHO IS PARTIALLY, INTERMITTENTLY OR WHOLLY UNEMPLOYED RECEIVES THE BENEFITS IN QUESTION IN THE STATE WHERE HE WAS LAST EMPLOYED EVEN THOUGH HE IS RESIDENT IN ANOTHER MEMBER STATE .
15 ALTHOUGH, IN DEROGATION FROM THE RULE DERIVED FROM ARTICLE 1 ( O ) AND ( Q ) OF REGULATION NO 1408/71 THAT THE COMPETENT STATE IS TO BE RESPONSIBLE FOR PAYING UNEMPLOYMENT BENEFITS, ARTICLE 71 ( 1 ) ( A ) ( II ) AND ( B ) ( II ) PROVIDES THAT, IN RELATION TO A FRONTIER WORKER WHO IS WHOLLY UNEMPLOYED OR AN EMPLOYED PERSON, OTHER THAN A FRONTIER WORKER, WHO IS WHOLLY UNEMPLOYED AND WHO MAKES HIMSELF AVAILABLE FOR WORK TO THE EMPLOYMENT SERVICES IN THE TERRITORY OF THE MEMBER STATE IN WHICH HE RESIDES, SUCH BENEFITS ARE TO BE PAID BY THE AUTHORITIES OF THE MEMBER STATE IN WHOSE TERRITORY HE IS RESIDENT, IT MUST BE EMPHASIZED THAT THOSE PROVISIONS OF ARTICLE 71 DO NOT AFFECT THE PRINCIPLE THAT THE COMPETENT STATE IS THE STATE WHERE THAT PERSON WAS LAST EMPLOYED . THAT FOLLOWS FROM THE WORDING ITSELF OF THE HEADING TO SECTION 3 OF CHAPTER 6 OF REGULATION NO 1408/71, WHICH IS REPEATED IN ARTICLE 71 ( 1 ) WHICH DEALS WITH THE CASE WHERE AN UNEMPLOYED PERSON IS RESIDENT DURING HIS LAST EMPLOYMENT IN THE TERRITORY OF A MEMBER STATE OTHER THAN THE STATE WHERE HE IS EMPLOYED ; THE SECTION IS, IN FACT, HEADED ' UNEMPLOYED PERSONS WHO, DURING THEIR LAST EMPLOYMENT, WERE RESIDING IN A MEMBER STATE OTHER THAN THE COMPETENT STATE ' .
16 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT ARTICLE 69 RELATING TO ' UNEMPLOYED PERSONS GOING TO A MEMBER STATE OTHER THAN THE COMPETENT STATE '
IS NOT APPLICABLE TO AN UNEMPLOYED PERSON WHO, AFTER HE HAS RECEIVED UNEMPLOYMENT BENEFIT IN THE STATE IN WHOSE TERRITORY HE IS RESIDENT, SETTLES IN THE TERRITORY OF THE MEMBER STATE IN WHICH HE WAS LAST EMPLOYED AND IN WHICH HE APPLIES FOR UNEMPLOYMENT BENEFIT .
17 CONSEQUENTLY THE REPLY TO THE QUESTION REFERRED TO THE COURT BY THE RAAD VAN BEROEP, AMSTERDAM, MUST BE THAT SECTION 2 OF CHAPTER 6 OF TITLE III OF REGULATION NO 1408/71, AND IN PARTICULAR ARTICLE 69 THEREOF, IS NOT APPLICABLE TO A WHOLLY UNEMPLOYED FRONTIER WORKER WHO, ON THE TERMINATION OF HIS LAST EMPLOYMENT,
SETTLES IN THE TERRITORY OF THE COMPETENT MEMBER STATE, THAT IS TO SAY THE MEMBER STATE IN WHICH HE WAS LAST EMPLOYED .
Decision on costs
COSTS
18 THE COSTS INCURRED BY THE NETHERLANDS GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE RAAD VAN BEROEP, AMSTERDAM, BY ORDER OF 5 JUNE 1984, HEREBY RULES :
SECTION 2 OF CHAPTER 6 OF TITLE III OF REGULATION NO 1408/71 OF THE COUNCIL, AND IN PARTICULAR ARTICLE 69 THEREOF, IS NOT APPLICABLE TO A WHOLLY UNEMPLOYED FRONTIER WORKER WHO, ON THE TERMINATION OF HIS LAST EMPLOYMENT, SETTLES IN THE TERRITORY OF THE COMPETENT MEMBER STATE, THAT IS TO SAY THE MEMBER STATE IN WHICH HE WAS LAST EMPLOYED .