61978C0139
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 21 FEBRUARY 1979 (
1
)
Mr President,
Members of the Court,
The point at issue between the parties to the main action is whether the applicant, an Italian national residing in Göttingen, has lost his entitlement to unemployment benefit following a stay in Italy of more than three months.
Under Article 69 (1) (c) 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), a worker who is wholly unemployed, who is entitled to benefits in one Member State and who goes to another Member State in order to seek employment there is to retain his entitlement to such benefits for a maximum period of three months from the date when he ceased to be available to the employment services of the State which he left. Article 69 (2) provides:
‘If the person concerned returns to the competent State before the expiry of the period during which he is entitled to benefits under paragraph (1) (c), he shall continue to be entitled to benefits under the legislation of that State; he shall lose all entitlement to benefits under the legislation of the competent State if he does not return there before the expiry of that period. In exceptional cases, this time-limit may be extended by the competent services or institutions.’
The applicant was paid unemployment benefit by the Arbeitsamt (Employment Office) Göttingen from 13 to 18 December 1976. On 17 December 1976 a certificate was drawn up for him at his request on Form E 303 (retention of entitlement to unemployment benefits under Article 83 (3) of Regulation (EEC) No 574/72) because he wished to go to Italy on 19 December 1976 in order to seek employment there. It was stated in the certificate that he was entitled to unemployment benefit for three months, that is from 19 December 1976 to 18 March 1977. At the same time the applicant received Explanatory Leaflet E 303/5 in Italian, in which attention is drawn to the fact that in principle after the expiry of the three-month period any subsisting rights to German unemployment benefits are lost if the claimant has not returned to the Federal Republic within that period.
On 19 December 1976 the applicant went to Erchi in Italy in order to seek employment. Inquiries at the local information office revealed that there was no likelihood of employment for him there either at that time or in the following weeks.
On 16 March 1977, two days before the time-limit for returning, the applicant fell ill with pyelitis and cystitis, and was unfit for work until 14 May 1977.
After his recovery he returned to the Federal Republic of Germany on 15 May 1977, and on 16 May 1977 he applied to the Arbeitsamt Göttingen for a further grant of unemployment benefit, alleging that he had been prevented by his illness from coming back to the Federal Republic within the prescribed period of three months. The Arbeitsamt refused the application on the ground that an exceptional extension of the three-month period under the second sentence of Article 69 (2) of Regulation No 1408/71 was not possible, because the applicant's stay in the place to which he had gone in order to seek work had ceased to be necessary for that purpose long before his incapacity for work arose and that if the applicant in disregard of the purpose of Article 69 none the less decided to extend his stay in Italy for other purposes, then he must also bear the risk of being prevented during his stay by unforeseeable circumstances such as unfitness for work from coming back to the Federal Republic of Germany in time.
After an unsuccessful objection to the Arbeitsamt's decision to refuse his request, Mr Coccioli brought proceedings before the Sozialgericht (Social Court) Hildesheim. By an order of 8 June 1978 that court stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
‘1.
Is an extension of the time-limit under Article 69 (2) of Regulation (EEC) No 1408/71 admissible if the application for extension is made after expiry of the period?
2.
If so:
Are the competent employment services acting within the limits of their discretion in rejecting an exceptional case for extension of the period because
(a)
there was no likelihood of placement for the unemployed person in the other Member State to which he had gone seeking work and
(b)
return within the prescribed period was impossible as a result of sudden illness’?
I —
Before I give my views on these questions, I think it is appropriate to deal first with the question which the Commission has raised concerning the compatibility of Article 69 (2) of Regulation No 1408/71 with Article 51 of the EEC Treaty. I do not need to deal with this point exhaustively, as in the last resort even the Commission has no doubt as to the validity of the provision in question. In the Commission's view such misgivings would be justified only if the forfeiture of any further entitlement to benefits granted solely under the legislation of the competent State were stipulated by Community law alone or if the total forfeiture of further entitlement under Article 69 (2) were disproportionate. However, there are also provisions in national law, such as Article 120 of the German Arbeitsförderungsgesetz (Law for the promotion of employment), whereby unemployment benefits are to be stopped if the unemployed person does not comply with a request to report by the Arbeitsamt. As regards the purpose in view, failing to fulfil the duty to report under national law is certainly comparable to exceeding the three-month period. Therefore to this extent the unemployed person is not placed in any worse position by Regulation No 1408/71 but on the contrary is favoured by Article 69 of the Regulation, as in the absence of that provision he would directly lose his entitlement to benefits as soon as he ceased to be available to the national labour market. Only Article 69 presents the opportunity of continuing for a limited period to grant the unemployed worker the unemployment benefits under the legislation of the Member State which last applied to him, and thus creates better conditions for mobility of labour.
Finally as regards the lenght of the period, Article 51 of the EEC Treaty, upon which Regulation No 1408/71 is based, provides that the Council shall on a proposal from the Commission adopt such measures in the field of social security as are necessary to provide freedom of movement for workers. Therefore not only are the content and limits of the obligation incumbent upon the Council under the authority conferred by Article 51 governed by that article but they also result above all from Articles 48 and 49 of the EEC Treaty, which are closely connected with it as regards subject-matter (cf. judgment of 15 July 1964 in Case 100/63, Mrs J. Kalsbeek (née van der Veen) v Bestuur der Sociale Verzekeringsbank [1964] ECR 565). However, Article 48 (3) of the EEC Treaty confers upon workers inter alia only the right to accept offers of employment actually made and to move freely within the territory of Member States for this purpose. Consequently the Council is only obliged under Article 51 of the EEC Treaty to adopt implementing measures in the field of social security for such period as is necessary to make use of the right to freedom of movement. If however offers of employment are actually made and an employed person goes to another Member State in order to seek work, the three-month period accorded under Article 69 (1) of Regulation No 1408/71 is in principle sufficient to protect the interests of the person seeking employment.
Where however total loss of any further entitlement after the expiry of this period would be disproportionate in a particular case, the second sentence of Article 69 (2) offers a solution for such cases in the form of the possibility of extending the period. In the light of the foregoing I can perceive no factor of such a kind as to affect the validity of the provision in question.
II —
1.
If I now deal with Question 1 on the admissibility of a request for extension after expiry of the three-month period, it must first be stated that, unlike Article 14 (1) (a) (ii) of Regulation No 1408/71 which provides that consent must be requested before the end of a certain period, the wording of the second sentence of Article 69 (2) of the same Regulation contains no statement to the effect that an extension of the time-limit cannot be requested even after expiry of the period. Moreover in my view the purpose of the provision for exceptional cases cannot justify any other conclusion. As I have already said, the possibility of extending the period was provided in order to allow the competent services in a particular case to settle such conflict situations where the normal expiry of the period and the consequent loss of entitlement to benefits would lead to disproportionate social hardship. However, such an exceptional situation may not only delay the return of the unemployed person to the competent Member State, but at the same time may also make it impossible to submit a request for extension before expiry of the period. In order to avoid unfairness arising from this, in my opinion it must logically be accepted that the request for extension may be submitted even after expiry of the three-month period.
On the other hand it is not unreasonable for the unemployed person to be required to inform the competent employment authorities as soon as possible that an exceptional case exists, and it will therefore have to be required — as the Commission claims — that the request should be made as quickly as may reasonably be expected in the particular circumstances of the case.
2.
By Question 2 the national court seeks to ascertain whether the competent employment authorities are acting within the limits of their discretion in rejecting an exceptional case within the meaning of Article 69 (2) of Regulation No 1408/71 for extension of the period because there was no likelihood of a post for the unemployed person in the other Member State to which he had gone to seek work and because in addition return within the prescribed period was impossible as a result of sudden illness.
The defendant argued in its written observations, although it did not repeat the objection in the oral procedure, that this question was inadmissible because it referred not to the interpretation of the provision at issue but to the exercise of the administration's discretion under that provision and that abuse of discretion can be established only by reference to the particular case at issue. However, in proceedings under Article 177, it states, the Court of Justice does not have jurisdiction to apply the law to an individual case.
Because of the impossibility of foreseeing all possible conflict situations the Council has in the present case had recourse to the indefinite and generalized concept of an exceptional case intended to allow the competent employment authorities in actual individual cases to have regard within a specified margin of discretion to factors justifying an exception from the rule. The present proceedings concern the interpretation of this concept of an ‘exceptional case’, and the Court certainly has jurisdiction over that.
A definition of the actual limits of the discretion will depend upon the function of this exceptional provision within Article 69 of Regulation No 1408/71. In this connexion the essence of the concept of an ‘exceptional case’ may be described as follows: an exceptional case within the meaning of the provision in question is to be understood as any occurrence departing from the normal course of events which constitutes an obstacle to the return of the unemployed person within the prescribed period.
It is clear, however, that not every abnormal event justifies a departure from the rule: the occurrence must also be such as to justify the exception. The cases in which a derogation by the authorities is justified can be established only from the meaning and purpose of Regulation No 1408/71 itself and after weighing the competing interests of the other insured persons against those of the person relying on the exceptional provision.
In the light of these criteria it must be stated that the applicant used up the whole three-month period granted to him by Article 69 (2) of Regulation No 1408/71, although neither at the beginning of his search for work nor in the following weeks was there any prospect of a post for him in that place. Finally he fell ill only two days before the expiry of the period within which he ought to have returned to the Federal Republic of Germany.
As the applicant knew, in the interests of freedom of movement, Article 69 (1) gives the unemployed person the benefit of retaining entitlement to benefits only for the purpose of seeking work in another Member State for a limited period of time. Such rules lead to the danger, of which the Council was aware, that they will be used not only for the purpose of seeking work in another Member State but also wrongfully for other reasons. The figures produced by the defendant in the oral procedure, which show that the number of certificates on Form E 303 rises considerably before Christmas and before the summer holidays, clearly demonstrate that the fear of abuse was not entirely unfounded. Such conduct cannot however be in the interest of the other insured persons.
It follows from the meaning and purpose of Article 69 rather that the unemployed person was entitled to use up the whole period only for the purpose of a search for work which would offer good prospects of success and was required to return to the Member State competent to grant the benefits before the expiry of the three-month period once it had become clear to him that his search for work would be unsuccessful. Therefore, as the defendant has rightly declared, the applicant's continued stay in Italy had objectively ceased to be justified by the search for work after two months at the latest, that is, almost a month before he fell ill. The competent employment authority must be able to have regard to this fact in weighing up the interests when it has to decide whether the risk of falling ill shortly before the expiry of the period should be borne by the unemployed person or by the other insured persons. In the light of these considerations, it is not inappropriate for the competent employment authority to make the unemployed person bear the risk of the exceptional case of falling ill where he continues his stay in the country to which he has gone to seek work and refuse to extend the period on this ground. The question whether or not the illness is the worker's fault no longer needs to be dealt with inasmuch as the very fact that he did not return to the competent State as soon as he had established that there were no prospects of employment justifies making him bear the risk.
Finally the defendant stated in the oral procedure that in all cases it is only after a request for extension has been made that examination is carried out as to whether the reason for it arose only in the last third of the three-month period and whether at that time a stay in the other Member State was still justified by a search for work offering good prospects of success. In these circumstances I cannot find any breach of the obligation of equal treatment in the consistent administrative practice of the competent employment authorities.
To sum up, I therefore propose that the questions should be answered as follows:
1.
An extension of the time-limit under the second sentence of Article 69 (2) of Regulation No 1408/71 is permissible even if the request for extension is made only after expiry of the period. However, a request thus made is admissible only if it is made as quickly as may reasonably be expected in the particular circumstances of the case.
2.
The competent employment authorities or the competent institutions may within the limits of their discretion under the second question of Article 69 (2) reject the submission of an exceptional case justifying an extension of the time-limit if, after establishing that his search for work had no prospect of success, the unemployed person voluntarily stayed on in the place to which he had gone to seek work and his return within the prescribed period was impossible as a result of sudden illness.
(
1
)	Translated from the German.