DECISION No 94 of 24 January 1974 concerning the scope of Article 71 (1) (b) (ii) of Council Regulation (EEC) No 1408/71 relating to the right to unemployment benefits of workers other than frontier workers who, during their last employment, were residing in the territory of a Member State other than the competent State

THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS,

Having regard to Article 81 (a) of Regulation (EEC) No 1408/71 under which it is made responsible for dealing with all questions of interpretation arising from Council Regulations (EEC) No 1408/71 and (EEC) No 574/72;

Having been requested to decide which workers are referred to in Article 71 (1) (b) (ii) of Regulation (EEC) No 1408/71;

Whereas Article 71 of that Regulation lays down special rules on the granting of unemployment benefits and the responsibility for providing such benefits to unemployed persons who, during their last employment, were residing in the territory of a Member State other than the competent State;

Whereas the determining factor for the application of Article 71 in its entirety is the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment;

Whereas according to the definition in Article 1 (h) of Regulation (EEC) No 1408/71 "residence" means habitual residence, "stay" being defined as temporary residence in subparagraph (i) of that Article;

Whereas workers who have fairly stable employment in one Member State must be presumed to be resident in that State, except in the situtations outlined below;

Whereas it should also be presumed that workers posted elsewhere reside in the country to which they have been posted;

Whereas it follows from Article 1 (b) and (c) of Regulation (EEC) No 1408/71 that frontier workers and seasonal workers reside in a country other than the country of employment, which, under Article 13 (2) of the said Regulation, is the competent State ; and whereas there can thus be no doubt that these workers are covered by Article 71 of that Regulation;

Whereas the categories of workers referred to in Article 14 (1) (b), (c) and (d) of Regulation (EEC) No 1408/71 are likely, in certain cases, to reside in a Member State other than the State which is the competent State in accordance with the provisions of that Article;

Whereas for the categories of workers referred to in the abovementioned Article 14 (1) (b), (c) and (d), the question as to these workers' country of residence should be examined case by case, whereas this should be done in the case of workers referred to in the abovementioned subparagraphs (b) and (c) for their insurance registration;

Whereas under Article 71 (1) (a) (ii) and (b) (ii) the responsibility for the payment of benefits is transferred from the competent State to the country of residence where the person concerned puts himself at the disposal of the employment services of the last-named country;

Whereas, although this is acceptable in the case of frontier workers and of seasonal workers and of certain other categories who likewise retain close links with their country of origin, it would no longer be acceptable if, by too broad an interpretation of the term "residence", the field of application of Article 71 of Regulation (EEC) No 1408/71 were to be extended to all migrant workers who have fairly stable employment in a Member State and who have left their families in their country of origin;

Acting in accordance with the provisions of Article 80 (3) of Regulation No 1408/71,

HAS DECIDED:

1. In addition to seasonal workers, Article 71 (1) (b) (ii) of Regulation (EEC) No 1408/71 shall also apply to the following categories of workers: (a) workers employed in international transport as referred to in Article 14 (1) (b);

(b) workers other than workers employed in international transport who normally pursue their activity in the territory of several Member States as referred to in Article 14 (1) (c);

(c) workers employed by an undertaking straddling a common frontier as referred to in Article 14 (1) (d);

in such cases where they are residing in the territory of a Member State other than the competent State.

2. This Decision shall be published in the Official Journal of the European Communities. It shall apply as from 1 October 1972 to the six original Member States and, in accordance with the Treaty of Accession, from 1 April 1973 to the three new Member States.

The Chairman of the Administrative Commission

K. JANTZ