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.