Judgment of the Court of 1 December 1977. - Petrus Kuyken v Rijksdienst voor Arbeidsvoorziening. - Reference for a preliminary ruling: Arbeidsrechtbank Hasselt - Belgium. - Case 66-77.



European Court reports 1977 Page 02311

Greek special edition Page 00743

Portuguese special edition Page 00849



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . PRELIMINARY RULINGS - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY , ARTICLE 177 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS - ENTITLEMENT - NONE - REGULATION NO 1408/71 - INAPPLICABILITY

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS - AWARD - STUDENTS - STUDIES COMPLETED IN ANOTHER MEMBER STATE - ASSIMILATION TO THOSE COMPLETED IN AN ESTABLISHMENT RECOGNIZED BY THE COMPETENT STATE - REQUIREMENT - NONE

Summary

1 . ALTHOUGH THE COURT HAS NO JURISDICTION WITHIN THE FRAMEWORK OF THE APPLICATION OF ARTICLE 177 OF THE TREATY TO DECIDE UPON THE COMPATIBILITY OF A NATIONAL PROVISION WITH COMMUNITY LAW , IT MAY NEVERTHELESS EXTRACT FROM THE WORDING OF THE QUESTION FORMULATED BY THE NATIONAL COURT , HAVING REGARD TO THE FACTS STATED BY THE LATTER , THOSE ELEMENTS WHICH COME WITHIN THE INTERPRETATION OF COMMUNITY LAW .

2 . ARTICLE 71 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL CANNOT APPLY TO THE CASE OF AN UNEMPLOYED PERSON WHO HAS NOT PURSUED ANY ACTIVITY AS AN EMPLOYED PERSON OR ANY ACTIVITY TREATED AS SUCH AND WHO , IN CONSEQUENCE , HAS NOT YET ACQUIRED ANY ENTITLEMENT TO UNEMPLOYMENT BEN- EFIT .

3 . NEITHER THE TREATY ESTABLISHING THE EEC NOR THE PROVISIONS OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL RELATING TO UNEMPLOYMENT REQUIRE A COMPETENT INSTITUTION IN ONE MEMBER STATE , FOR THE PURPOSES OF THE AWARD OF UNEMPLOYMENT BENEFITS TO FORMER STUDENTS WHO HAVE NEVER BEEN EMPLOYED , TO TREAT STUDIES COMPLETED IN ANOTHER MEMBER STATE AS THOUGH THEY HAD BEEN COMPLETED IN AN ESTABLISHMENT PROVIDED , RECOGNIZED OR SUBSIDIZED BY THE COMPETENT STATE .

Parties

IN CASE 66/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARBEIDSRECHTBANK ( LABOUR TRIBUNAL ), HASSELT , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PETRUS KUYKEN

AND

RIJKSDIENST VOOR ARBEIDSVOORZIENING ( NATIONAL DEPARTMENT OF EMPLOYMENT )

Subject of the case

ON THE INTERPRETATION OF THE RULES OF COMMUNITY LAW RELATING TO UNEMPLOYMENT FOR THE PURPOSES OF THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY ,

Grounds

1 BY JUDGMENT OF 18 MAY 1977 , WHICH REACHED THE COURT ON 31 MAY 1975 , THE ARBEIDSRECHTBANK ( LABOUR TRIBUNAL ), HASSELT , BELGIUM , REFERRED TO THE COURT A QUESTION UNDER ARTICLE 177 OF THE EEC TREATY CONCERNING THE COMPATIBILITY OF CERTAIN PROVISIONS OF THE BELGIAN ARRETE ROYAL OF 20 DECEMBER 1963 RELATING TO LABOUR AND UNEMPLOYMENT WITH THE RELEVANT RULES OF COMMUNITY LAW IN THIS FIELD , WHICH SEEK TO ENSURE THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY .

2 THE SUBJECT OF THE MAIN ACTION IS AN APPLICATION FOR THE PAYMENT OF UNEMPLOYMENT BENEFIT SUBMITTED BY A YOUNG UNEMPLOYED BELGIAN , THE PLAINTIFF IN THE MAIN ACTION , UNDER ARTICLE 125 OF THE SAID ARRETE ROYAL BEFORE THE RIJKSDIENST VOOR ARBEIDSVOORZIENING ( NATIONAL DEPARTMENT OF EMPLOY- MENT ), THE COMPETENT BELGIAN INSTITUTION IN RESPECT OF UNEMPLOYMENT BENEFITS AND THE DEFENDANT IN THE MAIN ACTION .

3 ARTICLE 124 ( 1 ) OF THE ARRETE ROYAL PROVIDES INTER ALIA AS FOLLOWS :

' A YOUNG WORKER WHO HAS COMPLETED A FULL COURSE OF STUDY IN AN EDUCATIONAL ESTABLISHMENT PROVIDED , RECOGNIZED OR SUBSIDIZED BY THE STATE , AND WHO HAS OBTAINED A DIPLOMA OR A SCHOOL-LEAVING CERTIFICATE FROM THE CENTRAL BOARD . . . MAY QUALIFY FOR UNEMPLOYMENT BENEFITS PROVIDED THAT :

1 . . . .

2 . THE PERIOD WHICH HAS ELAPSED BETWEEN THE COMPLETION OF STUDIES , THE GRANT OF A DIPLOMA OR A SCHOOL-LEAVING CERTIFICATE FROM THE CENTRAL BOARD OR THE COMPLETION OF APPRENTICESHIP AND THE APPLICATION FOR BENEFIT DOES NOT EXCEED ONE YEAR . '

4 THE FILE INDICATES THAT , AFTER OBTAINING HIS SCHOOL-LEAVING CERTIFICATE IN BELGIUM ON 30 JUNE 1971 , THE PLAINTIFF IN THE MAIN ACTION FOLLOWED A COURSE OF STUDY AT THE HOGERE TECHNISCHE SCHOOL ( COLLEGE OF ADVANCED TECHNOLOGY ) AT APELDOORN , THE NETHERLANDS , UNTIL 24 JUNE 1976 .

5 ON COMPLETION OF HIS STUDIES IN THE NETHERLANDS HE RETURNED TO BELGIUM WHERE , AFTER FAILING TO FIND EMPLOYMENT , HE SUBMITTED THE AFORESAID APPLICATION ON 28 OCTOBER 1976 .

6 BY DECISION OF 20 JANUARY 1977 THE RIJKSDIENST VOOR ARBEIDSVOORZIENING REFUSED THE APPLICATION , RELYING ON THE PROVISIONS OF ARTICLE 124 ( 1 ) OF THE ARRETE ROYAL , BECAUSE MORE THAN A YEAR HAD ELAPSED BETWEEN THE DATE ON WHICH THE APPLICANT HAD FINISHED THE STUDIES WHICH GAVE HIM THE RIGHT TO RECEIVE SUCH PAYMENTS ( 30 JUNE 1971 ) AND THE DATE ON WHICH HE HAD SUBMITTED HIS APPLICATION ( 28 OCTOBER 1976 ).

7 THE INSTITUTION DID NOT REGARD THE PERIOD OF STUDY COMPLETED BY THE PERSON CONCERNED IN THE NETHERLANDS AS PREVENTING THAT PERIOD FROM RUNNING BECAUSE IT HAD NOT BEEN COMPLETED ' IN AN EDUCATIONAL ESTABLISHMENT PROVIDED , RECOGNIZED OR SUBSIDIZED BY THE BELGIAN STATE ' .

8 THE PLAINTIFF BROUGHT AN ACTION AGAINST THAT DECISION BEFORE THE ARBEIDSRECHTBANK , HASSELT , WHICH REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

' CAN THE PROVISIONS OF ARTICLE 124 OF THE ROYAL DECREE OF 20 DECEMBER 1963 ON THE UNEMPLOYMENT BENEFIT RULES IN BELGIUM BE REGARDED AS BEING COMPATIBLE WITH THE TEXT AND THE SPIRIT OF THE RELEVANT COMMUNITY LAW , WHICH SEEKS TO ENSURE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY :

- WITH REGARD TO BELGIAN SUBJECTS WHO HAVE STUDIED IN ONE OF THE MEMBER STATES ; OR

- WITH REGARD TO PERSONS WHO ARE NOT BELGIAN SUBJECTS BUT WHO POSSESS THE NATIONALITY OF ONE OF THE MEMBER STATES ; OR

DO THE PROVISIONS OF ARTICLE 124 OF THE ROYAL DECREE OF 20 DECEMBER 1963 CONSTITUTE , DIRECTLY OR INDIRECTLY , AN OBSTACLE TO THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY?

'

9 THE NATIONAL COURT POINTS OUT , INTER ALIA , THAT THE QUESTION WHICH IT HAS TO CONSIDER IS WHETHER ARTICLE 124 OF THE AFORESAID ARRETE ROYAL IS COMPATIBLE WITH THE TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES AND ALSO WITH THE PROVISIONS OF COMMUNITY RULES INCLUDING THOSE OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ( OJ 1971 L 149 , P . 2 ).

10 ALTHOUGH THE COURT HAS NO JURISDICTION WITHIN THE FRAMEWORK OF THE APPLICATION OF ARTICLE 177 OF THE TREATY TO DECIDE UPON THE COMPATIBILITY OF A NATIONAL PROVISION WITH COMMUNITY LAW , IT MAY NEVERTHELESS EXTRACT FROM THE WORDING OF THE QUESTION FORMULATED BY THE NATIONAL COURT , HAVING REGARD TO THE FACTS STATED BY THE LATTER , THOSE ELEMENTS WHICH COME WITHIN THE INTERPRETATION OF COMMUNITY LAW .

11 IT IS CLEAR FROM THE WORDING OF THE QUESTION SUBMITTED , IN CONJUNCTION WITH THE INFORMATION SUPPLIED BY THE NATIONAL COURT , THAT THIS QUESTION IS CONCERNED WITH THE FIELD OF APPLICATION , BOTH OF THE PROVISIONS OF REGULATION ( EEC ) NO 1408/71 CONCERNING , INTER ALIA , THE COORDINATION OF THE LAWS OF THE MEMBER STATES ON THE QUESTION OF UNEMPLOYMENT BENEFITS AND , MORE GENERALLY , OF THE RULES OF THE TREATY RELATING TO THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY AND , POSSIBLY , THOSE RELATING TO THE PROHIBITION OF DISCRIMINATION .

12 IN CONSEQUENCE THE QUESTION IS WHETHER , FOR THE PURPOSES OF THE AWARD OF UNEMPLOYMENT BENEFITS , COMMUNITY LAW REQUIRES THAT STUDIES COMPLETED IN ANOTHER MEMBER STATE MUST BE TREATED AS THOUGH THEY WERE STUDIES COMPLETED IN AN ESTABLISHMENT PROVIDED , RECOGNIZED OR SUBSIDIZED BY THE BELGIAN STATE .

13 THE QUESTION MUST BE RESOLVED IN THE LIGHT OF THE SPECIAL PROVISIONS OF THE REGULATION ON THE SUBJECT OF UNEMPLOYMENT CONTAINED IN CHAPTER 6 , IN PARTICULAR , ARTICLES 67 , 69 AND 71 , WHICH ALONE ARE CAPABLE OF HAVING A BEARING ON THIS CASE .

14 IT IS CLEAR FROM THE WORDING OF THOSE PROVISIONS THAT THEY HAVE NO APPLICATION IN THE CASE OF AN UNEMPLOYED PERSON WHO HAS NEVER BEEN IN EMPLOYMENT AND HAS NEVER BEEN TREATED AS AN EMPLOYED PERSON UNDER NATIONAL LEGISLATION APPLICABLE TO EMPLOYED PERSONS , PARTICULARLY THAT RELATING TO UNEMPLOYMENT .

15 INDEED THE APPLICATION OF THE GENERAL RULE ON AGGREGATION SET OUT IN ARTICLE 67 OF THE REGULATION ASSUMES THE COMPLETION OF PERIODS OF INSURANCE OR EMPLOYMENT , AS MAY BE SEEN FROM THE WORDING OF THE ARTICLE .

16 FURTHERMORE , SUBJECT TO CERTAIN CONDITIONS , ARTICLE 69 MAKES IT POSSIBLE FOR A WHOLLY UNEMPLOYED WORKER WHO HAS ACQUIRED A RIGHT TO BENEFITS IN ONE MEMBER STATE AND WHO GOES TO ANOTHER MEMBER STATE IN ORDER TO SEEK EMPLOYMENT THERE TO RETAIN HIS ENTITLEMENT TO THOSE BENEFITS .

17 A WORKER WHO DOES NOT SATISFY THE CONDITIONS LAID DOWN BY THE LEGISLATION OF A MEMBER STATE CANNOT TAKE ADVANTAGE OF THE PROVISIONS OF ARTICLE 69 IF HE MOVES INTO ANOTHER MEMBER STATE .

18 FINALLY , ARTICLE 71 , WHICH DEROGATES FROM THE PROVISIONS OF ARTICLE 67 ( 3 ), UNDER WHICH , SUBJECT TO THE COMPLETION LASTLY OF PERIODS OF INSURANCE OR OF EMPLOYMENT IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION UNDER WHICH THE BENEFITS ARE CLAIMED , THE APPLICATION OF THE RULE ON AGGREGATION MAKES IT POSSIBLE , UNDER CERTAIN CONDITIONS , FOR AN UMEMPLOYED WORKER WHO , DURING HIS LAST EMPLOYMENT , RESIDED IN A MEMBER STATE OTHER THAN THE COMPETENT STATE , TO CLAIM THE BENEFITS FROM THAT STATE RATHER THAN FROM THE ONE IN WHICH HE COMPLETED THE AFOREMENTIONED PERIODS .

19 THAT ARTICLE CANNOT APPLY TO THE CASE OF AN UNEMPLOYED PERSON WHO HAS NOT PURSUED ANY ACTIVITY AS AN EMPLOYED PERSON OR ANY ACTIVITY TREATED AS SUCH AND WHO , IN CONSEQUENCE , HAS NOT YET ACQUIRED ANY ENTITLEMENT TO UNEMPLOYMENT BENEFIT .

20 IT REMAINS TO BE CONSIDERED WHETHER NATIONAL RULES , TO THE EXTENT TO WHICH , FOR THE PURPOSES OF THE AWARD TO YOUNG UNEMPLOYED WORKERS WHO HAVE NEVER BEEN EMPLOYED OF UNEMPLOYMENT BENEFITS , THEY IMPOSE CONDITIONS SIMILAR TO THOSE DESCRIBED IN THE JUDGMENT REFERRING THE MATTER TO THE COURT , MAY BE REGARDED AS INCOMPATIBLE WITH THE RULES ON NON-DISCRIMINATION AND ON THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY .

21 THE FILE SHOWS THAT THE CONDITION OF COMPLETION OF A PERIOD OF STUDY IN AN EDUCATIONAL ESTABLISHMENT PROVIDED , RECOGNIZED OR SUBSIDIZED BY THE BELGIAN STATE APPLIES WITHOUT DISTINCTION TO BELGIAN NATIONALS AND TO THE NATIONALS OF OTHER MEMBER STATES .

22 FURTHERMORE , THE POSITION OF A PERSON WHO HAS GONE TO ANOTHER MEMBER STATE IN ORDER TO FOLLOW A COURSE OF STUDY AND WHO , DURING THAT PERIOD , WAS NOT INSURED UNDER A SOCIAL SECURITY SCHEME SET UP FOR THE BENEFIT OF EMPLOYED PERSONS DOES NOT COME WITHIN THE SCOPE OF THE PROVISIONS OF ARTICLES 48 TO 51 OF THE TREATY , WHICH ARE INTENDED TO FACILITATE THE FREE MOVEMENT OF WORKERS .

23 THE ANSWER TO THE QUESTION SUBMITTED MUST THEREFORE BE THAT NEITHER THE TREATY ESTABLISHING THE EEC NOR THE PROVISIONS OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL RELATING TO UNEMPLOYMENT REQUIRE A COMPETENT INSTITUTION IN ONE MEMBER STATE , FOR THE PURPOSES OF THE AWARD OF UNEMPLOYMENT BENEFITS FOR FORMER STUDENTS WHO HAVE NEVER BEEN EMPLOYED , TO TREAT STUDIES COMPLETED IN ANOTHER MEMBER STATE AS THOUGH THEY HAD BEEN COMPLETED IN AN ESTABLISHMENT PROVIDED , RECOGNIZED OR SUBSIDIZED BY THE COMPETENT STATE .

Decision on costs

COSTS

24 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

25 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE ARBEIDSRECHTBANK , HASSELT , BY JUDGMENT OF 18 MAY 1977 HEREBY RULES :

NEITHER THE TREATY ESTABLISHING THE EEC NOR THE PROVISIONS OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL RELATING TO UNEMPLOYMENT REQUIRE A COMPETENT INSTITUTION IN ONE MEMBER STATE , FOR THE PURPOSES OF THE AWARD OF UNEMPLOYMENT BENEFITS TO FORMER STUDENTS WHO HAVE NEVER BEEN EMPLOYED , TO TREAT STUDIES COMPLETED IN ANOTHER MEMBER STATE AS THOUGH THEY HAD BEEN COMPLETED IN AN ESTABLISHMENT PROVIDED , RECOGNIZED OR SUBSIDIZED BY THE COMPETENT STATE .