Opinion of Mr Advocate General Lenz delivered on 15 June 1988. - Anna Bergemann v Bundesanstalt für Arbeit. - Reference for a preliminary ruling: Landessozialgericht Nordrhein-Westfalen - Germany. - Social security - Unemployment benefit. - Case 236/87.



European Court reports 1988 Page 05125



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1 . This case concerns the interpretation and application of the provisions of Chapter 6 of Regulation ( EEC ) 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 . ( 1 )

2 . The request for a preliminary ruling received from the Landessozialgericht ( Higher Social Court ) of the Land Nordrhein-Westphalia arose from the following situation : Anna Bergemann, the plaintiff in the main proceedings ( hereinafter referred to as "the plaintiff "), a Netherlands national, worked as an animal-keeper in Venlo, the Netherlands . Her employment relationship ended on 30 June 1984 . Prior to that date, on 5 June 1984, she had married and moved to her husband' s home in Kerken, the Federal Republic of Germany, on 6 June 1984 . As she was on leave at the time she did not have to return to work before the end of her employment relationship and therefore did not have to return to the State of employment in connection with her contractual duties .

3 . As a result of the birth of her child, 6 August 1984, she did not place herself at the disposal of the German Employment Services immediately . She did not register as unemployed until 18 September 1984, upon the expiry of the statutory period of maternity leave . In the mean time, from 15 July 1984 to 17 September 1984 she received a maternity allowance from the Netherlands sickness insurance fund .

4 . According to the findings of the national court, which are binding on the Court of Justice, the plaintiff is not entitled under German law to unemployment benefit or unemployment assistance because she had not completed the requisite qualifying period under the Arbeitsfoerderungsgesetz ( Law on the Promotion of Employment ). Since she had however completed insurance periods in the Netherlands, the question arose whether she might nevertheless be entitled to claim benefits under the Community coordination provisions . In order to resolve this matter the national court asked the Court of Justice for a preliminary ruling on the following question :

"Does a worker qualify for the status of 'frontier worker' within the meaning of Article 1 ( b ) and Article 71 ( a ) of Regulation ( EEC ) No 1408/71 even during a period of leave in accordance with the terms of his employment contract, when he does not in fact return to work following that period of leave or before the end of the employment relationship, in other words he never returns to his place of employment in one Member State from his place of residence in another?

If he does not :

Does Article 7 ( b ) ( ii ) of Regulation No 1408/71 apply only to the classes of persons referred to in Decision No 94 of the Administrative Commission of the European Communities on Social Security for Migrant Workers of 24 January 1974?" ( 2 )

5 . For a more detailed account of the facts and the submissions of the parties reference is made to the Report for the Hearing .

B - Law

6 . In order to reply to the question whether the plaintiff can rely on a right to unemployment benefit as against the German employment service, it is necessary in the first place to consider the overall system set up under Regulation No 1408/71 . In Article 13 ( 2 ) ( a ), which contains a general rule for determining the applicable legislation, it is provided that the legislation of the State of employment is to be applicable . Chapter 6 of Regulation No 1408/71 adds certain riders to that general rule so far as unemployment is concerned . In principle, according to those provisions, the "competent State" is the State of last employment . ( 3 ) The Court has adopted this interpretation on the basis of the wording of Articles 67 ( 3 ), according to which claims for benefits under paragraphs ( 1 ) and ( 2 ) of that provision are subject to the condition that the person concerned must have completed "lastly" periods of insurance or periods of employment "in accordance with the provisions of the legislation under which the benefits are claimed ".

7 . Since the plaintiff had not completed insurance or employment periods in the territory of the Federal Republic of Germany lastly or immediately prior to the claim for benefits, according to the general rule she is not entitled to benefits . However, there are exceptions to the basic principle for "frontier workers" and employed person(s ) other than frontier worker(s ). ( 4 ) It is therefore necessary to determine whether the plaintiff comes within the scope of one of the exceptions laid down or whether "she took with her" for a limited period her rights as against the Netherlands employment services under Article 69 of Regulation No 1408/71 .

8 . I propose to deal first with the second question, namely whether the plaintiff can establish a right under Article 69 of Regulation No 1408/71 . She in fact first relied on this provision in the main proceedings . ( 5 ) The underlying scheme of Articles 69 and 70 militates in favour of the applicability of Article 69 . Its starting-point is the situation in which an unemployed person has paid his social security contributions in a State other than that in which he seeks work . Rights to unemployment benefit acquired under the social security scheme of a Member State must not be allowed to stand in the way of effective steps within the territory of another Member State to seek work there . In those circumstances, the unemployed person' s rights as against the competent institution are preserved for a limited period of time, even where, under the legislation of the Member State concerned, such rights are extinguished when the person entitled leaves the territory of that State .

9 . It is merely in order to make things easier administratively for unemployed persons that the first subparagraph of Article 70 ( 1 ) provides that unemployment benefit is to be paid by the institution of the Member State in which the unemployed person seeks work . However, under the second subparagraph of Article 71 ( 1 ), the amount of any benefits must be reimbursed by the "competent institution", so that ultimately the institution responsible for paying the benefits is the one as against which rights have been acquired by regular contributions .

10 . The situation in the main proceedings corresponds to the cases covered by Article 69 et seq . of Regulation No 1408/71 only in so far as the plaintiff paid her contributions to the Netherlands funds and may lose all her rights as a result of her move to the Federal Republic of Germany, although she is also seeking employment in her new place of residence .

11 . However, this does not mean that the plaintiff qualifies under Article 69 of Regulation No 1408/71 . She would have had to have been registered as unemployed before leaving the Netherlands and for a period of at least four weeks . The plaintiff was at no time unemployed when she still resided in the Netherlands . On the contrary, the salient feature of her particular situation is that her employment relationship continued to exist for just four weeks after her move to the Federal Republic of Germany and that she was still in receipt of a salary during this period . Her position did not therefore correspond to the typical situation provided for in Article 69 in which a worker becomes unemployed, fails to find new employment in the State of last employment immediately, and in order to increase his employment prospects seeks work on the labour market in another Member State or States .

12 . Nor does the Commission' s reference to the proposal to add an Article 69 a to Regulation 1408/71 ( 6 ) provide any grounds for altering that view . Article 69 a is not in force and is not relevant . It provides for a case, hitherto not covered by Regulation No 1048/71, where a worker becomes unemployed and moves his place of residence to a Member State with which he has close personal ties, in order to register with the local employment services there without losing his rights . This proposed new article is a practical extension of the principle that rights lawfully acquired should be guaranteed in the event of a change of residence which is allowed or even encouraged under Community law, as is also clear from the fact that the competent institution of the State of employment must contribute to the resulting costs . ( 7 )

13 . In both cases, under Article 69 and under the proposed Article 69 a of Regulation No 1408/71, the plaintiff would have had to have become unemployed in the Netherlands . The Commission' s proposal cannot therefore give rise to any claim to benefits under Regulation No 1408/71 not only because the plaintiff' s case is only governed de lege ferenda but also because no legal basis exists de lege lata .

14 . As the national court correctly states, the question whether the plaintiff is entitled to a benefit depends on whether she comes within the scope of Article 71 of Regulation 1408/71 . In this respect it must first be established whether she is a "frontier worker" within the meaning of the provision .

15 . The term "frontier worker" is defined for the purposes of the regulation in Article 1 b thereof . According to that provision : "frontier worker means any employed or self-employed person who pursues his occupation in the territory of a Member State and resides in the territory of another Member State to which he returns as a rule daily or at least once a week; however, a frontier worker who is posted elsewhere in the territory of the same or another Member State by the undertaking to which he is normally attached, or who engages in the provision of services elsewhere in the territory of the same or another Member State, shall retain the status of frontier worker for a period not exceeding four months, even if he is prevented, during that period, from returning daily or at least once a week to the place where he resides ".

16 . An essential factor for classifying a person as a "frontier worker" is therefore that he returns regularly from his place of employment to his place of residence . In fact it is just that, namely travelling from one place to another, crossing the frontier to fulfil obligations arising out of an employment relationship, which the plaintiff did not do after her move . The retention of the status of "frontier worker" provided for in the second half of the definition, where the test of regular return is not satisfied, is linked to the condition that such return is made impossible as a result of obligations arising out of the employment relationship . Here again the plaintiff' s position during the relevant period does not satisfy this condition . On the contrary, her obligation under the employment contract was suspended because she was on leave . Thus, as the plaintiff cannot qualify for the status of "frontier worker", she cannot rely on Article 71 ( 1 ) ( a ) ( ii ) in order to obtain unemployment benefit .

17 . However, Article 71 ( 1 ) ( b ) of Regulation No 1408/71 provides for the case of "an unemployed person other than a frontier worker ". The condition for the application of that provision is that the unemployed worker lived in a Member State other than the competent State while he pursued an occupation .

18 . It may first of all be asked whether the bare four weeks after the move during which the unemployment relationship continued amounts to having been "employed" for the purposes of the provision . The doubt arises first because the period in question is relatively short and, secondly, because the plaintiff was released from her obligation to perform duties in connection with her work because she was on leave .

19 . It may be seen that Article 71 does not fix any periods for which the typical situation covered by the provision must have existed, in other words that in which the State of employment and State of residence are not the same . Even relatively short periods of time may suffice for the retention of rights or their acquisition . For example, for the "export" of rights under Article 69 of Regulation No 1408/71 a four-week period is sufficient and indeed this period may be shortened subject to official authorization . The essential question is therefore whether the employment relationship was one which existed in law and in fact .

20 . It is not disputed between the parties that the employment contract did not expire until 30 June 1984 . Until that time, moreover, the plaintiff continued to receive her salary . The fact that, as she was on leave, she did not have to fulfil her duties at work for some four weeks, makes no difference to the scope of the employment relationship . This is clearly the case where the employment relationship is continued following a period of leave . But, even in the plaintiff' s case, there would probably have been no doubt as regards the existence of an employment relationship if she had brought forward her leave and chosen to continue to work for the last weeks of her contract . The same must be true of the situation as it existed in the present case .

21 . The doubts expressed by the Bundesanstalt fuer Arbeit ( Federal Labour Office ) ( 8 ) as to whether the plaintiff would have moved to her husband' s home if she had had to continue working are purely hypothetical and irrelevant to the assessment of the true situation .

22 . In order to be able to rely on Article 71 ( 1 ) ( b ) ( ii ) of Regulation No 1408/71, the plaintiff must have "reside(d )" in a State other than the competent State or "return(ed )" to the territory in question, the latter alternative being ruled out on the facts of this case .

23 . The Court has already had occasion to rule on the notion of "residence" within the meaning of this article . In the Di Paolo case, ( 9 ) the Court first stated that : "the transfer of liability for payment of unemployment benefits from the Member State of last employment to the Member State of residence is justified for certain categories of workers who retain close ties with the country where they ... habitually reside ...". This transfer would, as the Court held, be no longer justified if, by an excessively wide interpretation of the concept of residence, the point were to be reached at which all migrant workers who pursue an activity in one Member State, while their families continue habitually to reside in another Member State, were given the benefit of the exception contained in Article 71 in Regulation No 1408/71 . This provision must therefore be interpreted strictly . ( 10 ) It is necessary to take into account not only the worker' s family circumstances, but also the reasons which have led him to move and the nature of the work . ( 11 )

24 . The abovementioned case turned on the interpretation of the criterion of return to the State of residence . In this respect it is clearly important to define accurately the criterion of "residence", since the worker who has returned home has resided, at least provisionally, in another Member State . In order to leave a place of "residence", even in the event of physical absence, specific criteria must be satisfied .

25 . In the case now before the Court, the situation is different . The plaintiff did not return to her State of residence; on the contrary she took up residence elsewhere . More specifically, she set up a shared home with her husband . However, in such a case too it is necessary to lay down stringent requirement with regard to the criterion of "residence", in particular where a relatively short period of residence in another Member State is concerned, since the rules in question are of a derogating nature and in principle must be interpreted strictly, in order to prevent possible abuse .

26 . By moving, the plaintiff contributed to the setting-up of a family home . Since 6 June 1984, her home and habitual residence have been in the Federal Republic of Germany . In order to determine whether the newly established shared home meets the conditions laid down in respect of "residence", it is necessary to take into account the reasons behind the change of residence . In this respect, a transfer of residence in pursuit of a whim, of a purely arbitrary nature or conceivably motivated in part by economic considerations cannot come within the scope of Article 71 ( 1 ) ( b ) ( ii ). In fact Article 71 requires close personal ties to the place of residence .

27 . Marriage and the family enjoy considerable protection both at international level and within the legal systems of the Member States . The European Convention for the Protection of Human Rights and Fundamental Freedoms, which all the Member States of the Community have ratified in the mean time, proclaims in Article 8 thereof a right to respect for family life . Article 12 of the Convention lays down the right to marry and to found a family . Respect for family life comprises inter alia the unity of the family and life together . ( 12 ) Even the project of founding a family, when by definition various constituent elements thereof do not yet exist, is capable of receiving the protection secured under Article 8 of the European Convention on Human Rights . ( 13 ) Article 8 of the European Convention on Human Rights is essentially a safeguard provision; however this does not mean that every material disadvantage ensuing from claiming the benefits of the rights guaranteed constitutes as such a breach of the provision . Similarly, Article 12 secures the right to marry and to found a family . That does not however exclude the possibility of there being certain negative consequences, which would not therefore be unlawful . ( 14 )

28 . The European Social Charter which has been ratified by all the Member States except Belgium, Luxembourg and Portugal also contains provisions for the protection of the family . The first part of the Charter guarantees social, legal and economic protection to the family . In the second part of the charter the Member States agree on the practical effects of such protection, so that, amongst other things, family allowances and social benefits, tax legislation and aid to young couples are regarded as being means of ensuring the protection of the family . It is true that according to the third part of the Charter it is binding on Member States only at a national level so that it does not generate any direct right for the protection of individuals . ( 15 ) Nevertheless the signing and the ratification of the Charter gave expression to a common political will and entailed the recognition of common values which are capable of bearing on the interpretation of directly applicable law . ( 16 )

29 . The International Covenant on Civil and Political Rights, which has been ratified by all the Member States of the European Community except Greece and Ireland, proclaims in Article 17 thereof inter alia the prohibition on arbitrary and unlawful attacks on the family . Such attacks may consist for example in interfering with the right of spouses to live together . ( 17 ) Article 23 states that the family is entitled to special protection by society and the State . As far as the actual scope of such protection is concerned, it may vary in accordance with social, economic, political and cultural circumstances and tradition . ( 18 )

30 . Finally, the Contracting States to the International Covenant on Economic, Social and Cultural Rights - which has been ratified by all the Member States of the European Community except Ireland - acknowledge in Article 10 of that instrument that "the widest possible protection and assistance should be accorded" to the family . This provision is part of a programme which the Contracting States intend to implement . As in the European Social Charter, the aim of taking positive measures in favour of the family was proclaimed . However, these provisions are not sufficiently precise for it to be possible to deduce from them an obligation on the public authorities to take specific and concrete measures .

31 . Similarly, the legal systems of the Member States make provision for a special protection for marriage and the family, even if the level of the protection and the manner in which it is applied in practice varies . This special status accorded to the family and marriage is reflected in constitutional law in the Federal Republic of Germany, Spain, Ireland, Italy and Portugal . In the Netherlands the provisions of the European Convention on Human Rights constitute directly applicable law . Under the French constitutional system, the conditions necessary for the development of the individual and the family are guaranteed by the preamble to the 1946 Constitution, to which the present constitution refers . In the British legal order, marriage and the family are recognized as fundamental values both by ordinary legislation and in the decisions of the courts .

32 . In Belgium there is in fact no constitutional provision protecting marriage and the family . Under labour law, however, a statutory provision declares void any term in a contract of employment ( 19 ) providing for the termination of the contract in the event of marriage or pregnancy . Again, in Denmark, no express protection of the family is laid down in the constitution . On the other hand, such protection is afforded under labour law and social law . The fact that a spouse leaves his or her employment to follow the other spouse to the latter' s place of employment does not prevent him or her from claiming unemployment benefit .

33 . Under most of the legal systems of the Member States the award of unemployment benefit is linked to the requirement that the person concerned has become unemployed involuntarily or that there are good reasons justifying his situation . Thus the aim of following a spouse to his or her place of residence and work may constitute under German law a valid reason, justifying the termination of the employment relationship so that where the employee gives notice terminating the contract of employment, this does not constitute an obstacle to the award of unemployment benefit . The same is true, in terms of result, in the French and Spanish legal systems, and the Portuguese, although in Portugal the administrative authorities have a certain discretion . Under Netherlands law, it is in principle possible to claim unemployment benefit in the aforementioned circumstances . However, the outcome ultimately depends on an examination of all the surrounding circumstances . Whether in the circumstances of the present case the transfer of residence constitutes "just cause" under British law is a question to which there is no clear reply . The same may be said of Irish law . Neither in the decisions of the courts nor in the provisions of statute is there any indication that a change of residence for family reasons may be regarded as a "just cause" for the termination of an employment relationship . In the light of the prevailing views, it appears probable that an employee finding himself in such a situation in those countries would be unable to claim unemployment benefit .

34 . Under Belgian law, the circumstances considered above are treated in a manner which is more clearly unfavourable to the employee who terminates his contract . As far as unemployment insurance is concerned, the courts have been very strict : family reasons are taken into account, if at all, only in exceptional cases . A widely held view expressed in the decisions of the courts is that the termination of an employment contract on the ground of marriage and subsequent change of residence is not "involuntary" for the purposes of the law, and consequently does not give rise to entitlement to unemployment benefit .

35 . A comparative examination of these provisions does not then disclose the existence of a general principle of law according to which the spouse is always entitled to unemployment benefit, where his or her unemployment is the result of a change of residence linked to family circumstances . It is to be observed, however, that the principle that an employee who gives up his employment in order to live together with his spouse or to be able to continue living together should not be refused unemployment benefits is widely accepted .

36 . The unity of the family is also a value directly recognized under the legal order of the Community, as is shown by the right to bring together families of workers ( 20 ) and self-employed workers ( 21 ) which is enshrined in Community legislation .

37 . In the light of the foregoing legal assessment, the setting-up of a family home in a Member State other than the previous State of residence also amounts to "residing" within the meaning of Article 71 of Regulation No 1408/71 . ( 22 ) The decisive factor in this respect is whether the person concerned has actually taken up residence, so that even a relatively short period may satisfy this requirement .

38 . Assuming that all the factual conditions for the application of Article 71 ( 1 ) ( b ) ( ii ) were satisfied, it was open to the plaintiff to choose the employment services ( 23 ) to which she intended to make herself available, in other words either the employment services of the State of employment or those of the State of residence . This choice determined the competent employment services, whose benefits can accordingly be claimed by the plaintiff .

39 . The foregoing interpretation is moreover consistent with the aim of Article 71 ( 1 ) ( b ) ( ii ) of Regulation No 1408/71 . That provision is intended to ensure that unemployed migrant workers are able to seek work in the most favourable conditions . ( 24 ) As the plaintiff' s family home is in the Federal Republic of Germany, she could not be expected to look for work in the Netherlands .

40 . The fears expressed by the Federal Labour Office, concerning the possibility that an interpretation bringing the plaintiff within the scope of Article 71 of Regulation No 1408/71 would cover all migrant workers who, towards the end of their employment relationship, take leave, and during that leave return to their home and would then be able to claim benefits from the employment services of the home State, ( 25 ) are groundless . For this class of worker this would be a return within the meaning of the regulation . However, in this case - as the Court has already held ( 26 ) - close ties to the country of origin for the period before the return and during the worker' s physical absence are decisive .

41 . Finally, it remains to clarify the point whether the plaintiff may be excluded from the scope of Article 71 of Regulation No 1408/71 by the operation of Decision No 94 of the Administrative Commission; in other words, does the decision list the classes of person covered by Article 71 exhaustively? The Court of Justice has already ruled on the legal nature of the decisions of the Administrative Commission under Article 80 of Regulation No 1408/71 . In the Di Paolo case, 26 the Court held that, although the decision clarified the matter to a certain extent, it could not be considered to have enumerated exhaustively the categories of workers who may come within the provision, nor to have excluded certain other categories who have maintained similarly close ties with their country of habitual residence . ( 27 ) In the Romano case ( 28 ) the Court addressed the question of the legal nature of decisions of the Administrative Commission in more general terms of principle . It held that Article 155 of the EEC Treaty and the legal machinery set up under the Treaty, in particular Articles 173 and 177 thereof, it followed that an organ such as the Administrative Commission could not be empowered by the Council to adopt legal measures of a legislative nature . A decision of the Administrative Commission could indeed provide guidance for the social security institution responsible for the implementation of Community law in this field . It could not however impose on them a requirement to use certain methods in the application of Community law or to adopt a particular interpretation .

42 . The practice of the Administrative Commission itself shows that its decisions are not exhaustive . The decision in question, No 94, was replaced in its entirety by Decision No 131, ( 29 ) whereby the scope of the provisions was extended to a larger category of persons .

43 . The decision is intended to facilitate the application of Article 71 of Regulation No 1408/71 . To this end separate categories of persons are enumerated . These categories of persons are typical of the classes of worker to which Article 71 ( 1 ) ( b ) ( ii ) is intended to apply . If workers from other categories seek to rely on the provision, their position must first be considered in the light of the classes enumerated in the decisions . If the specific case does not fall within the usual categories, it does not necessarily follow that the worker concerned is not entitled to rely on Article 71 of Regulation No 1408/71 . In the light of the foregoing considerations, I therefore consider that the plaintiff may rely on Article 71 of Regulation No 1408/71 .

C - Conclusion

I accordingly propose that the following reply should be given to the national court :

44 . A worker cannot qualify for the status of "frontier worker" within the meaning of Article 1 ( b ) and Article 71 ( 1 ) ( a ) of Regulation No 1408/71 solely on the basis of the period of his contractual leave .

45 . The worker in question can however be a "employed person, other than a frontier worker" within the meaning of Article 71 ( 1 ) ( b ), provided that he establishes his matrimonial home in a State other than the State of employment .

46 . The categories set out in Decision No 131 of the Administrative Commission, which superseded Decision No 94, do not constitute an exclusive list of the persons coming within the scope of Article 71 ( 1 ) ( b ).

(*) Translated from the German .

( 1 ) OJ, English Special Edition 1987 ( ii ), p . 416, as amended and updated in Regulation ( EEC ) No 2001/83 of 2 June 1983 ( OJ L 230, 23.8.1983, p . 6 ), most recently amended by Regulation ( EEC ) No 3811/86 ( OJ 1986, L 355, p . 5 ).

( 2 ) OJ 1974, C 126, p . 22 .

( 3 ) See, as regards this rule, the judgment of 28 April 1988 in Case 192/87 M.-J . Vanhaeren v Rijksdienst voor Arbeidsvoorziening (( 1988 )) ECR , paragraphs 10 to 12 of the decision .

( 4 ) Article 71 ( 1 ) ( a ) ( ii ) and ( b ) ( ii ).

( 5 ) Order of the Landessozialgericht, p . 5 .

( 6 ) OJ C 169, 9.7.1980, p . 22 .

( 7 ) See new paragraph ( 2 ) for insertion in Article 70 under the Commission' s proposal .

( 8 ) Observations of the Bundesanstalt fuer Arbeit, pp . 1 and 2 .

( 9 ) Judgment of the Court of 17 February 1977 in Case 76/76 Di Paolo v Office national de l' emploi (( 1977 )) ECR 315 .

( 10 ) Case 76/76, cited above, paragraphs 11 to 13 of the decision .

( 11 ) Case 76/76, cited above, paragraphs 17 to 20 .

( 12 ) Opsahl : "La convention et le droit au respect de la vie familiale spécialement en ce qui concerne l' unité de la famille et la protection des parents et tuteurs familiaux dans l' éducation des enfants", in : Vie privée et droits de l' homme, Proceedings of the Third International Colloquy on the European Convention on Human Rights ( Brussels, 30 September-3 October 1970 ), 1973, pp . 243, 259 et seq .)

( 13 ) Judgment of the European Court of Human Rights of 28 May 1985 in the case of Abdulaziz and Others, Publications of the European Court of Human Rights, Series A, Vol . 94, p . 32, paragraph 62, Frowein/Peukert, EMRK-Kommentar, 1985, Article 9, point 17; Guradze : Die europaeische Menschenrechtskonvention, Kommentar, 1968, Article 8, point 8; Moser : Die europaeische Menschenrechtskonvention und das buergerliche Recht, 1972, p . 174 .

( 14 ) Jacobs : The European Convention on Human Rights, 1975, p . 164; Partsch : Die Rechte und Freiheiten der europaeischen Menschenrechtskonvention, 1966, p . 217 .

( 15 ) Wengler : Die Unanwendbarkeit der europaeischen Sozialcharta im Staat, 1969, pp . 10 et seq . This point is a matter of dispute among German academics, see Hohnerlein : "Federal Republic of Germany", Jaspers/Betten, 25 years of the European Social Charter, 1988, pp . 105, 111 to 113 .

( 16 ) Hohnerlein, cited above, pp . 113 to 114; Bundesverwaltungsgericht, judgment of 30 November 1982, BVerwGE 66, pp . 268 and 274 .

( 17 ) Sieghart : The International Law of Human Rights, 1983, pp . 315 et seq .

( 18 ) Sieghart, note 17, p . 204 .

( 19 ) Article 36 of the Law of 3 July 1978 on employment contracts .

( 20 ) Regulation No 1612/68, Title III .

( 21 ) Council Directive 73/148/EEC of 21 May 1973, OJ L 172, p . 14, Article 1 .

( 22 ) This view was put forward by the representative of the Commission at the hearing, see pp . 7 and 8 of the transcript of the hearing .

( 23 ) Judgment of 27 May 1982 in Case 227/81 Francis Aubin v Assedic (( 1982 )) ECR 1991, paragraph 19 of the decision, and judgment of 12 June 1986 in Case 1/85 Miethe v Bundesanstalt fuer Arbeit (( 1986 )) ECR 1837, paragraph 9 of the decision .

( 24 ) Judgment of 15 December 1976 in Case 39/76 Mouthaan (( 1976 )) ECR 1901, paragraphs 12 to 15 of the decision, and Case 227/81, cited above, paragraph 12 of the decision, as well as Case 1/85, cited above, paragraph 16 of the decision .

( 25 ) P . 2 of the observations of the Bundesanstalt fuer Arbeit .

( 26 ) Case 76/76 (( 1977 )) ECR 315 .

( 27 ) Case 76/76, cited above, paragraphs 14 and 15 of the decision .

( 28 ) Judgment of 14 May 1981 in Case 98/80 G . Romano v Institut national d' assurance maladie (( 1981 )) ECR 1241 .

( 29 ) OJ 1986, C 141, p . 10 .