Keywords

Summary



Keywords

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1. Social security for migrant workers ° Unemployment ° Worker, other than a frontier worker, who is wholly unemployed and who resided, when last employed, in the territory of a Member State other than the one in which he was employed ° Residence in a Member State other than the State of employment ° Criteria for determination

(Council Regulation No 1408/71, Art. 71(1)(b)(ii))

2. Social security for migrant workers ° Unemployment ° Worker, other than a frontier worker, who is wholly unemployed and who resided, when last employed, in the territory of a Member State other than the one in which he was employed ° Entitlement to benefits from the Member State of residence notwithstanding previous receipt of unemployment benefits in the State where last employed

(Council Regulation No 1408/71, Art. 71(1)(b)(ii))

3. Social security for migrant workers ° Benefits ° Community rules against overlapping benefits ° Application to unemployment benefits

(Council Regulation No 1408/71, Arts 12(1), 67 and 71(1)(b)(ii))

4. Social security for migrant workers ° Benefits ° Community rules against overlapping benefits ° Benefits of the same kind for unemployment ° Criteria

(Council Regulation No 1408/71, Art. 12(1))

5. Social security for migrant workers ° Unemployment ° Legislation making the award of benefits conditional upon completion of periods of insurance ° Aggregation of periods of insurance ° Taking into account by the Member State of residence of periods of insurance completed under the legislation to which the unemployed person was last subject ° Deduction from the period of entitlement acquired to unemployment benefits of the period for which unemployment benefits were received in the other Member State

(Council Regulation No 1408/71, Arts 12(1), 67 and 71(1)(b)(ii))

6. Social security for migrant workers ° Unemployment ° Certified statement issued by the competent institution of the Member State to whose legislation the worker was last subject ° Binding effects as regards the national authorities of another Member State ° None

(Council Regulation No 574/72, Art. 84(2))

7. Social security for migrant workers ° Unemployment ° Worker, other than a frontier worker, who is wholly unemployed and who resided, when last employed, in the territory of a Member State other than the one in which he was employed ° Suspension of entitlement to benefits in the Member State of residence whilst benefits are received from the State of last employment ° Conditions ° Deduction from the period of entitlement acquired to unemployment benefits of the period for which unemployment benefits were received in the other Member State

(Council Regulation No 1408/71, Arts 69 and 71(1)(b)(ii))

Summary

1. The term "Member State in which the worker resides", used in Article 71(1)(b)(ii) of Regulation No 1408/71, means only the State where the worker, although employed in another Member State, continues habitually to reside and where the habitual centre of his interests is also situated. The addition of the words "or who returns to that territory" implies merely that the concept of residence does not necessarily exclude non-habitual residence in another Member State.

For the purposes of applying that provision, account should be taken of the length and continuity of residence before the person concerned moved, the length and purpose of his absence, the nature of the occupation found in the other Member State and the intention of the person concerned as it appears from all the circumstances.

It is for the national court to apply those criteria to the case before it, having regard to the following considerations:

° the fact that a worker was employed for two academic years as a university assistant in another Member State under a programme for university exchanges, that at the end of that period she became unemployed and that her attempts to find work in that State proved unsuccessful does not exclude the possibility that she was in stable employment there;

° there is no precise definition of the criterion of length of absence and that criterion is not exclusive, since no provision of Regulation No 1408/71 lays down a time-limit beyond which Article 71(1)(b)(ii) must no longer be applied; and

° the fact that the worker received unemployment benefits and sought employment in the other Member State is not a decisive factor such as to determine the place of residence for the purposes of Article 71(1)(b)(ii).

2. A worker, other than a frontier worker, who is wholly unemployed and who resided in the territory of a Member State other than the competent one during his last employment does not lose entitlement to the unemployment benefits referred to by Article 71(1)(b)(ii) of Regulation No 1408/71, in accordance with the legislation of the Member State in which he resides or to which he returns, by virtue of the fact that he has previously received unemployment insurance benefits from the institution of the Member State to whose legislation he was last subject.

3. The prohibition on overlapping benefits laid down by Article 12(1) of Regulation No 1408/71, by virtue of which that regulation can neither confer not maintain the right to several benefits of the same kind in respect of one and the same period of compulsory insurance, applies to unemployment benefits in the context of Article 71(1)(b)(ii) and of Article 67 of Regulation No 1408/71.

4. Unemployment benefits constitute benefits of the same kind, within the meaning of the first sentence of Article 12(1) of Regulation No 1408/71, where they are intended to replace the remuneration which a person has lost by reason of unemployment and thereby provide for the maintenance of that person, and where the differences which exist between those benefits, particularly those relating to the basis of the calculation and the conditions for granting them, are the result of structural differences between the national schemes.

5. The competent institution of a Member State under whose legislation the acquisition and duration of a right to unemployment benefit are contingent on the completion of insurance periods must, in the circumstances covered by Article 71(1)(b)(ii) and Article 67 of Regulation No 1408/71, in accordance with the first sentence of Article 12(1) thereof, take account, for the calculation of entitlement to unemployment benefit, of the periods of insurance completed under the legislation to which the unemployed person was last subject. However, it must deduct from the period of entitlement acquired to unemployment benefits the days for which benefits were received under that legislation.

6. The certified statement issued in the event of unemployment in accordance with Article 84(2) of Regulation No 574/72 by the competent institution of the Member State to whose legislation the migrant worker was last subject does not constitute irrefutable proof vis-à-vis either the institution of another Member State which is competent for matters relating to unemployment or the courts of that State, which remain entirely free to verify the content of that statement.

7. Receipt of benefits under the legislation of the Member State in whose territory the unemployed person resides or to which he returns may be suspended, pursuant to the third sentence of Article 71(1)(b)(ii) of Regulation No 1408/71, only in so far as the conditions laid down by Article 69 of the abovementioned regulation have actually been fulfilled and the person concerned accordingly receives benefits in the Member State to whose legislation he was last subject. In the event of suspension, the competent institution of the Member State in whose territory the unemployed person resides must deduct from the benefits which it pays the benefits which the unemployed person actually received in the Member State to whose legislation he was last subject. The period during which the unemployed person actually received unemployment benefits under the legislation of the latter State must be deducted from the period of entitlement to benefits under the legislation of the State of residence.