Opinion of Mr Advocate General Mischo delivered on 9 March 1988. - Marie-Jeanne Vanhaeren v Rijksdienst voor Arbeidsvoorziening. - Reference for a preliminary ruling: Arbeidsrechtbank Tongeren - Belgium. - Unemployment benefits - Article 69 of Regulation Nº 1408/71. - Case 192/87.



European Court reports 1988 Page 02411



Opinion of the Advocate-General

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Mr President,

Members of the Court,

The Arbeidsrechtbank, Tongeren, asks the Court whether Article 69 of Regulation No 1408/71 remains applicable to an unemployed person who was formally in salaried employment and who, having satisfied the conditions laid down by the legislation of one Member State for entitlement to unemployment benefits and temporarily retained that entitlement to benefits in another Member State under Article 69 ( 1 ), returns to the first Member State after the expiry of the three-month period provided for in subparagraph ( c ) of that last provision and after having been in employment in the other Member State .

I share the Commission' s view that the question must be answered in the negative .

First, the Commission is right to point out that an unemployed person who goes to another Member State and actually finds work there is, from that moment, no longer an unemployed person .

It is therefore logical that Article 69 must cease to be applicable to him .

Secondly, from the same moment, the "competent State" for the purposes of Regulation No 1408/71 is no longer the State which the unemployed person first left but the State to which he went and found employment .

That principle can be deduced very clearly from the Court' s case-law . In the judgment in Cochet ( 1 ) the Court stated, as much on the basis of Article 13 of Regulation No 1408/71 as on the provisions of that regulation concerning unemployment benefits ( Articles 67, 68, 69 and 71 ), that the competent State in relation to social security benefits is the State of employment and, in the case of an unemployed person, is the State where that person was last employed ( paragraphs 12 to 14 of the judgment ).

The Rijksdienst voor Arbeidsvoorziening submits that the argument to the effect that employment abroad, whether before or after the expiry of the three-month period referred to in Article 69 ( 1 ) ( c ), puts an end to the applicability of Article 69 misinterprets Article 69 ( 2 ) and ( 4 ) of the Regulation . The Rijksdienst points out that if this were so, "a single day of employment abroad, whether before or after the expiry of the three-month period in question, would suffice to prevent the provisions of Article 69 ( 2 ) and ( 4 ) from applying ".

In the light of the observations made above, however, I consider that that is indeed the interpretation which must be derived from the wording and the scheme of Regulation No 1408/71 .

If the person concerned again becomes unemployed in the country to which he went and where he found employment he will in principle be able to enjoy for three months the unemployment benefits of that State after he has returned to his country of origin . However, I do not think that that rule can be relevant in this case since Mrs Vanhaeren had not been registered as unemployed in Germany before she returned to Belgium .

It should be noted, finally as both the Rijksdienst and the Commission have pointed out, that after her return to the country from which she came ( in the present case, Belgium ) the person concerned may not rely, in that country, on the provisions of Article 67 since she does not fulfil the conditions set out in Article 67 ( 3 ). It was not in that country that she last completed periods of insurance or employment .

In view of the judgment in Di Paolo, ( 2 ) in which the interpretation given of the concept of residence was qualified, one might also initially enquire whether the derogation provided for in Article 71 ( 1 ) ( b ) ( ii ) might not be applicable to the applicant in the main proceedings . In my view, however, that can hardly be the case in circumstances such as those in the main proceedings . Furthermore, the Court has in the meantime delivered its judgment in Guyot ( 3 ) in which it declared, to my mind in a fairly categorical manner, that Article 71 of Regulation No 1408/71 does not apply to an unemployed person who during his last employment was residing in the Member State in which he was employed .

In conclusion, I suggest that the Court should reply to the national court in the way proposed by the Commission, that is to say as follows :

Article 69 of Regulation ( EEC ) No 1408/71, in particular paragraph ( 4 ) thereof, no longer applies to an unemployed person who, while retaining his entitlement to benefits paid by one Member State, went to another Member State in order to seek employment there when he had completed periods of insurance or employment in that latter State .

(*) Translated from the French .

( 1 ) Judgment of 7 March 1985 in Case 145/84 Cochet v Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschapelijke Belangen (( 1985 )) ECR 801 .

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

( 3 ) Judgment of 11 October 1984 in Case 128/83 Caisse primaire d' assurance maladie de Rouen v A . Guyot (( 1984 )) ECR 3507 .