Judgment of the Court of 23 November 1976. - Slavica Kermaschek v Bundesanstalt für Arbeit. - Reference for a preliminary ruling: Sozialgericht Gelsenkirchen - Germany. - Case 40-76.



European Court reports 1976 Page 01669

Greek special edition Page 00599

Portuguese special edition Page 00661



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS - PERSONS ENTITLED - WORKERS - MEMBERS OF THEIR FAMILIES - NATIONALITY

Summary

ARTICLES 67 TO 70 OF REGULATION NO 1408/71 HAVE ONLY ONE MAIN PURPOSE , NAMELY THE COORDINATION OF THE RIGHTS TO UNEMPLOYMENT BENEFITS PROVIDED BY VIRTUE OF THE NATIONAL LEGISLATION OF THE MEMBER STATES FOR EMPLOYED PERSONS WHO ARE NATIONALS OF A MEMBER STATE . THE MEMBERS OF THE FAMILY OF SUCH WORKERS ARE ENTITLED ONLY TO THE BENEFITS PROVIDED BY SUCH LEGISLATION FOR THE MEMBERS OF THE FAMILY OF UNEMPLOYED WORKERS AND IT IS TO BE UNDERSTOOD THAT THE NATIONALITY OF THOSE MEMBERS OF THE FAMILY DOES NOT MATTER FOR THIS PURPOSE .

Parties

IN CASE 40/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY BY THE SOZIALGERICHT OF GELSENKIRCHEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SLAVICA KERMASCHEK , BOTTROP ,

AND

BUNDESANSTALT FUR ARBEIT , NURNBERG ,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 67 ET SEQ . 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

Grounds

1 BY ORDER OF 25 MARCH 1976 , WHICH REACHED THE COURT REGISTRY ON 12 MAY 1976 , THE SOZIALGERICHT GELSENKIRCHEN HAS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLES 67 TO 70 OF REGULATION 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THE FIRST QUESTION ASKS WHETHER THE SPOUSE OF A NATIONAL OF A MEMBER STATE MAY CLAIM THE RIGHTS UNDER ARTICLE 67 ET SEQ . OF THAT REGULATION , IF THE SPOUSE IS NOT A NATIONAL OF A MEMBER STATE AND HAS ACQUIRED THE RIGHT TO THE BENEFIT BEFORE MARRIAGE .

THIS QUESTION IS RAISED IN A CASE CONCERNING THE ENTITLEMENT TO UNEMPLOYMENT BENEFIT OF THE PLAINTIFF IN THE MAIN ACTION , WHO IS A NATIONAL OF THE SOCIALIST FEDERAL REPUBLIC OF YUGOSLAVIA , MARRIED TO A GERMAN NATIONAL , AND WHO , IN ORDER TO LIVE WITH HER HUSBAND , LEFT HER LAST RESIDENCE IN THE NETHERLANDS AND THE POST WHICH SHE HAD HELD THERE .

THE DEFENDANT IN THE MAIN ACTION REFUSED TO GRANT UNEMPLOYMENT BENEFIT TO HER ON THE GROUND THAT THE PERIODS OF EMPLOYMENT COMPLETED IN THE NETHERLANDS COULD NOT BE TAKEN INTO ACCOUNT AS A CONDITION FOR THE ACQUISITION OF THE RIGHT TO THAT BENEFIT .

3 ARTICLE 69 ( 1 ) OF THE REGULATION PROVIDES :

' ( 1 ) A WORKER WHO IS WHOLLY UNEMPLOYED WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF A MEMBER STATE FOR ENTITLEMENT TO BENEFITS AND WHO GOES TO ONE OR MORE OTHER MEMBER STATES IN ORDER TO SEEK EMPLOYMENT THERE SHALL RETAIN HIS ENTITLEMENT TO SUCH BENEFITS UNDER THE CONDITIONS AND WITHIN THE LIMITS HEREINAFTER INDICATED :

( A ) . . . . . .

( B ) . . . . . .

( C ) . . . . . .. '

4 THEREFORE AN EMPLOYED PERSON WITHIN THE MEANING OF THE REGULATION MAY , IN THE CIRCUMSTANCES ENVISAGED , CLAIM THE ' EXPORTATION ' FROM ONE MEMBER STATE TO ANOTHER OF RIGHTS TO BENEFIT ACQUIRED IN THE FIRST MEMBER STATE .

HOWEVER , IT IS NOT DISPUTED THAT THE PRESENT CASE CONCERNS A PERSON WHO , ALTHOUGH A MEMBER OF THE FAMILY OF A NATIONAL OF A MEMBER STATE , IS NOT SUCH A NATIONAL HERSELF .

5 THEREFORE THE QUESTION ARISES WHETHER AND TO WHAT EXTENT THE MEMBERS OF THE FAMILY OF A NATIONAL OF A MEMBER STATE ARE ; IN APPLYING REGULATION NO 1408/71 , AND IN PARTICULAR ARTICLES 67 TO 70 THEREOF , TO BE ASSIMILATED TO THOSE NATIONALS THEMSELVES .

6 ARTICLE 2 ( 1 ) OF THE REGULATION PROVIDES THAT IT : ' SHALL APPLY TO WORKERS WHO ARE OR HAVE BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES AND WHO ARE NATIONALS OF ONE OF THE MEMBER STATES OR WHO ARE STATELESS PERSONS OR REFUGEES RESIDING WITHIN THE TERRITORY OF ONE OF THE MEMBER STATES , AS ALSO TO THE MEMBERS OF THEIR FAMILIES AND THEIR SURVIVORS . '

7 IT IS EVIDENT FROM THE JUXTAPOSITION INDICATED BY THE USE OF THE WORDS ' AS ALSO ' THAT THIS PROVISION REFERS TO TWO CLEARLY DISTINCT CATEGORIES : WORKERS ON THE ONE HAND , AND THE MEMBERS OF THEIR FAMILY AND THEIR SURVIVORS ON THE OTHER .

ONLY THE NATIONALS OF ONE OF THE MEMBER STATES , STATELESS PERSONS AND REFUGEES WHO ARE OR HAVE BEEN SUBJECT TO THE SOCIAL SECURITY SCHEME OF ONE OR MORE MEMBER STATES ARE COVERED IN THEIR CAPACITY AS WORKERS .

WHEREAS THE PERSONS BELONGING TO THE FIRST CATEGORY CAN CLAIM THE RIGHTS TO BENEFITS COVERED BY THE REGULATION AS RIGHTS OF THEIR OWN , THE PERSONS BELONGING TO THE SECOND CATEGORY CAN ONLY CLAIM DERIVED RIGHTS , ACQUIRED THROUGH THEIR STATUS AS A MEMBER OF THE FAMILY OR A SURVIVOR OF A WORKER , THAT IS TO SAY OF A PERSON BELONGING TO THE FIRST CATEGORY .

8 THIS INTERPRETATION IS CONFIRMED BY THE TEXT OF ARTICLE 2 ( 2 ), WHICH PROVIDES THAT WORKERS WHO ARE NOT NATIONALS OF A MEMBER STATE SHALL NEVERTHELESS BE ASSIMILATED TO THOSE NATIONALS AS REGARDS THE RIGHTS OF THEIR SURVIVORS , PROVIDED THAT THE LATTER ARE NATIONALS OF ONE OF THE MEMBER STATES , OR STATELESS PERSONS OR REFUGEES RESIDING WITHIN THE TERRITORY OF ONE OF THE MEMBER STATES .

THE SAID INTERPRETATION RECEIVES ADDED CONFIRMATION FROM THE FACT THAT ARTICLE 1 OF THE REGULATION ALSO MAKES A CLEAR DISTINCTION BETWEEN WORKERS ON THE ONE HAND AND MEMBERS OF THEIR FAMILY ON THE OTHER , INASMUCH AS IT DEFINES , AT SUBPARAGRAPHS ( A ), ( B ) AND ( C ), THE CONCEPTS OF ' WORKER ' , ' FRONTIER WORKER ' AND ' SEASONAL WORKER ' , BUT REFERS BACK , AT SUBPARAGRAPHS ( F ) AND ( G ), TO THE NATIONAL LEGISLATION INDICATED FOR THE DEFINITION OF THE TERMS ' MEMBER OF THE FAMILY ' AND ' SURVIVOR ' .

9 IT FOLLOWS THAT ARTICLES 67 TO 70 OF REGULATION NO 1408/71 HAVE ONLY ONE MAIN PURPOSE , NAMELY THE COORDINATION OF THE RIGHTS TO UNEMPLOYMENT BENEFITS PROVIDED BY VIRTUE OF THE NATIONAL LEGISLATION OF THE MEMBER STATES FOR EMPLOYED PERSONS WHO ARE NATIONALS OF A MEMBER STATE .

THE MEMBERS OF THE FAMILY OF SUCH WORKERS ARE ENTITLED ONLY TO THE BENEFITS PROVIDED BY SUCH LEGISLATION FOR THE MEMBERS OF THE FAMILY OF UNEMPLOYED WORKERS , AND IT IS TO BE UNDERSTOOD THAT THE NATIONALITY OF THOSE MEMBERS OF THE FAMILY DOES NOT MATTER FOR THIS PURPOSE .

10 SINCE THE NATIONAL COURT HAS PUT THE SECOND QUESTION ONLY IN CASE THE ANSWER TO THE FIRST QUESTION MIGHT BE IN THE AFFIRMATIVE , THERE IS NO NEED TO ANSWER IT OR TO EXAMINE IT .

Decision on costs

COSTS

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

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 QUESTIONS REFERRED TO IT BY THE SOZIALGERICHT GELSENKIRCHEN BY ORDER OF 25 MARCH 1976 HEREBY RULES :

ARTICLES 67 TO 70 OF REGULATION NO 1408/71 HAVE ONLY ONE MAIN PURPOSE , NAMELY THE COORDINATION OF THE RIGHTS TO UNEMPLOYMENT BENEFITS PROVIDED BY VIRTUE OF THE NATIONAL LEGISLATION OF THE MEMBER STATES FOR EMPLOYED PERSONS WHO ARE NATIONALS OF A MEMBER STATE .

THE MEMBERS OF THE FAMILY OF SUCH WORKERS ARE ENTITLED ONLY TO THE BENEFITS PROVIDED BY SUCH LEGISLATION FOR THE MEMBERS OF THE FAMILY OF UNEMPLOYED WORKERS , AND IT IS TO BE UNDERSTOOD THAT THE NATIONALITY OF THOSE MEMBERS OF THE FAMILY DOES NOT MATTER FOR THIS PURPOSE .