26.

To clarify the criteria according to which the obligation to remain available to the competent administration is satisfied another, more general, consideration — providing further support for an affirmative answer to the question under review — may be taken into account. The Community provision to be interpreted provides for an exception to the general principle of the territoriality of unemployment benefits by allowing the worker to receive them whilst residing in another Member State. That exception, designed to widen the range of choices open to an unemployed worker and facilitate the search for new employment, is created only for those workers who, in the course of their last employment, lived in Member States other than the competent Member State. ( 13 ) I take the view that in interpreting a derogation from the general rule, due importance must be attached to the specific aim which inspired it. In that light, the requirement of availability cannot be construed in such a way as unduly to cut down, or negate, the right expressly conferred by the provision on an unemployed worker to continue to reside outside the State responsible for paying the benefit. By laying down the requirement of availability, the Community legislature certainly did not wish to remove the freedom granted to the worker of choosing where to live. Quite the contrary. The fundamental right of freedom of movement, as described earlier, also has an impact on the Community rules on unemployment. Under the Regulation, therefore, it is not justifiable for an unemployed person to be hampered by a territorial tie, such as that of having to reside in the State responsible for paying social security benefits. The reading which I propose of Article 71(b)(i) conforms, I believe, more with the logic of the system of which that provision forms part than with its text. In any event, I must add that it is the literal wording of the provision which makes it clear that an unemployed person, who remains available to the employment services of the competent State, is entitled to the benefits in accordance with the legislation of that State ‘as though he were residing in its territory’. The Regulation recognizes in terms that the requirement of availability may be fully satisfied even if the person concerned does not reside in the State. Availability is equivalent, therefore, to residence, by virtue of an express rule adopted by the Community legislature which must be applied here. The conclusion which I have thus reached also follows from application of the interpretative rules expounded by the Court in the area under discussion. The national court, called on to determine in this specific case whether the way in which the unemployed worker makes herself available meets the requirements of the Regulation, must in any event be guided by the criterion laid down by the Court in Wan Munster, the national legislation is to be interpreted so as to ensure that it does not ‘discourage Community workers from exercising their right to freedom of movement’. ( 14 ) If that interpretative rule were applied, therefore, it would be impossible, even for someone who happened to overlook the context of the Community provisions to be applied, to treat the requirement of ‘remaining available’ in such a way as to infer from it an obligation to reside within the territory of the competent State.