OPINION OF ADVOCATE GENERAL

VERLOREN VAN THEMAAT

delivered on 7 March 1985 ( *1 )

Mr President,

Members of the Court,

1. Introduction

1.1. The problem

This case concerns the rather unusual question whether Mr Deak, a Hungarian national who lives in Belgium with his Italian mother, can on the basis of Community law claim Belgian unemployment benefit. The difficulty of assessing the potential practical scope of that question does not simplify matters.

The two questions concerning that problem referred by the national court are based on Article 2 (1) of Council Regulation (EEC) No 1408/71.

As the Court pointed out in its written questions of 26 October 1984 to the Belgian Office national de l'emploi and to the Commission, Article 7 (2) of Regulation (EEC) No 1612/68 may also be relevant to the problem. In those questions the Court referred to the judgments of 31 May 1979 in Case 207/78 (Even [1979] ECR 2019), 14 January 1982 in Case 65/81 (Reina [1982] ECR 33) and 12 July 1984 in Case 261/83 (Castelli [1984] ECR 3199) regarding that provision. I shall come back later to a number of other relevant judgments.

1.2. The questions referred

The questions which the Cour du travail, Liège, has referred to the Court are the following:

‘I. Does Article 2 (1) of Regulation (EEC) No 1408/71 mean that the Belgian laws on unemployment are applicable to a person who is not a national of a Member State merely by reason of the fact that his mother is a national of a Member State, by virtue of the words “as also to the members of their families” appearing in Article 2 (1) of the said regulation?

II. In the event of the Belgian laws on unemployment being applicable, by virtue of Article 2 (1) of the said regulation, to a person who is not a national of a Member State, is Article 124 of the Belgian Royal Decree of 20 December 1963 on unemployment, which provides for an unemployment benefit for former students who have not yet found work, applicable to that person by virtue of the equality of treatment provided for in Article 3 (1) of the said Regulation No 1408/71, even though Article 67 of that regulation apparently does not provide for any such unemployment benefit without an insurance period or period of employment?’

In its questions of 26 October the Court first asked whether the unemployment benefits introduced by the Royal Decree of 30 March 1982 should be regarded as social advantages within the meaning of Article 7 (2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968, in so far as they constitute advantages ‘which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community’. In the event of an affirmative reply to that first question, the Court went on to ask whether, under Regulation No 1612/68, the benefit of such payments must be extended to a person who is not himself a national of a Member State but is the son of a worker who is a national of a Member State.

1.3. The relevant provisions of Community and national law

(a) Article 2 (1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 reads as follows: ‘This regulation shall apply to employed or self-employed persons 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 well as to the members of their families and their survivors.’ Article 3 (1) of that regulation provides that: ‘Subject to the special provisions of this regulation, persons resident in the territory of one of the Member States to whom this regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.’ Article 67 of the regulation reads as follows: ‘(1) The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits subject to the completion of periods of insurance shall take into account, to the extent necessary, periods of insurance or employment completed as an employed person under the legislation of any other Member State, as though they were periods of insurance completed under the legislation which it administers, provided, however, that the periods of employment would have been counted as periods of insurance had they been completed under that legislation. (2) The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits subject to the completion of periods of employment shall take into account, to the extent necessary, periods of insurance or employment completed as an employed person under the legislation of any other Member State, as though they were periods of employment completed under the legislation which it administers. (3) Except in the cases referred to in Article 71 (1) (a) (ii) and (b) (ii), application of the provisions of paragraphs 1 and 2 shall be subject to the condition that the person concerned should have completed lastly: — in the case of paragraph 1, periods of insurance, — in the case of paragraph 2, periods of employment, in accordance with the provisions of the legislation under which the benefits are claimed. (4) Where the length of the period during which benefits may be granted depends on the length of periods of insurance or employment, the provisions of paragraph 1 or 2 shall apply, as appropriate.’

(b) Article 7 (2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 reads as follows : ‘He shall enjoy the same social and tax advantages as national workers.’

(c) According to Article 124 of the Belgian Royal Decree of 20 December 1963 on employment and unemployment, in the version applicable at the time of the facts which gave rise to these proceedings, ‘young workers who are heads of households’ who are unable to find employment at the end of their studies or of their periods of apprenticeship, are entitled to unemployment benefits if they fulfil the conditions laid down in that article. Article 125 of that Royal Decree of 20 December 1963 provides that Article 124 applies to foreign workers and stateless persons only in so far as is provided in an international convention. Article 2 of the Royal Decree of 30 March 1982 provides that young workers who fulfil the conditions of Article 124 of the Royal Decree of 20 December 1963, but who are not heads of households, may be granted allocations d'attente [special unemployment benefit for school leavers and graduates]. Article 3 states that the provisions of Titles I to III of the Royal Decree of 20 December 1963, including Article 125, are applicable to the allocations d'attente.

2. Assessment of the written submissions

2.1. The first question of the Cour du travail

With regard to the national court's first question both the Office national de l'emploi and the Commission conclude from the judgment of the Court of 23 November 1976 in Case 40/76 (Kermaschek [1976] ECR 1669) that Article 2 (1) of Regulation No 1408/71 does not apply. The Office national de l'emploi infers that from the fact that claims for unemployment benefits are not claims derived from the rights of persons entitled to benefit, but are claims which may only be made by persons who themselves fulfil the conditions on which they are granted. The condition that the person concerned must be a national of a Member State is one of those conditions.

In its remarks the Commission also states as its basic premise that in that judgment a clear distinction is made between workers on the one hand and the members of their families and their survivors on the other. The Commission is of the view that the advantage to which Mr Deak considers himself entitled in this case is not a benefit due to him in his capacity as a member of the family of an unemployed migrant worker, in the sense that it is a derived right based on the fact that his relative in the ascending line is a migrant worker.

A young worker qualifies for the benefit referred to in Article 124 of the Royal Decree of 20 December 1963 on the basis of his individual circumstances and not on the basis of his capacity as a member of the family of a worker.

The Commission therefore also concludes that the national court's first question must be answered in the negative.

Having regard in particular to paragraph 9 of the judgment in the Kermascbek case I can concur with the unanimous view of the Office national de l'emploi and the Commission that the first question of the national court should be answered in the negative. As appears from that paragraph, members of the family of workers who are nationals of a Member State ‘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’.

2.2. The second question of the Cour du travail

Since the national court's first question must therefore be answered in the negative, it is not necessary for the Court to give an answer to the second question of that court in the form in which it was put. Since the second question in fact concerns allocations d'attente for young people who have finished their studies, I think it would be useful to reformulate that question in the light of the questions put by the Court to the Office national de l'emploi and to the Commission.

2.3. T/je questions put by the Court

Unfortunately only the Commission provided an answer to the two questions, mentioned above, put by the Court to the Office national de l'emploi and the Commission. There can therefore be no real discussion of the matter permitting the Court to take account in its judgment of the point of view of the Office national de l'emploi or of the Belgian Government.

Relying in particular on the judgments of the Court in Case 32/75 (Cristini [1975] ECR 1085) and Case 261/83 (Castelli [1984] ECR 3199), the Commission gave the following answers to the questions of the Court:

‘(a) The allocations d'attente introduced by the Royal Decree of 30 March 1982 constitute social advantages within the meaning of Article 7 (2) of Regulation No 1612/68 in so far as, even if they are not linked to a previously existing contract of employment, they are granted to persons regarded as workers under national law, who reside in Belgium;

(b) The extension of those social advantages to other beneficiaries of Regulation No 1612/68, and in particular to the descendants who are under the age of 21 or are dependent on a worker employed in Belgium who is a national of another Member State, is likely to facilitate the mobility of workers within the Community;

(c) The equality of treatment provided fór by Article 7 of Regulation No 1612/68 is also intended to prevent discrimination against the descendants of such a worker who are under 21 years of age or are dependent on him, whatever the nationality (whether or not of a Member State of the Community) of those descendants;

(d) Article 7 (2) of the regulation must therefore be interpreted as meaning that the grant of a social advantage such as the allocations d'attente introduced by the Royal Decree of 30 March 1982 for the benefit of young workers seeking employment cannot, where it is claimed by a descendant of a worker within the meaning of Article 10 (1) (a) of the regulation, be made dependent upon the existence of an international convention between the Kingdom of Belgium and the State (which may be a nonmember State) of which the descendant is a national.’

At the hearing Mr Deak's representative (who made no written submission) associated himself with that point of view of the Commission. He considered in particular that in its questions the Cour du travail was wrong to place ordinary unemployment benefits and allocations d'attente on the same footing. In his opinion allocations d'attente for young school leavers seeking employment are social advantages governed not by Regulation No 1408/71 but by Regulation No 1612/68.

Although I recognize the weight of the arguments with which the Commission supports its position in answer to the questions posed by the Court, I do not propose that the Court adopt that point of view in its answers to the questions referred. I have both substantive reasons, and more particularly a procedural reason, for not wishing to do so. As a substantive point I think in the first place that there is a difference between this case and those of Cristini and Castelli, on which the Commission relied as precedents, inasmuch as those cases clearly concern a social advantage which could not be regarded as a social security benefit as described in the judgment of the Court in Case 1/72 (Frilli [1972] ECR 457). Both cases dealt with advantages belonging to ‘general systems of social protection, which have been designed for a population as a whole and are based on requirements of nationality and residence ... ’ as referred to in paragraph 20 of that judgment. Paragraph 21 adds, as a matter permitting the Court to intervene, the protection of migrant workers ‘wherever this proves to be possible under the principles of the social legislation of the Community, and without thereby breaking up the system set up by the national legislation in question’ (my emphasis). Since in this case the Office national de l'emploi gave no written answer to the questions of the Court and expressly declared at the hearing that it was unable to take a position in that regard, I would consider it substantively impossible and procedurally incorrect nevertheless to propose that the Court take a position. In my view it would have been necessary to hear argument in order in particular to decide whether the condition which I have emphasized laid down in the Frilli case is fulfilled. Unlike the Cristini and Castelli cases, the other judgments referred to in the questions of the Court (Case 207/78 Even [1979] ECR 2019 and Case 65/81 Reina [1982] ECR 33) dealt with social advantages for workers, not social advantages for the members of their families. To that extent the problems which are decisive here did not arise in those cases. I refer in particular to the potential implications of a position such as that proposed by the Commission in favouring young nationals of nonmember countries who are children of Member State nationals, and their possible incompatibility with the structure of the national legislation concerned. Finally, I think paragraph (b) of the Commission's answer to the second question of the Court is a weak point in its argument. As a basis for the thesis that a different position would in some circumstances endanger the freedom of movement of a worker with a dependent child having the nationality of a nonmember country, the Commission simply refers to its argument on p. 4 of its reply. That argument, however, relates exclusively to children who are also nationals of a Member State. In such a case the judgment of the Court in Case 63/76 {Inzirillo [1976] ECR 2057) considered that a position other than that advocated by the Commission could induce the worker concerned to move to another Member State where he would be able to obtain the benefits in question for his child. According to the judgment that result would indeed contravene the principle of free movement of workers. Without further investigation of the situation in other Member States I am not satisfied that in a case such as this, where the child is a national of a nonmember country, those paragraphs of the Inzirillo judgment can be regarded as applicable in this case without further discussion. I therefore propose that in its reply to the questions referred the Court refer to the possible applicability of Regulation No 1612/68, but that for the reasons set out above it refrain from giving a definitive reply on that point. In the event that the national court considers it appropriate in those circumstances to refer supplementary questions to the Court there will be greater opportunity for interested parties to present argument. In such further reference proceedings the governments of other Member States might also find it appropriate to state their views.

The importance of the possibility of hearing argument is in my view underlined by the course of the proceedings in Case 267/83, in which the Court gave judgment on 13 February 1985. That case dealt with the right of residence of a national of nonmember country living apart from her husband, a French national, but not divorced. Although that case therefore did not concern social advantages such as those at issue in these proceedings, because of the great potential scope of the questions referred regarding the legal position of a family member who is not a national of a Member State three Member States made written submissions.

3. Conclusion

In conclusion I therefore propose that the Court give the following answers to the questions referred:

(1) Article 2 (1) of Regulation (EEC) No 1408/71 cannot be interpreted as meaning that a person who is not a national of a Member State can, on the basis of the phrase ‘as well as to the members of their families’ in that article, claim unemployment benefits under national legislation such as that at issue here, on the sole ground that his mother is a national of a Member State.

(2) A young school leaver who has not found employment after the end of his studies or apprenticeship, but who is not a national of a Member State, can not therefore claim an allocation d'attente as referred to in Article 124 of the Belgian Royal Decree of 20 December 1963 on employment and unemployment, in conjunction with Articles 2 and 3 of the Royal Decree of 30 March 1982, on the basis of Regulation No 1408/71. No definitive reply can be given in these proceedings to the question whether allocations d'attente such as those at issue are social advantages within the meaning of Article 7 (2) of Regulation No 1612/68 of the Council of 15 October 1968 (Official Journal, English Special Edition 1968 (II), p. 475) to which a national of a nonmember country such as the person referred to in the questions of the national court is also entitled.

( *1 ) Translated from the Dutch.