OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 29 November 2017 ( 1 )

Case C‑551/16

J. Klein Schiphorst

v

Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

(Request for a preliminary ruling

from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands))

(Reference for a preliminary ruling — EC-Switzerland Agreement on the free movement of persons — Freedom of movement for workers — Regulation (EC) No 883/2004 — Articles 7, 63 and 64 — Migrant workers — Unemployment benefits — Jobseeker travelling to another Member State — Retention of the right to unemployment benefits — Duration — Option)

I. Introduction

1. May a Member State refuse, as a matter of principle, to grant one of its nationals who is a jobseeker an extension of the unemployment benefit export period beyond three months?

2. That is the subject matter of the reference for a preliminary ruling from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands), which concerns, in essence, the interpretation of Article 64(1)(c) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems. ( 2 )

II. The facts giving rise to the dispute in the main proceedings, the main proceedings and the questions referred for a preliminary ruling

3. That reference was made in the context of a dispute between Mr J. Klein Schiphorst, a Netherlands national, and the Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Management Board of the Employee Insurance Agency, Netherlands, ‘Uwv’) concerning the latter’s refusal to grant Mr Klein Schiphorst’s application to extend the three-month period, laid down in Article 64(1)(c) of Regulation No 883/2004, during which the right to unemployment benefits is retained, those benefits having been paid to him by the Uwv, from 1 September to 30 November 2012, for the purposes of his search for employment on the territory of the Swiss Confederation, of which his partner is a national.

4. As the referring court notes, there is no doubt that Mr Klein Schiphorst was indeed entitled to retain his unemployment benefits while looking for work in Switzerland for three months from 1 September to 30 November 2012.

5. For, in the first place, Article 64(1) of Regulation No 883/2004 provides that a wholly unemployed person who satisfies the conditions of the legislation of the competent Member State for entitlement to benefits, and who goes to another Member State in order to seek work there, is to retain his entitlement to unemployment benefits in cash under the conditions and within the limits listed in that article. These include the conditions and limits, referred to in subparagraph (c) of that paragraph, applicable to the retention of benefits ‘for a period of three months from the date when the unemployed person ceased to be available to the employment services of the Member State which he left, provided that the total duration for which the benefits are provided does not exceed the total duration of the period of his entitlement to benefits under the legislation of that Member State’. ( 3 )

6. In the second place, it is common ground that, in accordance with the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999 ( 4 ) (‘EC-Switzerland Agreement’), and pursuant to Annex II to that Agreement, as amended by Decision No 1/2012 of the Joint Committee established under the EC-Switzerland Agreement, of 31 March 2012, replacing Annex II to that Agreement on the coordination of social security schemes, ( 5 ) Regulation No 883/2004 has applied to relations between the Member States and the Swiss Confederation since 1 April 2012, the latter being treated, for the purposes of that regulation, as one of the former.

7. The dispute in the main proceedings and the referring court’s questions, however, have to do, in essence, with the interpretation of the final part of Article 64(1)(c) of Regulation No 883/2004, which states that ‘the competent services or institutions may extend the period of three months up to a maximum of six months’.

8. In that regard, it is clear from the material in the case file that Mr Klein Schiphorst’s application to extend the export period was refused by the Uwv on the ground that that administrative body adheres to a principle of refusing such extensions, pursuant to instructions issued by the Netherlands Minister for Social Affairs and Employment in January 2011, unless, in the light of the particular circumstances of the case in question, the outcome of such a refusal would be unreasonable. According to the Uwv, that derogation could not be granted in the case of Mr Klein Schiphorst, since, despite his efforts to find work in Switzerland, there were no specific job prospects in that State nor any other circumstances making it unnecessary to compel Mr Klein Schiphorst to return to the Netherlands on the expiry of the three-month period.

9. After the action brought by Mr Klein Schiphorst against the Uwv’s decision had itself been dismissed at first instance on the ground that that administrative body had adequately explained the reasons why it had not availed itself of the option provided for in Article 64(1)(c) in fine of Regulation No 883/2004, the appellant in the main proceedings lodged an appeal before the referring court.

10. That court has doubts as to whether the Uwv’s decision is compatible with EU law.

11. In that regard, while the referring court recognises that, under Article 63 of Regulation No 883/2004, Member States are free to make unemployment benefits subject to a residence rule, it recalls that that provision also states that Article 7 of that regulation, which prohibits residence rules, is to apply in the cases provided for by Articles 64 and 65 of that regulation and within the limits prescribed there. Thus, since the right to extend the unemployment benefit export period by three months is referred to in Article 64(1)(c) in fine of Regulation No 883/2004, the referring court takes the view that the application of Article 7 has a bearing on the interpretation and implementation of that option. The referring court also asks whether the application of the provisions of the Treaty relating to the free movement of persons and workers might also have a bearing on the interpretation of the option referred to in Article 64(1)(c) in fine of that regulation.

12. It was in those circumstances that the Centrale Raad van Beroep (Higher Social Security and Civil Service Court) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) May the power conferred by Article 64(1)(c) [in fine] of Regulation No 883/2004, having regard to Article 63 and Article 7 of Regulation No 883/2004, the objective and scope of [that r]egulation and the free movement of persons and workers, be applied in such a way that a request for the extension of the export of an unemployment benefit can in principle be refused unless, in the view of the Uwv, given the particular circumstances of the case, for example, where there is a concrete and demonstrable prospect of work, it would be unreasonable to refuse the extension of the export? If not, (2) How should Member States apply the power conferred by Article 64(1)(c) [in fine] of Regulation No 883/2004?’

13. Written observations on those questions were submitted by the Uwv, the Netherlands, Czech, Danish, Polish, Swedish and Norwegian Governments and the European Commission. Those interested parties presented oral argument at the hearing of 20 September 2017, with the exception of the Czech and Polish Governments, which were not represented.

III. Analysis

14. As the forgoing considerations have highlighted, Article 64(1)(c) of Regulation No 883/2004 grants unemployed workers in one Member State the right, for the purposes of seeking employment in another Member State, to retain their unemployment benefits for a three-year period which, pursuant to the final sentence of that article, ‘the competent services or institutions may extend … up to a maximum of six months’.

15. Is that option to extend the unemployment benefit export period beyond three months for an individual directed at Member States, with the result that those States are ipso facto entitled not to avail themselves of it and thus to make it entirely impossible for the competent administrative body to grant such an extension, as the Netherlands, Danish, Swedish and Norwegian Governments argue, or is it directed exclusively at the competent administrative bodies, which must in any event be able to examine each individual case, as the Czech and Polish Governments and the Commission submit?

16. In the light of the circumstances of the case in the main proceedings, the Court could conceivably choose not to respond directly to the choice set out in the previous point. It is after all clear from the documents before the Court and the explanations provided by the Netherlands Government that, while the Kingdom of the Netherlands, initially, in accordance with the instruction issued by the Minister for Social Affairs and Employment in January 2011, refused to exercise the option provided for in Article 64(1)(c) in fine of Regulation No 883/2004, that Member State later, albeit without departing from the principle that applications for extension are generally refused, found itself ‘obliged’ (in the words of the Netherlands Government’s representative at the hearing before the Court), following a judgment of the Amsterdam District Court of 2 October 2011, to entrust the Uwv with the task of examining individual applications for extension, subject to the condition that it state the reasons on which decisions refusing extensions are based.

17. Effectively, then, the Kingdom of the Netherlands did exercise the option provided for in Article 64(1)(c) in fine of Regulation No 883/2004, by adopting a ‘not unless’ approach, to use the Commission’s expression, and the first question referred by the national court might therefore be answered on that premise.

18. It nevertheless seems essential to me that the Court settle the unequivocally the question of principle, set out in point 15 of the present Opinion, relating to the scope of Article 64(1)(c) in fine of Regulation No 883/2004, as it has been asked to do by the parties intervening before it. In any event, it falls to the Advocate General, in my view, to answer that question by providing the Court with some clarification, albeit not exhaustive, of the issue of the powers conferred on national authorities by the provisions of secondary EU law.

19. That said, while the Court has not as yet had the opportunity to interpret Article 64 of Regulation No 883/2004, it has nevertheless been called upon to clarify the scope of its precursor, namely Article 69 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. ( 6 )

20. That case-law contains some points of reference which, although useful for the purposes of disposing of the present case, are not decisive in my opinion, since the disputed clause (‘the competent services or institutions may extend the period of three months up to a maximum of six months’) is a new feature of Regulation No 883/2004. The case-law established under Regulation No 1408/71 is therefore an excellent starting point but it would be pointless, to my mind, to seek to infer from it an unequivocal answer to the first question referred by the national court, as the Commission attempted to do in its observations.

21. First of all, it is clear that the Court’s case-law relating to Article 69(1)(c) of Regulation No 1408/71 is still fully relevant as regards the three-month period provided for in Article 64(1)(c) ab initio of Regulation No 883/2004.

22. It is thus safe to say that that article enables a jobseeker to be exempt for a specific period, for the purpose of seeking employment in another Member State, from the obligation imposed by the various national laws to keep himself available to the employment services of the competent State without thereby losing his entitlement to unemployment benefits as against that State. ( 7 )

23. This is a ‘facility’, granted to a jobseeker with a view to promoting the free movement of persons, which gives him an advantage over a jobseeker who remains in the competent State, inasmuch as the former is freed for a period of three months of the duty to keep himself available to the employment services of that State and to be subject to the control procedure organised there, even though he must register with the employment services of the Member State to which he goes. ( 8 )

24. The fact that the duration of such a facility is limited to three months means that, on the expiry of that period, a worker who has not found employment in the State to which he has gone must, in principle, return to the territory of the competent State in order to remain eligible for unemployment benefits under the law of that State, failing which he will lose all entitlement to such benefits. ( 9 )

25. In other words, on the expiry of the three-month period, the competent State is once again authorised to make the payment of unemployment benefits subject to a condition of residence on its territory.

26. The Court has held that, by attaching conditions and limits to the right accorded by Article 69(1)(c) of Regulation No 1408/71, the Community legislature did not infringe the rules on the freedom of movement for workers in the Community. ( 10 )

27. It has also recognised that, other than in the situations governed by the provisions of Regulation No 1408/71, including those provided for in Article 69, the obligation to reside in the Member State in which the institution responsible for payment is situated, which is justified in domestic law by the need to monitor compliance with the statutory conditions governing the compensation paid to unemployed persons, is compatible with the freedom of movement and residence of citizens of the European Union. ( 11 ) As the Norwegian Government noted in its written observations, this is explained not least by the particular need which States have to monitor the conditions under which unemployment benefits are paid, such monitoring being ‘of a specific nature which justifies the introduction of arrangements that are more restrictive than those imposed for monitoring in respect of other benefits’. ( 12 )

28. Those principles are still relevant under Regulation No 883/2004.

29. For, on the one hand, as I have already indicated, Article 64(1)(c) of Regulation No 883/2004 guarantees the right to retain benefits for a period of three months from the date on which the unemployed person ceased to be available to the employment services of the Member State, while Article 64(2) of that regulation provides, in principle, that the unemployed person ‘shall lose all entitlement to benefits under the legislation of the competent Member State if he does not return there on or before the expiry of the said period’.

30. On the other hand, as all the parties acknowledged at the hearing before the Court, Article 64 of Regulation No 883/2004 is a lex specialis in relation to Article 7 of that regulation, which provides for the ‘waiving of residence rules’, but, in accordance with Article 63 of that regulation, only ‘in the cases provided for by [Article] 64 … and within the limits prescribed therein’.

31. An unemployed worker who satisfies all the conditions listed in Article 64 of Regulation No 883/2004 may thus be granted the right to export his unemployment benefits for a period of three months, pursuant to paragraph 1(c) of that article, it being prohibited, in accordance with Article 7 of that regulation, for the benefits paid during that period to ‘be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his family reside in a Member State other than that in which the institution responsible for providing benefits is situated’.

32. Article 7 of Regulation No 883/2004 may not, however, be applied in such a way as to exceed the conditions and limits which Article 64 of that regulation itself lays down, in particular those relating to the duration of the benefit export period. Nor may Article 7 of that regulation transform a right provided for in Article 64 of that regulation into an obligation.

33. It is therefore beyond a shadow of a doubt that a jobseeker cannot claim entitlement to export his unemployment benefits for a period in excess of three months up to a maximum of six months.

34. That finding flows from the very wording of Article 64(1)(c) in fine of Regulation No 883/2004, which states that the three-month period ‘may [be extended] … up to a maximum of six months’. ( 13 ) It is also corroborated by the travaux préparatoires ( 14 ) that led to the adoption of that provision, which show that the Commission’s initial proposal, to make the six-month export period compulsory, failed to win the endorsement of the Council (acting unanimously), the Member States having eventually agreed on a compromise form of words reflecting the current text of Article 64(1)(c) in fine of Regulation No 883/2004. ( 15 )

35. That finding does not, however, provide an answer to the question as to whether extending the unemployment benefit export period beyond three months is an option — as all of the interested parties agree — which is directed only at the employment services of the competent State and of which those services must therefore always be able to avail themselves in each individual case, or whether, on the contrary, the Member States may choose to waive that option.

36. That question has not been settled by the Court in its case-law for the simple reason that the optional regime provided for in Article 64(1)(c) in fine of Regulation No 883/2004 did not exist under Regulation No 1408/71.

37. As the Commission noted, in particular, it is true that, according to its wording, Article 64(1)(c) in fine of Regulation No 883/2004 grants the option of extending the payment of unemployment benefits beyond three months not to the competent (Member) State but to the ‘competent services or institutions’.

38. The Commission and the Czech and Polish Governments infer from this that the Member States have an obligation not to interfere with the discretion accorded to the competent services or institutions to examine whether the export period may be extended beyond three months in each individual case.

39. I am unconvinced by that line of argument.

40. First, if that were the case, the EU legislature would have allowed residence rules to be waived, as a matter of principle, for a period in excess of three months up to a maximum of six months.

41. Such a decision of principle, not least because of the significant consequences — both administrative, in relation in particular to the difficulties associated with monitoring the job-seeking activities of the persons concerned on a sustained basis in another country, and financial — which it would have for Member States paying unemployment benefits under their national law, should, in my view, be unambiguously apparent from the provisions of Regulation No 883/2004. It is important to note in this regard, as the Swedish Government does, that Article 64(1)(d) of that regulation states that benefits are to be provided by the competent institution ‘in accordance with the legislation it applies and at its own expense’. In the context of the option provided for in Article 64(1)(c) in fine of that regulation, the competent institution cannot therefore unfetter themselves from the statutory conditions applicable to the payment of unemployment benefits. Such conditions necessarily include those, adopted by way of national laws or regulations as the case may be, relating to the right of the national administrative body to provide its benefits for a period in excess of three months to a jobseeker who has travelled to another State bound by the provisions of Regulation No 883/2004.

42. Secondly, while it is true that Article 1q(i) of Regulation No 883/2004 defines ‘competent institution’ as meaning ‘the institution with which the person concerned is insured at the time of the application for benefit’, the wording of Article 64(1)(c) in fine of that regulation refers to the ‘competent services’, an expression which is not defined in that act and which, because general, could legitimately refer to any type of authority or body responsible for administering social security schemes or applying the legislation relating to them, depending on the legal order in each Member State.

43. The wording of Article 64(1)(c) in fine of Regulation No 883/2004 does not therefore support the conclusion that the EU legislature prohibited the Member States from limiting the export of unemployment benefits to a period of three months by obliging them to refrain from prohibiting, limiting or regulating the option available to their administrative bodies to extend that period up to a maximum of six months.

44. Thirdly, the finding just arrived at is not discredited by the Commission’s further argument, derived, by analogy, from the Court’s case-law relating to the interpretation of Article 69(2) of Regulation No 1408/71, which, according to the Commission, suggests that the competent employment services must always be in a position to verify the particular circumstances of each case.

45. In that regard, it should be recalled that Article 69(2) of Regulation No 1408/71 provided for the loss of all entitlement to unemployment benefits under the legislation of the competent State where the person concerned does not return to that State before the expiry of the three-month period. The second sentence of that provision mitigates the harsh consequence of an irredeemable loss of benefits in the event of late return by authorising the competent services or institutions to extend the three-month time limit ‘in exceptional cases’.

46. It is true, as the Commission submits, that the Court has acknowledged that the second sentence of Article 69(2) of Regulation No 1408/71 served to ensure observance of the principle of proportionality, whereby the competent services and institutions were to take into consideration in each particular case the extent to which the period of three months had been exceeded, the reason for the late return of the person concerned and the seriousness of the legal consequences arising from such a late return. ( 16 )

47. The Commission appears to infer from this that, in accepting that the employment services of the competent State may thus limit the legal consequences of losing the right to benefits, in exceptional cases, where the person concerned does not return to that State on the expiry of the three-month period, the Court has already recognised, at least implicitly, in the context of Regulation No 1408/71, that those same services may grant an extension to the right to benefits beyond the three-month period. It would follow, without, to my mind, betraying the logic of the Commission’s line of reasoning, that the right provided for in Article 64(1)(c) in fine of Regulation No 883/2004 effectively operates only to confirm the Court’s interpretation of Article 69(2) of Regulation No 1408/71.

48. I note, however, that, in its observations, the Commission overlooks the fact that Article 69(2) of Regulation No 1408/71 was replaced not by Article 64(1)(c) in fine of Regulation No 883/2004 but by Article 64(2) of that regulation.

49. That latter provision states, after all, that the person concerned is to lose all entitlement to benefits if he does not return on or before the expiry of the period within which he is entitled to benefits under Article 64(1)(c) of Regulation No 883/2004, except in exceptional cases where the competent services or institutions may allow the person concerned to return at a later date without losing his entitlement.

50. In that regard, it is understandable and logical that, in order to assess whether an event constitutes an ‘exceptional case’ (such as the onset of an illness or the occurrence of an accident) ( 17 ) warranting a derogation from the legal consequence of loss of entitlement to benefits that is triggered where the person concerned does not return to the competent State on the expiry of the period referred to in Article 64(1)(c) of Regulation No 883/2004, the competent authorities of a Member State should have to take into account the individual circumstances of each ‘person concerned’, as the Court has held in its case-law.

51. It is important to recognise that that case-law is still relevant, by analogy, to Article 64(2) of Regulation No 883/2004.

52. That finding means that the discretion which Article 64(2) of Regulation No 883/2004 gives to the competent services and institutions to verify the existence of an ‘exceptional case’ is exercised in the context of the application of the period during which the person concerned is entitled to benefits, that is to say during the three-month period or, if the Member State has exercised the option provided for in Article 64(1)(c) in fine of Regulation No 883/2004, during the subsequent period in cases where the jobseeker has been given an extension of the three-month period, as the case may be.

53. Consequently, the situation in which the competent employment services are permitted, in exceptional cases, to limit the legal consequences of loss of entitlement to benefits where the person concerned does not return on the expiry of the mandatory three-month period (or optional six-month period) cannot be regarded as comparable with the situation in which there is a need to ascertain whether, in a Member State, a worker is, in principle, eligible to have the three-month export period extended up to a maximum of six months.

54. If, as the Commission submits, Member States were obliged to entrust their respective administrative bodies with the task of assessing in every instance whether the three-month period may be extended up to a maximum of six months, the ‘exceptional case’ mentioned in Article 64(2) of Regulation No 883/2004 would be divested of any effectiveness. ( 18 ) For, in that event, any jobseeker unable to return to the competent Member State before the expiry of the three-month period would not need to claim to be an ‘exceptional case’ but would simply have to apply to have the three-month period extended up to a maximum of six months under Article 64(1)(c) in fine of that regulation.

55. The fact that the EU legislature decided to retain the possibility for jobseekers to claim to be ‘an exceptional case’ in order to mitigate the excessively abrupt application of the legal consequences of returning to the territory of the competent Member State after the expiry of the three-month period confirms that it necessarily acknowledged that the unemployment benefit export period could be limited to three months, in accordance with the choice made by the legislature itself to fulfil the obligation, arising from the task entrusted to it by Article 48 TFEU, to set up a system allowing workers to overcome any obstacles which may arise for them from national rules in the field of social security. ( 19 )

56. Consequently, in the light of the context and scheme of the provisions of Regulation No 883/2004 relating to jobseekers who go to another Member State, Article 64(1)(c) in fine of that regulation authorises the Member States not to exercise the option for which it provides and, consequently, not to extend the unemployment benefit export period beyond three months. ( 20 )

57. Such a conclusion is not, in my view, at odds with the objective pursued by Article 64 of Regulation No 883/2004 of encouraging the mobility of jobseekers. ( 21 ) For, on the one hand, jobseekers are already eligible to export their unemployment benefits for a period of three months. On the other hand, they cannot in any event assert a right to have the three-month period extended even if the authorities of a Member State have exercised the option provided by Article 64(1)(c) in fine of that regulation, given the silence of that regulation on the subject of the conditions and criteria applicable to the exercise of the discretion granted to those authorities by that provision. I shall return to this point later. ( 22 )

58. Fourthly, as an issue of principle, the point of contention between the interested parties with respect to the addressees of the option provided for Article 64(1)(c) in fine of Regulation No 883/2004 is not, in my view, far removed from that which was settled by the Court in the context of the interpretation of Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. ( 23 )

59. That article, entitled ‘Grounds for optional non-execution of the European arrest warrant’, allows ‘the executing judicial authority’ to refuse to execute such a warrant if, according to paragraph 6 of that article, it is issued for the purposes of execution of a custodial sentence, where the requested person is staying in, or is a national or a resident of, the executing Member State and that State undertakes to execute the sentence itself.

60. The question thus arose as to whether the implementation in national law of the ground for non-execution provided for in Article 4(6) of Framework Decision 2002/584 was left to the discretion of the Member States or was, on the contrary, compulsory, in which case ‘the executing judicial authority’ must always be free under national law to oppose the execution of a European arrest warrant in the circumstances set out in Article 4(6) of that framework decision, so as to increase the likelihood that the requested person will reintegrate into society at the end of the sentence imposed on him.

61. In his Opinion in Wolzenburg (C‑123/08, EU:C:2009:183, points 102 to 107), Advocate General Bot had proposed that the Court endorse the second interpretation, which is more faithful to the wording of Article 4(6) of Framework Decision 2002/584.

62. The Court held otherwise in its judgments of 5 September 2012, Lopes Da Silva Jorge (C‑42/11, EU:C:2012:517, paragraphs 35 and 50) and of 29 June 2017, Poplawski (C‑579/15, EU:C:2017:503, paragraph 21). It accepted that, notwithstanding Article 4(6) of Framework Decision 2002/584, which is directed at the executing judicial authority, the Member States were free to choose whether or not to implement in national law the ground for optional non-execution set out in that article.

63. In other words, Member States are not obliged to exercise the option provided for in Article 4(6) of Framework Decision 2002/584.

64. The same applies to the option provided for in Article 64(1)(c) in fine of Regulation No 883/2004.

65. It is true that the nature of the act at issue in the present case, a regulation, is, in principle, different from that of a framework decision.

66. For, unlike framework decisions adopted on the basis of the former Article 34(2)(b) TEU, which do not have direct effect, ( 24 ) a regulation is, pursuant to the second paragraph of Article 288 TFEU, to be binding in its entirety and directly applicable in all Member States, which means that its provisions do not, in principle, require the Member States to adopt implementing measures. ( 25 )

67. The fact remains, however, that, whatever the nature of the act in question, an option is still an option, the Court having recognised that a Member State which has chosen not to exercise such an option where this is offered under a Council regulation is not in breach of Article 288 TFEU. ( 26 ) Furthermore, as the Court regularly holds, it is apparent that the provisions of a regulation, notwithstanding its nature, may leave it to the Member States themselves to adopt the necessary legislative, regulatory, administrative and/or financial measures to ensure the effective application of those provisions. ( 27 )

68. In my view, Article 64(1)(c) in fine of Regulation No 883/2004 satisfies those two criteria.

69. In the first place, as I have indicated, Article 64(1)(c) in fine of Regulation No 883/2004 does not impose any obligation on Member States to ensure that the mandatory three-month time limit for exporting unemployment benefits may be extended up to a maximum of six months.

70. In the second place, where a Member State chooses to exercise the option under Article 64(1)(c) in fine of Regulation No 883/2004, it is important to note that that provision does not provide any criterion by reference to which the competent national administrative body will be able to extend the unemployment benefit export period up to a maximum of six months. Consequently, if it is to be fully operational and, by extension, to safeguard legal certainty and the equal treatment of applicants, that article requires the adoption of national measures specifying the conditions under which the extension of the three-month period will or will not be granted, or regulating the discretion left to the competent national administrative body by Article 64(1)(c) in fine of Regulation No 883/2004.

71. Does that finding support the inference that a Member State which, like the Kingdom of the Netherlands, has exercised that option may nevertheless decide to refuse, as a matter of principle, any application to extend the three-month period, unless, in the light of the particular circumstances of the case in question, the outcome of such a refusal would be unreasonable, that is to say, ultimately, disproportionate?

72. In principle, that question could conceivably be answered in the affirmative here and now, on the basis of the adage qui potest majus potest et minus.

73. The Commission, however, suggests that the question set out in point 71 of this Opinion should be answered in the negative. It submits that the competent national body should in any event be able to exercise its discretion according to the formula ‘yes, unless’ rather than the formula ‘not unless’.

74. I do not share that view.

75. For, on the one hand, as I have already mentioned, Article 64(1)(c) in fine of Regulation No 883/2004 does not lay down the criteria against which the competent national administrative body must examine an application to extend the three-month period; neither does it set out the detailed rules in accordance with which the discretion thus accorded to that administrative body must be exercised, as the Polish Government in particular essentially recognised.

76. On the other hand, while it is true that, in exercising its discretion, the competent national administrative body must also observe EU law, in particular the principles of non-discrimination and proportionality, that obligation does not mean that such a discretion must be exercised according to a single specified protocol such as ‘yes, unless’, as the Commission claims.

77. In other words, Article 64(1)(c) in fine of Regulation No 883/2004, read in the light of the principles of non-discrimination and proportionality, does not, in particular, preclude a Member State from establishing general, objective and non-discriminatory criteria governing the exercise of the discretion enjoyed by its administrative body by laying down the circumstances or scenarios in which the latter may exceptionally have to allow a jobseeker in another Member State to extend the export of his unemployment benefits up to the maximum period of six months.

78. Thus, to my mind, a Member State remains within the limits permitted by EU law in adopting measures under which an extension of the unemployment benefit export period up to a maximum of six months may be granted only if certain conditions are satisfied, such as those mentioned by the referring court to the effect that the person concerned must be in a process likely to lead to actual employment which requires his stay in the Member State in question to be extended, or that the jobseeker must have provided a declaration of intent from an employer in that Member State offering him a genuine prospect of employment. Such national measures may even strengthen the legal certainty of the persons concerned, by allowing them to know in advance the conditions and/or criteria on the basis of which the national administrative body will exercise its power of assessment, and facilitate any judicial review of the decisions adopted by that body.

79. Moreover, contrary to what the Commission claims, it is clear from the wording of the first question referred for a preliminary ruling and from the Uwv’s observations that that administrative body did not elect not to verify whether the particular circumstances of the present case warranted granting the appellant in the main proceedings an extension of the unemployment benefit export period beyond the three months already granted to him under Regulation No 883/2004.

80. I would add that the fact that the conditions and/or criteria applicable to the grant of an extension of the unemployment benefit export period are liable to vary between the Member States which have taken up the option provided for in Article 64(1)(c) in fine of Regulation No 883/2004 follows from the very discretion granted to those Member States by the EU legislature when that regulation was adopted.

81. Those disparities between the regimes and measures applied by the Member States which have taken up the option provided for in Article 64(1)(c) in fine of Regulation No 883/2004 were accepted by the EU legislature. ( 28 ) They cannot be regarded as restrictions on the free movement of workers since they result from the lack of harmonisation of the terms and conditions under which the administrative bodies of the Member States may extend the unemployment benefit export period up to a maximum of six months. ( 29 ) That finding also applies to the provisions of the EC-Switzerland Agreement concerning the free movement of workers, the scope of which is no more extensive than that of the corresponding provisions of the FEU Treaty.

82. It is not for the Court but for the EU legislature to mitigate or even put an end to those disparities, should the latter consider this necessary.

83. I therefore propose that the answer to the first question referred by the national court should be that, in the light of the freedom of movement for workers and the principles of non-discrimination and proportionality, the provisions of Regulation No 883/2004 do not preclude a Member State from exercising the option provided for in Article 64(1)(c) in fine of that regulation by refusing as a matter of principle to grant any application to extend the unemployment benefit export period beyond three months and up to a maximum of six months, unless the competent body of that Member State considers that, in the light of the particular circumstances of the case, in particular the existence of a concrete and demonstrable prospect of employment, it cannot reasonably refuse to extend the export period for those benefits.

84. In those circumstances, an answer to the second question referred — which concerns the detailed rules under which the Member States must exercise the option provided for in Article 64(1)(c) in fine of Regulation No 883/2004 — becomes superfluous. What is more, that question was raised only in the event that the first question is to be answered in the negative, which, for the reasons set out above, I am proposing should be found not to be the case.

IV. Conclusion

85. In the light of all the foregoing considerations, I propose that the answer to the request for a preliminary ruling from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands) should be as follows: In the light of the freedom of movement for workers and the principles of non-discrimination and proportionality, the provisions of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems do not preclude a Member State from exercising the option provided for in Article 64(1)(c) in fine of that regulation by refusing as a matter of principle to grant any application to extend the unemployment benefit export period beyond three months and up to a maximum of six months, unless the competent body of that Member State considers that, in the light of the particular circumstances of the case, in particular the existence of a concrete and demonstrable prospect of employment, it cannot reasonably refuse to extend the export period for those benefits.

( 1 ) Original language: French.

( 2 ) OJ 2004 L 166, p. 1.

( 3 ) Emphasis added.

( 4 ) OJ 2002 L 114, p. 6.

( 5 ) OJ 2012 L 103, p. 51.

( 6 ) OJ, English Special Edition 1971(II), p. 416.

( 7 ) See, to that effect, judgments of 19 June 1980, Testa and Others (41/79, 121/79 and 796/79, EU:C:1980:163, paragraph 4), and of 21 February 2002, Rydergård (C‑215/00, EU:C:2002:111, paragraph 17).

( 8 ) See, to that effect, judgment of 19 June 1980, Testa and Others (41/79, 121/79 and 796/79, EU:C:1980:163, paragraphs 5 and 13).

( 9 ) See judgment of 19 June 1980, Testa and Others (41/79, 121/79 and 796/79, EU:C:1980:163, paragraph 8).

( 10 ) See, to that effect, judgment of 19 June 1980, Testa and Others (41/79, 121/79 and 796/79, EU:C:1980:163, paragraphs 14 to 16).

( 11 ) See, to that effect, judgment of 18 July 2006, De Cuyper (C‑406/04, EU:C:2006:491, paragraphs 38 and 47).

( 12 ) Judgment of 18 July 2006, De Cuyper (C‑406/04, EU:C:2006:491, paragraph 45).

( 13 ) Emphasis added.

( 14 ) The Court now regularly takes account of travaux préparatoires as a source of interpretation of EU acts; see, in particular, on the subject of Regulation No 883/2004, judgment of 11 April 2013, Jeltes and Others (C‑443/11, EU:C:2013:224, paragraphs 33 and 34), and, more recently in other legislative contexts, judgments of 18 October 2016, Nikiforidis (C‑135/15, EU:C:2016:774, paragraph 45), and of 26 July 2017, Mengesteab (C‑670/16, EU:C:2017:587, paragraphs 89 and 90).

( 15 ) See, in that regard, respectively, Article 50(1)(d) of the Proposal for a Council Regulation (EC) on coordination of social security systems of 21 December 1998 [COM(1998) 779 final, p. 45], and point 3.3.9 of the Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on the coordination of social security systems, COM(2004) 44 final, p. 9. See also, on the Member States’ refusal to make it compulsory to extend the benefit export period to six months, Cornelissen, R., ‘The New EU Coordination System for Workers Who Become Unemployed’, European Journal of Social Security, No 3, 2007, p. 204. See also, on the current differences between the Member States, the explanatory memorandum to the Commission Proposal of 13 December 2016 for a Regulation of the European Parliament and of the Council amending Regulation No 883/2004 and Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004, COM(2016) 815 final, p. 7.

( 16 ) See, to that effect, judgment of 19 June 1980, Testa and Others (41/79, 121/79 and 796/79, EU:C:1980:163, paragraphs 21 and 22). See also judgment of 20 March 1979, Coccioli (139/78, EU:C:1979:75, paragraphs 8 and 9).

( 17 ) In the judgments of 20 March 1979, Coccioli (139/78, EU:C:1979:75) and of 19 June 1980, Testa and Others (41/79, 121/79 and 796/79, EU:C:1980:163), the Court was faced with situations in which the unemployed persons concerned had fallen ill before their return to the territory of the Member State which paid benefits to them.

( 18 ) I would recall that, in accordance with case-law, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness: see, in particular, judgments of 18 December 2008, Afton Chemical (C‑517/07, EU:C:2008:751, paragraph 43), and judgment of 10 September 2014, Holger Forstmann Transporte (C‑152/13, EU:C:2014:2184, paragraph 26).

( 19 ) See, by analogy, judgment of 11 April 2013, Jeltes and Others (C‑443/11, EU:C:2013:224, paragraph 40).

( 20 ) I would make the further point, albeit not crucial to the outcome of the case, that the Commission also appears to take the same view in the working document relating to the impact assessment of the Proposal for a Regulation of the European Parliament and of the Council amending Regulation No 883/2004 and Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation No 883/2004, submitted by the Commission on 13 December 2016, COM(2016) 815 final; see Commission Staff Working Document, Impact Assessment, Initiative to Partially Revise Regulation No 883/2004 and its Implementing Regulation (EC) No 987/2004, SWD (2015) 460 final, Part 1/6, p. 69, which states that, ‘under the current rules, Member States have a discretion to determine whether they export unemployment benefits only for the minimum period of three months or the maximum of six months’. According to that document, 11 Member States, not including the Kingdom of the Netherlands, currently refuse to apply such an extension.

( 21 ) See, by analogy with Article 69 of Regulation No 1408/71, judgment of 6 November 2003, Commission v Netherlands (C‑311/01, EU:C:2003:598, paragraph 39 and the case-law cited).

( 22 ) See points 70 to 82 of the present Opinion.

( 23 ) OJ 2002 L 190, p. 1.

( 24 ) See, in particular, on the subject of Framework Decision 2002/584/JHA, judgments of 5 September 2012, Lopes Da Silva Jorge (C‑42/11, EU:C:2012:517, paragraph 53) and of 29 June 2017, Poplawski (C‑579/15, EU:C:2017:503, paragraph 28).

( 25 ) See to that effect judgment of 15 March 2017, Al Chodor (C‑528/15, EU:C:2017:213, paragraph 27 and the case-law cited).

( 26 ) See judgment of 17 December 2015, Imtech Marine Belgium (C‑300/14, EU:C:2015:825, paragraphs 27 to 31).

( 27 ) See, in particular, judgments of 5 May 2015, Spain v Council (C‑147/13, EU:C:2015:299, paragraph 94); of 9 February 2017, S. (C‑283/16, EU:C:2017:104, paragraph 48); and of 15 March 2017, Al Chodor (C‑528/15, EU:C:2017:213, paragraph 27).

( 28 ) So far as is relevant, it is clear from the Commission working document (p. 69), cited in footnote 20 of this Opinion, that the criteria for extending the three-month period up to a maximum of six months vary significantly among the 15 Member States which allow for such extensions.

( 29 ) See, by analogy, judgment of 11 April 2013, Jeltes and Others (C‑443/11, EU:C:2013:224, paragraph 45).