Opinion of Mr Advocate General Lenz delivered on 3 July 1991. - Caisse auxiliaire d'assurance maladie-invalidité and Institut national d'assurance maladie-invalidité v Napoléon and Jocelyne Faux. - Reference for a preliminary ruling: Cour du travail de Mons - Belgium. - Social security for frontier workers - Regulation Nº 36/63/EEC. - Case C-302/90.



European Court reports 1991 Page I-04875



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. I consider the following observations to be appropriate in connection with the reference to the Court by the Cour du Travail (Higher Labour Court), Mons, concerning the interpretation of certain provisions of Community law on social security for migrant workers.

Observations

2. 1. The first question seeks to clarify whether Articles 1(1)(c) and 2(1) in conjunction with Article 19(1) of Regulation No 36/63 (1) are to be interpreted as meaning that a French woman residing in France who for almost 14 years was employed exclusively in Belgium lost her status as a frontier worker within the meaning of Article 1(1)(c), which was recognized at the time of her dismissal on 4 December 1970, on account of the fact that she became wholly unemployed and thus during the period from 25 February 1971 to 11 October 1971 received benefits from the French institution of her place of residence pursuant to Article 19(1) of Regulation No 36/63, although she apparently retained that status according to Article 2(1) and Article 19(1) of that regulation.

3. In that respect, it should be recalled that according to Article 1(1)(c) of Regulation No 36/63 the expression "frontier worker" means workers who while maintaining their place of residence on the territory of one of the Member States pursue their occupation on the territory of another Member State and normally return to their place of residence daily or at least once a week; that according to Article 2 of that regulation its provisions are to apply to frontier workers who are or have been subject to the legislation of one or more Member States; and that Article 19 of the regulation provides that in the event of unemployment frontier workers are to be entitled to benefits according to the provisions of the legislation of the Member State on whose territory they reside as though they had last been employed on the territory of that State.

4. It should also be recalled that the clarification sought is considered important in regard to claims by the original respondent, a former frontier worker (who resided in France and was employed in Belgium), for benefit in respect of her initial incapacity for work (from 12 October 1971) and sickness benefit (from 12 October 1972).

5. Those benefits were refused by the appellant by reference to the Belgian Law of 9 August 1963; and more particularly by reference to the fact that at the time of initial incapacity for work, the original respondent had ceased to be covered by Belgian insurance for more than 30 days (and thus did not fulfil the requirement laid down in Article 75 of that law). In proceedings, the claims were, however, recognized by a judgment of the competent court of first instance in 1976, in which it was essentially held that the original respondent' s unemployment supervised in France was to be treated as a period supervised in Belgium. Since an appeal was brought against that judgment and the proceedings were resumed in 1989 by the heirs of the claimant, who died in 1983, the claims now form the subject-matter of the proceedings before the Cour du Travail, Mons, which has requested the Court to give a preliminary ruling.

6. Before that court the appellant is known to have taken the view that, at the time when she became unemployed (4 December 1970), the original respondent was no longer a frontier worker within the meaning of Regulation No 36/63. Thus, for benefits for her initial incapacity for work she was unable to rely on Article 6 of that regulation; on the other hand, she was entitled to claim from the time when her incapacity for work occurred (12 October 1971) under Article 17 of Regulation No 3 (2) and claim invalidity benefit (from 12 October 1972) under Article 39 of Regulation No 1408/71, (3) which means that benefits were to be paid by the French insurance institution.

7. The view taken by the appellant in these proceedings is on these lines. It believes that at the time she became unemployed the original respondent was able to claim benefits in kind (for sickness) pursuant to Article 10 of Regulation No 36/63 only from the French social security. However, she was not entitled to cash benefits under Article 6 of Regulation No 36/63, since as an unemployed person she no longer satisfied the definition (cited above) contained in Article 1(1)(c); in support of that view reference may also be made to the view adopted by the Administrative Commission on Social Security for Migrant Workers in its 54th Session concerning the interpretation of the expression "pursues his occupation" in Article 1 of Regulation No 36/63.

8. That is emphatically opposed in these proceedings by both the respondents in the main proceedings and the Commission.

9. It appears to me - if I may say so immediately - that the view expressed by them clearly has more to be said for it than does the appellant' s, and that, accordingly, the first question cannot be answered in the manner proposed by the appellant.

10. Although undeniably the wording of Article 1(1)(c) of Regulation No 36/63 (the expression frontier worker means an employed person who pursues his occupation) is as unambiguous as it could possibly be, it surely cannot be appropriate, when determining the scope of Regulation No 36/63, to attach too much importance to the words cited, which are taken from a provision applicable to the typical frontier worker (and thus merely contain a statement of principle). Indeed, Article 2 (according to which the provisions of the regulation are also to apply to frontier workers who are or have been subject to the legislation of one or more Member States) itself militates in favour of a wider scope. In particular, however, reference may also be made to the wording to be found in Article 19 (and in Article 10) of the regulation. From the fact that, on the one hand, unemployed frontier workers are to be entitled to benefits under the legislation of the Member State on whose territory they reside (Article 19) and, on the other hand, that a frontier worker entitled under Article 19 to unemployment benefits is to be entitled during the same period to benefits in kind from the institution of his place of residence, (Article 10), it may be inferred that, precisely because claims are granted to the persons concerned as frontier workers despite their being unemployed, the status of frontier worker within the meaning of the regulation is not lost on termination of employment but is retained for as long as payments are made to the "former" frontier worker.

11. That clearly cannot be altered, in my opinion, by the deliberations of the Administrative Commission on Social Security for Migrant Workers at its 54th Session. The overall content of the document submitted to the Court in that connection clearly reveals that the only issue at that time was whether frontier workers in receipt of benefits for partial or intermittent unemployment are to be regarded as "pursuing [an] occupation". There was, however, no question of a detailed investigation of the problem of the interpretation of Article 1(1)(c) of Regulation No 36/63, and certainly no argument can be based on the fact that wholly unemployed frontier workers were not also mentioned at that time. Moreover, it should be pointed out that, according to the case-law (see for example judgment in Case 21/87 (4)), decisions of the Administrative Commission on Social Security for Migrant Workers do not have the force of law and cannot therefore be an authoritative guide to the interpretation of relevant provisions. The actual scope of a provision must instead be left to the interpretation of the Court.

12. The second question, to which I now turn, concerns the problem whether the original respondent could claim benefit for her initial incapacity for work from the Belgian institution from 12 October 1971 pursuant to Article 6 of Regulation No 36/63 and thereafter invalidity benefit.

13. Article 6 of Regulation No 36/63 referred to in the question, in the chapter on Sickness and Maternity, provides that cash benefits which a frontier worker can claim or could claim if he resided on the territory of the competent State are to be paid to him by the competent institution as though he resided on the territory of that State. If it is assumed - as has been done in the answer to the first question - that the original respondent continued to be a frontier worker also after she became unemployed, it follows from the provision cited that cash benefits were actually to be paid during sickness by the insurance institution of the State of employment (which, incidentally, corresponds to a general principle governing the subject-matter, to which the Commission' s representative rightly referred at the hearing), that is to say, that benefits in respect of the initial incapacity for work were payable in accordance with Belgian law. What was not relevant, however - and the appellant was wrong to think that it was -, was the reference to Article 17 of Regulation No 3, in the chapter on Invalidity and Maternity, which provides that workers who have completed periods of insurance pursuant to the legislation of one or more Member States and go on to the territory of another Member State are to be entitled to the benefits provided for by the legislation of that Member State on certain conditions (that they were fit for work when they last entered the territory of that Member State and that they were liable to pay compulsory insurance after they last entered that territory).

14. As to the benefits claimed - from 12 October 1972 - for invalidity, Regulation No 1408/71, which entered into force on 1 October 1972, is clearly applicable. However, - as the Commission has also rightly emphasized - reliance cannot be placed on Article 39(5) in the chapter on "Invalidity", which provides that

"A wholly unemployed worker to whom the provisions of Article 71(1)(a)(ii) and of the first sentence of Article 71(1)(b)(ii) apply shall receive the invalidity benefits provided by the competent institution of the Member State on whose territory he resides, and in accordance with the legislation which it administers, as though he had been subject to that legislation during his last employment ... The institution of the country of residence shall be responsible for paying these benefits."

15. That provision was introduced by Regulation No 2793/81, (5) which came into force on the day of its publication (29 September 1981). It therefore cannot be applied to the case pending in the main proceedings, which concerns incapacity for work which was established as from 12 October 1971 and continued until retirement age (30 September 1980). The provisions to be applied to that case are instead those in force at the material time, namely the first two paragraphs of Article 39, which provide that:

"The institution of the Member State, whose legislation was applicable at the time when incapacity for work followed by invalidity occurred, shall determine, in accordance with that legislation, whether the person concerned satisfies the conditions for entitlement to benefits, taking account, where appropriate, of the provisions of Article 38.

A person who satisfies the conditions referred to in paragraph 1 shall obtain the benefits exclusively from the said institution, in accordance with the legislation which it administers."

16. Since, however, - as we have seen - Belgian law was to be applied at the time when the incapacity for work occurred (12 October 1971), in accordance with Article 6 of Regulation No 36/63 and, pursuant to that law, benefit in respect of the initial incapacity for work is to be paid for one year, it must be stated that it is to be determined under that law whether the conditions for entitlement to invalidity benefits are fulfilled.

17. It is in that sense that the second part of the second question must be answered, and in general terms that means - if I am correct - that, contrary to the view taken by the appellant, the conditions of Article 75 of the Belgian Law of 9 August 1963 are fulfilled, precisely because the original respondent - despite being unemployed - was insured in accordance with Belgian law until 12 October 1972, or at least until the abrogation of Regulation No 36/63, which was repealed by Article 100 of Regulation No 1408/71.

18. 3. The third question - which, consequently, (as the Commission' s Agent rightly pointed out), actually no longer calls for a reply - seeks to resolve the problem whether, in view of the fact that a frontier worker who had become unemployed was obliged to claim benefits in the State of residence (as Article 19 of Regulation No 36/63 provided), it is to be assumed that the period of unemployment in France, although not recognized there as a period of insurance or a period treated as such or an equivalent period, must be accepted in Belgium, the country of the place of previous employment, as a period of insurance or a period treated as such or an equivalent period.

19. The appellant, referring to the definition contained in Article 1 of Regulation No 3, has suggested a negative reply to that question. Under that provision, it is essential that the expression "insurance periods" should include contribution periods or periods of employment as defined or reckoned as insurance periods under the legislation concerning a contributory system under which they were completed, and it is also important that the expression "assimilated periods" should mean periods treated as insurance periods or, where applicable, as periods of employment, as defined in the legislation under which they were completed, in so far as they are therein regarded as equivalent to insurance periods or periods of employment (Article 1(p) and (r) ). Since, however, unemployment is not recognized in France as a period of insurance or a period treated as such or an equivalent period, neither can it be taken into consideration in the main proceedings so as to found a claim for benefits.

20. In their opposing viewpoint, the respondents are proceeding on the assumption that under Belgian social security law periods of unemployment are treated as equivalent to periods of insured activity. Furthermore, they take the view that, having regard to the fact that the original respondent was obliged by Community law to claim unemployment benefit in her State of residence and not in her State of employment (see Article 19 of Regulation No 36/63), Belgian law must properly be interpreted in the light of Community law, with the consequence that in the case of frontier workers periods of unemployment in respect of which benefits were granted in the State of residence must also be treated as equivalent periods.

21. On this point also, to my mind, preference is to be given to the respondents' view rather than to the formalistic and narrow opinion of the appellant.

22. That is supported by the tendency which can be detected in the case-law, according to which the regulations concerning social security for migrant workers are to be interpreted widely in the interest of the Treaty objectives pursued by them and in such a way that freedom of movement does not lead to the loss of advantages arising from a legal system applicable to a case. It was shown in Case 733/79, (6) - to give but one example -, which concerned the interpretation of Article 77 of Regulation No 1408/71 on the payment of benefits for children. Referring to the fact that the Community rules are to be applied in such a way as not to lead to a reduction in the benefits payable by virtue of the legislation of a Member State, the Court reached the conclusion (certainly not suggested by the wording of the provisions) that - if the benefits in the State of residence, which is responsible for payment, do not reach the level of benefits in the State of employment- it is for the latter State to pay the difference.

23. On the basis of that fundamental orientation, the considerations put forward by the respondents must be recognized as plausible - as the Commission' s Agent also felt at the hearing. Thus, if under Belgian law periods of unemployment are in fact regarded as periods of insurance for the purposes of the acquisition of invalidity benefits (which appears to be borne out by Article 45 of the Belgian law referred to), a worker in the special situation of a frontier worker must not be placed at a disadvantage on account of the fact that he is not looked after during unemployment by the State of employment (which would be the obvious solution), but by virtue of Community law is referred to his State of residence, which appears not to recognize such equivalence. Otherwise the consequence in such a case of the exercise of the right of freedom of movement and the application of Community law would be a loss of rights, which would certainly not be compatible with the objectives pursued by Article 48 of the EEC Treaty.

Opinion

24. On the basis of all the foregoing (in the light of the matters clarified thus far, there is no need, it seems to me, to examine the fourth question, which was submitted only in the alternative), I consider it appropriate that the Court give the following answers to the questions:

(a) Regulation No 36/63 must be interpreted as meaning that the status of frontier worker is not lost through dismissal and the ensuing unemployment and receipt of benefits under Article 19 of the regulation;

(b) a frontier worker who had become unemployed was entitled, as long as Regulation No 36/63 was applicable, to claim cash benefits pursuant to Article 6 under the legislation of the State of employment. Claims to invalidity benefits for a period beginning after Regulation No 1408/71 entered into force and ending before Regulation No 2793/81 entered into force are to be assessed in accordance with Article 39(1) and (2) of Regulation No 1408/71.

(c) If in the State of employment of a frontier worker who has become unemployed periods of unemployment are recognized as periods equivalent to insurance periods for the payment of benefits during incapacity for work, it cannot be inferred from the fact that the frontier worker was required under Article 19 of Regulation No 36/63 to claim unemployment benefits in his State of residence, and from the fact that in that State periods of unemployment are not recognized as equivalent periods, that in such a case the State of employment is likewise not to regard periods of unemployment as equivalent periods.

(*) Original language: German.

( 1) Journal Officiel 1963, 62, p. 314.

( 2)2 Journal Officiel 1958, 30, p. 561.

( 3)3 Regulation (EEC) No 1408/71 of the Council of 14 June 1971, OJ, English Special Edition 1971 (II), p. 416.

( 4)4 Judgment in Case 21/87 Borowitz v Bundesversicherungsanstalt fuer Angestellte [1988] ECR 3715.

(5) OJ 1981 L 275, p. 1.

(6) Case 733/79 CCAF v Laterza [1980] ECR 1915.