Opinion of Mr Advocate General Tesauro delivered on 18 April 1991. - Jan van Noorden v Association pour l'Emploi dans l'Industrie et le Commerce (Assedic) de l'Ardèche et de la Drôme. - Reference for a preliminary ruling: Tribunal de grande instance de Valence - France. - Social security - Unemployment benefits. - Case C-272/90.



European Court reports 1991 Page I-02543



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Tribunal de Grande Instance, Valence, has requested the Court to give a preliminary ruling as to whether Articles 7 and 58 to 66 of the EEC Treaty and Article 67 of Regulation (EEC) No 1408/71 of the Council (1) allow a Member State to withhold unemployment benefits from a Community worker where he has never been subject to the legislation of the Member State in question.

Referring to the Report for the Hearing for matters of detail, I will briefly summarize the facts at issue in the main proceedings.

2. Mr Van Noorden, a Dutch citizen, worked from 1947 to 30 June 1985 in various States of the Community (Netherlands, Belgium and Federal Republic of Germany) and on 28 June 1986 established his residence in France (his wife being French) where he registered locally as being available for employment. He then asked the ASSEDIC (organization responsible for paying unemployment allowances) for Ardèche and Drôme to pay him unemployment benefits under French legislation.

Initially, the ASSEDIC informed Mr Van Noorden that he was entitled to unemployment benefit for 27 months; however, he received benefits for only three months.

The ASSEDIC' s change of position was prompted by Circular No 86-19 issued by UNEDIC (national association responsible for coordinating the activities of the various ASSEDICs), according to which, as from 1 July 1986, a Community worker is entitled to unemployment benefits only if his most recent employment was in France.

The ASSEDIC' s decision not to continue paying benefits to Mr Van Noorden beyond a period of three months was challenged by him before the national court, which decided to seek a preliminary ruling from the Court of Justice.

3. The question submitted does not raise particular problems, in view of the clarity of the applicable rules. The provisions of Article 67(1) and (2) of Regulation No 1408/71 require that, for the acquisition, retention or recovery of the right to unemployment benefits, account be taken, to the extent necessary, of periods of insurance or employment completed under the legislation of any other Member State. However, pursuant to paragraph 3 of the same article, the grant of unemployment benefits is to be conditional upon the unemployed person' s having lastly completed periods of insurance or of employment "in accordance with the provisions of the legislation under which the benefits are claimed": in other words, he must have completed periods of insurance or of employment in the State in which he claims benefit.

That is also expressly confirmed by Article 69(1)(c) of the same regulation which, laying down the conditions for continuing entitlement to benefits for an unemployed worker who goes to a Member State other than the State competent for the payment of benefits (which is precisely what happened in the present case), limits that entitlement to a maximum period of three months as from the date on which the person concerned ceased to be available to the employment services of the State which he has left. It is absolutely clear, therefore, that payment of the benefits by the institution in the State to which the unemployed person has moved will give rise to reimbursement under Article 70(1); however, that point is not at issue in the present case.

4. It is therefore obvious that the ASSEDIC was correct to pay Mr Van Noorden unemployment benefit only for three months; since Mr Van Noorden has never been subject to French social security legislation he cannot be entitled to benefits, under Article 67 of Regulation No 1408/71.

In that connection, and in further confirmation of my observations so far, I should point out that the Commission submitted to the Council a proposal for the amendment of Regulation No 1408/71, (2) which relates specifically to unemployed workers, in which it is proposed, inter alia, that an Article 69/a/ be inserted specifically to provide for the payment of unemployment benefits to unemployed workers who transfer their residence to a Member State with which they have close links (as might be Mr Van Noorden' s case), placing them on the same footing as workers who were subject to the legislation of that State when last employed.

It need merely be added that Articles 7 and 58 to 66 of the Treaty do not conduce to any other solution, in so far as there is nothing in the provisions at issue here to indicate any incompatibility with the Treaty provisions referred to.

5. In the light of the foregoing considerations, I therefore propose that the Court reply as follows to the question submitted by the Tribunal de Grande Instance, Valence:

"The relevant Community law, in particular Article 67 of Regulation (EEC) No 1408/71, does not prevent a Member State from withholding unemployment benefits from a worker beyond the maximum period of three months provided for in Article 69 of that regulation where the worker in question has never been subject to the social security legislation of the Member State concerned."

( *) Original language: Italian.

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

( 2) OJ 1980 C 169, p. 22.

Translation