2.

On the question of unemployment benefit, the ninth recital in the preamble to Regulation (EEC) No 1408/71 declares that ‘in order to secure mobility of labour under improved conditions, it is necessary henceforth to ensure closer coordination between the unemployment insurance schemes and the unemployment assistance schemes of all the Member States’ and that ‘it is therefore particularly appropriate, in order to facilitate search for employment in the various Member States, to grant to an unemployed worker, for a limited period, the unemployment benefits provided for by the legislation of the Member State to which he was last subject’. These general intentions must be borne in mind for Articles 67 to 71, which appear under the heading ‘Unemployment’ in Chapter 6 of the regulation, to be understood. In accordance with Article 51 of the EEC Treaty, the essential objective of those articles is to enable workers who move about within the Community to aggregate, for the purpose of acquiring and retaining the right to benefits, all periods of insurance or employment taken into account under the various national laws of the Member States (Article 67) and, in addition, to retain his entitlement to such benefits notwithstanding that the worker has moved from one Member State to another (Article 69). It is clear that Regulation (EEC) No 1408/71 is intended to apply to persons in paid employment who move about in the Community or, to be more accurate, as the fourth recital makes clear, ‘to all nationals of Member States insured under social security schemes for employed persons’. In principle, therefore, students or former students cannot in that capacity avail themselves of it unless there are national laws which, for the purposes of granting social security benefits which are covered by the regulation, treat a student or former student on the same footing as an employed person. The application of the rule on aggregation referred to in Article 67 of the regulation accordingly takes for granted, in the first place, that, in the Member State where the graduate applies for unemployment benefit, the right to this benefit is subject to the completion of a specific period of insurance or employment or possibly to the completion of a period of study treated as a period of employment. Secondly, it is essential for the person concerned to have completed, under the laws of another Member State, periods of insurance or of employment or possibly studies treated as equivalent to periods of employment. But in this case the Belgian legislation referred to by the tribunal making the reference does not treat periods of study completed in Belgium and periods of employment as being in any way the same; as has been said, it does no more than provide for the grant of unemployment benefit to a person who has (not more than a year previously) completed a period of study in a Belgian establishment and in addition has worked as an employed person or has been for at least 75 days registered as a person seeking work. Nor, again, according to the statements in the Commission's observations, does the legislation of the Netherlands make any provision at all for the assimilation of the work of a student to that of an employed person for the purposes of the acquisition of the right to unemployment benefit. I note, incidentally, that Belgian laws on unemployment benefit for graduates in search of employment for the first time contain features which might perhaps justify describing them as social assistance rather than social security measures. But these features certainly do not justify the conclusion that the kind of unemployment benefit with which we are concerned lies completely outside the ambit of Regulation (EEC) No 1408/71, Article 4 (4) of which states that the regulation shall not apply to social assistance. I say this on at least two grounds: in the first place because in the declaration specifying the scope of the regulation (within the meaning of Article 5 thereof), Belgium has referred to the ‘legislation relating to unemployment insurance’, in its entirety, as coming within the ambit of the regulation and, secondly, because the tendency of this Court has been to regard the similarity between certain ill-defined social security benefits and those covered by Community regulations on social security as sufficiently strong to regard the former as coming within the scope of the regulation. In this connexion reference should be made to the judgment of 22 June 1972 in Case 1/72, Frilli v Belgium [1972] ECR 457, in which it was held that national legislation which has certain affinities with social assistance (in particular where it prescribes need as an essential criterion for its application and does not stipulate any requirement as to periods of employment, membership or contribution) nevertheless approximates to social security within the meaning of Regulation No 3 because it does not prescribe consideration of each individual case, which is the characteristic of assistance, and places those concerned in a clearly defined legal position giving them a right to a benefit which is analogous to the old-age pensions mentioned in Article 2 of Regulation No 3. The Court subsequently gave judgment to the same effect in the judgments of 9 October 1974 in Case 24/74, Caisse Régionale d'Assurances Maladie v Biason [1974] ECR 999, and of 13 November 1974 in Case 39/74, Costa v Belgium [1974] ECR 1251. Again, in the case of the retention of the right to social benefits for unemployment it is clear that the provisions of Article 69 require the unemployed person to have the status of ‘worker’ within the meaning of Regulation (EEC) No 1408/71; to satisfy the conditions laid down by the legislation of a Member State for the right to benefits; to have gone to another Member State in order to seek employment there; and to possess the qualifications laid down in subparagraphs (a), (b) and (c) of Article 69 (1), in particular to have been registered as seeking employment for at least four weeks before his departure. In order to reach the conclusion that the circumstances of this case undoubtedly fall outside the ambit of Article 69 it is enough to note not only that they involve a former student who is not treated as though he were an employed person but that, in any case, the person concerned had acquired no right to unemployment benefit in the State (the Netherlands) in which he had finished his studies. Nevertheless the question arises whether this is not a case for applying the provision in Article 71 (1) (b) (ii) of Regulation (EEC) No 1408/71 under which ‘a worker, other than a frontier worker, who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he resides, or who returns to that territory, shall receive benefits in accordance with the legislation of that State as if he had last been employed there’. Let us even suppose that, as a result of a liberal application of the principles laid down by this Court in its judgment of 17 February 1977 in Case 76/76 Di Paolo v Office National de l'Emploi [1977] ECR 315, the person concerned could be held to have retained his residence in his country of origin (Belgium) despite the long absence. Even in that case, the provision referred to would not apply. It is clear from the first part of the provision and from the title of the section in which it appears (‘Unemployed persons who during their last employment were residing in a Member State other than the competent State’) that there is an assumption in this case, too, that the individual concerned has acquired a right to unemployment benefits in the country where he was employed or treated as though he were employed. The provision referred to goes no further than to create an exception in certain specific cases from the rule in Article 67 (3) that the unemployed worker can claim unemployment benefits only if he has completed lastly periods of insurance or of employment in accordance with the provisions of the legislation under which the benefits are claimed. But the derogation does nothing more than allow the worker to claim the benefits from the State in which he resides instead of the State in which he has completed his latest periods of insurance or employment. The conclusion is therefore inevitable that the provisions relating to unemployment contained in Regulation (EEC) No 1408/71 cannot be interpreted in such a way as to vest a person who has completed a period of study in a Member State with the right to an unemployment benefit which another Member State grants to anyone who has completed studies in its own educational establishments and who is seeking employment for the first time.