EN Official Journal of the European Union CE 88/301

(2004/C 88 E/0308)

WRITTEN QUESTION E-3676/02

by Toine Manders (ELDR) to the Commission

(18 December 2002)

Subject: Incapacity for work

A cross-border worker previously employed under an insurance system with benefits not based on the insured period (the Netherlands) and last employed subsequently under an insurance system with benefits that are insured-period-based (Germany) who becomes incapable of working is entitled, in principle, to Dutch and German disability benefit on a pro rata basis. The lack of harmonisation means that a cross-border worker may be declared completely unfit for work under Dutch law and completely fit for work under German law. Often — because they may have been covered for only a few years by an insurance system with benefits not based on the insured period (the Netherlands) — such cross-border workers will receive a small amount, on a pro rata basis, by way of disability benefit from the Netherlands (and no such benefit from Germany).

Where there is no longer a German employment contract, the question is which Member State is required to pay unemployment benefit. The country of residence (the Netherlands) will refuse to pay unemployment benefit because the person concerned is completely unfit for work. The question is whether there is an entitlement to German unemployment benefit.

1. Are cross-border workers resident in the Netherlands and declared completely unfit for work under Dutch law entitled to German unemployment benefit if they last worked in Germany and are not entitled to German disability benefit because, under German law, they are fit for work?

2. On what articles of Regulation (EEC) No 1408/71 (1) or, as the case may be, case law (Miethe, C-1/85) is this based?

3. Can the competent German authority (employment office) stipulate that, in order to qualify for German unemployment benefit, a cross-border worker resident in the Netherlands who becomes unemployed because his or her employment in Germany ends must have paid national insurance contributions in Germany for more than 50 % of the total period in which he or she has been in employment?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(27 January 2003)

The Commission wishes to inform the Honourable Member that Regulation (EEC) No 1408/71 (2) determines the Member State where an unemployed worker may request unemployment benefits: an unemployed worker who, during his last employment, did not reside in the Member State where he worked, shall receive unemployment benefits in accordance with the legislation of the Member State of residence according to Article 71 (1) (a) if he was a frontier worker — i.e. a worker who resides in one and works in another Member State and who returns to the Member State of residence regularly, but at least once a week. If he was a ‘person other than a frontier worker’ he has, according to Article 71 (1) (b), an option regarding the payment of unemployment benefits according to the legislation of the State of residence or according to the legislation of the State of last employment if he makes himself available for work to the employment service of either State.

Furthermore, the European Court of Justice in the case C-l/85 Miethe held that an ‘atypical frontier worker’ — i.e. a frontier worker who has exceptionally maintained personal and professional ties in the State of employment so that it is there that he has the best prospects of finding another job — must be regarded as a ‘person other than a frontier worker’ coming under the scope of Article 71 (1) (b). However, it is solely a matter for the national court to determine in an individual case whether a worker who resides in a State other than the State of employment has, nevertheless, maintained his best prospects of finding another job in that State and ought therefore to come under the scope of Article 71 (1) (b).

Therefore, the person referred to by the Honourable Member may request unemployment benefits under German legislation according to Article 71 (1) (b) either if he can be considered an ‘atypical frontier worker’ according to the ruling of the European Court of Justice in the Miethe case, or if he was a ‘person other than a frontier worker’. The fact that he receives a Dutch invalidity pension has no impact on this principal determination of Germany as the Member State competent for paying unemployment benefits.

However, whether the person will actually be entitled to receive German unemployment benefits depends upon him fulfilling the conditions stipulated by German legislation for receiving unemployment benefits. As Community law does not harmonise the social security schemes of Member States, but coordinates them, each Member State is competent to determine the conditions for receiving benefits. If, however, a national legislation requires completion of a certain insurance period before opening entitlement to a benefit (waiting period), and if a migrant worker has not been insured long enough under the legislation of this Member State to fulfill the waiting period, Regulation (EEC) No 1408/71 stipulates that insurance periods completed under the legislation of any other Member State must be taken into consideration as if they had been completed in the said Member State.

(1) OJ L 149, 5.7.1971, p. 2.

(2) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, Regulation updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ L 28, 30.1.1997).