WRITTEN QUESTION E-2017/02

by Ieke van den Burg (PSE) and Anne Van Lancker (PSE) to the Commission

(9 July 2002)

Subject: Application of Regulation 1612/68 in the case of top-up payments to an unemployed cross-border worker

Is the Commission aware of the judgment of 21 March 2002 delivered by the court in s' Hertogenbosch in the case of Rita Lemmens-Lenaerts (Case 197850)? Ms Lemmens-Lenaerts lives in Belgium and was employed as a cross-border worker in the Netherlands. She lost her job and, under Regulation (EEC) 1408/71(1), is entitled to Belgian unemployment benefit. On the basis of a collective employment agreement (CEA) arrangement whereby the unemployment benefit is topped up to a percentage of the last gross salary payment, her former employer makes a supplementary payment, but bases it on a notional benefit paid in the Netherlands. Since the Belgian benefit is lower than the Netherlands one, there is a difference between her income and that of unemployed colleagues living in the Netherlands.

Does the Commission also take the view that the question here is whether the CEA entitlement formulated as a percentage of gross salary (being a social benefit pursuant to Article 7(2) and (4) of Regulation (EEC) 1612/68(2)) must result in the same level of (gross) income for an unemployed border worker receiving a benefit that must be paid in the country of residence (pursuant to Article 71(1)(a)(ii) of Regulation (EEC) 1408/71) as for colleagues resident in the country of employment?

Does the Commission not take the view that the Netherlands judge should also have referred to the case-law relating to Regulations 1408/71 and 1612/68, namely the Meints judgment (C-57/96) and the pension rights judgment (Commission/France C-35/97)?

What is the Commission's view on the possibility of finding a solution, when the planned revision of Regulation (EEC) 1408/71 takes place, to the above problem of unemployment benefit paid compulsorily in the country of residence and top-up payments related to benefits in the country of employment when cross-border workers are made redundant?

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

(2) OJ L 257, 19.10.1968, p. 2.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(27 August 2002)

The Commission confirms that it has noted the national court's judgment to which the Honourable Members refer. According to the information available to the Commission, the dispute concerns the calculation of an unemployment benefit supplement payable by the former employer established in the Netherlands, under a collective employment agreement, to an employee he has made redundant. The agreement in question apparently guarantees the payment by the employer of a supplement up to a certain percentage of the last gross salary.

The Commission feels that this advantage comes under the scope of Article 7 of Regulation (EEC) No 1612/68(1), which guarantees migrant workers the same rights and advantages as national workers, as confirmed by the Court of Justice in its judgments in the Meints (C-57/96)(2), Commission/France (C-35/97)(3) and Schöning-Kougebetopoulou (C-15/96)(4) cases.

However, the wording of the collective agreement in question would not appear to provide for migrant workers, especially frontier workers, to be treated differently from national workers. Payment of the supplement should guarantee all workers a certain percentage of their last gross salary.

On the other hand, the fact that in practice this supplement is calculated solely on the assumption that the person concerned receives the amount of unemployment benefit stipulated by Netherlands law does not seem to be compatible with Community law, especially Regulation (EEC) No 1612/68. Under Article 71(1)(a)(ii) of Regulation (EEC) No 1408/71(5), a frontier worker who is wholly unemployed is entitled to benefits in accordance with the provisions of the legislation of the Member State in whose territory he resides. This amount may differ from the amount provided for by the legislation of the former State of employment.

The Commission therefore feels that in calculating this supplement the former employer must consider the actual level of unemployment benefits received by the person concerned, particularly with reference to the provisions of Regulation (EEC) No 1408/71, with a view to effectively guaranteeing him or her payment of a supplement up to a certain percentage of the last gross salary.

In its proposal for a revision of Regulation (EEC) No 1408/71(6), the Commission has proposed that frontier workers who become unemployed should be entitled to unemployment benefits in accordance with the legislation of the Member State in which they were last employed. Adoption of this proposal would simplify the application of the collective agreement in question, as unemployed frontier workers would receive the same benefits as those who had been working in their own country.

(1) Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, OJ L 257, 19.10.1968.

(2) Judgment of 27 November 1997, ECR 1997, I-6689.

(3) Judgment of 24 September 1998, ECR 1998, I-5325.

(4) Judgment of 15 January 1998, ECR 1998, I-47.

(5) 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, OJ L 149, 5.7.1971. Regulation updated by Regulation (EC) No 118/97, OJ L 28, 30.1.1997.

(6) OJ C 38, 12.2.1999.