Case C-313/01: Reference for a preliminary ruling by the Corte Suprema di Cassazione (Sezioni Unite Civili) by order of that court of 19 April 2001 in the case of Christine Valia Morgenbesser against Consiglio dell'Ordine degli Avvocati di Genova, Consiglio Nazionale Forense, Procuratore Generale presso la Corte Suprema di Cassazione
Date: 2001-10-13
Institutions: Court of Justice
Subjects: France, Italy, equivalence of diplomas, freedom to provide services, interpretation of the law, right of establishment

13.10.2001

EN

Official Journal of the European Communities

C 289/17

Action brought on 8 August 2001 by the Commission of
the European Communities against the Kingdom of the
Netherlands

(Case C-311/01)

(2001/C 289/32)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities
on 8 August 2001 by the Commission of the European
Communities, represented by H. Michard and H. van Vliet,
acting as Agents.

The applicant claims that the Court should:

— rule that, by refusing to allow wholly unemployed frontier
workers to make use of the possibility under Article 69
of Council Regulation (EEC) No 1408/71 of 14 June
1971 on the application of social security schemes to
to self-employed persons and to
employed persons,
members of their families moving within the Community
to move to the territory of one or more other Member
States for the purpose of seeking work while retaining
entitlement to unemployment benefit under the con-
ditions laid down in that article, the Kingdom of the
Netherlands has failed to fulfil
its obligations under
Articles 69 and 71 of that regulation;

— order the Kingdom of the Netherlands to pay the costs of

the proceedings.

Pleas in law and main arguments

The case concerns a simple cumulative application of Articles
71(1)(a)(ii) and 69 of Regulation No 1408/71. Under
Article 71(1)(a)(ii), a wholly unemployed frontier worker is
entitled to receive unemployment benefit in accordance with
the legislation of the Member State in whose territory he
resides as though he had been subject to that legislation while
last employed. The country of residence must
therefore
normally apply Article 69 of the regulation in the case where
the frontier worker in question wishes, for purposes of seeking
work, to move to a Member State other than that in which he
was previously working. If the frontier worker satisfies the
preconditions of Article 69 the facilities provided for under
that article ought to be made available to him. There is in this
case
benefits.
Article 71(1)(a)(ii) of the regulation does not provide for
exportation of unemployment benefit from the country in
which the person works to the country in which he resides;
the unemployment benefit is paid by and on behalf of the
authority of the place of residence and in accordance with the
criteria of the legislation of the country of residence. It is in
reality a benefit of the country of residence, to be paid by the

‘re-exportation’

question

no

of

of

authority of the country of residence, which is thus the
‘competent institution’ within the meaning of Article 1(o)(ii)
of the regulation. It is this benefit which may temporarily be
exported to another Member State pursuant to the rules in
Article 69 of the regulation within the context of the search
for work.

Article 69 of the regulation must for that reason normally be
applied by the State of residence in favour of the unemployed
frontier worker unless the latter moves to the State in which
he formerly worked and the general rule of the ‘lex loci laboris’
(Article 13(2)(a) of the regulation) becomes applicable once
more.

Reference for a preliminary ruling by the Corte Suprema
di Cassazione (Sezioni Unite Civili) by order of that
court of 19 April 2001 in the case of Christine Valia
Morgenbesser against Consiglio dell’Ordine degli Avvoca-
ti di Genova, Consiglio Nazionale Forense, Procuratore
Generale presso la Corte Suprema di Cassazione

(Case C-313/01)

(2001/C 289/33)

Reference has been made to the Court of Justice of the
European Communities by order of the Corte Suprema di
Cassazione (Sezioni Unite Civili) of 19 April 2001, received at
the Court Registry on 8 August 2001, for a preliminary ruling
in the case of Christine Valia Morgenbesser against Consiglio
dell’Ordine degli Avvocati di Genova, Consiglio Nazionale
Forense, Procuratore Generale presso la Corte Suprema di
Cassazione on the following question:

which is: whether,
irrespective of recognition and confir-
mation, an academic qualification obtained by a Community
national in a State of the Community (in this case, France) can
be relied upon automatically in another State (in this case
Italy), in the same way as the provisions of the EC Treaty cited
by the appellant concerning the right of establishment and
freedom to provide services (Articles 10, 12, 14, 39 and 43
EC, ex Articles 5, 6, 7a, 48 and 52) and also Article 149 (ex
Article 126) of the Treaty.