CELEX: C1999/281/15
Language: en
Date: 1999-10-02 00:00:00
Title: Case C-277/99: Reference for a preliminary ruling from the Verwaltungsgerichtshof by order of that court of 29 June 1999 in the case of Doris Kaske v Landesgeschäftsstelle des Arbeitsmarktservice Wien

C 281/8                 EN                    Official Journal of the European Communities                                     2.10.1999
Reference for a preliminary ruling from the Verwaltungs-                     meaning of Article 67(3) of Regulation No 1408/71), but
gerichtshof by order of that court of 29 June 1999 in                        makes its application dependent — apart from the case of
the case of Doris Kaske v Landesgeschäftsstelle des                          reuniting a family — on 15 years’ residence in that State
                    Arbeitsmarktservice Wien                                 before the acquisition of the periods of insurance in the
                                                                             other Member State?
                          (Case C-277/99)                                (1) OJ, English Special Edition 1971 (II), p. 416.
                          (1999/C 281/15)
Reference has been made to the Court of Justice of the
European Communities by an order of the Verwaltungsge-                   Appeal brought on 28 July 1999 by Moccia Irme SpA
richtshof (Administrative Court) of 29 June 1999, which                  against the judgment delivered on 12 May 1999 by the
was received at the Court Registry on 26 July 1999, for a                Third Chamber, extended composition, of the Court of
preliminary ruling in the case of Doris Kaske v Landesgeschäfts-         First Instance of the European Communities in Joined
stelle des Arbeitsmarktservice Wien on the following questions:          Cases T-164/96, T-165/96, T-166/96, T-167/96, T-122/97
                                                                         and T-130/97, brought by Moccia Irme SpA, Prolafer Srl,
                                                                         Ferriera Acciaieria Casilina SpA, Dora Ferriera Acciaieria
1. Does the Court of Justice’s ‘Rönfeldt judgment’ [Case                 Srl, Ferriera Lamifer SpA and Nuova Sidercamuna SpA,
     C-227/89] apply also to a case in which a migrant worker                against Commission of the European Communities
     has made use of ‘freedom of movement’ (or more precisely,
     has anticipated it) before the entry into force of Regulation                                (Case C-280/99 P)
     (EEC) No 1408/71 (1), but also before the EC Treaty came
     into effect in her home State, that is, at a time when she
     could not yet rely on Article 39 et seq. EC (formerly                                         (1999/C 281/16)
     Article 48 et seq.) in the State of employment?
                                                                         An appeal against the judgment delivered on 12 May 1999 by
                                                                         the Third Chamber, extended composition, of the Court of
2. If the answer to Question 1 is affirmative:                           First Instance of the European Communities in Joined Cases
                                                                         T-164/96, T-165/96, T-166/96, T-167/96, T-122/97 and
                                                                         T-130/97, brought by Moccia Irme SpA, Prolafer Srl, Ferriera
     Does application of the Rönfeldt judgment to the insured            Acciaieria Casilina SpA, Dora Ferriera Acciaieria Srl, Ferriera
     risk of unemployment mean that a migrant worker may                 Lamifer SpA and Nuova Sidercamuna SpA, against the Com-
     rely on a legal position more favourable than Regulation            mission of the European Communities was brought before the
     No 1408/71 which derives from a bilateral convention                Court of Justice of the European Communities on 28 July
     between two Member States of the European Union (in this            1999 by Moccia Irme SpA, having its registered office in
     case, the Austro-German Convention on unemployment                  Naples (Italy), represented by Emilio Cappelli, Paolo De Caterini
     insurance) for the further duration of each period of               and Andrea Bandini of the Rome Bar, with an address for
     exercise of freedom of movement within the meaning of               service in Luxembourg at the Chambers of Charles Turk, 13B
     Article 39 et seq. EC (formerly Article 48 et seq.), and thus       avenue Guillaume, L-1651 Luxembourg.
     in particular also for claims which are raised after the
     return from the State of employment to the home State?              The appellant claims that the Court should:
                                                                         — set aside the judgment of the Third Chamber, extended
3. If the answer to Question 2 is affirmative: Must such claims              composition, of the Court of First Instance of the European
     be assessed in accordance with the (more favourable)                    Communities of 12 May 1999 in so far as it concerns the
     convention only in so far as they are based on periods of               appellant, Moccia Irme SpA (Case T-164/96);
     insurance under compulsory unemployment insurance
     which were acquired before the entry into force of                  — give judgment for the appellant in the terms sought by it
     Regulation No 1408/71 in the State of employment (in                    at first instance.
     this case, 1 January 1994)?
                                                                         Pleas in law and main arguments
4. If the answer to either of Questions 1 and 2 is negative or           (1) Breach and misapplication of Article 4(c) of the ECSC
     if the answer to Question 3 is affirmative:                             Treaty — Insufficient and contradictory grounds — Misuse
                                                                             of powers.
     Is it permissible from the point of view of the prohibition         (2) Breach and misapplication of Article 4(2), second indent,
     of discrimination under Article 39 EC (formerly Article 42)             of the Fifth Aid Code — No grounds stated — Misuse of
     in conjunction with Article 3(1) of Regulation No 1408/71               powers.
     if a Member State provides in its legal system, for the
     taking into account of periods of insurance completed in            (3) Breach of the principle of non-discrimination.
     another Member State, a more favourable provision that
     Regulation No 1408/71 (in this case, waiver of the require-
     ment of immediately preceding insurance within the