CELEX: 61975CC0027
Language: en
Date: 1975-07-09 00:00:00
Title: Opinion of Mr Advocate General Warner delivered on 9 July 1975. # Gaetano Bonaffini and others v Istituto Nazionale della Previdenza Sociale (INPS). # Reference for a preliminary ruling: Pretura di Enna - Italy. # Case 27-75.

OPINION OF MR ADVOCATE-GENERAL WARNER
      DELIVERED ON 9 JULY 1975
      
         My Lords,
      This case comes to the Court by way of a reference for a preliminary ruling by the Consigliere Pretore of Enna, in Sicily.
      The Plaintiffs in the proceedings before the Pretore are a number of Italian workers who, having been employed in the Federal Republic of Germany, became redundant there and returned to Italy. Being without employment in Italy also, they applied for unemployment benefit to the appropriate Italian institution, namely the Istituto Nazionale della Previdenza Sociale, which is the Defendant in the proceedings.
      The Plaintiffs claim to be entitled to unemployment benefit as persons fulfilling the conditions laid down by the relevant Italian legislation, namely Article 19 of R.D.L. No 636 of 14 April 1939. That Article provides:
      ‘In the event of involuntary unemployment due to lack of work, the insured, if he can prove at least two years of insurance and at least one year of contributions in the two year period preceding the commencement of the period of unemployment, is entitled to a daily allowance fixed in accordance with the amount of unemployment insurance contributions paid during the last contribution year preceding the application for allowances.’
      Whether the Plaintiffs, or any of them, in fact fulfil those conditions has so far been left undecided by the Pretore.
      The Plaintiffs' applications for unemployment benefit were refused by the Defendant in reliance on Article 69 of Council Regulation (EEC) No 1408/71 of 14 June 1971. This, Your Lordships remember, is the Regulation currently in force about the application of social security schemes to employed persons and their families moving within the Community. It was made under Article 51 of the EEC Treaty. Article 69 of the Regulation deals with unemployed persons going to a Member State other than ‘the competent State’. The expression ‘the competent State’ is defined for this purpose by Article 1 (q) of the Regulation by reference to the definition of the ‘competent institution’ in Article 1 (o). I need not, however, analyse these definitions because it is common ground that, in this case, ‘the competent State’ was the Federal Republic of Germany, as being the Member State where the Plaintiffs were last employed and insured.
      Article 69 provides in effect that an unemployed worker who is entitled to benefits under the legislation of the competent State and who goes to one or more other Member States in order to seek employment there shall remain entitled to those benefits under certain conditions and within certain limits. Among those conditions are that ‘before his departure, he must have been registered with the employment services of the competent State as a person seeking work and must have remained available for at least four weeks after becoming unemployed (OJ L 149 of 5. 7. 71, p. 2)’. This is subject to a power for the competent services or institutions of that Member State to authorize his departure before that time has expired.
      The ground upon which the Defendant rejected the Plaintiffs' applications was that the Plaintiffs had left Germany before the expiry of the four week period without obtaining authorization to do so.
      It seems that, before the Pretore, one or other of the parties — it is not clear which — also raised the question of the possible relevance of Article 71 of Regulation No 1408/71. This Article is about ‘Unemployed persons who during their last employment, were residing in a Member State other than the competent State’. The Article divides such workers into two categories, with which it deals differently, namely ‘frontier workers’ and others. Before the Pretore the Defendant contended that these ‘others’ comprised only seasonal workers, international transport workers, commercial travellers and diplomatic staff, who, though working abroad, remained resident in their own country.
      Be that as it may, the Pretore has referred to this Court two questions. First he asks the Court to clarify the expression ‘frontier worker’ in Article 71. His Order for Reference actually speaks of a‘lavoratore giornaliero’ (day-labourer) but this — as both the Defendant and the Commission agree (the Plaintiffs have not submitted Observations to this Court) — is an obvious slip for ‘lavoratore frontaliero’, there being no reference to a ‘lavoratore giornaliero’ in Article 71. Secondly the Pretore asks ‘whether Article 69, which lays down a waiting period of four weeks, precludes a worker who has failed to complete this period from obtaining unemployment benefit in the Member State to which he belongs’.
      Before this Court the Defendant has taken, as a preliminary point, the objection that those questions are inadmissible because their relevance depends upon whether the Plaintiffs are or are not entitled to unemployment benefit under Italian law taken alone. The Defendant submits that the Pretore should have answered that question first. My Lords, I would reject this point The Pretore was in my opinion perfectly entitled to seek from this Court answers to the questions of Community law that seemed to him to arise before himself answering the question turning on Italian law. No-one can say that those questions are manifestly irrelevant, which is the only ground on which this Court could decline to answer them — see for instance Case 13/68 the Salgoil case (Rec. 1968, p. 672).
      Adverting to the Pretore's questions. I think it convenient to discuss the second one, as to the effect of Article 69, first.
      My Lords, not the least curious feature of this case is that the Defendant, whilst it contended before the Pretore that the effect of Article 69 was, not only to preclude an unemployed person who failed to comply with its conditions from obtaining unemployment benefit in the ‘competent State’, but also to preclude him from obtaining any benefit to which he might otherwise be entitled in any other State, has in this Court argued for the contrary view, which is the view advanced on behalf of the Commission also.
      I do not doubt that the view thus now shared by the Defendant and the Commission, and for which, of course, the Plaintiffs contended before the Pretore, is the correct one. I do not even think it necessary, in order to reach that conclusion, to refer to the well-known principle, established by so many decisions of this Court, that the Regulations adopted by the Council under Article 51 of the EEC Treaty can only operate to confer on migrant workers and their dependants rights that they would not have had under national legislation taken alone, or greater rights than they would have had thereunder, and cannot operate to deprive them of rights that they have under such legislation. It seems to me that a straightforward reading of Article 69 shows that that Article is concerned only with laying down the conditions upon which (and limits within which) an unemployed person who goes to another Member State is to retain his rights in the ‘competent State’, and is not in the least concerned with his rights in any other State.
      Nor do I think that so to hold entails, as has been mooted, that, having regard to the principles of equal treatment and of non-discrimination enshrined in the Treaty, any unemployed migrant worker who is a national of a Member State other than Italy can, by going to Italy, become, without more, entitled to unemployment benefit there. Italy, it should be observed, is one of the Member States whose social security legislation does not discriminate between people on grounds of nationality (see R.D.L. No 1827 of 4 October 1935). In the case of such Member States, the provisions of the Treaty against discrimination are, in a sense, pro tanto otiose. The important fact, however, is that Italian law, as I have shown, makes a person's entitlement to unemployment benefit conditional upon minimum periods of employment and of contributory insurance in Italy. This is of course also the position in other Member States. So there is here no charter for the free movement of benefit-seekers within the Community.
      As regards Article 71 of Regulation No 1408/71, Your Lordships will have in mind that the Pretore asks the Court only one question, a question wholly related to paragraph 1 (a) of that Article, which deals with ‘frontier workers’. He asks the Court to clarify the expression ‘frontier worker’.
      As to that there is no difficulty, because that expression is defined by Article 1 (b) of the Regulation, which reads:
      ‘“frontier worker” means any worker employed in the territory of a Member State and residing in the territory of another Member State to which he returns as a rule daily or at least once a week; however, a frontier worker who is posted elsewhere in the territory of the same or another Member State by the undertaking to which he is normally attached and is prevented on account of such posting from returning daily or at least once a week to the place where he resides shall nevertheless retain the status of frontier worker for a period not exceeding four months.’ (OJ L 149 of 5. 7. 71, p. 2).
      In the written Observations submitted to the Court, and also at the hearing, there was a discussion, partly prompted by the Court itself, of the possible application to the Plaintiffs of paragraph 1 (b) of Article 71, which deals with the case of a worker, other than a frontier worker, who, during his last employment, was residing in the territory of a Member State other than the competent State. The question was in particular mooted whether the Plaintiffs might be entitled to the benefit of paragraph 1 (b) (ii) of Article 71, which entities such a worker, in certain circumstances, to unemployment benefit in the country of his residence. The answer to that question largely depends, in the case of each of the Plaintiffs, upon whether he was 'residing' in Italy whilst employed in Germany, which in turn depends of course on what is meant by ‘residing’ in this context. The Commission made some submissions on this, with which I broadly agree, and commented on a Decision, to which the Defendant had drawn attention, of the Administrative Commission on Social Security for Migrant Workers concerning the scope of Article 71 (1) (b) (ii), namely Decision No 94 of 24 January 1974 (OJ C 126 of 17.10.74, p. 22). Since, however, the Pretore asks no question on this subject, I do not, for my part, think that Your Lordships are called upon to deal with it.
      In the result, I am of the opinion that Your Lordships should answer the first question posed by the Pretore in the terms of Article 1 (b) of Regulation No 1408/71 and should answer the second question by saying that Article 69 of that Regulation is concerned only with the conditions subject to which (and limits within which) a worker may obtain unemployment benefit in the competent State and does not affect his entitlement to such benefit in any other State.