CELEX: C2001/289/32
Language: en
Date: 2001-10-13 00:00:00
Title: Case C-311/01: Action brought on 8 August 2001 by the Commission of the European Communities against the Kingdom of the Netherlands

13.10.2001              EN                   Official Journal of the European Communities                                     C 289/17
Action brought on 8 August 2001 by the Commission of                    authority of the country of residence, which is thus the
the European Communities against the Kingdom of the                     ‘competent institution’ within the meaning of Article 1(o)(ii)
                            Netherlands                                 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
                          (Case C-311/01)                               for work.
                         (2001/C 289/32)
                                                                        Article 69 of the regulation must for that reason normally be
                                                                        applied by the State of residence in favour of the unemployed
An action against the Kingdom of the Netherlands was brought            frontier worker unless the latter moves to the State in which
before the Court of Justice of the European Communities                 he formerly worked and the general rule of the ‘lex loci laboris’
on 8 August 2001 by the Commission of the European                      (Article 13(2)(a) of the regulation) becomes applicable once
Communities, represented by H. Michard and H. van Vliet,                more.
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
      employed persons, to self-employed persons and to
      members of their families moving within the Community
      to move to the territory of one or more other Member              Reference for a preliminary ruling by the Corte Suprema
      States for the purpose of seeking work while retaining            di Cassazione (Sezioni Unite Civili) by order of that
      entitlement to unemployment benefit under the con-                court of 19 April 2001 in the case of Christine Valia
      ditions laid down in that article, the Kingdom of the             Morgenbesser against Consiglio dell’Ordine degli Avvoca-
      Netherlands has failed to fulfil its obligations under            ti di Genova, Consiglio Nazionale Forense, Procuratore
      Articles 69 and 71 of that regulation;                                  Generale presso la Corte Suprema di Cassazione
—     order the Kingdom of the Netherlands to pay the costs of
      the proceedings.                                                                          (Case C-313/01)
                                                                                                (2001/C 289/33)
Pleas in law and main arguments
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Corte Suprema di
The case concerns a simple cumulative application of Articles           Cassazione (Sezioni Unite Civili) of 19 April 2001, received at
71(1)(a)(ii) and 69 of Regulation No 1408/71. Under                     the Court Registry on 8 August 2001, for a preliminary ruling
Article 71(1)(a)(ii), a wholly unemployed frontier worker is            in the case of Christine Valia Morgenbesser against Consiglio
entitled to receive unemployment benefit in accordance with             dell’Ordine degli Avvocati di Genova, Consiglio Nazionale
the legislation of the Member State in whose territory he               Forense, Procuratore Generale presso la Corte Suprema di
resides as though he had been subject to that legislation while         Cassazione on the following question:
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         which is: whether, irrespective of recognition and confir-
work, to move to a Member State other than that in which he             mation, an academic qualification obtained by a Community
was previously working. If the frontier worker satisfies the            national in a State of the Community (in this case, France) can
preconditions of Article 69 the facilities provided for under           be relied upon automatically in another State (in this case
that article ought to be made available to him. There is in this        Italy), in the same way as the provisions of the EC Treaty cited
case no question of ‘re-exportation’ of benefits.                       by the appellant concerning the right of establishment and
Article 71(1)(a)(ii) of the regulation does not provide for             freedom to provide services (Articles 10, 12, 14, 39 and 43
exportation of unemployment benefit from the country in                 EC, ex Articles 5, 6, 7a, 48 and 52) and also Article 149 (ex
which the person works to the country in which he resides;              Article 126) of the Treaty.
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