CELEX: 61976CC0076
Language: en
Date: 1977-01-26
Title: Opinion of Mr Advocate General Capotorti delivered on 26 January 1977. # Silvana di Paolo v Office national de l'emploi. # Reference for a preliminary ruling: Cour de cassation - Belgium. # Case 76-76.

OPINION OF MR ADVOCATE-GENERAL CAPOTORTI
      DELIVERED ON 26 JANUARY 1977 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      
               1. 
            
            
               By a judgment which reached the Court on 28 July 1976 the Belgian Cour de Cassation requested pursuant to Article 177 of the EEC Treaty an interpretation of Article 71 (1) (b) (ii) of Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community. In essence, that provision confers upon an unemployed worker who returns to his country of residence the right to social security benefits in accordance with the laws of that country even if there previously existed no connexion by way of insurance or even any kind of work under those laws.
               The question of interpretation arose in the course of proceedings instituted by an Italian national against the Belgian Office National de l'Emploi (the National Employment Office). The proceedings resulted from the refusal of the Office to grant the person concerned the unemployment benefits which she claimed on returning to the family home in Belgium after working for some time in the United Kingdom. It should be explained that the applicant, who was born in Italy, moved to Belgium with her parents in 1965, where she settled and attended the commercial department of the lower technical secondary school and the secretarial and language department of the higher technical secondary school, completing her studies in June 1972. In September 1972 she moved to England, apparently with the principal aim of improving her knowledge of the English language. To meet the expenses of her stay she worked in a hospital as a ‘domestic assistant’ until the end of July 1973; then she returned to Belgium.
               It is clear from the judgment of the Belgian Cour de Cassation making the reference that during her stay in England the applicant maintained her residence in her parents' home in Belgium. Returning home to live with her parents after approximately eleven months she claimed that she was covered by Article 67 (1) of Regulation No 1408/71 which provides: ‘The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits subject to the completion of insurance periods shall take into account, to the extent necessary, periods of insurance or employment completed under the legislation of any other Member State, as though they were periods completed under the legislation which it administers, provided, however, that the periods of employment would have been counted as insurance periods had they been completed under that legislation’. Article 67 (3) indeed provides that the said paragraph (1) applies only if the person concerned has completed lastly periods of insurance in accordance with the provisions of the legislation under which the benefits are claimed; on the other hand, as we have seen, the applicant was last employed in England. However, by way of exception, the same paragraph (3) does not apply to the cases provided for in the said Article 71 (1) (b) (ii) of Regulation No 1408/71 concerning the rights of unemployed persons who resided during their last employment in a Member State other than the State competent to pay the benefits. According to that provision, “a worker, other than a frontier worker, who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he resides, or who returns to that territory, shall receive benefits in accordance with the legislation of that State as if he had been last employed there; the institution of the place of residence shall provide such benefits at its own expense”.
               Under Belgian legislation unemployment benefit is granted to a worker who has accumulated one hundred and fifty working days or assimilated days in the course of the ten months preceding his claim.
               In its ruling of 28 October 1974 in the proceedings instituted by the worker concerned against the Office National de l'Emploi, the Tribunal du Travail, Brussels, ruled that all the conditions required by Community law and Belgian law for recognizing the applicant's entitlement to the benefits which she claimed were fulfilled.
               On the other hand, the Cour du Travail, Brussels, before which the Office National de l'Emploi contested the said ruling, took a different view. The Cour du Travail, Brussels, an appellate court, held in its ruling of 19 June 1975 that the person concerned did not fulfil the conditions required by the said Article 71 (1) (b) (ii) of Regulation No 1408. It adopted this view on the basis of Decision No 94 of the Administrative Commission of the European Communities on Social Security for Migrant Workers of 24 January 1974 which provided an interpretation of the abovementioned provisions. I shall consider the content and status of this decision a little later.
               The Belgian Cour de Cassation to whom the unemployed worker appealed aginst the judgment of the appeal court, submitted to the Court of Justice the following request for a preliminary ruling:
               'What meaning and scope are to be given the words “in which he resides or who returns to that territory” contained in Article 71 (1) (b) (ii) of Regulation (EEC) No 1408/71 of the Council of the European Communities and in particular as regards the concepts of residence and return to the territory, what are the criteria applicable and at what point of time must the conditions of residence and return to the territory be fulfilled?
            
         
               2. 
            
            
               Leaving aside the question of the wide and general wording of the request for a preliminary ruling the Court is in essence required to establish whether in a case of the type described above an unemployed worker may rely upon Article 71 (1) (b) (ii) of Regulation No 1408/71
               In this connexion it is necessary to recall that that provision represents an exception not only with regard to the said rule laid down in Article 67 (3) of Regulation No 1408/71 but also with regard to the rule contained in Article 69 (1) (c) of the same regulation. Indeed, in accordance with the former provision, unemployment benefits are granted provided that the unemployed person has completed lastly periods of insurance or of employment in accordance with the provisions of the legislation under which the benefits are claimed. On the other hand, when the latter provision lays down the conditions whereby the unemployed worker retains his right to benefits when he moves to a Member State other than the State which is competent to grant the benefits, this right is limited to a maximum period of three months from the date when the person concerned ceased to be available to the employment services of the State which he left.
               In all probability it was the derogatory nature of the rule in question which prompted the Administrative Commission of the European Communities on Social Security for Migrant Workers to adopt the view to which, as I have already said, the Cour du Travail, Brussels, accorded decisive weight. In its decision of 24 January 1974, which was applicable retroactively from 1 October 1972, the Administrative Commission intended to provide a clearer definition of the scope of Article 71 (1) (b) (ii) of Regulation No 1408/71. The Commission stated that, in addition to seasonal workers, that provision was also applicable to:
               
                        (a)
                     
                     
                        workers employed in international transport as referred to in Article 14 (1) (b);
                     
                  
                        (b)
                     
                     
                        workers other than workers employed in international transport who normally pursue their activity in the territory of several Member States as referred to in Article 14 (1) (c);
                     
                  
                        (c)
                     
                     
                        workers employed by an undertaking straddling a common frontier as referred to in Article 14 (1) (d);
                     
                  in such cases where they are residing in a Member State other than the competent State.
               In the preamble to this decision the Administrative Commission noted that although a transfer of responsibility for the payment of benefits from the country of employment to the country of residence, as is provided for in Article 71 (1) of Regulation No 1408/71, is acceptable in the case of frontier workers and of seasonal workers and of certain categories who likewise retain close links with their country of origin, it would no longer be acceptable if, by too broad an interpretation of the term “residence”, the field of application of that provision were to be extended to all migrant workers who have fairly stable employment in a Member State and who have left their families in their country of origin. The Commission therefore maintained that, apart from the cases which it indicated, the basic presumption must be that a worker who has fairly stable employment in a State is also resident there.
               In order to determine the scope of this decision in relation to the present case its legal status must first be established.
               The Administrative Commission on Social Security for Migrant Workers for which provision is made in Title IV of Regulation No 1408/71, is required inter alia to deal with all administrative questions and questions of interpretation arising from the provisions of Regulation No 1408/71 and subsequent regulations or from any agreement or arrangement concluded thereunder, “without prejudice to the right of the authorities, institutions and persons concerned to have recourse to the procedures and tribunals provided for by the legislations of Member States, by this regulation or by the Treaty” (Article 81 (a)).
               Such a body, having identical powers, was also provided for in Regulation No 3 of the Council of 1958 which, as the Court is aware, governs the same sphere as Regulation No 1408/71 which it preceded. The Court of Justice has had occasion to deliver rulings on the scope of decisions of that body. In the judgment of 5 December 1967 in Case 19/67 (Van der Vecht, [1967] ECR 345) it is stated that decisions of the Administrative Commission have only the status of an opinion and cannot affect the validity and content of provisions of the Council. Accordingly, the operative part of that judgment lays down in paragraph (3) that “Decisions taken by the Administrative Commission in pursuance of Article 43 (a) of Regulation No 3 are not binding on national courts or tribunals”. Having regard to the fact that the Commission is now required pursuant to Regulation No 1408/71 to carry out identical tasks, the same criterion must also apply to the decisions which it adopts under Article 81 (a) of that regulation.
               Accordingly, even if it is supposed that the Administrative Commission intended to enumerate authoritatively the persons entitled to benefit from the provisions of Article 71 (1) (b) (ii) of Regulation No 1408, the courts would not be obliged to adopt an identical interpretation. Nevertheless, it does not appear that in the decision in question it was intended to draw up an exhaustive list; rather, it was intended to supply practical criteria for the application of Article 71 by reference to a system of presumptions of fact in establishing residence. Finally, account should be taken of a circumstance pointed out in these proceedings by the Agent of the Commission of the European Communities: the Administrative Commission is at present reviewing the matter and may expand the category of persons whom it considers to be entitled to rely upon the presumption of residence in a State other than that in which they were last employed and who are thus covered by the provisions of Article 71.
            
         
               3. 
            
            
               The main point regarding the applicability of Article 71 (1) (b) (ii) to a case like that pending before the Belgian Cour de Cassation must accordingly be considered notwithstanding the fact that it does not come within the categories laid down by the said Administrative Commission in Decision No 94.
               Having dealt with that point, it will be perceived that in establishing one of the categories of workers who are covered by the system, Article 71 (1) (b) (ii) applies a concept which is partly negative (“a worker, other than a frontier worker”) and partly positive (“[a worker] who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he resides, or who returns to that territory”). There is no doubt that the provision in question has been broadly worded so that it appears at first sight inappropriate to restrict its scope to the categories listed in Decision No 94 of the Administrative Commission.
               Since residence is the essential factor for the application of the relevant provision it must first be considered whether the Community provisions in the relevant field are of assistance in interpreting this concept.
               Article 1 of Regulation No 1408/71, which sets out a series of definitions for the purposes of the regulation, provides at letter (h) that ‘“residence” means habitual residence’. The Court of Justice gave a ruling on the same definition, which was previously contained in Regulation No 3, in its judgment of 12 July 1973 in Case 13/73 (Angenieux v Hakenberg, [1973] ECR 935). The Court considered the problem in so far as it is related to the interpretation of Articles 1 (h), 12 and 13 of Regulation No 3 with regard to a French business representative who for nine months of the year moved about Germany to visit clients without having a fixed place of residence and who spent the rest of the year in France, where the undertakings represented by him had their registered offices. In paragraph (3) of the operative part of the said judgment it was stated that ‘By “permanent residence”, in the sense in which that term is used in Article 13 (1) (c) (first section) of Regulation No 3, as amended by Regulation No 24/64 and defined by Article 1 (h) of the same regulation, there must be understood, in the case of a business representative pursuing the kind of working activities above described, the place in which he has established the permanent centre of his interests and to which he returns in the intervals between his tours’.
               This solution is closely linked to the particular situation of business representatives and cannot be purely and simply transposed to the present case. Nevertheless, two passages from the grounds of the said judgment should be emphasized: the first (ground of judgment No 29) states that ‘permanent residence is to be determined by taking into account factors other than those connected with work’; the second (ground of judgment No 31) that ‘the possession of a permanent address in a Member State is … to be regarded as a stabilizing factor’. I think we should further note that this view is in accordance with the spirit of the resolution adopted by the Committee of Ministers of the Council of Europe on 18 January 1972 on the subject of bringing legal concepts of ‘domicile’ and ‘residence’ into line with each other. According to Article 9 of the resolution, in deciding whether residence is habitual, account must be taken of the length and continuity of residence in addition to other facts of a personal or occupational nature arising from constant links between an individual and specific locality. According to Article 10 of the resolution, the individual's intentions are not decisive in themselves but may be taken into account in determining residence.
               However, the said Decision No 94 of the Administrative Commission by implication concedes that residence is not decided by the material criterion of the amount of time which a worker spends in a State. Indeed, a worker employed in international transport might well spend the major part of his time in a State where he works whilst continuing to reside in another State.
               Tendencies in the legal systems of certain of the Member States of the Community confirm the importance of three factors which are of assistance in clarifying the concept of residence and the relationship between ‘residence’ and ‘stay’: I refer to the degree of stability, to the weight accorded to the intention of the person and to the fact that a person may possibly live abroad and be employed there whilst maintaining his original residence.
               For the application of Article 511 of the French Code de la Sécurité Sociale (the Social Security Code), which renders family allowances conditional upon residence, a young person is deemed to reside in France during a stay abroad, even a lengthy one, where that stay is necessary for the completion of occupational training, provided that he maintains his family connexions in the national territory where he previously lived on a permanent basis (see Article 6 of Décret No 65-524 of 29 June 1965, Journal Officiel,3 July 1965, pp. 5615, 5616).
               Even before the adoption of that provision the French Cour de Cassation had held that a lengthy stay abroad for purposes of study is not incompatible with the maintenance of residence in France provided that the centre of the family relations of the person concerned remains there (judgment of the Cour de Cassation Civile of 24 November 1964, Bulletin Civil 1964, II, p. 556).
               The scope of German social security legislation is delimited by the alternative criteria of domicile and of habitual residence, the latter amounting in substance to residence. When the person concerned shows that he only intended a temporary stay in a place it is not considered as his habitual residence (cf. paragraph 30 (3) of the Sozialgesetzbuch of 11 December 1975, Bundesgesetzblatt I, p. 3020 (the new German social code)).
               Within the British social security system the concept of residence denotes a continuous stay in a specific place and this is compatible with temporary absences. For the purposes of applying the relevant legislation a beneficiary maintains his residence in Great Britain even if he stays abroad, provided that he does not intend to abandon his residence in Great Britain, as is held to be the case when a person no longer intends to return there (cf. the case-law cited by H. Calvert in ‘Social Security Law’, London 1974, pp. 42. and 43).
               In the wider field of civil law the decisions of the Italian Corte di Cassazione in relation to the definition of residence also emphasize the subjective element, that is the intention to settle in a specific place. Nevertheless, residence is not determined merely by the material fact of establishing a place of stay but also by the intention of giving that stay a degree of stability, which may be discerned from the person's way of life and from the development of normal social relations (Judgment No 126 of the Corte di Cassazione of 17 January 1972, Giustizia Civile, Massimario, 1972, p. 71). Nevertheless, a stay may even be of long duration without thereby constituting residence when such stay is extended for reasons of study or work, provided that there is no intention to stay permanently (Judgment No 3029 of the Corte di Cassazione of 12 November 1960, loc. cit., 1960, p. 1177).
               The element of intention may be discerned in particular by the maintenance elsewhere than at the place of stay of the centre of family relationships and interests, which normally coincide with the place where the family lives (judgment No 64 of the Corte di Cassazione of 10 January 1964, loc. cit., 1964, p. 30).
               Turning now to the present case we must accept that when a person has completed her education and immediately spends some months in a foreign country in order to improve her knowledge of the language of that country, which she has studied, she cannot be regarded as resident in that State within the meaning of the Community regulation simply because for practical reasons she found temporary employment, the more so if it is clear from her behaviour that she did not intend to settle permanently in the territory of that State and instead wished to maintain as the principal centre of her interests the State in which she formerly lived and in which her family, with whom she had always remained prior to her stay abroad, is domiciled and resident.
               The emphasis on study as the reason for her stay abroad (which might also be deduced in this case from the shortness of the stay and the fact that the type of work undertaken did not correspond to the vocational training of the person concerned), the retention of a permanent residence for legal purposes in the paternal home and, immediately following her short stay abroad, her return to that home (presumably with the intention of seeking there, after her practical experience in the foreign language, her first steady employment corresponding to her training) in my view constitute factors of sufficient weight for us to accept that the person concerned ‘returned to the country of residence’, to adopt the terminology of the relevant provision.
            
         
               4. 
            
            
               For the reasons which I have set out above I suggest that the Court should reply to the request for a preliminary ruling submitted on 28 July 1976 by the Belgian Cour de Cassation with a ruling that in the interpretation of the words ‘in which he resides, or who returns to that territory’ employed in Article 71 (1) (b) (ii) of Regulation (EEC) No 1408/71 and, more generally, in order to ascertain the persons who may be entitled to benefit under that provision, account should be taken, in cases of the kind referred to in the request, of the degree of stability of the residence of the worker in the State to which he has moved for a time, of the duration and purpose of his absence and of the nature of the employment which he finds abroad, in addition to his intentions.
               It must in any case be accepted that the relevant provision covers a person who, after completing her studies in the country in which she is domiciled and resides with her family, spends a short time abroad, pursuing an activity as an employed person, in order to practice a language which she has studied, and who subsequently returns to her family, presumably with the intention of seeking steady employment in the country in which her family is domiciled.
            
         (
            1
         )	Translated from the Italian.