Rijksdienst voor Arbeidsvoorziening v Joop van Gestel.
Date: 1995-06-29
18 It is true that in its judgment in Guyot cited above (at paragraph 8), the Court pointed out that Article 71(1) of the Regulation concerned only employed persons who were residing in a Member State other than that in which they were last employed and thus appears to distinguish between the State of employment and the State of residence and not between the competent State and the State of residence. Nevertheless, that judgment does not contradict the above interpretation of Article 71(1)(b) of the Regulation. It simply refers to the usual situation to which that provision applies, namely where the competent State is the State where the employed person has worked. It does not preclude the possibility of the competent State being the State designated by common agreement, in accordance with Article 17 of the Regulation.
20 That interpretation is corroborated by the purpose of Article 71(1)(b)(ii), the provisions of which are intended to guarantee to migrant workers unemployment benefits under the most favourable conditions for seeking new employment (see the judgment in Case 236/87 Bergemann v Bundesanstalt fuer Arbeit [1988] ECR 5125, at paragraph 18).
22 That possibility is justified for certain categories of workers who retain close ties, in particular of a personal and vocational nature, with the country where they have settled and habitually reside. It is reasonable that workers who have such links with the State in which they reside should be accorded the best conditions in that State for finding new employment (see, for example, the judgment in Bergemann, cited above, at paragraph 20).
23 In order to attain that objective the provisions offer a choice to the worker, who is in the best position to know what are the possibilities of finding new employment. He may apply to the unemployment benefit scheme in the State in which he was last employed, or claim benefit in the State where he resides. In the case of a wholly unemployed worker who elects to be governed by the legislation of the State where he resides, that choice is made essentially ° indeed exclusively ° by the worker' s making himself available to the employment office of the State from which he is claiming the benefits. The worker may not, however, either aggregate the unemployment benefit from both States or, if he has made himself available only to the employment office in the territory of the Member State where he resides, claim unemployment benefits from the State in which he was last employed (see the judgment in Case 227/81 Aubin v Unedic and Assedic [1982] ECR 1991, at paragraph 19).
24 Moreover, according to the Court' s case-law, the factor which determines whether Article 71 applies at all is the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment (see, most recently, the judgment in Case C-287/92 Maitland Toosey [1994] ECR I-279, at paragraph 13).
26 It is true that application of the provision thus interpreted allows workers to receive unemployment benefits from a Member State in which they had not paid contributions during their last employment. However that is a consequence intended by the Community legislature, which meant to ensure that workers were given the best chance of finding new employment.
29 As is made clear in the judgment in Case 101/83 Raad van Arbeid v Brusse [1984] ECR 2223, at paragraph 20, there is nothing in the wording of Article 17 to indicate that recourse to the derogation made available to the Member States by that provision is possible only as regards the future. On the contrary, it follows from the spirit and scheme of Article 17 that an agreement within the meaning of that provision must also be capable, in the interests of the worker or workers concerned, of covering past periods (same judgment, at paragraph 21).