H.J. Mertens v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen.
Date: 2015-02-05
18. Article 71 of Regulation No 1408/71 contains specific provisions applicable to unemployed persons who, during their last period of employment, resided in a Member State other than the competent Member State. The Court has already held that the provisions of that article are intended to ensure that migrant workers receive unemployment benefit under the conditions which are most favourable to the search for new employment (see judgment in Miethe , 1/85, EU:C:1986:243, paragraph 16 and the case-law cited).
19. Those provisions can be distinguished from the general rule provided for in Article 13(2) of that regulation, according to which a worker employed in the territory of one Member State is to be subject to the legislation of that State (see judgment in Jeltes and Others , C‑443/11, EU:C:2013:224, paragraph 20).
20. Thus, under Article 71(1)(a)(ii) of Regulation No 1408/71, frontier workers who are wholly unemployed are subject to the legislation of the Member State in whose territory they reside. The Court has taken the view that that provision is based on the implicit assumption that such a worker will find in that State the conditions which are most favourable to the search for new employment (see, to that effect, judgments in Miethe , EU:C:1986:243, paragraph 17, and in Jeltes and Others , EU:C:2013:224, paragraph 21).
22. In that regard, the criteria used to determine whether a frontier worker is to be regarded as being partially unemployed or wholly unemployed within the meaning of Article 71(1)(a) of Regulation No 1408/71 must be uniform and laid down by EU law. The Court has accordingly held that that assessment may not be made on the basis of criteria drawn from national law (see judgment in de Laat , EU:C:2001:165, paragraph 18).
23. Likewise, the Court has also held that the protection of workers, which is the aim pursued by Article 71 of Regulation No 1408/71, would not be attained if the worker concerned, who, in a Member State other than the State of residence, remains employed by the same undertaking, but on a part-time basis, while remaining available for work on a full-time basis, were obliged to apply to an institution of the Member State of his place of residence for assistance in finding work additional to that which he already carries out. The fact that he has passed from full-time employment to part-time employment by virtue of a new contract is in this respect irrelevant (see, to that effect, judgment in de Laat , EU:C:2001:165, paragraph 34).
24. This conclusion stems from the fact that the institution of the Member State of the place of residence of the worker concerned would be considerably less well placed, in comparison with its counterpart in the competent Member State, to assist him in finding additional employment on terms and conditions compatible with his part-time work, that is to say, in all likelihood, additional employment to be carried out in the territory of the competent Member State (see, to that effect, judgment in de Laat , EU:C:2001:165, paragraph 35).
25. For that reason, it is only when a worker no longer has any link with the competent Member State and is wholly unemployed that he must apply to the institution of the Member State of his place of residence for assistance in finding employment (see, to that effect, judgment in de Laat , EU:C:2001:165, paragraph 36).
28. Similarly, no relevance attaches to the fact that the employment contract at issue in the main proceedings provides for a working week of 10 hours, as the Court has already held that there is nothing in Article 1(a) or Article 2(1) of Regulation No 1408/71 which would allow certain categories of persons to be excluded from the scope of that regulation on the basis of the amount of time that they devote to their activities (see, by analogy, judgment in Kits van Heijningen , C‑2/89, EU:C:1990:183, paragraph 10).