F.P. Jeltes and Others v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen.
Date: 2013-04-11
20. Article 71 of Regulation No 1408/71 contains specific provisions applicable to unemployed persons who, while last employed, resided in a Member State other than the competent State. 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 shall be subject to the legislation of that State.
21. According to Article 71(1)(a)(ii) of Regulation No 1408/71, a frontier worker who is wholly unemployed is subject to the legislation of the Member State in whose territory he resides. The Court has held that that provision is based on the assumption that such a worker would find in that State the conditions most favourable to the search for new employment ( Miethe , paragraph 17).
22. Under Article 71(1)(b) of Regulation No 1408/71, an employed person other than a frontier worker, that is a person who, contrary to frontier workers, does not return daily or at least once a week to his State of residence, can choose, if he is wholly unemployed, either to remain available to the employment services in the territory of the competent Member State or to make himself available to the employment services in the territory of the Member State where he resides. In the first case, he is to receive benefit from the Member State where he was last employed, in the second case from the Member State where he resides. The benefits concerned are not only of a monetary nature but also include assistance in finding new employment (see, to that effect, Miethe , paragraph 16).
23. The Court held, in paragraph 18 of Miethe,  that the objective pursued by Article 71(1)(a)(ii) of Regulation No 1408/71, concerning frontier workers who are wholly unemployed, that is to ensure that migrant workers receive unemployment benefit under the most favourable conditions, cannot however be attained where a wholly unemployed frontier worker has in exceptional circumstances maintained in the Member State in which he was last employed personal and business links of such a nature as to give him a better chance of finding new employment there. Such a worker must therefore be regarded as a ‘worker other than a frontier worker’ within the meaning of Article 71 of that regulation and is consequently covered by Article 71(1)(b). The worker may accordingly choose to make himself available to the employment services of the Member State where he was last employed and receive aid from that State, in the form both of assistance in finding employment and of payment of benefit.
40. It follows from the case-law of the Court relating to Regulation No 1408/71 that, by adopting Regulation No 883/2004, the legislature of the European Union, bearing in mind the wide discretion that it enjoys with regard to the choice of the most appropriate measures for achieving the result envisaged in Article 42 EC, has in principle fulfilled the obligation arising from the task entrusted to it by that article of setting up a system allowing workers to overcome any obstacles which may arise for them from national rules in the field of social security (see, by analogy, inter alia, Case C‑208/07 von Chamier-Glisczinski  [2009] ECR I‑6095, paragraph 64 and case-law cited).
41. That said, the finding that the application, in a specific case, of a national measure may be consistent with a provision of secondary legislation, in the present case Regulation No 883/2004, does not necessarily have the effect of removing the application of that measure from the scope of the FEU Treaty’s provisions (see, to that effect, inter alia, von Chamier-Glisczinski , paragraph 66, and, with regard to unemployment benefit, Case C‑406/04 Cuyper [2006] ECR I‑6947 and Case C‑228/07 Petersen [2008] ECR I‑6989).
43. It should however be recalled that since Article 48 TFEU provides for the coordination, not the harmonisation, of the legislation of the Member States, substantive and procedural differences between the social security systems of individual Member States and, hence, in the rights of persons insured under those schemes, are unaffected by that provision (see von Chamier-Glisczinski , paragraph 84 and case-law cited).
44. In those circumstances, the Treaty rules on freedom of movement cannot guarantee to an insured person that a move to another Member State will be neutral as regards social security. In view of the disparities existing between the schemes and legislation of the Member States in this field, such a move may, depending on the case, be more or less financially advantageous or disadvantageous for the person concerned (see von Chamier-Glisczinski paragraph 85, and Case C‑562/10 Commission  v Germany  [2012] ECR I‑0000, paragraph 57).
45. Thus, the fact that a person such as Mr Feltes receives his unemployment benefit from the competent institution of the Member State of residence, in the present case the Kingdom of Belgium, results from the application, in accordance with Regulation No 883/2004, of the law of that State on unemployment benefit. A difference between the benefit provided for in the legislation of the Member State of last employment and that granted pursuant to the legislation of the Member State of residence cannot, in those circumstances, be considered as a restriction on the freedom of movement for workers, since it results from the lack of harmonisation of European Union law in the matter (see, by analogy, Case C‑345/09 van Delft and Others  [2010] ECR I‑9879, paragraph 106).
50. That provision thus applies, first, on condition that the applicable legislation is covered by Title II of Regulation No 1408/71 and, second, on condition that the relevant situation remained unchanged.
59. In that regard, it should be noted that the concept of ‘unchanged situation’ is not defined by Regulation No 883/2004. However, as the regulation is not a measure harmonising national social security systems but an enactment intended to coordinate those systems, each Member State retains the power to determine in its legislation, in compliance with European Union law, the conditions pursuant to which benefits may be granted under a social security scheme (see, to that effect, Joined Cases C‑611/10 and C‑612/10 Hudzinski and Wawrrzyniak  [2012] ECR I‑0000, paragraph 42). The concept of ‘unchanged situation’ within the meaning of Article 87(8) of that regulation must, consequently, be interpreted by reference to the definition given by national social security legislation (see, by analogy, with regard to the term ‘employment’ within the meaning of Article 71(1) of Regulation No 1408/71, Case C‑372/02 Adanez-Vega  [2004] ECR I‑10761, paragraph 33).