1 BY JUDGMENT OF 7 JULY 1981 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 3 AUGUST 1981 THE FRENCH COUR DE CASSATION ( COURT OF CASSATION ) REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS CONCERNING THE INTERPRETATION OF REGULATION NO 1408/71 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ), AND IN PARTICULAR THE INTERPRETATION OF THE PROVISIONS IN THAT REGULATION RELATING TO UNEMPLOYMENT .
2 THE QUESTIONS AROSE IN THE COURSE OF AN ACTION BETWEEN MR AUBIN AND THE UNION NATIONALE INTERPROFESSIONNELLE POUR L ' EMPLOI DANS L ' INDUSTRIE ET LE COMMERCE ( NATIONAL TRADES ASSOCIATION FOR EMPLOYMENT IN INDUSTRY AND COMMERCE , HEREINAFTER REFERRED TO AS ' ' THE NATIONAL ASSOCIATION ' ' ) AND THE ASSOCIATION POUR L ' EMPLOI DANS LES INDUSTRIES ET LE COMMERCE DU DEPARTEMENT DES YVELINES ( ASSOCIATION FOR EMPLOYMENT IN INDUSTRY AND COMMERCE OF THE YVELINES , HEREINAFTER REFERRED TO AS ' ' THE YVELINES ASSOCIATION ' ' ).
3 MR AUBIN , A FRENCH NATIONAL , WORKED IN PARIS FOR A BELGIAN UNDERTAKING . IN SEPTEMBER 1970 HE ACCEPTED HIS EMPLOYER ' S OFFER OF A POST IN BRUSSELS AND DECIDED TO MOVE WITH HIS FAMILY TO BELGIUM . IN DECEMBER 1972 MR AUBIN CHANGED HIS EMPLOYMENT AND RETURNED TO WORK IN FRANCE , IN THE PARIS AREA , BUT RETAINED HIS HOME IN BELGIUM .
4 ON 25 FEBRUARY 1975 MR AUBIN WAS MADE REDUNDANT ON ECONOMIC GROUNDS . AS HE HAD REGULARLY PAID UNEMPLOYMENT INSURANCE CONTRIBUTIONS IN FRANCE , HE SOUGHT INFORMATION FROM THE YVELINES DEPARTMENTAL EMPLOYMENT AND LABOUR OFFICE AS TO HOW TO SET ABOUT CLAIMING BENEFIT . BY LETTER DATED 12 MARCH 1975 THE INSPECTEUR DU TRAVAIL ( EMPLOYMENT OFFICER ) FOR THE YVELINES INFORMED HIM THAT HE MUST APPLY TO THE EMPLOYMENT INSTITUTION IN HIS PLACE OF RESIDENCE , BELGIUM , FOR REGISTRATION AS A PERSON SEEKING WORK , AND THAT HE WOULD BE PAID UNEMPLOYMENT BENEFIT BY THE BELGIAN AUTHORITIES IN ACCORDANCE WITH THE TERMS OF REGULATIONS NOS 1408/71 OF 14 JUNE 1971 AND 574/72 OF 21 MARCH 1972 , BOTH OF THE COUNCIL .
5 ON 6 AUGUST 1975 THE BELGIAN OFFICE NATIONAL DE L ' EMPLOI ( NATIONAL EMPLOYMENT BUREAU ) TOOK A DECISION INFORMING MR AUBIN THAT HE WAS NOT ENTITLED TO UNEMPLOYMENT BENEFIT IN BELGIUM , MAINLY ON THE GROUNDS THAT HE DID NOT MEET THE CONDITIONS LAID DOWN BY THE ARRETE ROYAL BELGE ( BELGIAN ROYAL DECREE ) OF 20 DECEMBER 1963 ON EMPLOYMENT AND UNEMPLOYMENT , INASMUCH AS HE HAD NOT ENGAGED IN PAID WORK IN BELGIUM FOR AT LEAST ONE DAY IN THE COURSE OF THE EIGHTEEN MONTHS PRECEDING HIS BEING MADE REDUNDANT .
6 ON 1 OCTOBER 1976 MR AUBIN FOUND EMPLOYMENT IN THE PARIS AREA AND TRANSFERRED HIS RESIDENCE THERE .
7 BY LETTER DATED 14 MAY 1977 MR AUBIN CLAIMED UNEMPLOYMENT BENEFIT FROM THE NATIONAL ASSOCIATION . THE ASSOCIATION DISMISSED HIS CLAIM PRINCIPALLY ON THE GROUND THAT HE HAD NOT REGISTERED IN FRANCE AS A PERSON SEEKING WORK .
8 MR AUBIN THEN SOUGHT THROUGH THE COURTS TO RECOVER FROM THE NATIONAL ASSOCIATION AND THE YVELINES ASSOCIATION THE UNEMPLOYMENT BENEFIT TO WHICH HE WAS ENTITLED UNDER FRENCH LEGISLATION FOR THE PERIOD BETWEEN 25 FEBRUARY 1975 AND 30 SEPTEMBER 1976 , TOGETHER WITH DAMAGES . BY A JUDGMENT OF 1 JUNE 1978 THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), PARIS , DECLARED THE CLAIM INADMISSIBLE AS REGARDS THE NATIONAL ASSOCIATION AND UNFOUNDED AS REGARDS THE YVELINES ASSOCIATION .
9 MR AUBIN APPEALED AGAINST THE JUDGMENT TO THE COUR D ' APPEL ( COURT OF APPEAL ), PARIS , AND SUBSEQUENTLY TO THE COUR DE CASSATION ( COURT OF CASSATION ) WHICH REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING : ' ' ( 1 ) WHETHER A FRENCH NATIONAL , WHO WORKED IN FRANCE UNTIL MADE REDUNDANT , WHO WAS NOT REGISTERED IN FRANCE AS A PERSON SEEKING WORK AND RESIDED IN BELGIUM WHERE HE HAD REGISTERED AS A PERSON SEEKING WORK , WAS ENTITLED UNDER COMMUNITY LEGISLATION TO BE PAID UNEMPLOYMENT BENEFIT BY THE COMPETENT INSTITUTION OF THE BELGIAN STATE , OR WHETHER HE WAS ENTITLED TO CLAIM IT FROM THAT OF THE FRENCH STATE AS WELL ; ( 2)WHETHER THE FACT THAT HE HAD REGISTERED IN BELGIUM AS A PERSON SEEKING WORK IS OF SUCH A NATURE AS TO REQUIRE THE CONDITION OF FRENCH LEGISLATION THAT HE SHOULD BE REGISTERED IN FRANCE WITH THE AGENCE NATIONALE POUR L ' EMPLOI AS A PERSON SEEKING WORK TO BE DEEMED TO BE FULFILLED . ' ' FIRST QUESTION
10 ARTICLE 13 ( 2 ) ( A ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 STATES THAT ' ' A WORKER EMPLOYED IN THE TERRITORY OF ONE MEMBER STATE SHALL BE SUBJECT TO THE LEGISLATION OF THAT STATE EVEN IF HE RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE OR IF THE REGISTERED OFFICE OR PLACE OF BUSINESS OF THE UNDERTAKING OR INDIVIDUAL EMPLOYING HIM IS SITUATED IN THE TERRITORY OF ANOTHER MEMBER STATE ' ' .
11 THAT GENERAL PROVISION , HOWEVER , WHICH APPEARS IN TITLE II OF REGULATION NO 1408/71 , HEADED ' ' DETERMINATION OF THE LEGISLATION APPLICABLE ' ' , APPLIES ONLY IN THE ABSENCE OF PROVISION TO THE CONTRARY IN THE SPECIAL PROVISIONS RELATING TO THE VARIOUS CATEGORIES OR BENEFITS WHICH CONSTITUTE TITLE III OF THE SAME REGULATION .
12 THAT IS PRECISELY THE CASE WITH CHAPTER 6 OF TITLE III ON UNEMPLOYMENT , THE PROVISIONS OF WHICH , AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 15 DECEMBER 1976 ( CASE 39/76 BESTUUR DER BEDRIFSVERENIGING VOOR DE METAAL NIJVERHEID V L . J . MOUTHAAN ( 1976 ) ECR 1901 ) GOVERN THE APPLICATION OF ARTICLE 71 ( 1 ) ( B ) ( II ) OF CHAPTER 6 SO AS TO ENSURE THAT MIGRANT WORKERS RECEIVE UNEMPLOYMENT BENEFIT IN THE CONDITIONS MOST FAVOURABLE TO THE SEARCH FOR NEW EMPLOYMENT .
13 FOR THAT PURPOSE IN PARTICULAR SECTION 3 OF CHAPTER 6 PROVIDES IN A SINGLE ARTICLE , ARTICLE 71 , FOR THE CASE OF UNEMPLOYED PERSONS WHO , DURING THEIR LAST EMPLOYMENT , WERE RESIDING IN A MEMBER STATE OTHER THAN THE COMPETENT STATE .
14 IT MUST BE NOTED WITH REFERENCE TO THAT PROVISION , AND BEFORE THE CONTENT OF ARTICLE 71 , WHICH WAS CITED IN THE GROUNDS OF THE COUR DE CASSATION ' S JUDGMENT REFERRING THE QUESTIONS TO THIS COURT , IS DISCUSSED , THAT ALTHOUGH THE CRITERIA ON THE BASIS OF WHICH THE CONCEPT OF ' ' RESIDENT ' ' WITHIN THE MEANING OF ARTICLE 71 ( 1 ) ( B ) ( II ) IS TO BE INTERPRETED WERE DEFINED BY THE COURT OF JUSTICE IN ITS JUDGMENT OF 17 FEBRUARY 1977 ( CASE 76/76 SILVANA DI PAOLO V OFFICE NATIONAL DE L ' EMPLOI ( 1977 ) ECR 315 ), THE NATIONAL COURT HAS STATED THAT THE WORKER WHOSE SITUATION WAS UNDER CONSIDERATION BY THE COURT WAS RESIDING IN BELGIUM , AND IT HAS NOT REFERRED ANY QUESTION TO THIS COURT AS TO WHAT IS TO BE UNDERSTOOD BY THE PLACE OF RESIDENCE OF A MIGRANT WORKER . THE COURT MUST THEREFORE REGARD AS ESTABLISHED THE FACT THAT , IN THE WORDS USED IN THE JUDGMENT OF THE COUR DE CASSATION , THE WORKER IN QUESTION ' ' WORKED IN FRANCE UNTIL MADE REDUNDANT , . . . WAS NOT REGISTERED IN FRANCE AS A PERSON SEEKING WORK AND RESIDED IN BELGIUM WHERE HE HAD REGISTERED AS A PERSON SEEKING WORK ' ' .
15 ARTICLE 71 ( 1 ) OF REGULATION NO 1408/71 CONTAINS DIFFERENT RULES ACCORDING TO WHETHER THE UNEMPLOYED PERSON IS A FRONTIER WORKER ( UNDER ( A )), OR OTHER THAN A FRONTIER WORKER ( UNDER ( B )). WHETHER MR AUBIN WAS OR WAS NOT , ON THE MATERIAL DATE FOR THE PURPOSES OF THE MAIN ACTION , A FRONTIER WORKER AS DEFINED IN ARTICLE 1 ( B ) OF THAT REGULATION IS A QUESTION FOR THE NATIONAL COURT . HOWEVER , SINCE THE COUR DE CASSATION HAS REFERRED TO BOTH POSSIBILITIES IN THE GROUNDS OF ITS JUDGMENT WITHOUT STATING WHETHER IT CONSIDERED MR AUBIN TO BE A FRONTIER WORKER OR NOT , IT IS APPROPRIATE FOR THE COURT TO EXAMINE THE SCOPE OF THE RELEVANT PROVISIONS IN BOTH CASES , EVEN THOUGH MR AUBIN DOES NOT APPEAR TO HAVE CLAIMED DURING THE PROCEEDINGS THAT HE SHOULD BE REGARDED AS A FRONTIER WORKER .
16 AS FAR AS FRONTIER WORKERS ARE CONCERNED ARTICLE 71 ( 1 ) ( A ) PROVIDES , FIRST , THAT ' ' ( I ) A FRONTIER WORKER WHO IS PARTIALLY OR INTERMITTENTLY UNEMPLOYED IN THE UNDERTAKING WHICH EMPLOYS HIM SHALL RECEIVE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION OF THE COMPETENT STATE AS IF HE WERE RESIDING IN THE TERRITORY OF THAT STATE ; THESE BENEFITS SHALL BE PROVIDED BY THE COMPETENT INSTITUTION ' ' ; AND SECONDLY THAT ' ' ( II ) A FRONTIER WORKER WHO IS WHOLLY UNEMPLOYED SHALL RECEIVE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY HE RESIDES AS THOUGH HE HAD BEEN SUBJECT TO THAT LEGISLATION WHILE LAST EMPLOYED ; THESE BENEFITS SHALL BE PROVIDED BY THE INSTITUTION OF THE PLACE OF RESIDENCE AT ITS OWN EXPENSE ' ' .
17 IT MAY BE SEEN FROM THE ACTUAL WORDS OF THOSE PROVISIONS THAT A FRONTIER WORKER WHO IS WHOLLY UNEMPLOYED , WHICH APPEARS TO HAVE BEEN MR AUBIN ' S CASE SINCE THE COUR DE CASSATION STATES THAT HE WAS MADE REDUNDANT IN FRANCE ON ECONOMIC GROUNDS IN MARCH 1975 , IS TO RECEIVE UNEMPLOYMENT BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION OF HIS MEMBER STATE OF RESIDENCE .
18 AS FAR AS WORKERS OTHER THAN FRONTIER WORKERS ARE CONCERNED ARTICLE 71 ( 1 ) ( B ) PROVIDES THAT : ' ' ( I ) A WORKER , OTHER THAN A FRONTIER WORKER , WHO IS PARTIALLY , INTERMITTENTLY OR WHOLLY UNEMPLOYED AND WHO REMAINS AVAILABLE TO HIS EMPLOYER OR TO THE EMPLOYMENT SERVICES IN THE TERRITORY OF THE COMPETENT STATE SHALL RECEIVE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION OF THAT STATE AS THOUGH HE WERE RESIDING IN ITS TERRITORY ; THESE BENEFITS SHALL BE PROVIDED BY THE COMPETENT INSTITUTION ; ( II)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 LAST BEEN EMPLOYED THERE ; THE INSTITUTION OF THE PLACE OF RESIDENCE SHALL PROVIDE SUCH BENEFITS AT ITS OWN EXPENSE . HOWEVER , IF SUCH WORKER HAS BECOME ENTITLED TO BENEFITS AT THE EXPENSE OF THE COMPETENT INSTITUTION OF THE MEMBER STATE TO WHOSE LEGISLATION HE WAS LAST SUBJECT , HE SHALL RECEIVE BENEFITS UNDER THE PROVISIONS OF ARTICLE 69 . RECEIPT OF BENEFITS UNDER THE LEGISLATION OF THE STATE IN WHICH HE RESIDES SHALL BE SUSPENDED FOR ANY PERIOD DURING WHICH THE UNEMPLOYED PERSON MAY , UNDER THE PROVISIONS OF ARTICLE 69 , MAKE A CLAIM FOR BENEFITS UNDER THE LEGISLATION TO WHICH HE WAS LAST SUBJECT . ' '
19 THOSE PROVISIONS OFFER THE WORKER A CHOICE . 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 . WITH REGARD TO THAT LAST POINT THE COURT STATED IN ITS JUDGMENT OF 9 JULY 1975 ( CASE 20/75 GAETANO D ' AMICO , ( 1975 ) ECR 891 ), ' ' THE RIGHT TO UNEMPLOYMENT BENEFIT PRESUPPOSES THAT THE UNEMPLOYED PERSON IS AVAILABLE TO THE EMPLOYMENT BUREAU AT WHICH HE IS REGISTERED , AS APPEARS FROM CHAPTER 6 OF REGULATION NO 1408/71 , IN PARTICULAR ARTICLE 69 AND 71 THEREOF ' ' .
20 THE REPLY TO THE FIRST QUESTION PUT BY THE COUR DE CASSATION MUST THEREFORE BE THAT A NATIONAL OF ONE OF THE MEMBER STATES OF THE EUROPEAN COMMUNITY , WHO WORKED IN FRANCE UNTIL MADE REDUNDANT , WHO WAS NOT REGISTERED IN FRANCE AS A PERSON SEEKING WORK AND WHO RESIDED IN BELGIUM WHERE HE HAD APPLIED FOR SUCH REGISTRATION , IS ENTITLED TO CLAIM ONLY THE UNEMPLOYMENT BENEFITS PROVIDED FOR BY BELGIAN LEGISLATION , IRRESPECTIVE OF WHETHER HE HAS THE STATUS OF A FRONTIER WORKER . SECOND QUESTION
21 IN THE SECOND QUESTION THE COUR DE CASSATION ASKS THE COURT OF JUSTICE WHETHER REGISTRATION OF A MIGRANT WORKER AS A PERSON SEEKING WORK IN BELGIUM MAY BE REGARDED AS A SUBSTITUTE FOR REGISTRATION AS A PERSON SEEKING WORK WITH THE FRENCH AGENCE NATIONALE POUR L ' EMPLOI , SUCH REGISTRATION BEING REQUIRED BY FRENCH LAW AS A CONDITION FOR THE GRANT OF FRENCH UNEMPLOYMENT BENEFIT .
22 AS HAS BEEN STATED ABOVE , BY REGISTERING FOR WORK AT THE EMPLOYMENT OFFICES OF THE MEMBER STATE IN WHOSE TERRITORY HE RESIDES AND NOT THOSE OF THE MEMBER STATES IN WHOSE TERRITORY HE WORKED BEFORE HE BECAME UNEMPLOYED , THE WORKER HIMSELF CHOOSES TO BE SUBJECT TO THE LEGISLATION ON UNEMPLOYMENT BENEFIT OF THE STATE IN WHICH HE RESIDES . NO PRINCIPLE OR RULE OF COMMUNITY LAW RUNS COUNTER TO THIS FINDING , OR PERMITS , SUBJECT TO THE APPLICATION OF THE PROVISIONS IN ARTICLE 69 OF REGULATION NO 1408/71 , REGISTRATION AS A PERSON SEEKING WORK WITH THE RELEVANT AUTHORITIES IN BELGIUM TO BE ASSIMILATED TO SUCH REGISTRATION WITH THE FRENCH AGENCE NATIONALE POUR L ' EMPLOI .
23 ALTHOUGH ARTICLE 86 , WHICH IS ONE OF THE MISCELLANEOUS PROVISIONS OF REGULATION NO 1408/71 , ASSIMILATES , IN CERTAIN CIRCUMSTANCES , ANY CLAIM FOR BENEFITS IN A MEMBER STATE OTHER THAN THE COMPETENT MEMBER STATE TO THE CLAIM WHICH OUGHT TO HAVE BEEN MADE IN THE LATTER STATE , THE PROVISIONS OF ARTICLE 86 WHICH ARE INTENDED TO FACILITATE FREEDOM OF MOVEMENT FOR MIGRANT WORKERS AND TO SIMPLIFY THE ADMINISTRATIVE STEPS TO BE TAKEN ARE NOT , IN ANY CASE , APPLICABLE TO A CASE SUCH AS THAT DESCRIBED BY THE COUR DE CASSATION , WHERE REGISTRATION AS A PERSON SEEKING WORK DOES NOT REPRESENT THE COMPLETION OF A SIMPLE ADMINISTRATIVE FORMALITY , OR IS NOT RESTRICTED TO THE LODGING OF PAPERS TO BE FORWARDED FOR EXAMINATION AND REGULARIZATION TO THE COMPETENT AUTHORITY OF ANOTHER MEMBER STATE , BUT HAS THE EFFECT UNDER COMMUNITY LAW OF DETERMINING THE COMPETENT STATE FOR PAYING UNEMPLOYMENT BENEFIT IN ACCORDANCE WITH ITS OWN LEGISLATION .
24 THE REPLY TO THE SECOND QUESTION PUT BY THE COUR DE CASSATION MUST THEREFORE BE THAT NO PROVISION OF COMMUNITY LAW PERMITS THE REGISTRATION OF A MIGRANT WORKER AS A PERSON SEEKING WORK IN BELGIUM TO BE ASSIMILATED TO SUCH REGISTRATION AT THE FRENCH AGENCE NATIONALE POUR L ' EMPLOI .