JUDGMENT OF 15. 12. 1976 - CASE 39/76 METAALNIJVERHEID v MOUTHAAN

In Case 39/76 Reference to the Court pursuant to Article 177 of the EEC Treaty by the Centrale Raad van Beroep for a preliminary ruling in the proceedings pending before that court between:

THE COURT composed of: H. Kutscher, President, A.M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and written procedure

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations submitted by the Bestuur der Bedrijfsvereniging voor de Metaalnijverheid

B — Observations submitted by the Commission of the European Communities

1. The first question

2. The second question

III — Oral procedure

Law

Costs

I —. Facts and written procedure

1. Mr L.J. Mouthaan, a Netherlands national, pursued activities as an employed person in the Netherlands until 30 September 1972. From 1 October 1972 he worked in the Federal Republic of Germany for a Netherlands undertaking established in the Netherlands. Nevertheless he retained his residence in the Netherlands.

2. A copy of the order making the reference was received at the Court of Justice on 7 May 1976.

II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations submitted by the Bestuur der Bedrijfsvereniging voor de Metaalnijverheid

1. The BBV first states its opinion on the question of whether Mr Mouthaan may be regarded as a worker within the meaning of Article 1 (a) of Regulation No 1408/71 in spite of the fact that he did not take steps in Germany in order to be insured there. The BBV is of the opinion that the words who is insured, compulsorily contained in that provision do not mean that all the conditions to which the national legislative provisions of a Member State subject the status of an insured person must be complied with.

2. In view of this it must subsequently be determined whether Mr Mouthaan may, in view of the fact that he is unemployed, claim the benefits provided by the Netherlands legislation on the basis of Article 71 (1) (b) (ii) of Regulation No 1408/71 if he cannot be regarded as an insured person under the German legislation.

3. As to the question concerning benefits provided by Title III A of the Netherlands Law on Unemployment, the BBV is of the opinion that these benefits do not fall within the scope of application of Regulation No 1408/71.

B —. Observations submitted by the Commission of the European Communities

1. The first question

(a). Mr Mouthaan was a posted worker within the meaning of Article 14 (1) (a) (i) of Regulation No 1408/71.

(b). Mr Mouthaan was a worker who normally pursues his activity in the territory of two or more Member States within the meaning of Article 14 (1) (c) of Regulation No 1408/71. There is force in such a hypothesis as according to his own statement Mr Mouthaan pursued his activity in Germany from Monday to Friday and accounted for this activity to his employer in the Netherlands on Friday. In this case also it is for the court of trial in the main action to examine whether the respondent complied with the conditions of the abovementioned provision.

(c). If Mr Mouthaan satisfied neither the conditions of Article 14 (1) (a) nor those of Article 14 (1) (c) then Article 13 (2) (a) would be applicable to him.

2. The second question

1. The term worker within the meaning of Regulation No 1408/71 of the Council includes any person who, in accordance with the legislation applicable to him, must be insured on a compulsory basis against one or more risks corresponding to the branches of a system of social security applicable to employed persons — even if through the fault of his employer the formalities which should have been accomplished for his affiliation to the social security system have not been completed.

2. The benefits provided by Title III A of the Netherlands Law on Unemployment Insurance concerning the payment of arrears of wages which the employer owed to the worker in respect of work carried out by him but which the employer did not pay because of his insolvency cannot be regarded as unemployment benefits within the meaning of Article 4 (1) (g) of Regulation No 1408/71 of the Council because the two types of benefits differ in their nature and objectives.

III —. Oral procedure

1. By order of 25 March 1976, which was received at the Court on 7 May 1976, the Centrale Raad van Beroep referred, pursuant to Article 177 of the EEC Treaty, questions concerning the interpretation of various provisions of Regulation No 1408/71 of the Council (OJ English Special Edition 1971 (II), p. 416) on the application of social security schemes to employed persons and their families moving within the Community.

2. These questions arose in the context of a case concerning the right to unemployment benefits of a wholly unemployed Netherlands worker who, while maintaining his residence in the Netherlands was, in the course of his last employment, working in the Federal Republic of Germany for a Netherlands undertaking established in the Netherlands.

3. As this undertaking had become insolvent the worker made himself available for work to the unemployment services of his State of residence and sought from the competent social security institution of that State payment of the unemployment benefits prescribed by the Netherlands Law on Unemployment (Werkloosheidswet) and the payment of the arrears owed by his employer by virtue of Title III A of that Law.

4. In the present case the competent social security institution maintained that as the person concerned was not insured under the German social security legislation by virtue of his employment in the Federal Republic of Germany he could not receive the benefits prescribed by the Netherlands legislation on unemployment pursuant to Article 71 (1) of Regulation No 1408/71.

5. The first question asks the Court whether a worker who is in the position described by the national court and becomes unemployed may be regarded as a worker within the meaning of Article 1 (a) of Regulation No 1408/71 in spite of the fact that the necessary steps making it possible for him to be insured under the German legislation had not been taken.

6. This question amounts to asking whether an employed person for whom the necessary steps were not taken to enable him to acquire the status of an insured person under the legislation to which he is or remains subject by viertue of Regulation No 1408/71 may be regarded as a worker within the meaning of that regulation

7. Article 1 (a) of Regulation No 1408/71 defines the term worker by reference to persons who are affiliated to a social security scheme applicable to employed persons or organized for the benefit of such workers.

8. By this reference the said provision does not seek to restrict the status of worker within the meaning of that regulation to persons who are in fact insured under one of the abovementioned schemes but is intended to define as a worker all persons to whom such schemes are applicable.

9. Affiliation to such schemes corresponds both in each Member State and in the Community order to a mandatory rule prescribing, for employed persons, compulsory insurance against one or more risks corresponding to the branches of a social security scheme.

10. Consequently it must be accepted that the status of worker within the meaning of Regulation No 1408/71 is acquired when the worker complies with the substantive conditions laid down objectively by the social security scheme applicable to him even if the steps necessary for affiliation to that scheme have not been completed.

11. The Court of Justice is then asked to rule whether a worker in the position described by the national court may claim unemployment benefits on the basis of Article 71 (1) (b) (ii) of Regulation No 1408/71 even if he cannot be regarded as an insured person under the German legislation.

12. Under Article 71 (1) (b) (ii) of Regulation No 1408/71 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.

13. According to the ninth recital of Regulation No 1408/71, Article 71 (1) (b) (ii) serves to ensure that a worker placed in one of the situations therein set out may receive unemployment benefits in conditions most favourable to the search for new employment.

14. To this end this provision lays down that the unemployment insurance scheme applicable to such a worker shall be that established by the national legislation of the Member State to whose employment services the worker made himself available for work and on the territory of which he resides or to whose territory he returns.

15. As the work carried out in the course of the last employment must be regarded as having been carried out on the territory of that State it follows that Article 71 (1) (b) (ii) subjects the right to benefits of the person concerned to the national legislation of the same State both as regards the amount and the duration of the payments and as regards the conditions governing the acquisition of that right.

16. The reply to be given to the second question is, therefore, that a wholly unemployed worker who, in the course of his last employment, was employed in a Member State other than that of his residence by an undertaking established in the latter State and who, in respect of that activity, was subject to the legislation of the State of employment may, by virtue of Article 71 (1) (b) (ii) of Regulation No 1408/71, claim unemployment benefits under the provisions of the national legislation of the State where he resides and to whose employment services he makes himself available for work.

17. It is finally asked whether the term unemployment benefits contained in Article 4 (1) (g) of Regulation No 1408/71 may be interpreted as being applicable to benefits such as those provided by Title III A of the Netherlands Law on Unemployment.

18. Title III A of that Law provides for the subrogation of the competent professional or trade institution to the obligations, in relation to the worker, arising from the contract of employment, of the employer who has become insolvent.

19. The aim of these provisions is to enable a worker who is owed wages following the insolvency of his employer to recover the amounts due to him within the limits laid down by that Law.

20. Such a subrogation does not partake of the nature of the unemployment benefits referred to in Article 4 (1) (g) of Regulation No 1408/71 which are essentially intended to guarantee to an unemployed worker the payment of sums which do not correspond to contributions made by that worker in the course of his employment.

21. The reply to be given to the third question is, therefore, that benefits such as those under Title III A of the Netherlands Law on Unemployment do not constitute unemployment benefits within the meaning of Article 4 (1) (g) of Regulation No 1408/71.

22. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

23. As these proceedings are, so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, costs are a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Centrale Raad van Beroep by order of 25 March 1976 hereby rules:

1 It must be accepted that the status of worker within the meaning of Regulation No 1408/71 is acquired when the worker complies with the substantive conditions laid down by the social security scheme applicable to him even if the steps necessary for affiliation to that scheme have not been completed.

2 A wholly unemployed worker who, in the course of his last employment, was employed in a Member State other than that of his residence by an undertaking established in the latter State and who, in respect of that activity, was subject to the legislation of the State of employment may, by virtue of Article 71 (1) (b) (ii) of Regulation No 1408/71, claim unemployment benefits under the provisions of the national legislation of the State where he resides and to whose employment services he makes himself available for work.

3 Benefits such as those under Title III A of the Netherlands Law on Unemployment do not constitute unemployment benefits within the meaning of Article 4 (1) (g) of Regulation No 1408/71.