JUDGMENT OF 23. 11. 1976 — CASE 40/76 KERMASCHEK v BUNDESANSTALT FÜR ARBEIT
In Case 40/76 Reference to the Court under Article 177 of the Treaty establishing the European Economic Community by the Sozialgericht of Gelsenkirchen for a preliminary ruling in the action 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. Serensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
I — Facts and procedure
II — Summary of the written observations lodged with the Court
III — Oral procedure
Law
Costs
I —. Facts and procedure
(1). Are rights under Article 67 et seq. of Regulation (EEC) No 1408/71 of the Council allowed for the spouse of a national of a Member State, even if the spouse is not a national of a Member State and the right to the benefit was acquired before marriage?
(2). If the answer to the first question is in the affirmative:
II —. Summary of the written observations lodged with the Court
III —. Oral procedure
1. By order of 25 March 1976, which reached the Court Registry on 12 May 1976, the Sozialgericht Gelsenkirchen has referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 67 to 70 of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).
2. The first question asks whether the spouse of a national of a Member State may claim the rights under Article 67 et seq. of that regulation, if the spouse is not a national of a Member State and has acquired the right to the benefit before marriage.
3. Article 69 (1) of the regulation provides:
4. Therefore an employed person within the meaning of the regulation may, in the circumstances envisaged, claim the exportation from one Member State to another of rights to benefit acquired in the first Member State.
5. Therefore the question arises whether and to what extent the members of the family of a national of a Member State are; in applying Regulation No 1408/71, and in particular Articles 67 to 70 thereof, to be assimilated to those nationals themselves.
6. Article 2 (1) of the regulation provides that it: shall apply to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as also to the members of their families and their survivors.
7. It is evident from the juxtaposition indicated by the use of the words as also that this provision refers to two clearly distinct categories: workers on the one hand, and the members of their family and their survivors on the other.
8. This interpretation is confirmed by the text of Article 2 (2), which provides that workers who are not nationals of a Member State shall nevertheless be assimilated to those nationals as regards the rights of their survivors, provided that the latter are nationals of one of the Member States, or stateless persons or refugees residing within the territory of one of the Member States.
9. It follows that Articles 67 to 70 of Regulation No 1408/71 have only one main purpose, namely the coordination of the rights to unemployment benefits provided by virtue of the national legislation of the Member States for employed persons who are nationals of a Member State.
10. Since the national court has put the second question only in case the answer to the first question might be in the affirmative, there is no need to answer it or to examine it.
11. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
On those grounds, THE COURT in answer to the questions referred to it by the Sozialgericht Gelsenkirchen by order of 25 March 1976 hereby rules: