Opinion of Mr advocate general Reischl

Mr President,

Members of the Court,

The point at issue between the parties to the main action is whether the applicant, an Italian national residing in Göttingen, has lost his entitlement to unemployment benefit following a stay in Italy of more than three months.

Under Article 69 (1) (c) 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 (Official Journal, English Special Edition 1971 (II), p. 416), a worker who is wholly unemployed, who is entitled to benefits in one Member State and who goes to another Member State in order to seek employment there is to retain his entitlement to such benefits for a maximum period of three months from the date when he ceased to be available to the employment services of the State which he left. Article 69 (2) provides:

The applicant was paid unemployment benefit by the Arbeitsamt (Employment Office) Göttingen from 13 to 18 December 1976. On 17 December 1976 a certificate was drawn up for him at his request on Form E 303 (retention of entitlement to unemployment benefits under Article 83 (3) of Regulation (EEC) No 574/72) because he wished to go to Italy on 19 December 1976 in order to seek employment there. It was stated in the certificate that he was entitled to unemployment benefit for three months, that is from 19 December 1976 to 18 March 1977. At the same time the applicant received Explanatory Leaflet E 303/5 in Italian, in which attention is drawn to the fact that in principle after the expiry of the three-month period any subsisting rights to German unemployment benefits are lost if the claimant has not returned to the Federal Republic within that period.

On 19 December 1976 the applicant went to Erchi in Italy in order to seek employment. Inquiries at the local information office revealed that there was no likelihood of employment for him there either at that time or in the following weeks.

On 16 March 1977, two days before the time-limit for returning, the applicant fell ill with pyelitis and cystitis, and was unfit for work until 14 May 1977.

After his recovery he returned to the Federal Republic of Germany on 15 May 1977, and on 16 May 1977 he applied to the Arbeitsamt Göttingen for a further grant of unemployment benefit, alleging that he had been prevented by his illness from coming back to the Federal Republic within the prescribed period of three months. The Arbeitsamt refused the application on the ground that an exceptional extension of the three-month period under the second sentence of Article 69 (2) of Regulation No 1408/71 was not possible, because the applicant's stay in the place to which he had gone in order to seek work had ceased to be necessary for that purpose long before his incapacity for work arose and that if the applicant in disregard of the purpose of Article 69 none the less decided to extend his stay in Italy for other purposes, then he must also bear the risk of being prevented during his stay by unforeseeable circumstances such as unfitness for work from coming back to the Federal Republic of Germany in time.

After an unsuccessful objection to the Arbeitsamt's decision to refuse his request, Mr Coccioli brought proceedings before the Sozialgericht (Social Court) Hildesheim. By an order of 8 June 1978 that court stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

I —. Before I give my views on these questions, I think it is appropriate to deal first with the question which the Commission has raised concerning the compatibility of Article 69 (2) of Regulation No 1408/71 with Article 51 of the EEC Treaty. I do not need to deal with this point exhaustively, as in the last resort even the Commission has no doubt as to the validity of the provision in question. In the Commission's view such misgivings would be justified only if the forfeiture of any further entitlement to benefits granted solely under the legislation of the competent State were stipulated by Community law alone or if the total forfeiture of further entitlement under Article 69 (2) were disproportionate. However, there are also provisions in national law, such as Article 120 of the German Arbeitsförderungsgesetz (Law for the promotion of employment), whereby unemployment benefits are to be stopped if the unemployed person does not comply with a request to report by the Arbeitsamt. As regards the purpose in view, failing to fulfil the duty to report under national law is certainly comparable to exceeding the three-month period. Therefore to this extent the unemployed person is not placed in any worse position by Regulation No 1408/71 but on the contrary is favoured by Article 69 of the Regulation, as in the absence of that provision he would directly lose his entitlement to benefits as soon as he ceased to be available to the national labour market. Only Article 69 presents the opportunity of continuing for a limited period to grant the unemployed worker the unemployment benefits under the legislation of the Member State which last applied to him, and thus creates better conditions for mobility of labour.

II —. 1. If I now deal with Question 1 on the admissibility of a request for extension after expiry of the three-month period, it must first be stated that, unlike Article 14 (1) (a) (ii) of Regulation No 1408/71 which provides that consent must be requested before the end of a certain period, the wording of the second sentence of Article 69 (2) of the same Regulation contains no statement to the effect that an extension of the time-limit cannot be requested even after expiry of the period. Moreover in my view the purpose of the provision for exceptional cases cannot justify any other conclusion. As I have already said, the possibility of extending the period was provided in order to allow the competent services in a particular case to settle such conflict situations where the normal expiry of the period and the consequent loss of entitlement to benefits would lead to disproportionate social hardship. However, such an exceptional situation may not only delay the return of the unemployed person to the competent Member State, but at the same time may also make it impossible to submit a request for extension before expiry of the period. In order to avoid unfairness arising from this, in my opinion it must logically be accepted that the request for extension may be submitted even after expiry of the three-month period. On the other hand it is not unreasonable for the unemployed person to be required to inform the competent employment authorities as soon as possible that an exceptional case exists, and it will therefore have to be required — as the Commission claims — that the request should be made as quickly as may reasonably be expected in the particular circumstances of the case. 2. By Question 2 the national court seeks to ascertain whether the competent employment authorities are acting within the limits of their discretion in rejecting an exceptional case within the meaning of Article 69 (2) of Regulation No 1408/71 for extension of the period because there was no likelihood of a post for the unemployed person in the other Member State to which he had gone to seek work and because in addition return within the prescribed period was impossible as a result of sudden illness. The defendant argued in its written observations, although it did not repeat the objection in the oral procedure, that this question was inadmissible because it referred not to the interpretation of the provision at issue but to the exercise of the administration's discretion under that provision and that abuse of discretion can be established only by reference to the particular case at issue. However, in proceedings under Article 177, it states, the Court of Justice does not have jurisdiction to apply the law to an individual case.

To sum up, I therefore propose that the questions should be answered as follows:

1 Translated from the German.