JUDGMENT OF 20. 3. 1979 — CASE 139/78 COCCIOLI v BUNDESANSTALT FÜR ARBEIT

In Case 139/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Sozialgericht (Social Court) Hildesheim for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Facts and Issues

I — Facts and Procedure

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court

III — Oral Procedure

Decision

First question

Second question

Costs

I —. Facts and Procedure

1. Is an extension of the time-limit under Article 69 (2) of Regulation (EEC) No 1408/71 permissible if the application for extension is made after expiry of the period?

2. If so:

II —. Written observations submitted under Article 20 of the Protocol on the Statute of the Court

1. An extension of the time-limit under the second sentence of Article 69 (2) of Regulation No 1408/71 is permissible even if the application for extension is made after expiry of the period. However, an application thus made is admissible only if it is made as quickly as may reasonably be expected in the particular circumstances of the case under consideration.

2. Even if the unemployed person seeking work suddenly falls ill, the employment services do not exceed the limits of their duly-exercised discretion in denying the existence of an exceptional case such as to justify extension of the period under the second sentence of Article 69 (2) because there was no likelihood of placement for the unemployed person in the place to which he had gone seeking work, provided that the unemployed person concerned was aware of that fact.

III —. Oral Procedure

1. By order of 8 June 1978, lodged at the Court Registry on 14 June, the Sozialgericht Hildesheim referred to the Court, in pursuance of Article 177 of the EEC Treaty, two questions relating to the interpretation of Article 69 (2) 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).

2. These questions were raised in the context of proceedings between the applicant in the main action, an Italian national domiciled in the Federal Republic of Germany, and the Bundesanstalt für Arbeit (Federal Employment Bureau) in which the applicant seeks to establish his right to the continuance of unemployment benefits involving an exceptional extension of the three-month period laid down by Article 69 (2) of Regulation No 1408/71.

3. The first of the two questions put by the Sozialgericht is whether an extension of the period in pursuance of Article 69 (2) of Regulation No 1408/71 is permissible when the request for an extension was put forward only after the expiration of the period; the second question is whether, in the event of an affirmative reply to the first question, the competent employment services are acting within the limits of their discretion in refusing to agree that there is an exceptional case for extension of the period because:

4. Article 69 (1) (c) of Regulation No 1408/71 permits a worker who is wholly unemployed and who satisfies the conditions of the legislation of a Member State for entitlement to unemployment benefits to go to one or more other Member States in order to seek employment and to retain his entitlement to benefits during a maximum period of three months from the date when he ceased to be available to the employment services of the State which he has left.

5. In this respect it must be observed that Article 69 (2) of Regulation No 1408/71 does not provide that a request for extension must necessarily be made before the expiration of the period.

6. The answer to be given to the first question must therefore be that an extension of the period referred to in Article 69 (2) of Regulation No 1408/71 is permissible even when the request is made after the expiration of that period.

7. Article 69 of Regulation No 1408/71, in giving a worker the right to go to another Member State to seek employment, confers on a person who avails himself of that provision an advantage as compared with a person who remains in the competent State inasmuch as, by the effect of Article 69, he is freed for a period of three months of the duty, which is the counterpart of the grant of unemployment benefits, to keep himself available to the employment services of the competent State and to be subject to the control procedure organized therein, even though he must register with the employment services of the Member State to which he goes.

8. It is for the authorities concerned to check whether the use made by the worker of the right conferred upon him by Article 69 of Regulation No 1408/71 was in conformity with the objective for which it was instituted.

9. The answer to be given to the second question should therefore be that that provision does not restrict the freedom of the competent services and institutions of the Member States to take into consideration, with a view to deciding upon any extension of the period laid down by the regulation, all factors which they regard as relevant and which are inherent both in the individual situation of the workers concerned and in the exercise of effective control.

10. 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 Hildesheim by order of 8 June 1978, hereby rules:

1 An extension of the period referred to in Article 69 (2) of Regulation No 1408/71 is permissible even when the request is made after the expiration of that period.

2 That provision does not restrict the freedom of the competent services and institutions of the Member States to take into consideration, with a view to deciding upon any extension of the period laid down by the Regulation, all factors which they regard as relevant and which are inherent both in the individual situation of the workers concerned and in the exercise of effective control.