Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The Centrale Raad van Beroep, Utrecht, has submitted to the Court two questions for a preliminary ruling on the interpretation of certain provisions of Regulation (EEC) No 1408/71 of the Council concerning entitlement to unemployment benefit for workers moving within the Community.
Facts and procedure
2. Mrs Warmerdam-Steggerda initially received unemployment benefit in the Netherlands. Subsequently, from 17 March to 8 August 1975, she worked for a firm in Scotland as a pottery maker. From 17 March to 6 April 1977 she was legally insured as an employed earner (through the payment of contributions) against the risk of industrial accident but, because of her low earnings, she was not insured against other risks covered by the British social security system. On 6 April 1975, the National Insurance (Industrial Injuries) Acts 1965-74, on which her insurance against industrial accident was based, ceased to have effect. On that date the Social Security Act 1975 came into force, which, according to a declaration set out in the Official Journal of the European Communities, constitutes legislation for the purposes of Article 4(1) and (2) of Regulation No 1408/71 and to which that regulation is therefore applicable. As from that date separate contributions for insurance against the risk of accident were no longer levied from Mrs Warmerdam in the United Kingdom, since, under the new legislation, she was no longer liable to pay any contributions because of her low income.
3. On 3 March 1977 the Board of the Nieuwe Algemene Bedrijfsvereniging (Board of the New General and Professional Trade Association, hereinafter referred to as the Board) decided not to grant unemployment benefit to Mrs Warmerdam. The Board relied on the argument that, as during her period of employment in the United Kingdom Mrs Warmerdam had not been insured against the financial consequences of unemployment, she could not be regarded as a worker within the meaning of Regulation No 1408/71. Since, according to that decision, the regulation provides for the grant of unemployment benefit only in favour of workers, Mrs Warmerdam was not entitled to them.
The issue in the main dispute concerns the scope of Article 71(1)(b)(ii)
4. It is apparent from the order for reference that Mrs Warmerdam based her claim against the Board on Article 71(1)(b)(ii) of Regulation No 1408/71.
The established case-law of the Court concerning Article 71(1)(b)(ii)
5. The judgment of the Court must enable the national court to apply Article 71(1)(b)(ii) correctly. That is why it seems appropriate to me, before dealing with the questions raised in this case, to recall the Court's case-law concerning that provision. That case-law strikes me as particularly enlightening with regard to the purpose and scope of Article 71 which, in my view, are crucial to the answer to be given by the Court to the questions submitted by the national court.
The first question: the concept of worker in Article 71
6. Against that background, I now turn to the first question raised by the Centrale Raad van Beroep. In my view, that question must be understood as seeking to ascertain whether a person who, during his last employment, was insured exclusively for the contingencies covered by only one branch of social security (in this case industrial accident) thereby acquires the status of worker, which is required in order to qualify for the advantages conferred by Article 71(1)(b)(ii) (namely, entitlement to benefits under the branch concerned with unemployment).
7. The Board takes a different view, which is shared by the Commission in its observations. In general, the Board maintains that the two questions formulated by the Centrale Raad van Beroep raise the same problem, namely whether a worker who was insured in one Member State against only one risk can rely on that limited insurance cover in another State in order to claim entitlement to insurance against other risks. The Board maintains that that question should be answered in the negative: to take a different view would constitute an encouragement to take out insurance in one Member State against only one risk and subsequently lay claim, on the basis of that insurance, to the advantages resulting from the application of all the other branches of social security.
8. That brings me to my own assessment of the first question. The most striking feature of the observations submitted to the Court, as outlined above, is that although the parties take as their point of departure the definition of the concept of worker in Article 1(a) they appear to make no distinction between the four alternative definitions set out in that provision. In its observations the Netherlands Government seems to acknowledge that the definition in Article 1(a)(i) (which would appear to be the one that accords with the Netherlands system) is applicable. Mrs Warmerdam also seems to start from that premise. The Commission, on the other hand, focuses in its observations on both the definition in subparagraph (a)(i) and that in subparagraph (a)(ii) (which is, it would appear, the definition specifically orientated towards the United Kingdom). Finally, the Board refers to the wording of Article 1(a) only in general terms.
9. Without denying that the concept of worker in Article 71 must be defined by reference to Article 1(a), I consider that the answer to the first question submitted by the Centrale Raad van Beroep must instead be sought in Article 71(1)(b)(ii) itself (on which, as I pointed out earlier, Mrs Warmerdam has based her claim to benefits). It is possible to infer from the aforesaid case-law (see the judgments in Motithaan, Aubin and Di Paolo) that this rule constitutes an exception (to the general rule contained in Article 67) which is designed to offer migrant workers, on certain conditions, a choice between two different Member States as regards the grant of unemployment benefit with a view to facilitating their search for new employment. Those judgments clearly indicate that that provision, which must be interpreted strictly, does not confer entitlement to unemployment benefit. Instead, it permits migrant workers who become unemployed in a Member State other than the State in which they reside to exercise the rights to benefits which they have acquired, in keeping with their choice, either in the Member State in which they were last employed or in the Member State in which they reside, in accordance with the legislation of the country of their choice.
10. I therefore assume that persons who, on taking up their last employment, already had the status of worker (to be determined on the basis of the definition in Article 1(a) which is orientated towards the scheme of the Member State in which they reside) and retained that status during their last employment in the other Member State (the concept of worker to be assessed therefore in the light of the definition in Article 1(a) which is orientated towards the scheme of the Member State in which they were last employed), as well as persons who acquired the status of worker (to be determined on the basis of the definition orientated towards the scheme of the Member State in which they were last employed) during their last employment, can rely on the system established by Article 71.
The second question: the application of the rules on aggregation
11. I now turn to the second question submitted by the Centrale Raad van Beroep.
12. In connection with that question it is necessary to begin by referring to an ambiguity regarding the subject-matter of the interpretation sought. Although Article 67(1) contains rules on aggregation which must be applied by the competent institutions of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits subject to the completion of insurance periods, the rules on aggregation in Article 67(2) must be applied in Member States whose legislation makes the acquisition, retention or recovery of the right to benefits subject to the completion of periods of employment. The Netherlands Government and Mrs Warmerdam maintain that this case involves the aggregation of periods of employment since at the time of the contested events entitlement to unemployment benefits in the Netherlands was conditional on completion of a number of periods of employment. In order to dispel any uncertainty, I shall deal with both of those provisions below.
13. I shall consider first of all the situation in which the national court would apply paragraph 2 of Article 67 (and, in the first stage of my reasoning, without reference to Article 67(3)). As stated earlier, that provision must be applied in Member States whose legislation makes the ... right to benefits subject to the completion of periods of employment. In such Member States the competent institution must take into account
14. I now turn to the situation in which the national court would apply paragraph 1 of Article 67. That provision must be applied in Member States whose legislation makes the... right to benefits subject to the completion of insurance periods. In those States the competent institution must take into account
Conclusion
15. In the light of the foregoing arguments I suggest that the questions submitted by the Centrale Raad van Beroep, Utrecht, should be answered as follows:
1 Original language: Dutch.
2 Regulation 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); for the latest consolidated version, see the annex to Regulation (EEC) No 2001/83 (OJ L 230, 22.8.1983 p. 8).
3 OJ C 245, 25.10.1975, p. 1.
4 Anicle 4 of Regulation No 1408/71 specifies, in particular, the branches of social security to which that regulation applies (paragraph 1) and also provides that the regulation is to apply to all general and special social security schemes, whether contributory or noncontributory, and to schemes concerning the liability of employers in respect of those branches.
5 Article 1(a) of Regulation No 1408/71 defines that term as the Member State in whose territory the competent institution is situated. Article 1(o) defines the competent institution amongst others as the institution with which the person concerned is insured at the time of the application for benefit, or the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of his family were resident in the territory of the Member State in which the institution is situated.
6 The terminology used in Article 71 has apparently misled the Netherlands Government. In its observations, the Netherlands Government points out that Article 71(1)(b)(ii) does not apply to Mrs Warmerdam because, during her last employment, she was not residing within the territory of a Member State other than the competent State, the Netherlands Government evidently interpreting the words was residing (in Dutch woonde) as having his residence (in Dutch woonplaats hebbend).
7 If that is not the case, Mrs Warmerdam will not be able to rely on the application of Article 71 or, therefore, to exercise the option provided for therein. In that case, she will fall within the scope of the ordinary rules of aggregation in Article 67. Article 67(3) (see section 12 below) imposes, however, a restrictive condition on the application of those rules on aggregation: the worker must have completed lastly periods of insurance or employment in accordance with the legislation under which the benefits are claimed.
8 Regulation No 3 of the Council concerning social security (or migrant workers, OJ 30, 16.12.1958, p 561 et seq.
9 At p. 185. It must be emphasized that Regulation No 3 did not contain any separate definition of the concept of worker.
10 On the whole, that point of view strikes me as being incorrect. The acquisition of the status of worker in a given Member State docs not ipso facto confer entitlement to the advantages of all the branches of social security in another Member State. Regulation No 1408/71 is designed primarily to coordinate and not to harmonize the social security systems of the Member States. In that connection, the basic principle of Regulation No 1408/71 is that migrant workers are entitled to social security benefits regardless of their place of employment or residence, so that the exercise of the rights which they have acquired is facilitated to the greatest possible extent throughout the territory of the Community, without however affecting the manner in which social security rights are acquired in the Member States. That principle has been implemented by the introduction of rules on aggregation and by the grant of benefits regardless of such workers' place of residence (see the preamble to Regulation No 1408/71, OI L 149, 5.7.1971, p. 2), but in accordance with the legislation of the Member State which must provide the benefits. Article 71 is in keeping with that principle, as I intend to show (in section 9).
11 Emphasis added by the Board. I wish to state here and now that that interpretation of the Court's judgment strikes me as incorrect. Admittedly, it is apparent from paragraph 17 of the judgment that the Court had not taken into consideration the national court's question except in relation to the contingency of sickness. None the less, there is nothing in the grounds of that judgment to suggest that the Court intended to consider the status of worker according to each branch of social security. In that judgment the Court deduced that status only from the existence of insurance cover against a given risk, namely the sole risk which was at issue in the proceedings.
12 The Board refers to Article 18 as regards sickness benefits and to Article 38 as regards invalidity benefits.
13 If, in that connection, the person concerned opts for the Member State in which he resides, the regulation establishes the fiction that he was last employed in that State (on that point, sec further in this section and, in connection with the second question, section 13). On the other hand, the competent institution of the Member State in which a migrant worker resides may, for the purpose of determining his entitlement to benefits, also take account of the factual circumstances in which his last employment was terminated. Thus, it is apparent from the order for reference, and confirmed by Mrs Warmerdam's observations, that she herself resigned from her position in the United Kingdom. If the legislation of the Member State chosen by the person concerned does not provide for entitlement to benefits in a situation of that kind, no such righi can be derived from Article 71(1)(b)(ii) either. The Board made it clear at the hearing, however, that the court of first instance (the Raad van Beroep, Arnhem) had taken the view that Mrs Warmerdam's resignation had to be regarded as involuntary and that no appeal had been lodged against the decision on that point.
14 This was so, for instance, in the main proceedings in Cases 39/76 (Mouthaan, see section 5 above) and in Case 227/81 (Aubin, see section 5 above).
15 That situation may have arisen in the main proceedings in Case 76/76 (Di Paolo) where the person concerned had, after completing his studies in Belgium, accepted a temporary position in the United Kingdom.
16 It should be pointed out that the technical expressions periods of employment or periods of insurance in Article 67 are not used in Article 71.
17 This phrase comes from paragraph 6 of the judgment of 15 March 1978 in Case 126/77 Frangiamore [1978] ECR 725, which is referred to by the Board.
18 This implies, as I pointed out earlier (section 10) that the characteristics and the scope of the insurance system of the Member State in which the worker was last employed arc irrelevant.
19 For the application of that rule see, inter alia, the judgment in Moutbaan, cited above, paragraphs 12 to 15.