Report for the Hearing delivered in Case 192/87

I — Facts and procedure

A — Legal background to the main proceedings

Chapter 6 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community deals with unemployment benefit. Three situations are distinguished:

The situation of an unemployed person who resides in the State where he was last employed and who is seeking fresh employment in that State. He receives unemployment benefit in accordance with the common provisions set out in Section 1 of Chapter 6 (Articles 67 and 68 of Regulation No 1408/71);

The situation of an unemployed person who, during his last period of employment, was residing in a Member State other than the competent State, that is to say the State where he was employed. He receives unemployment benefit in accordance with Article 71, the only article in Section 3 of Chapter 6 of Regulation No 1408/71;

The situation of an unemployed person who, having become entitled to unemployment benefit in one Member State, goes to look for work in another Member State.

The last situation, which is the situation arising in the main proceedings, is governed by Articles 69 and 70 of Section 2 of Chapter 6 (Unemployed persons going to a Member State other than the competent State).

In order to receive the benefits provided for by Article 70 of the Regulation, which provides that unemployment benefits are to be provided by the institution of each of the States to which an unemployed person goes to seek employment, that person must fulfil the conditions set out in Article 69 of the Regulation.

Article 69 (1) of Regulation No 1408/71 provides as follows:

Subparagraphs (a) and (b) of that provision state that the person concerned must have remained available to the employment services of the competent State (State where he was last employed) for at least four weeks after becoming unemployed and that he must be registered as a person seeking work with the employment services of each of the Member States to which he goes and be subject to the control procedure organized there.

Under subparagraph (c) of Article 69 (1) entitlement to benefits continues for a maximum period of three months from the date when the person concerned ceased to be available to the employment services of the State which he left, but the total duration of the benefits must not exceed the duration of the period of benefits during which he was entitled to benefit under the legislation of that State.

If, however, the person concerned returns to the first Member State before the expiry of the period referred to above, he is once again entitled to unemployment benefits in that State pursuant to Article 69 (2) of Regulation No 1408/71.

Article 69 (3) states that the provisions of Article 69 (1) may be invoked only once between two periods of employment. Paragraph (4) then goes on to provide that:

B — Origin and course of the main proceedings

Mrs Vanhaeren became unemployed in Belgium where she received unemployment benefits until 17 July 1983. On that date she moved to the Federal Republic of Germany where she made herself available to the employment services there. Consequently, until 17 October 1983 she obtained unemployment benefits in that Member State in accordance with Article 69 of Regulation No 1408/71.

Mrs Vanhaeren was employed from 11 June 1985 until 29 October 1985 and subsequently from 15 January 1986 to 5 May 1986. On 13 May 1986 she returned to Belgium and applied there for Belgian unemployment benefits.

By decision of 12 August 1986 the Regional Inspector of the Rijksdienst voor Arbeidsvoorziening (National Employment Office) in Hasselt refused to grant Mrs Vanhaeren those benefits. The Inspector based his decision on Article 69 (4) of Regulation No 1408/71.

Mrs Vanhaeren appealed against that decision to the Arbeidsrechtbank (Labour Tribunal) for the District of Tongeren, pleading that Article 69 (4) was not applicable in the present case. She considers that that provision indicates the conditions in which the entitlement to benefits is maintained under national law and does not cover a case in which new rights are acquired on the basis of contributions paid abroad.

Furthermore, she considers that the effect of the position adopted by the Rijksdienst voor Arbeidsvoorziening is to put at a disadvantage or even penalize an unemployed person who returns to his own country after having tried to find work abroad.

The Arbeidsrechtbank, Tongeren, decided to stay the proceedings and request the Court of Justice of the European Communities to give a preliminary ruling on the question whether Articles 69 is applicable in a situation such as that described above.

The judgment making the reference was lodged at the Court Registry on 18 June 1987.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice, written observations were submitted by the Rijksdienst voor Arbeidsvoorziening, represented by A. Binon, Inspector and Chief Director, and by the Commission of the European Communities, represented by D. Gouloussis, Legal Adviser, assisted by F. Herbert of the Brussels Bar, acting as Agents.

Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

By order dated 3 February 1988, the Court decided, pursuant to Article 95 (1) and (2) of the Rules of Procedure, to assign the case to the Third Chamber.

II — Summary of the written observations submitted to the Court

The Rijksdienst voor Arbeidsvoorziening considers that the claimant is not entitled to unemployment benefits in Belgium on the ground, primarily, that she did not return there in the three months following the date on which she left Belgium, as required by Article 69 (2) of Regulation No 1408/71, that is to say between 27 July and 27 October 1983.

The Rijksdienst voor Arbeidsvoorziening adds that the claimant has not acquired or qualified for unemployment benefits in Belgium after the abovementioned period on the basis of the periods of employment which she completed in the Federal Republic of Germany.

In support of this assertion the Rijksdienst voor Arbeidsvoorziening stresses that, although (except in the cases dealt with by Article 71 (1) (a) (ii) and (b) (ii) which do not arise here) Article 67 of Regulation No 1408/71 requires Member States whose legislation makes the acquisition, retention or recovery of the right to benefits subject to the completion of periods of insurance or employment to take into account periods completed in other Member States, Article 67 (3) makes that obligation subject to the condition that the person concerned should have completed lastly periods of employment or insurance in accordance with the provisions of the legislation under which the benefits are claimed.

That general condition is reinforced by Article 69 (2) in fine and (4) covering unemployed persons who have gone to a Member State other than the competent State and who later return to the competent Member State after the three-month period during which the right to unemployment benefits is maintained.

In the view of the Rijksdienst voor Arbeidsvoorziening, if Mrs Vanhaeren had been employed in the Federal Republic of Germany during the three months following her departure from Belgium, had lost that employment and had then returned to Belgium after that period, she would fall within the exceptional case provided for by Article 69 (2), which states first that the person concerned loses all entitlement to unemployment benefits under the legislation ui íiič competent state if he returns there after the expiry of the three months following his departure from that State and then goes on to provide that in exceptional cases this time-limit may be extended by the competent services or institutions.

In the view of the Rijksdienst voor Arbeidsvoorziening, that provision is not applicable in the present case since more than 22 months elapsed between the day when Mrs Vanhaeren left Belgium and the day when she was employed in the Federal Republic of Germany.

The Rijksdienst voor Arbeidsvoorziening points out that Article 69 (4) provides in any event that:

The Commission states that the judgment making the reference does not contain a specific preliminary question. However, in the light of the documents which the Rijksdienst voor Arbeidsvoorziening has sent it, it considers that the national court wishes to know whether Article 69 (4) of Regulation No 1408/71 is applicable to an unemployed person who has complied with the conditions stipulated by the legislation of one Member State for entitlement to unemployment benefit and who has temporarily retained that entitlement to benefits in another Member State under Article 69 (1) and who then returns to the first Member State after the expiry of the period provided for in Article 69 (1) (c) after having been in employment in the other Member State.

In the Commission's view, the reply to that question must be in the negative for the following reasons:

In the Commission's view, it is clear from those two considerations that Article 69 (4) only covers the case in which Belgium has remained the competent State, which cannot be the case when the worker in question has found employment in another Member State.

The Commission considers that under those conditions the refusal to pay unemployment benefit in Belgium could not be based on Article 69 (4) since that provision is inapplicable to a situation such as that described by the national court.

Furthermore, an employed person in the position described may not rely on the provisions of Article 67 (1) and (3) of Regulation No 1408/71 since he does not fulfil the conditions set out therein, that is to say the completion of periods of insurance or employment in the State in which the benefits are applied for.

The Commission proposes that the national court should be given the following reply:

1 Language of the Case: Dutch.