Report for the Hearing delivered in Case 236/87

I — Facts and procedure

1. Article 67, which is entitled Aggregation of insurance or employment periods, and which is part of Section 1, Common Provisions, of Chapter 6, Unemployment, of Regulation No 1408/71 is worded as follows :

2. The plaintiff in the main proceedings, Anna Bergemann, a Netherlands national, worked, during her last employment, as an animal-keeper at Venlo, the Netherlands. On 5 June 1984, while she was on maternity leave, Mrs Bergemann married and, on 6 June 1984, took up residence at her husband's home in Kerken (Federal Republic of Germany), where she registered with the authorities.

II — Written observations submitted to the Court

Mrs Bergemann points out in the first place that her position does not correspond to that of a frontier worker within the meaning of Article 1 (b) of Regulation No 1408/71, namely an employed or selfemployed person who pursues his occupation in the territory of a Member State and resides in the territory of another Member State to which he returns as a rule daily or at least once a week. Accordingly, Article 71 (1) (a) (ii) of the regulation, relating to frontier workers, is not, in her view, applicable.

On the other hand, she considers that Article 71 (1) (b) (ii) of Regulation No 1408/71 is applicable to the facts of the present case in so far as it concerns workers who, while pursuing an occupation in another Member State, retain close links with the country in which they are established and habitually reside. In this respect, she states that the employment relationship which bound her to her employer in the Netherlands was still in existence when she transferred her residence to the Federal Republic of Germany.

She stresses further that the Court has already held, in its judgment of 17 February 1977 in Case 76/76 (Di Paolo [1977] ECR 315) that Decision No 94 of the Administrative Commission of 24 January 1974 does not enumerate exhaustively the categories of workers who may come within the scope of Article 71 (1) (b) (ii).

Finally, Mrs Bergemann notes that she changed her place of residence for important family reasons and that her family life would be seriously disturbed if she was required to register with the employment authorities of her previous residence in Venlo, the Netherlands.

Mrs Bergemann suggests that the questions referred to the Court by the national court should be answered as follows:

According to the Bundesanstalt für Arbeit (Federal Labour Office), Mrs Bergemann's situation does not correspond in any way to the cases envisaged under Article 71 (a) (ii) and (b) (ii) because after the transfer of her residence to the Federal Republic of Germany she in fact never journeyed from the State of her new residence to the State of her last employment. Furthermore, if the broad interpretation sought by the plaintiff were accepted, that would amount to transferring the cost of unemployment benefits to the State of residence (instead of the State responsible — State of last employment) whenever migrant workers go on leave towards the end of their employment contract, visit another State and apply there for unemployment benefit. Such a transfer of the obligation to pay social security benefits is not justified under the very specific rules laid down by Article 67 et seq. of Regulation No 1408/71.

The Commission observes in the first place that a worker in Mrs Bergemann's position cannot be regarded as a frontier worker within the meaning of Article 71 (1) (a) (ii) of Regulation No 1408/71. This is so because the concept of frontier worker (as defined in Article 1 of Regulation No 1408/71) presupposes regular and frequent travelling between the State of employment and the State of residence, whereas after Mrs Bergemann had taken up residence in the Federal Republic of Germany (during a period of leave and only a few days before the end of her employment contract in the Netherlands) she did not in fact return to the Netherlands to pursue an occupation there.

As regards specifically the nature and the scope of Decision No 94 of the Administrative Commission of the European Communities on Social Security for Migrant Workers, of 24 January 1974, the Commission notes that in the judgment of 14 May 1981 in Case 98/80 Romano [1981] ECR 1241, the Court had already established that an organ such as the Administrative Committee cannot be empowered by the Council to adopt measures of a legislative character (paragraph 20 of the judgment). In addition, according to the judgment of 12 February 1977 in Case 76/76 Di Paolo [1977] ECR 315, Decision No 94 cannot be regarded as enumerating exhaustively the categories of workers which may come within the scope of Article 71 (1) (b) (ii), which is moreover confirmed by the clearly non-exhaustive wording appearing in Decision No 131 of 3 December 1985 (Official Journal 1985, C 141, p. 10), which replaced Decision No 94.

As regards the application of Article 71 (1) (b) (ii), the Commission observes in the first place that this article constitutes an exception in relation to the general rule laid down in Article 67 and points out that, according to the Di Paolo judgment, the transfer of liability for payment of unemployment benefits from the Member State of last employment to the Member State of residence is justified for certain categories of workers who retain close ties with the country where they have settled and habitually reside, but it would no longer be justified if, by an excessively wide interpretation of the concept of residence, the point were to be reached at which all migrant workers who pursue an activity in one Member State while their families continue habitually to reside in another Member State were given the benefit of the exception contained in Article 71 (1) of Regulation No 1408/71. It follows from these considerations that the provisions of Article 71 (1) (b) (ii) must be interpreted strictly.

The Commission notes nevertheless that, even if the concept of residence is interpreted restrictively, it is any event clear that by taking up residence in a Member State other than the State of employment when the employment relationship previously existing in the latter State is maintained, the person concerned becomes an employed person, other than a frontier worker within the meaning of Article 71 (1) (b) (ii).

This interpretation, which is confirmed not only by the Court's decisions (judgments of 15 December 1976 in Case 39/76 Mouthaan [1976] ECR 1901; of 27 May 1982 in Case 227/81 Aubin [1982] ECR 1991 and of 12 June 1986 in Case 1/85 Miethe [1986] ECR 1837), but also by Article 69a contained in the Council proposal for an EEC regulation amending Regulation No 1408/71, which allows an unemployed person who leaves the State liable to pay benefits (in other words the State of last employment) in order to rejoin his spouse in another Member State, to receive unemployment benefit in the new State of residence.

The Commission therefore proposes that the questions submitted by the national court should be answered as follows:

1 Language of the Case: German.