Report for the Hearing in Case C-302/90

I — Legal framework of the main proceedings

1. In the general provisions of Regulation No 36/63/EEC of 2 April 1963 concerning social security for frontier workers (Journal Officiel 1963, 62, p. 1314), the Council:

2. Among the special provisions of Regulation No 36/63, Article 6(1) determines the competent institution for cash benefits for sickness and maternity. It provides that:

3. Regulation No 3 refers in Article 17, in the special provisions concerning sickness, to the situation of workers who, having been insured in a Member State, go to another Member State. In the words of the first subparagraph of paragraph (1) of that article,

4. Finally, Article 39(1) to (3) of Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended by Regulation (EEC) No 2001/83 of 2 June 1983 (Official Journal 1983 L 149, p. 2), which came into force on 1 October 1972, refers to the conditions for entitlement to invalidity benefits. Pursuant to those provisions:

II — Facts and procedure

5. Mrs Desse, a French national, worked in Belgium as a frontier worker between 25 February 1957 and 4 December 1970, when she was dismissed.

6. By a judgment of 28 September 1989, the Cour du Travail, Mons, decided to stay its proceedings and to refer the following questions to the Court for a preliminary ruling:

7. The judgment making the reference was lodged at the Court Registry on 5 October 1990. Pursuant to Article 20 of the Protocol on the Statute of the Court, written observations were submitted by INAMI, intervening in support of the conclusions of the appellant in the main proceedings, represented by A. Wattier and J. Saint-Ghislain, of the Mons Bar, by Mr and Mrs Faux, respondents in the main proceedings, represented by Gaston Dramaix and José Chevalier, of the Mons Bar, and by the Commission of the European Communities, represented by Dimitrios Gouloussis, a member of its Legal Service, acting as Agent.

8. Upon hearing the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and assigned the case to the Fifth Chamber in accordance with Article 95(1) and (2) of the Rules of Procedure.

III — Summary of the written observations submitted to the Court

9. On the first question, INAMI contends that, for entitlement to cash benefits for incapacity for work, it is necessary to satisfy the definition of frontier worker within the meaning of Article l(l)(c) of Regulation No 36/63, that is to say to reside on the territory of one Member State and pursue an occupation on the territory of another Member State. However, the last condition is not satisfied where the worker is wholly unemployed.

10. Mr and Mrs Faux state first of all that the situation of Mrs Desse falls under freedom of movement for workers and point out that the Court has consistently held in that respect that the regulations in matters of social security must be interpreted in the light of the aims pursued by Articles 48 to 51 of the Treaty.

11. On the first question, the Commission points out that the Court, when interpreting a provision of Regulation No 1408/71 that is almost identical to Article 19(1) of Regulation No 36/63, declared that a wholly unemployed frontier worker may claim benefit only from the Member State in which he resides (judgment in Case 1/85 Miethe v Bundesanstalt fiir Arbeit [1986] ECR 1837). It follows, according to the Commission, that Article 19(1) of Regulation No 36/63 does not grant frontier workers the right to choose between the legislation of the Member State of residence and that of the State of employment.

1 Language of the case: French.