Opinion of Advocate General
Mr President,
Members of the Court,
1. By order of 25 February 1991 the Bundessozialgericht (Federal Social Court) referred to the Court of Justice a number of questions for a preliminary ruling concerning the right to unemployment benefit under Regulation No 1408/71.
Background
2. Miss Knoch, single and of German nationality, was employed from 1 October 1982 to 30 June 1983 and from 1 October 1983 to 30 June 1984 as an assistant in German language and literature at the University of Bath in the United Kingdom. She obtained her post through the Deutscher Akademische Austauschdienst (German Academic Exchange Service, hereinafter the DAAD) In May 1981 she took the first State examination for secondary-school teachers at the University of Heidelberg and, in June 1982, an examination for a Master's degree. During the period of her engagement in the United Kingdom, she was covered by social security and paid contributions to the United Kingdom unemployment insurance scheme. Over the same period, the DAAD paid her a compensatory allowance, which she also received during the vacations from 1 July to 30 September 1983 and from 1 July to 30 September 1984. In addition, the DAAD paid her, on cessation of that compensatory allowance, an interim allowance amounting to some DM 1500 per month up to 30 November 1984.
3. Since it was confronted with a number of problems concerning the interpretation of Regulation No 1408/71, the Bundessozialgericht referred the following questions to the Court:
4. In view of the technical nature of the questions, it is desirable in my view first briefly to consider the system established by Regulation No 1408/71 with regard to unemployment benefit. I shall then deal with the questions referred for a preliminary ruling in the order in which they have been submitted by the national court. Before that, I shall consider in detail the concept of residence within the meaning of Article 71 of that regulation, since the French Government disputes that Miss Knoch was still resident in Germany during her stay in the United Kingdom.
The system of unemployment benefit introduced by Regulation No 1408/71
5. As we know, Regulation No 1408/71 was adopted by the Council for the implementation of Article 51 of the EEC Treaty. Its aim is the closer coordination of national social security legislation with a view to the attainment of freedom of movement for workers by guaranteeing within the Community equal treatment for all nationals of the Member States under the various national legislative systems, and social security benefits for workers and their dependants regardless of their place of employment or residence. With that end in view Regulation No 1408/71 has established a scheme involving first aggregation of all the periods to be taken into account under the various national legislative systems for the purpose of acquiring and retaining the right to benefits and of calculating the amount thereof, subsequently provision of benefits for the various categories of persons covered by the regulation, regardless of their place of residence within the Community, and finally prevention as a result of the movement of workers and the differences between national legislation of the unjustified overlapping of benefits resulting in unequal treatment.
6. With regard to unemployment benefit, Article 67(1) of Regulation No 1408/71 imposes on Member States which — as is the case in Germany pursuant to Paragraph 104(1) of the Arbeitsförderungsgesetz (Law on the Promotion of Employment, hereinafter referred to as the AFG) — make the acquisition, retention or recovery of the right to benefits subject to the completion of periods of insurance, the following obligation:
Residence within the meaning of Article 71 of Regulation No 1408/71
7. The French Government disputes the national court's assertion that Miss Knoch fulfils the conditions laid down by Article 71(l)(b)(ii), in particular inasmuch as that court takes the view that Miss Knoch had retained her residence in Germany during her stay in the United Kingdom. The French Government relies on the judgment in Reibold in which the Court, summarizing its ruling in Di Paolo, lays down for the determination of the concept of residence within the meaning of Article 71(l)(b)(ii) the following criteria:
8. I am not swayed by those arguments. When applied to this case, most of the criteria developed by the Court in its judgments in Di Paolo and Reibold point instead to the conclusion that the national court was right to consider that during her employment in the United Kingdom Miss Knoch had retained her habitual residence in Germany. The crucial factor, in my view, is that in those decisions the Court proceeds on the assumption that the worker in question is resident in the Member State in which he is employed only where he has a fixed employment (un emploi stable') in that State. That was clearly not the case here since Miss Knoch was employed for two academic years as an assistant in the United Kingdom under an academic exchange programme established by the DAAD. On the expiry of that period (June 1984) her association with the United Kingdom came to an end and her efforts to find work there proved unsuccessful. It is impossible to infer the existence of a fixed employment from those circumstances.
The first question
9. In its first question the national court seeks to ascertain whether a wholly unemployed person such as Miss Knoch is still entitled under Regulation No 1408/71 to receive unemployment benefit in the Member State in which she resides or to which she returns even if she has previously received unemployment benefit from the institution of the competent Member State, in this case the United Kingdom. According to the national court, the German Government and the Commission, that question should be answered in the affirmative.
10. I share the view expressed by the national court, the German Government and the Commission that it is quite possible to claim consecutive benefits, first in the Member State to whose legislation the person concerned was last subject (in this case, the United Kingdom) and subsequently in the Member State in which he resides. As noted earlier (paragraph 6), that preferential system must enable a migrant worker to claim unemployment benefit in conditions which are most favourable to the search for employment. That aim would not be achieved if the choice initially made by the person concerned in favour of benefits in the Member State to whose legislation he was last subject were to deprive him of entitlement to benefits under the scheme of the Member State in which he resides. The suspension, provided for in the third sentence of Article 71(l)(b)(ii), of entitlement to benefits in the last-mentioned State during the period in which benefits may be claimed under the legislation of the first-mentioned State would otherwise serve no purpose.
The second question
11. The second question concerns the application of the first sentence of Article 12(1) of Regulation No 1408/71 in the context of Article 71(l)(b)(ii) of the same regulation. I shall consider, in turn, whether that provision is applicable here, when unemployment benefits constitute benefits of the same kind, and how that provision is to be applied in the circumstances of the case.
12. The applicability of Article 12 in the context of Article 71(l)(b)(ii) and Article 67 can scarcely be doubted. As stated earlier (paragraph 5), Article 12 is designed to prevent the unjustified overlapping of social security benefits in the context of Regulation No 1408/71. The prohibition on overlapping, which is reinforced by that provision, is of general application, with the result that it also applies to unemployment benefit. Only the benefits expressly referred to in the second sentence of Article 12(1) (invalidity, old age, death (pensions) and occupational disease) do not fall within the scope of that prohibition.
13. Less obvious is the answer to the question whether German unemployment benefit and the benefits which Miss Knoch received in the United Kingdom are to be regarded as benefits of the same kind within the meaning of Article 12. In that regard the national court rightly refers to the judgment in Valentini, in which the Court considered that:
14. The question is whether it follows from those differences that the benefits are not of the same kind within the meaning of Article 12 of Regulation No 1408/71. In my view, that question must be answered in the negative. Given the numerous differences on that point between the national social security schemes, to require the basis on which the benefits are calculated and the conditions for granting them to be absolutely identical would mean that the prohibition in Article 12 on the overlapping of benefits would virtually never apply to unemployment benefit. It would thus be possible for benefits to overlap without restriction once the legislation of the Member State concerned differed in any way as regards the basis on which they are calculated and the conditions for granting them. This clearly runs counter to one of the fundamental aims of Regulation No 1408/71, namely the prevention of the unjustified overlapping of benefits and the unequal treatment resulting therefrom on account of differences between national legislation (see paragraph 5, above).
15. The question remains, in the event of the application of Article 12 in the context of Article 71(1) (b) (ii) and Article 67, what specific action must be taken by the institution of a Member State which, like Germany, makes the acquisition of entitlement to unemployment benefit and the duration thereof contingent on the completion of insurance periods. In that regard, the national court suggests two approaches (see paragraph 3 above). The first involves the literal application of Article 12: periods of insurance which have already served as a basis for the first claim may not be relied upon for a second time, which in the circumstances means that the periods of insurance which formed the basis of the claim to unemployment benefit under United Kingdom legislation cannot serve at the same time as a qualifying period for the purposes of claiming entitlement to unemployment benefit in Germany. By contrast, there is the alternative possibility of taking into account periods of insurance without reference to the first claim, whilst reducing the length of the period of entitlement which has arisen in Germany by the number of days in respect of which the first claim to have arisen was acquired. I agree with the position taken by the national court, the German Government and the Commission, to the effect that the latter approach is the most appropriate. It is more advantageous to the unemployed person in question inasmuch as he has to satisfy a qualifying period to a lesser extent, or not at all, in the Member State in which he resides, which makes it easier for him, in accordance with the purpose of Article 71(l)(b), to seek employment upon his return. Moreover, as the national court points out, that method is more practical from the point of view of the institution of the country of residence, which does not therefore repeatedly have to ascertain the periods of insurance on the basis of which the foreign claim has been acquired or maintained.
The third question
16. The first part of the third question concerns the interpretation of Article 84(2) of Regulation No 574/72 (the implementing regulation). For the purposes of the application of Article 71 of Regulation No 1408/71, Article 84(2) provides as follows:
17. I shall be brief in my answer. The certified statement provided for in Article 84(2) of the implementing regulation is intended merely as an aid to the competent institution of the Member State in which the person concerned resides or to its courts in making it easier for them to make a proper assessment of the claim asserted against the competent institution of the Member State of employment. It is a standard form drawn up by the Administrative Commission on Social Security for Migrant Workers referred to in Articles 80 and 81 of Regulation No 1408/71. As the Court reaffirmed in its judgment in Romano, that Commission is not empowered to adopt acts having the force of law, nor can it require national institutions to use certain methods or adopt certain interpretations in applying the Community rules. Nor, as the Court clearly spelt out in its judgment in Knoeller, do the forms drawn up by that Commission have exclusive probative value. The competent institution of the Member State in which the person concerned resides or, in the context of legal proceedings, the national court, is therefore entirely at liberty to examine that statement in order to ascertain whether it is correct so as to have reasonable grounds on which to challenge it.
18. The second and third parts of the third question concern the effect of the third sentence of Article 71(l)(b)(ii) of Regulation No 1408/71, according to which the benefits payable under the legislation of the State in whose territory the employed person resides are suspended for the length of the period in which he can claim entitlement on the basis of Article 69 to benefits under the legislation to which he was last subject.
19. The answer to the first part of the question is that the benefits payable must be suspended in so far as the conditions laid down by Article 69 have actually been fulfilled and the person concerned qualified for benefits on that basis pursuant to the legislation to which he was last subject. It would run counter to the protection accorded by Regulation No 1408/71 to migrant workers to make such a person's entitlement to benefits under the legislation of his place of residence conditional on strict compliance with the conditions laid down in Article 69 for the maintenance of the right to benefit in the Member State of employment. In that connection the Court considered in its judgment in Bonaffini that
20. So far as concerns the legal consequences of the suspension of unemployment benefit by the competent institution of the Member State in which the person concerned resides, the national court raises the question whether that suspension means merely that an unemployed person does not receive benefits in the State in which he resides in respect of that period but may thereafter claim benefits from that institution for the full period, or that the length of the period of entitlement to unemployment benefit is in addition reduced by the number of days for which the suspension applies.
Conclusion
21. I propose that the Court answer the questions submitted by the national court as follows:
1 Original language: Dutch.
2 Council Regulation (EEC) No 1408/71 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 set out in Annex I to Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).
3 See the fifth recital in the preamble to Regulation No 1408/71.
4 Judgment of 12 June 1986 in Case 1/85 Miethe v Bundesanstalt für Arbeit [1986] ECR 1837, at paragraph 9; see also the judgment of 27 May 1982 in Case 227/81 Aubin v UNEDIC andASSEDIC [1982] ECR 1991, at paragraph 19.
5 Judgment of 9 July 1975 in Case 20/75 D'Amico v Landesversicherungsanstalt Rheinland-Pfalz [1975] ECR 891, at paragraph 5; judgment of 15 December 1976 in Case 39/76 Metaalnijverheid v Mouthaan [1976] ECR 1901, at paragraph 13; judgment of 28 February 1980 in Case 67/79 Fellinger v Bundesanstalt für Arbeit [1980] ECR 535, at paragraph 7; judgment of 22 September 1988 in Case 236/87 Bergemann v Bundesanstalt für Arbeit [1988] ECR 5125, at paragraph 18; and judgment of 13 November 1990 in Case C-216/89 Reibold v Bundesanstalt für Arbeit [1990] ECR I-4163 (summary publication), at paragraph 10.
6 Judgment of 29 June 1988 in Case 58/87 Rebmann v Bundesversicherungsanstalt für Angestellte [1988] ECR 3467, at paragraph 13.
7 Judgment of 17 February 1977 in Case 76/76 Di Paolo v Office National de l'Emploi [1977] ECR 315.
8 Judgment in Reibold, cited above, at paragraph 15.
9 Judgment in Reibold, cited above, at paragraph 16; judgment in Di Paolo, cited above, at paragraph 22.
10 Judgment of 30 May 1989 in Case 33/88 Allué and Coonan v University of Venice [1989] ECR 1591, at paragraph 21.
11 Council Directive of 28 March 1983 (83/182/EEC) on tax exemptions within the Community for certain means of transport temporarily imported into one Member Sute from another (OJ 1983 L 105, p. 59).
12 Judgment in Reibold, cited above, at paragraph 21 in fine.
13 Judgment in Di Paolo, cited above, at paragraph 21.
14 An identical definition is given in Article 6 of Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of tne personal property of individuals (OJ 1983 L 105, p. 64).
15 Judgement of 5 July 1983 in Case 171/82 Valentini v ASSEDIC [1983] ECR 2157, at paragraph 13.
16 Paragraph 100(1) of the Arbeitsförderungsgesetz.
17 Paragraphs 104 and 106 of the Arbeitsförderungsgesetz.
18 Paragraphs 111 and 112 of the Arbeitsförderungsgesetz. In the case of unemployed persons with children the net wage compensatory amount is 68% (Paragraph 111(1) of the Arbeitsförderungsgesetz).
19 Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 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 set out in Annex II to Council Regulation (EEC) 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 86).
20 Judgment of 14 May 1981 in Case 98/80 Romano 11NAMI [1981] ECR 1241, at paragraph 20; see my Opinion in Case C-251/89 Athanasopoulos v Bundesamtalt für Arbeit, at paragraph 13.
21 Judgment of 11 March 1982 in Case 93/81 INAMI v Knoeller [1982] ECR 951, at paragraph 10.
22 Judgment of 10 July 1975 in Case 27/75 Bonaffini v INPS [1975] ECR 971, at paragraph 9.