Opinion of Mr Advocate General Lenz delivered on 18 November 1993

1 Original language: German.

2 Consolidated version of Regulation (EEC) No 1408/71 of the Council 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 (OJ 1992 C 325, p. 1).

3 See Article 37(2).

4 Introduced with retroactive effect from 29 November 1984 by Regulation No 2195/91 (OJ 1991 L 206, p. 2).

5 My emphasis.

6 The rule in Article 39(5) now features in lhe first subparagraph of Article 39(6), as amended by Regulation No 1248/92 (OJ 1992 L 136, p. 7), which came into force on 1 June 1992. In 1991 and 1992 the relevant provisions were amended both at Community- law level and in national law. As a result, according to the United Kingdom's representative, Mrs Toosey has been receiving SDA since 1992, and it is for that reason to be assumed that the replies to the questions in the reference are relevant only to the previous legal position.

7 Neither as a genuine frontier worker nor otherwise, which the applicability of Article 71(1)(b)(ii) would in certain circumstances have made possible (judgment in Case 1/85 Mietile v Bundesanstalt fur Arbeit [1986] ECR 1837). In Case 76/76 Di Paolo v Office National de l'Emploi [1977] ECR 315, the Court took the view that the fact that the employed person left her family in the State in question constituted evidence that she retained her residence there.

8 In Case 236/87 Bergemann v Bundesanstalt fur Arbeit [1988] ECR 5125, the applicant transferred her residence to another Member State during the employment relationship. She did not thereafter return to the State of employment as she did not reside there during the last few weeks of the employment relationship because she was on leave. In Case C-102/91 Knock v Bundesanstalt fur Arbeit [1992] ECR I-4341, the applicant returned for a number of months at a time to her State of residence after spending the academic year as a foreign-language assistant in the United Kingdom.

9 Cited above in footnote 6.

10 Case 128/83 Caisse Primaire d'Assurance Maladie de Rouen v Guyot [1984] ECR 3507.

11 Case C-62/91 Gray v Adjudication Officer [1992] ECRI-2737. Mr Gray, a British national, had lived and worked for almost 20 years in Spain. Following his return to the United Kingdom, he there applied for unemployment benefit.

12 This need not necessarily require active work.

13 Article 13(2)(0 provides as follows: a person to whom the legislation of a Member Stale ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17, snail be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legisfation atone.

14 Cited above in footnote 3.

15 Sec the seventeenth recital in the preamble to Regulation No 2195/91.

16 OJ 1992 L 136, p. 7.

17 Fourth recital in the preamble to Regulation No 1248/92.