C-27/75

In Case 27/75.

Reference to the Court under Article 177 of the EEC Treaty by the Pretore of Enna for a preliminary ruling in the action pending before him between

GAETANO BONAFFINI and Others

and

ISTITUTO NAZIONALE della PREVIDENZA Sociale (INPS)

on the interpretation of Articles 69 and 71 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ English Special Edition 1971 [II], p. 416).

JUDGMENT

Facts

The facts of the case, the course of the departure before such time has procedure and the observations expired; submitted under Article 20 of the Protocol on the Statute of the Court of (b) he must register as a person seeking work with the employment services Justice of the EEC may be summarized of each of the Member States to as follows: which he goes and be subject to the control procedure organized therein. This condition shall be considered I — Facts and procedure satisfied for the period before Article 69 of Regulation (EEC) No registration if the person concerned 1408/71 reads as follows: registered within seven days of the date when he ceased to be available

of the season for which he was legislation while last employed; engaged. the institution of the place of residence shall provide such 2. If the person concerned returns to benefits at its own expense; the competent State before the expiry of (b) (i) a worker, other than a frontier the period during which he is entitled to worker who is partially, benefits under paragraph 1 (c), he shall continue to be entitled to benefits under intermittently or wholly the legislation of that State; he shall lose unemployed and who remains all entidement to benefits under the available to his employer or to the employment services in the legislation of the competent State if he does not return there before the expiry of territory of the competent State shall receive benefits in that period. In exceptional cases, this time-limit may be extended by the accordance with the legislation of competent services or institutions. that State as though he were residing in its territory; these 3. The provisions of paragraph 1 may benefits shall be provided by the competent institution; be invoked only once between two (ii) a worker, other than a frontier periods of employment. worker, who is wholly unemployed and who makes 4. Where the competent State is himself available for work to the Belgium, an unemployed person who employment services in the returns there after the expiry of the three territory of the Member State in month period laid down in paragraph 1 which he resides, or who returns (c), shall not requalify for benefits in that to that territory, shall receive country until he has been employed benefits in accordance with the there for at least three months.' legislation of that State as if he Article 71 of the Regulation reads as had last been employed there; the follows: institution of the place of residence shall provide such '1. An unemployed person who, during benefits at its own expense. However, if such worker has his last employment, was residing in the become entitled to benefits at the territory of a Member State other than the competent State shall receive benefits expense of the competent institution of the Member State to in accordance with the following provisions: whose legislation he was last (a) (i) a frontier worker who is partially subject, he shall receive benefits or intermittently unemployed in under the provisions of Article 69. Receipt of benefits under the the undertaking which employs him, shall receive benefits in legislation of the State in which accordance with the legislation of he resides shall be suspended for the competent State as if he were any period during which the residing in the territory of that unemployed person may, under Article 69, make a claim for State; these benefits shall be provided by the competent benefits under the legislation to institution; which he was last subject. (ii) a frontier worker who is wholly unemployed shall receive benefits 2. An unemployed person may not in accordance with the legislation claim benefits under the legislation of of the Member State in whose the Member State in whose territory he resides while he is entitled to benefits territory he resides as though he had been subject to that under paragraph 1 (a) (i) or (b) (i).'

Mr Gaetano Bonaffini and Others, Italian The INPS adds that the applicants nationals, who had worked as employed cannot benefit from the provisions of persons in the territory of the Federal Article 71 of Regulation No 1408/71 Republic of Germany and subsequently because they had not retained their lost their employment had applied on residence in Italy while working abroad. their return to Italy to the Istituto It therefore submitted that the Nazionale della Previdenza Sociale applications should be dismissed. (INPS) for payment of the unemployment benefit provided for The Pretore of Enna, believing it to be under Article 19 of Royal Decree-Law necessary first to resolve some No 636 of 14 April 1939. preliminary questions of Community aw, decided by order of 17 December The INPS rejected the application on the 1974 to stay the proceedings and to grounds that the workers concerned had request the Court of Justice under not remained available to the Article 177 of the EEC Treaty for employment services of the Federal 'clarification of the expression Republic for at least four weeks after "day-labourer" ("lavoratore giornaliero")1 becoming unemployed and had not been in Article 71 of Regulation No 1408/71 authorized to return to Italy before the of 14 June 1971 and for a ruling whether expiry of this period. Article 69, which lays down a waiting Mr Bonaffini and others thereupon period of four weeks, precludes a worker brought an action before the Pretore of who has failed to complete this period Enna for payment of the unemployment from obtaining unemployment benefit in benefit. They contended that the the Member State to which he belongs.' condition in Article 69 was imposed only The order of the Pretore of Enna was to enable the employment services of the received at the Court Registry on 11 competent State to find employment for March 1975. an unemployed person before that State In accordance with Article 20 of the was called upon to pay the benefit Protocol on the Statute of the Court of corresponding to the whole benefit period; non-fulfilment of this condition justice of the EEC, written observations were submitted on behalf of the INPS by did not result in depriving the worker of Arturo Pittoni and Giovan Battista Rossi the right to receive benefits from the Doria and on behalf of the Commission insurance institution of the place of of the European Communities by its residence on returning to his country of origin if he retained his residence there Legal Adviser, Gianluigi Campogrande, acting as Agent. while working abroad.

that the nature of the questions referred main action clearly means the status of a by the Pretore of Enna is not such as to national, a status which, under general justify a preliminary ruling under Article Community principles, in no way affects 177 of the EEC Treaty. nationals of the Member States where Community legislation applies. Article As far as unemployment benefit is 69 of Regulation No 1408/71 does not concerned, the question referred for a govern the grant of the right to social preliminary ruling was whether or not security benefits but the retention of this the benefits can be granted under right even when the worker is seeking

or not could be important. Community regulations manage to coordinate national laws, the regulation As for the meaning of the expression on social security is intended to benefit 'frontier worker' (the expression the migrant worker as compared with the 'day-labourer' being clearly a substantial situation which would result for him error on the part of the Pretore) the INPS from the exclusive application of takes the view that the definition given national law (Judgment of 5 July 1967 in in Article 1 (b) of the regulation Case 1/67 Ciechelski, [1967] ECR 181). concerned is sufficiently clear and was in any case satisfactorily interpreted by the However, this does not mean that Administratíve Commission on Social national rales under which there is an Security for Migrant Workers in its independent right to benefit must not be Decision No 94 of 24 January 1974. applied if the .Community rule cannot be

possible to apply Article 71 (1) (b) (ii) of the regulation concerned which refers to (a) must be declared inadmissible; 'a worker, other than a frontier worker'. On this point, the principle to be applied (b) even though, incidentally, the is the one in Decision No 94 of the interpretation of the rules in dispute Administrative Commission, quoted is capable of upholding the principle above, that 'workers who have fairly that the Community rule must not stable employment in one Member State stand in the way of application of the must be presumed to be resident in that national law when the migrant State'. worker, having been deprived of the benefits which he could receive in In its second question, by 'belonging to a the Member State to the legislation Member State, the court hearing the of which he was last subject,

Under the judgment of the Court of 12 Second question July 1973 in Case 13/73 Angénieux v In view of the definition of the Hakenberg ([1973] ECR 935) which was expression 'frontier worker' given in concerned with a situation arising under Regulation No 1408/71 and of the Regulation (EEC) No 3/58, the circumstances of the present case, permanent residence of the worker must separate comment on this question be understood as being the place where would be superfluous. he 'has established the permanent centre of his interests and to which he returns in the intervals between his tours'. It Third question should, however, be noted that this Article 51 of the EEC Treaty, which is solution was adopted for the case of a the legal basis of Regulation No 1408/71, business representative working in two is intended to accord the migrant worker different Member States and continually the benefits provided for him under the on the move from one place to another. Community regulations without thereby reducing the rights which he would have That judgment appears to allow of two been accorded if Community regulations answers. In the first place, the conclusion had not been applied.

BONAFFINI ν INPS

2 The questions are concerned with workers of Italian nationality who, after having worked in the territory of the Federal Republic of Germany and lost their employment, returned to Italy and, being without work, applied for unemployment benefit under the Italian legislation in force.

3 Their application was rejected on the ground that they had not complied with the provisions of Article 69 of Regulation No 1408/71, in that inter alia they returned to Italy before the expiry of the period of four weeks therein prescribed, and the question is asked whether this failure is such as to prevent the Italian legislation from being applied to them.

4 If the answer is in the affirmative, it is asked whether or not the provisions of Article 71 of Regulation No 1408/71 govern the situation of the workers concerned.

JUDGMENT OF 10. 7. 1975 — CASE 27/75

5 Article 69 of Regulation No 1408/71 covers the case of an unemployed migrant worker who is in receipt of unemployment benefit in the competent State and goes to one or more of the other Member States in order to seek employment there.

6 This provision is designed to ensure that the worker retains the right to the benefits of the competent State under the conditions and within the limits set out under that article.

11 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

BONAFFINI ν INPS

12 As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Pretore of Enna, the decision on costs is a matter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Pretore of Enna by order of 17 December 1974, hereby rules: