C-39/76

JUDGMENT OF 15. 12. 1976 - CASE 39/76

which is to enable a worker who is laid down by that Law do not benefits'

owed wages following the insolvency constitute 'unemployment of his employer to recover the within the meaning of Article 4 (1) (g) amounts due to him within the limits of Regulation No 1408/71.

In Case 39/76

Reference to the Court pursuant to Article 177 of the EEC Treaty by the Centrale Raad van Beroep for a in the proceedings preliminary ruling pending before that court between:

BESTUUR DER BEDRIJFSVERENIGING VOOR DE METAALNIJVERHEID­ , The Hague,

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts, the procedure and the written I — Facts and written procedure

observations submitted pursuant to

his residence in the Netherlands. Arnhem which, by judgment of 26

February 1974, ruled that the appellant

After financial difficulties with which the had a right to Netherlands benefits in so

undertaking in question was confronted far as he complied with the legal at the end of 1972 he became conditions required by the Netherlands unemployed. On 21 December 1972 he legislation. made himself available for work to the

employment services in the territory of The BBV lodged an appeal against this

the Netherlands and claimed: judgment to the Centrale Raad van

the subrogation of the competent set out in Article 14 were applicable to

institution to the obligations arising the case, the Centrale Raad van Beroep from the contract of work in cases decided that solution to the case was

where the employer has become dependent on the interpretation of

insolvent. Community law, in particular on the

following questions: The competent social institution, the (a) is the respondent to be regarded as a 'worker'

'Bestuur der Bedrijfsvereniging voor de within the meaning of Metaalnijverheid'

considering that while, in principle, he (b) If the respondent cannot be regarded

had a right to payments on the basis as an insured person pursuant to the

of the Netherlands legislation on abovementioned legislative provisions

unemployment pursuant to Article 71 (1) can he nevertheless claim benefits of Regulation No 1408/71 of the Council provided by the Netherlands

(OJ English Special Edition 1971 (II), p. legislation in respect of his

416) as he resided in a Member State unemployment on the basis of

abovementioned questions to the Court scope of application of the regulation

of Justice pursuant to Article 177 of the and, if so, what is the legislation of the

EEC Treaty. Member State to which that person

belongs. Only after these questions have 2. A copy of the order making the been resolved can it be decided whether

reference was received at the Court of the person concerned in fact complies

Justice on 7 May 1976. with the conditions attached by the

administrative director and by the in question indicates whether

Commission of the European compulsory insurance as provided

Communities, represented by its Legal therein is in principle applicable to a

Advisers Raymond Baeyens and particular person. Therefore in this

Marie-José Jonczy, acting as Agents. respect the first question should be answered in the affirmative.

Upon hearing the report of the

may be regarded as a worker within the by virtue of the activities which he there meaning of Article 1 (a) of Regulation pursues but who resides in another

No 1408/71 in spite of the fact that he Member States (the State of residence) did not take steps in Germany in order and who, after becoming unemployed, to be insured there. The BBV is of the makes himself available for work to the

opinion that the words 'who is insured, employment services in the territory of compulsorily'

contained in that provision the State of residence or returns to that

do not mean that all the conditions to State. which the national legislative provisions

of a Member State subject the status of an In other words, the aim of the article in insured person must be complied with. question is to ensure that rights

pursued and more that the objectives and the amendment of the exactly worker was insured in that State: that is Law on Unemployment Insurance'. an element of fact whose existence in each individual case must be proved to The BBV deduces from this that the

the competent institution of the State of reply to the last question must also be in residence. the negative.

If the position were different a worker B — Observations submitted by the

who did not qualify as an insured person Commission of the European in the State in which he pursued his Communities professional or trade activity but who solely qualified under the legislation of The Commission of the European the State of residence, which would be Communities observes first that although

applicable to him as though he had there was no written contract there can

worked there last, could claim be doubt that the relationship existing no

The reply to this question should Because of this status he should have therefore be in the negative. been affiliated to the social security scheme in one or other of the two 3. As to the question concerning Member States in question, the benefits provided by Title III A of the Netherlands or the Federal Republic of Netherlands Law on Unemployment, the Germany. In conformity both with the BBV is of the opinion that these benefits Netherlands legislation and the German do not fall within the scope of legislation employed persons were application of Regulation No 1408/71. compulsorily insured by social security against a certain number of risks, in The very essence of social legislation particular the risk of unemployment: this

relating to unemployment and the insurance is merely the necessary consequent benefits within the meaning consequence of the existence of a

of Article 4 (1) (g) of the Regulation is in contract of employment.

fact to protect workers against the

financial consequences (loss of of In view of this Article 1 (a) of Regulation salary) involuntary unemployment whereas the No 1408/71 cannot be interpreted as

abovementioned provisions of Title III A signifying that a worker does not have were intended to protect a worker against the status of an 'employed person'

worker but offers a criterion of reference article. For posting to exist it is sufficient

enabling workers covered by the that the worker satisfies the conditions

regulation to be identified by means of laid down in that article, in particular

the compulsory insurance. that of the anticipated duration of the

work.

The first question referred to the Court It is for the court of trial in the main of Justice therefore in effect asks to what action to examine whether in the present social security legislation Mr Mouthaan case the worker was or was not posted, should have been subject during his taking account in particular of the period of employment in the Federal conditions of employment established Republic of Germany by his Netherlands with his employers and of the fact that employer established in the Netherlands he was insured in the Netherlands. and what are the consequences ensuing with regard to unemployment benefits. If that question is answered in the

The statement of the facts contained in 'normally pursues his activity in the States'

territory of two or more Member the order making the reference enables within the meaning of Article 14 (1) (c) three different possibilities to be of Regulation No 1408/71. There is force envisaged: in such a hypothesis as according to his 'posted' own statement Mr Mouthaan pursued his (a) Mr Mouthaan was a worker

activity in Germany from Monday to within themeaning of Article 14 (1) (a) (i) Friday and accounted for activity to this of Regulation No 1408/71. his employer in the Netherlands on Friday. In this case also it is for the court That provision states that: of trial in the main action to examine

whether the respondent complied with 'A worker employed in the territory of a the conditions of the abovementioned Member State by an undertaking to provision. which he is normally attached who is posted by that undertaking to the In such a case, which is covered by territory of another Member State to Article 14 (1) (c) (i), he would also be perform work there for that undertaking subject to the Netherlands legislation as

shall continue to be subject to the the Netherlands was the State 'in whose

legislation of the first Member State, territory he resides'. Similarly the

conditions laid down by the Netherlands In this last case Mr Mouthaan would Law on Unemployment (Articles 27 and have been subject to the German 35) he would also be entitled to the legislation in respect of all sectors of unemployment benefits provided by that social security. As this insurance was law payable by the Netherlands obligatory the fact that Mr Mouthaan did institution and the costs of which are to not pay contributions to the German be met by that institution. social security institutions is of no

importance. The wrong committed by — Or Mr Mouthaan was not a frontier his employer cannot work to the worker but was merely a worker who, in detriment of the respondent who, in the course of his last employment, good faith, may have thought that he was resided in the territory of a Member State insured in the Netherlands as his other than that where he was employed

employer was affiliated to the (that is the competent Member State) and de Metaal­ in his be 'Bedrijfsvereniging voor that this case position would

nijverheid'. governed by Article 71 (1) (b) (ii) of

Regulation No 1408/71. Under that In respect of the payment of provision such a worker, who is wholly unemployment benefit two possibilities unemployed and who makes himself must however be distinguished: available for work in the employment

services in the territory of the Member — Either Mr Mouthaan could have been State in which he resides, or who returns a frontier worker within the meaning of to that territory, would receive benefits in Article 1 (b) of Regulation No 1408/71 accordance with the legislation of that and in this case the unemployment State 'as if he had been employed there'. benefits would be payable to by him virtue of Article 71 (1) (a) (ii). Pursuant to The words 'as if he had last been this article he would receive the benefits in there'

work completed in Germany had, under Mr Mouthaan does not, it is true, fall Article 71 (1) (a) (ii), to be regarded as within one of the categories of persons

having been completed in the who, under Decision No 94 (OJ 1974, C

JUDGMENT OF 15. 12. 1976 - CASE 39/76

126, p. 22) of the 'Administrative employer had undertaken when the

Commission on social security for contract of employment was made, that

migrant workers', are covered by Article is before the loss of employment.

unemployment benefits'. Title III A of the Netherlands Law on

Unemployment was inserted into the

text by a Law of 10 July 1968, Article 42 Finally the Commission proposes the (a) of which provides for the subrogation following answer to the questions

referred: of the professional or trade association to '1. The term worker within the which the employer was affiliated to the

obligations of an employer who has meaning of Regulation No 1408/71 of the Council includes any person ceased to make payments or has been who, in accordance with the declared insolvent, in respect of the wage

for last 13 legislation applicable to him, must be the weeks of work at most, in insured on a compulsory basis against respect of the wage payable during the one or more risks corresponding to period of notice if the person concerned the branches of a system of social was unemployed and in respect of

compensate a worker who remains 2. The benefits provided by Title III A

unemployed for future loss of wages the of the Netherlands Law on

abovementioned Title III A is intended Unemployment Insurance concer­

to make the competent institution ning the payment of arrears of wages

assume the obligations which the which the employer owed to the

METAALNIJVERHEID v MOUTHAAN

Treaty, questions concerning the interpretation of various provisions of Regulation No 1408/71 of the Council (OJ English Special Edition 1971 (II), p. 416) on the application of social security schemes to employed persons and their families moving within the Community.

2 These questions arose in the context of a case concerning the right to

unemployment benefits of a wholly unemployed Netherlands worker who, while maintaining his residence in the Netherlands was, in the course of his last employment, working in the Federal Republic of Germany for a

Netherlands undertaking established in the Netherlands.

3 As this undertaking had become insolvent the worker made himself available

for work to the unemployment services of his State of residence and sought

5 The first question asks the Court whether a worker who is in the position

described by the national court and becomes unemployed may be regarded as 'worker'

a within the meaning of Article 1 (a) of Regulation No 1408/71 in spite of the fact that the necessary steps making it possible for him to be insured under the German legislation had not been taken.

6 This question amounts to asking whether an employed person for whom the

necessary steps were not taken to enable him to acquire the status of an

insured person under the legislation to which he is or remains subject by 'worker'

worker within the meaning of that regulation to persons who are in fact insured under one of the abovementioned schemes but is intended to define as a worker all persons to whom such schemes are applicable.

9 Affiliation to such schemes corresponds both in each Member State and in

the Community order to a mandatory rule prescribing, for employed persons, compulsory insurance against one or more risks corresponding to the

branches of a social security scheme.

10 Consequently it must be accepted that the status of worker within the

meaning of Regulation No 1408/71 is acquired when the worker complies

METAALNIJVERHEID v MOUTHAAN

12 Under Article 71 (1) (b) (ii) of Regulation No 1408/71 'a worker, other than a frontier worker, who is wholly unemployed and who makes himself available

for work to the employment services in the territory of the Member State in

which he resides, or who returns to that territory, shall receive benefits in

accordance with the legislation of that State as if he had last been employed

there; the institution of the place of residence shall provide such benefits at

is As the work carried out in the course of the last employment must be regarded having been carried out on the territory of that State it follows as

that Article 71 (1) (b) (ii) subjects the right to benefits of the person concerned

to the national legislation of the same State both as regards the amount and

the duration of the payments and as regards the conditions governing the

acquisition of that right.

16 The reply to be given to the second question is, therefore, that a wholly unemployed worker who, in the course of his last employment, was employed

Article 4 (1) (g) of Regulation No 1408/71 may be interpreted as being applicable to benefits such as those provided by Title III A of the

Netherlands Law on Unemployment.

JUDGMENT OF 15. 12. 1976 - CASE 39/76

18 Title III A of that Law provides for the subrogation of the competent

professional or trade institution to the obligations, in relation to the worker,

arising from the contract of employment, of the employer who has become insolvent.

course of his employment.

21 The reply to be given to the third question is, therefore, that benefits such as those under Title III A of the Netherlands Law on Unemployment do not benefits'

constitute 'unemployment within the meaning of Article 4 (1) (g) of Regulation No 1408/71.

Costs

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

23 As these proceedings are, so far as the parties to the main action are

meaning of Regulation No 1408/71 is acquired when the

METAALNIJVERHEID v MOUTHAAN

worker complies with the substantive conditions laid down by the social security scheme applicable to him even if the steps

necessary for affiliation to that scheme have not been

completed.

2. A wholly unemployed worker who, in the course of his last

employment services he makes himself available for work.

3. Benefits such as those under Title III A of the Netherlands Law on Unemployment do not constitute 'unemployment benefits' within the meaning of Article 4 (1) (g) of Regulation No 1408/71.

Kutscher Donner Pescatore Mertens de Wilmars

Sørensen Mackenzie Stuart O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 15 December 1976.

A. Van Houtte H. Kutscher