C-40/76

Articles 67 to 70 of Regulation No members of the family of such workers 1408/71 have only one main purpose, are entitled only to the benefits provided namely the coordination of the rights to by such legislation for the members of unemployment benefits provided by the family of unemployed workers and it virtue of the national legislation of the is to be understood that the nationality of Member States for employed persons those members of the family does not who are nationals of a Member State. The matter for this purpose.

In Case 40/76

Reference to the Court under Article 177 of the Treaty establishing the European Economic Community by the Sozialgericht of Gelsenkirchen for a preliminary ruling in the action pending before that court between

Slavica Kermaschek, Bottrop,

and

Bundesanstalt für Arbeit, Nürnberg,

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts of the case, the course of the and she therefore left her residence in procedure, and the observations the Netherlands to go and live with her submitted pursuant to Article 20 of the husband in the Federal Republic of Protocol on the Statute of the Court of Germany. Justice of the EEC may be summarized as follows: On 7 October 1975 Mrs Kermaschek

registered as unemployed at the labour office at Gelsenkirchen, which was the I — Facts and procedure appropriate office by reason of her new Mrs Slavica Kermaschek is a national of residence, and applied for unemployment benefit. the Socialist Federal Republic of Yugoslavia. She worked in her country of origin before taking posts abroad as an By notice of 11 November 1975, and, attendant on sick persons, a senior since Mrs Kermaschek lodged an attendant or an assistant nurse, as objection on 28 November 1975, by a follows: subsequent confirmatory notice of 28 — from 22 November 1971 to 1 August January 1976, the benefit was refused on 1973 at The Hague (The the ground that the periods of Netherlands) employment did not fulfil the conditions — from 1 August 1973 to 1 January for the acquisition of a potential right to 1974 at Dordrecht (The Netherlands) that benefit. The periods of employment — from 15 January 1974 to 15 June completed in the Netherlands and in 1974 at Montreux (Switzerland) Switzerland could not be taken into — from 7 July 1974 to 1 October 1975 account as a condition for the acquisition at Dordrecht (The Netherlands) of the right to unemployment benefit either under the convention between She resigned from her last post by reason Germany and Yugoslavia on insurance of her marriage on 19 September 1975 to against unemployment or on the basis of Max Kermaschek, a German national, EEC law.

By order of 25 March 1976, the Sozialgericht Gelsenkirchen suspended II — Summary of the written the proceedings and referred the observations lodged with following questions to the Court of the Court Justice of the European Communities for a preliminary ruling under Article 177 of Mrs Kermaschek asserts that despite all the EEC Treaty: her efforts, she has not yet found work in (1) Are rights under Article 67 et seq. of Germany. Regulation (EEC) No 1408/71 of the Council allowed for the spouse of a It is impossible for her to believe that national of a Member State, even if she cannot receive any unemployment the spouse is not a national of a benefit because in the Netherlands — a Member State and the right to the Member State of the EEC — she paid benefit was acquired before marriage? social security contributions over a (2) If the answer to the first question is period of five years. in the affirmative: Is the rule under Article 67 et seq. of She had been assured that in Germany Regulation (EEC) No 1408/71 — she had the same rights as a German. whereby a claim by a worker, who is Mrs Kermaschek considers, however, that wholly unemployed, for benefit, must a German in the same situation would have arisen in the country where he have been receiving unemployment was employed and have been benefit for a long time. With regard to transferred to the country where he is her resignation from her post in the temporarily resident — compatible Netherlands after her marriage, she with the legal concept of the points out that the distance between protection of marriage and the Dordrecht and Bottrop is about 300 family, as expressed in Article 6 of kilometres. the Basic Law of the Federal Republic of Germany, in a case Should it not be possible to give where a person who has hitherto judgment in her favour in the present been insured in one Member State case, Mrs Kermaschek asks the Court to

Moreover Article 2 (2) provides that The Commission also stresses that the workers who are not nationals of a main action is not an action based on the Member State are expressly assimilated to German Law on the promotion of nationals of Member States, as regards employment claiming that periods of the rights of their survivors, where the employment in the Netherlands should survivors are nationals of one of the be taken into account pursuant to Article Member States or stateless persons or 67 and 68 of Regulation No 1408/71, but refugees residing within the territory of that it is an action for the retention of one of the Member States. Thus the entitlement to benefits payable by the authors of the regulation judged it Netherlands pursuant to Article 69 of the necessary to include an express provision said regulation. Thus it is on the basis of for those workers in the interest of their provisions of the law of the Netherlands survivors where the latter possessed the that the question whether a wife is a nationality of one of the Member States. member of the family must be From this it can be concluded that in determined. general those workers are not included in the field of application of the regulation The fact that Regulation No 1408/71 even where their survivors — who are states in terms that its applicability presumed to have been members of the extends to the 'members of the family' of family — possess the nationality of one workers who are nationals of a Member of the Member States. State is no ground for automatically concluding that members of the family This fact also shows that the members/of occupying a post — whatever their the family are not included within the nationality — should be given the status field of application of the regulation as of migrant workers for the purposes of being migrant workers possessing rights the regulation. of their own.

Finally, this interpretation is confirmed the Netherlands institution is no longer by Article 1 (f) of Regulation No 1408/71 relevant in this case. which, instead of supplying a definition of the expression 'member of the family' Nevertheless, the Commission examines for the purposes of the regulation, refers this part of the question referred to the to national legislation. For if the Court on the supposition that Regulation regulation had intended to give to a No 1408/71 assimilates the spouse who national of a third country who is a is engaged in an occupation and who is a member of the family of a migrant national of a third country to a migrant worker, himself a national of a Member worker. It considers that to take into State, the same status as that of the account retroactively periods of migrant worker himself, it would have employment or of insurance completed had to provide a Community definition. before becoming a member of the family would be incompatible with the system The argument put forward above is established by Regulation No 1408/71. equally valid when the matter is considered by reference to the purpose of It would be wrong to see in the provision Regulation No 1408/71, such as it is in Article 94 (2) of the regulation — defined in Articles 48 to 51 of the EEC which provides that all insurance periods Treaty. The starting point of the analysis and periods of employment or residence must logically be freedom of movement completed before the entry into force of for a Community worker (being a the regulation shall be taken into national of one of the Member States). consideration — a general principle The Treaty does not give the members of which also applies to the situation of the the family as such any right to freedom plaintiff. The purpose of that provision is of movement on their own account, but to render it possible for Regulation No only a right to be admitted to the 1408/71 to take into account the territory of the State where the worker conventions on social security made occupies a post — a right which is between two or more Member States or derived from the right of that worker. between at least two Member States and one or more third countries concerning In fact, without the latter right, freedom the relations between the institutions of of movement for migrant workers within the Member States.

the Sozialgericht, the Commission required even of a person who leaves the examines the 'strict limits' laid down by State where he is employed in order to Article 69 for the transfer to another get married and not because of an Member State of the entitlement to insufficient number of posts at the place benefit (1. the registration formalities and of work. time-limits relating thereto 2. the limitation to three months of the period Secondly, it should be stressed that any during which the entitlement is granted possible fundamental right to the and the loss of other rights" in the case of protection of marriage and family can failure to return to the State of last only concern the substance, the employment). The Commission also fundamental structure, of marriage and examines the general principle behind family. It would appear that the fact of the provisions of Article 67 et seq. as a rendering it economically advantageous whole, namely that benefits are only for married migrant workers to live under provided on the basis of the national the same roof goes beyond the normal legislation to which the worker has been scope of the protection of the substance subject. of marriage and family.

As regards this latter principle, it should be noted that the national laws of Moreover, the loss of entitlement to

Member States criteria for the granting of unemployment benefit other than that of The purpose of Regulation No 1408/71 an occupation previously pursued on cannot therefore be to provide economic national territory. If this is to be regarded advantages within the Community in as an infringement of a basic right the respect of such marriages. fault should be ascribed to the national legislature. The Commission suggests that the The detailed rules set out in Article 69 of following answer should be given to the Regulation No 1408/71 are rules falling two questions referred to the Court: within the powers of the Community legislature and are not, therefore, of a The purpose of Article 67 et seq. of nature such as to infringe a fundamental Regulation No 1408/71 is to coordinate right. rights to benefit for workers who are wholly unemployed provided by virtue of For, first, compliance with formalities the national legislation of the Member and time-limits can be expected and States for migrant workers who are

KERMASCHEK v BUNDESANSTALT FÜR ARBEIT

nationals of a Member State. The III — Oral procedure members of the family of such migrant workers are entitled as such to the The Commission of the European benefit in so far as the national Communities submitted oral obser­ legislation of the competent Member vations at the hearing on 18 October State provides for family benefits for 1976.

members of the families of unemployed workers. In such circumstances, the The Advocate-General delivered his nationality of members of the family is opinion at the hearing on 11 November of no importance. 1976.

3 Article 69 (1) of the regulation provides:

'(1) A worker who is wholly unemployed who satisfies the conditions of the legislation of a Member State for entitlement to benefits and who goes to one

JUDGMENT OF 23. U. 1976 — CASE 40/76

or more other Member States in order to seek employment there shall retain his entitlement to such benefits under the conditions and within the limits hereinafter indicated:

(a) …

(b) …

Only the nationals of one of the Member States, stateless persons and refugees who are or have been subject to the social security scheme of one or more Member States are covered in their capacity as workers.

Whereas the persons belonging to the first category can claim the rights to benefits covered by the regulation as rights of their own, the persons belonging to the second category can only claim derived rights, acquired

KERMASCHEK v BUNDESANSTALT FÜR ARBEIT

through their status as a member of the family or a survivor of a worker, that is to say of a person belonging to the first category.

8 This interpretation is confirmed by the text of Article 2 (2), which provides that workers who are not nationals of a Member State shall nevertheless be

assimilated to those nationals as regards the rights of their survivors, provided that the latter are nationals of one of the Member States, or stateless persons or refugees residing within the territory of one of the Member States.

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

OPINION OF MR REISCHL - CASE 40/76

On those grounds,

THE COURT

in answer to the questions referred to it by the Sozialgericht Gelsenkirchen by order of 25 March 1976 hereby rules:

Articles 67 to 70 of Regulation No 1408/71 have only one main purpose, namely the coordination of the rights to unemployment benefits provided by virtue of the national legislation of the Member States for employed persons who are nationals of a Member State.

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 11 NOVEMBER 19761

Mr President, ruling before us today is a national of Members of the Court, Yugoslavia. She was first engaged as a paid worker in her country of origin, The plaintiff in the proceedings giving subsequently from November 1971 until rise to the reference for a preliminary December 1973 in the Netherlands,

1 — Translated from the German.