C-76/76

1. The concept of the Member State in non-habitual residence in another which the worker resides, appearing Member State.

in Article 71 (1) (b) (ii) of Regulation ;2. For the purposes of applying Article No 1408/71, must be limited to the 71 (1) (b) (ii), account should be taken State where the worker, although of the length and continuity of occupied in another Member State, residence before the person concerned continues habitually to reside and moved, the length and purpose of his where the habitual centre of his absence, the nature of the occupation interests is also situated. found in the other Member State and The addition of the words 'or who the intention of the person concerned returns to that territory' implies as it appears from all the circum­ merely that the concept of residence stances.

in a State does not necessarily exclude

In Case 76/76

Reference to the Court under Article 177 of the EEC Treaty by the Cour de Cassation of Belgium for a preliminary ruling in the action pending before that court between

Silvana Di Paolo and

Advocate-General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The order making the reference of 16 Di Paolo, by then unemployed, lodged June 1976 and the written observations an application with the Belgian Office submitted under Article 20 of the National de l'Emploi for unemployment Protocol on the Statute of the Court of benefits on 5 October 1973. By decision Justice of the EEC may be summarized of 12 February 1974 the Office rejected as follows: her application on the grounds that she did not fulfil the qualifying conditions laid down by the Royal Decree of 20 I. — Facts and procedure December 1963, in that she could not show the number of working days during Miss Di Paolo, an Italian national, born the ten months preceding her appli­ in Italy, entered Belgium to live with her cation required by Belgian legislation in parents in 1965. In that country and order to obtain unemployment benefits. until June 1972 she received lower secondary technical education, main Basing herself on Article 67 (1) of subject commerce, and higher technical Regulation No 1408/71, which provides secondary education, main subjects that periods of insurance or employment secretarial skills and English language. In shall be aggregated for the purposes of September 1972 she went to the United ascertaining entitlement to unemploy­ Kingdom where she stayed until the end ment benefits, Miss Di Paolo brought her of July 1973. During that stay, from 11 cases before the Tribunal du Travail, September 1972 to 29 July 1973, she was Brussels, claiming that it should overrule employed in a hospital. Upon returning the decision of the Office National de to her parents' home in Belgium, Miss l'Emploi.

By judgment of 28 October 1974 the provides that the competent institution Tribunal du Travail found that since Miss of a Member State whose legislation Di Paolo had been employed in the makes the acquisition, retention or United Kingdom from 11 September recovery of the right to benefits subject 1972 to 29 July 1973 and could claim to the completion of insurance periods the benefit of the exception laid down by shall take into account, to the extent Article 71 (1) (b) (ii) of the said necessary, periods of insurance or regulation, she was therefore entitled to employment completed under the rely on the aforesaid Article 67 (1), and legislation of any other Member State. decided that she should be granted unemployment benefits as from the date Article 67 (3) provides that, except in the of her application. The Office National cases referred to in Article 71 (1) (a) (ii) de l'Emploi appealed against that and (b) (ii), application of the provisions judgment to the Cour du Travail, of paragraphs (1) and (2) shall be subject Brussels. By judgment of 19 June 1975 to the condition that the person the latter allowed the appeal. The concerned should have completed lastly Administrative Commission on Social periods of insurance in accordance with Security for Migrant Workers had the provisions of the legislation under decided, by Decision No 94 of 24 which the benefits are claimed. January 1974 (OJ) C 126, 1974, p. 22), that Article 71 (1) (b) (ii) applies to Article 69 lays down the conditions and certain categories of workers, apart from limits within which a worker who is seasonal workers, and the Cour du entitled to unemployment benefits in a Travail took the view that Miss Di Paolo Member State may go to another did not come within any of those Member State in order to seek categories. employment there while retaining, for three months, the right to benefits in the Miss Di Paolo then brought an appeal on competent State. a point of law against that judgment of the Cour du Travail. In support of her Article 70 provides that in these cases, appeal she argues that since she benefits shall be provided by the maintained her residence in Belgium institution of each of the States to which during her period of employment in the an unemployed person goes to seek United Kingdom and then returned to employment, but that the competent Belgium, she could claim the application institution of the Member State to whose of Article 71 (1) (b) (ii) of Regulation No legislation a worker was subject at the 1408/71 and receive unemployment time of his last employment shall be benefits under the provisions of Belgian obliged to reimburse the amount of the legislation. She also argued that since same. the decisions of the Administrative

'a worker, other than a frontier worker, Miss Di Paolo's appeal, raised a question who is wholly unemployed and who of interpretation of Community law, the makes himself available for work to the Cour de Cassation of Belgium decided by employment services in the territory of order of 16 June 1976 to stay the the Member State in which he resides, or proceedings and refer the following who returns to that territory, shall receive question to the Court for a preliminary benefits in accordance with the ruling under Article 177 of the EEC legislation of that State as if he had last Treaty: been employed there; the institution of the place of residence shall provide such 'What meaning and scope are to be given benefits at its own expense. However, if the words 'in which he resides or who such worker has become entitled to returns to that territory' contained in benefits at the expense of the competent Article 71 (1) (b) (ii) of Regulation (EEC) institution of the Member State to whose No 1408/71 of the Council of the legislation he was last subject, he shall European Communities and in particular receive benefits under the provisions of as regards the concepts of residence and

Administrative Commission of the National du Travail and the Commission European Communities on Social of the European Communities. Security for Migrant Workers decided that: Upon hearing the report of the '1. In addition to seasonal workers, Judge-Rapporteur and the views of the Article 71 (1) (b) (ii) of Regulation Advocate-General, the Court decided to (EEC) No 1408/71 shall also apply to open the oral procedure without any the following categories of workers. preparatory inquiry. (a) workers employed in international transport as referred to in Article 14 (1) (b); II — Summary of written obser (b) workers other than workers vations submitted before employed in international trans

It results Question Referred and Procedure from the heading to Article 71 and from the wording of that article that, in Taking the view that the decision of the addition to frontier workers, it applies to Administrative Commission, criticized in workers who

(b) are not entitled to unemployment while he works in another State. The benefits in accordance with Article words 'or who returns to that territory', 69 of the regulation by virtue of the which appear in subparagraph (b) (ii), legislation of the country in which suggest that in reality what is meant is they were last employed.' the place where the worker has his domicile and where the members of his Article 84 (2) of the implementing family are. Regulation No 574/72 provides that 'In order to claim benefits under Article No In conclusion, the applicant takes the 71 (1) (b) (ii) of the Regulation, an view that by Article 71 (1) (b) (ii) of unemployed person shall submit to the Regulation No 1408/71 the legislature of institution of his place of residence, in the European Communities intended to addition to the certified statement guarantee that migrant workers should provided for in Article 80 of the receive the unemployment benefits Implementing Regulation, a certified available under the legislation of the statement from the institution of the country of residence when no such Member State to whose legislation he was entitlement exists under the legislation of last subject, indicating that he has no the country of their last employment. right to benefit under Article 69 of the Regulation.' It seems clear that that She suggests, therefore, that the answer to provision itself sets a limit to entitlement the question referred should be as in that it requires that a worker must first follows.

JUDGMENT OF 17. 2. 1977 —CASE 76/76

Member State where the worker all migrant workers having a fairly stable concerned was last employed.' job in a Member State who have left their family in the country of origin. Observations of the Office National de l'Emploi The fact that decisions of the Administrative Commission are not Article 71 (1) (b) (ii) is said to constitute binding certainly does not mean that the an exception to the general rule laid national courts and the Court of Justice down by Article 67 (3). A reading of that cannot uphold the highly authoritative provision thus suggests that it is enough interpretations contained in those for the interested party to take up decisions. residence within the territory of any Member State and make himself available Its opinion is particularly apposite both to the employment services in that State by reason of the ability of its members in order to take advantage of the and of the fact that its decisions on

The opinion of the Administrative 'Where, as in the case under consider­ Commission does not in any way ation, a worker pursues an occupation contradict the definition of residence which links him for normal purposes given in the judgment of the Court in with the territory of a single Member the case of Angenieux v Hakenberg State, the expression "residence" ([1973] ECR 935). That definition was contained in Article 71 (1) (b) (ii) of given in respect of the first subparagraph Regulation No 1408/71 means the place of Article 13 (c) of Regulation No 3, that where he has voluntarily and is to say of the case where the worker permanently fixed the centre of his pursues an occupation within the occupational activities.' territories of several Member States. Observations of the Commission In the present case, however, the applicant worked in only one Member The Commission points out that the State and does not come within the decisions of the Administrative Com­

categories of workers set out in Decision mission are not binding on the courts No 94. In these circumstances one and only have the status of opinions. cannot put an overwide interpretation on Furthermore, the Commission states that the concept of residence so as to bring in fact it appears that the members of the within the ambit of Article 71 (1) (b) (ii) Administrative Commission were not all

DI PAOLO v OFFICE NATIONAL DE L'EMPLOI

of one mind on the question of the pointers in determining who are the categories of workers covered by the potential beneficiaries under Article 71 provision under discussion. (1) (b) (ii) of Regulation No 1408/71.

A where he is resident even though there is short stay within the territory of the no connexion by way of insurance between him and it. That therefore country of employment is one of the characteristics applying to all the presupposes that other links exist categories of workers covered by between the worker and his country of Decision No 94 of the Administrative residence, and certainly closer links than Commission. A short stay within the those which, in general, connect migrant territory of a Member State does not workers with their country of origin.

JUDGMENT OF 17. 2. 1977 —CASE 76/76

return to the territory of that Member 'In order to determine whether, for the State, it must be taken that this is a purposes of applying Article 71 (1) (b) (ii) distinction between two different of Regulation No 1408/71, a worker who situations both covered by Article 71. returns to the territory of the Member State in which he resides, after working The first situation involves workers such for a short period within the territory of as seasonal workers, workers posted another Member State, has maintained abroad or those in Miss Di Paolo's his residence within the territory of the situation, who leave the territory of the first Member State, account should in Member State in which they reside in addition be taken of the brevity of his order to work for a certain period in temporary residence in the country of another Member State, and of whom it employment, the duration and continuity may be said, taking into account the of residence within the territory of the brevity of the interruption of residence in first Member State and all the elements the Member State in which they reside, of fact of a personal or occupational that they are returning to the territory of nature which show evidence of a durable the Member State where they are connexion between the worker and that

habitually resident. The second situation territory, including in particular the involves workers such as frontier workers, element of intention.' workers in international transport or sales agents, who return at frequent intervals At the hearing on 9 December 1976, to their country of residence, so that they the Commission of the European may be considered as never having left Communities, represented by its Agent, their country of residence and in respect Miss Jonczy, submitted its oral of whom there can therefore be no observations.

DI PAOLO v OFFICE NATIONAL DE L'EMPLOI

period of 10 months preceding the claim in order that entitlement to unemployment benefits may be acquired, the appellant in the main action has relied on Article 67 (1) of Regulation No 1408/71.

4 Article 67 (1) of the said regulation provides that as regards the acquisition, retention or recovery of the right to unemployment benefits, account shall be taken, to the extent necessary, of periods of insurance or employment completed under the legislation of any other Member State.

5 However, paragraph (3) of that article provides that, except in the cases referred to in Article 71 (1) (a) (ii) and (b) (ii), application of the provisions of paragraph (1) shall be subject to the condition that the person concerned should have completed lastly periods of insurance in accordance with the provisions of the legislation under which the benefits are claimed.

6 Article 71 (1) (b) (ii) covers the case of 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', and provides that he 'shall receive benefits in accordance with the legislation of that State as if he had last been employed there ...'.

7 The appellant in the main action, who has explained that she stayed in the United Kingdom merely in order to improve her knowledge of the English language, is of the opinion that she maintained her residence in Belgium and that she may therefore benefit from the exception contained in Article 71 (1) (b) (ii) of Regulation No 1408/71.

13 It follows from these considerations that the provisions of Article 71 (1) (b) (ii) must be interpreted strictly.

14 These considerations led the Administrative Commission (on social security for migrant workers) established under Article 80 of Regulation No 1408/71, in its opinion No 94 of 24 January 1974 OJ C 126 1974, p. 22), to hold that Article 71 (1) (b) (ii) applies only to seasonal workers and, in addition, to the workers referred to in Article 14 (1) (b), (c) and (d) of Regulation No 1408/71.

15 However, that decision, though clarifying the matter to a certain extent, cannot be considered to have enumerated exhaustively the categories of workers who may come within the provision, nor to have excluded certain other categories who have maintained similarly close ties with their country of habitual residence.

16 By virtue of the words 'in which he resides, or who returns to that territory', Article 71 (1) (b) (ii) covers two categories of workers whose situation is substantially the same.

DI PAOLO v OFFICE NATIONAL DE L'EMPLOI

17 The concept of 'the Member State in which he resides' must be limited to the State where the worker, although occupied in another Member State, continues habitually to reside and where the habitual centre of his interests is also situated.

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

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

JUDGMENT OF 17. 2. 1977 —CASE 76/76

On those grounds,

THE COURT

in answer to the question referred to it by the Belgian Cour de Cassation by order of 16 June 1976, hereby rules:

A. Van Houtte H. Kutscher

Registrar President