C-35/77
ECLI:EU:C:1977:194
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JUDGMENT OF THE COURT <apnote>1</apnote> OF 29 NOVEMBER 1977
Elisabeth Beerens
v Rijksdienst Arbeidsvoorziening voor
(preliminary ruling requested by the Arbeidsrechtbank of Hasselt)
Case 35/77
Social security for migrant workers — Community rules — Field of application —
National law or regulation specified or not specified by a Member State in the declarations referred to in Article 5 of Regulation No 1408/71 — Consequences
The fact that a national law or regulation the other hand, the fact that a Member has not been specified in the declarations State has specified a law in its declaration referred to in Article 5 of the regulation must be accepted as proof that the
is not of itself proof that that law or benefits granted on the basis of that law regulation does not fall within the field are social security benefits within the
of application of the said regulation; on meaning of Regulation No 1408/71.
In Case 35/77
Reference to the Court under Article 177 of the EEC Treaty by the
Arbeidsrechtbank (Labour Court) of Hasselt for a preliminary ruling in the
action pending before that court between
ELISABETH BEERENS
and
RIJKSDIENST VOOR ARBEIDSVOORZIENING
on the interpretation of Article 69 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),
1 — Language of the Case: Dutch.
JUDGMENT OF 29. 11. 1977 - CASE 35/77
THE COURT
composed of: H. Kutscher, President, M. Sørensen and G. Bosco, Presidents of
Chambers, A. M. Donner, P. Pescatore, J. Merteńs de Wilmars, Lord
Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,
Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
The facts of the case, the procedure and hereinafter referred to as 'the WWV'). the observations submitted pursuant to She received those benefits until 14 July Article 20 of the Protocol on the Statute 1976, when she left the Netherlands and
of the Court of Justice of the EEC may took up residence in Belgium on the
be summarized as follows: occasion of her marriage to a Belgian national. On the same date she regis
tered with the Rijksdienst voor
I — Facts and procedure Arbeidsvoorziening (the Belgian National Department of Employment) and applied The documents on the file from the to it for unemployment benefits. When national court show that the plaintiff in she made that application she relied on
the main action worked in the the provisions of Article 69 of Regulation Netherlands from 1 June 1975 to 9 June (EEC) No 1408/71 of the Council, 1975, when she ceased to be employed according to which 'A worker who is because of illness. Her employer then wholly unemployed and who satisfies the
dismissed her with effect from 1 August conditions of the legislation of a Member 1975. State for entitlement to benefits and who
goes to one or more other Member States Since her period of employment was of in order to seek employment there shall benefits'
short duration the plaintiff in the main retain his entitlement to such
action did not fulfil the conditions under the conditions and within the
required under the Netherlands Law on limits indicated in that article.
compulsory insurance of workers against the financial consequences of involuntary By its decision of 8 September 1976 the unemployment ('Werkloosheidswet'). She Rijksdienst voor Arbeidsvoorziening nevertheless received as from 1 October rejected the application on the ground
1975 the benefits provided for under the that, on the one hand, the plaintiff in the Netherlands Law laying down rules for main action does not fulfil the
public allowances for unemployed conditions required by Belgian law and, workers ('Wet Werkloosheidsvoorziening', on the other hand, because her period of
BEERENS v RIJKSDIENST VOOR ARBEIDSVOORZIENING
employment in the Netherlands did not within the meaning of the regulation
qualify her for unemployment benefit relied on, Regulation (EEC) No 1408/71, and she cannot therefore rely on Article with all ensuing consequences for the
69 of Regulation No 1408/71. transferability of her entitlement to
unemployment . benefits to another
However, the plaintiff in the main action, Member State (Belgium) where such
who had in her possession a certificate benefits are indeed social security benefits?'
issued by the local authority of the place in the Netherlands where she resided to
the effect that she had received the The judgment making the reference was allowances provided for under the WWV entered at the Court Registry on 25 from 1 October 1975 to 14 July 1976 March 1977. took the view that during that period she had received unemployment insurance In accordance with Article 20 of the
benefits. She therefore lodged an appeal Protocol on the Statute of the Court of
against the decision of the Rijksdienst Justice of the EEC written observations
before the Arbeidsrechtbank (Labour were submitted by the Government of
Court) of Hasselt. the Kingdom of the Netherlands and by the Commission of the European The Arbeidsrechtbank found that the Communities, represented by its Legal dispute concerned the classification of Adviser, Miss Marie-José Jonczy, acting the unemployment benefits provided for as Agent, assisted by Mr Auke Haagsma,
by the Netherlands legislation adopted a member of the Commission's Legal for the purpose of implementing Service. Regulation No 1408/71 and it decided
by a judgment of 16 March 1977 to stay Upon hearing the report of the
proceedings and refer to the Court of Judge-Rapporteur and the views of the
Justice of the European Communities for Advocate General the Court decided to
a preliminary ruling in accordance with open the oral procedure without any Article 177 of the EEC Treaty the preparatory inquiry. following questions:
'Given that the objective of Regulation II —
Summary of the written
(EEC) No 1408/71 is to facilitate the free observations submitted to
movement of workers within the the Court
Community and inter alia to secure
mobility of labour under improved The Netherlands Government considers
conditions by means of closer the three Netherlands instruments coordination between unemployment mentioned in the judgment making the insurance schemes and unemployment reference under which the benefits at assistance schemes, may it be taken that issue could have been provided.
the Netherlands laws relating to 1. The Werkloosheidswet' (Law of 9 assistance applicable by reason of the September 1949 on the compulsory unemployment of a worker allow of insurance of workers against the
reliance on Article 69 of the financial consequences of involuntary abovementioned regulation? unemployment, as amended); 2. The wet werkloosheidsvoorziening' More particularly, may it be taken that, as (Law of 10 December 1964 laying those laws are not in the Netherlands down rules for public allowances for social security legislation, the plaintiff unemployed workers, as amended); satisfies the conditions of the legislation 3. The Rijksgroepsregeling werkloze
of a Member State (the Netherlands) for werknemers'
(Order of 2 December entitlement to unemployment benefits 1964 laying down national rules for
JUDGMENT OF 29. 11. 1977 - CASE 35/77
categories of unemployed workers, as without thereby forfeiting the
amended). unemployment benefits to which he is entitled under the legislation to which he If in this case the benefits at issue were was subject when last employed.
paid under the laws mentioned in either Regulation No 1408/71 provided for the
1 or 2 above Regulation No 1408/71 retention of entitlement to benefit as
would undoubtedly be applicable. In this from its entry into force in the case of all
connexion it is only necessary to refer to workers covered by that regulation under the Declaration of the Kingdom of the all the laws on unemployment to which
Netherlands published in the Official it applies ratione materiae and
Journal, C 12 of 24 March 1973, p. 21. consequently in the case of workers who The position would be different if the have received benefits under the WWV benefits had been paid to the plaintiff in in the Netherlands. the main action pursuant to the order
in It follows that as a general rule the mentioned 3 above. The latter is in plaintiff in the main action could rely on fact based on Article 11 of the 'Algemene Bijstandswet' Article 69 of Regulation No 1408/71 to (the general Law relating to maintain her entitlement to benefit social assistance), which provides that
specific rules in the field of social during the three months after she took
up residence in Belgium. Nevertheless, it assistance, applicable to a particular class is also necessary to check that she of may be adopted persons, by a general fulfilled the conditions laid down by administrative decision. Article 69. That article, as well as
laying down certain administrative Since the 'Rijksgroepsregeling werkloze requirements, provides generally that a is an order dealing with werknemers'
worker may receive benefits under social assistance Regulation No 1408/71 Article 69 only if he satisfies the does not apply to it having regard to conditions required by the domestic Article 4 (4) of that regulation. legislation under which he is entitled to
benefits. On the question of the duration The Commission, after examining the of the entitlement to benefits the file from the national court, points out Commission refers to Article 69 (1) (c) that the plaintiff in the main action was which reads 'entitlement to benefits shall paid benefits under the WWV. continue for a maximum period of three
months from the date when the person As for the question whether that law is concerned ceased to be available to the among the matters covered by employment services of the State which Regulation No 1408/71, the Commission refers to the declarations of the Member he left, provided that the total duration of the benefits does not exceed the duration States, as provided for in Article 5 of of the period of benefits he was entitled Regulation No 1408/71 (mentioned to under the legislation of that State'. above). Since the declaration of the
Kingdom of the Netherlands mentions In addition to the temporal condition, the WWV law under Heading '(d) the unemployed worker must also Unemployment benefits', there is no fulfil continue to the material doubt that Regulation No 1408/71 requirements of the legislation of the applies ratione materiae to that law. Member State which he has left. Although Article 69 does not itself As for the question whether Article 69 of expressly say so, the very concept of the Regulation No 1408/71 applies to the retention of entitlement leads by WWV, the Commission stresses the fact implication to such an interpretation. that Article 69 is designed to allow an
unemployed worker to move within the In the light of these considerations the
Community to find employment there Commission takes the view that the
BEERENS v RIJKSDIENST VOOR ARBEIDSVOORZIENING
plaintiff in the main action could be to a Member State other than the
granted benefits under the WWV by the competent Member State, he retains
Rijksdienst voor Arbeidsvoorziening, under Article 69 of the said regulation
payable by her locality of origin, only in his entitlement to those benefits for a
so far as she continued to satisfy the period of three months, in so far as he conditions laid down by the WWV continues to satisfy the conditions laid
during that period. It is for the court downby the legislation of the competent seized of the main action to determine Member State during that period.'
whether the person concerned satisfies
those conditions. III — Oral procedure
The Commission suggests that the The Commission of the European question referred be answered as follows: Communities submitted its oral
observations at the hearing on 12 'If a worker, who is wholly unemployed October 1977. and is entitled to unemployment benefits under legislation of a Member State to The Advocate-General delivered his which Regulation No 1408/71 of the opinion at the hearing on 10 November Council applies ratione materiae, moves 1977.
Decision
1 By a judgment of 16 March 1977, which reached the Court on 25 March
1977, the Arbeidsrechtbank (Labour Court) of Hasselt referred to the Court of Justice under Article 177 of the Treaty for a preliminary ruling a question on the interpretation of Regulation (EEC) No 1408/71 of the Council.
2 The question has arisen in a dispute between Mrs Elisabeth Ermin, nee
Beerens and the Belgian National Department of Employment concerning
the plaintiff's entitlement to unemployment benefits.
3 The plaintiff left the Netherlands and took up residence in Belgium in 1976 on the occasion of her marriage and applied for unemployment benefits, relying on Article 69 of Regulation No 1408/71 and the fact that in the
Netherlands she received unemployment benefits under the 'Wet Werkloosheidsvoorziening'
(Law relating to unemployment allowances).
4 In the Netherlands the rules relating to unemployment are made of three up laws, the 'Werkloosheidswet', the Law on the compulsory insurance of
workers against the financial consequences of involuntary unemployment, the
JUDGMENT OF 29. 11. 1977 - CASE 35/77
'Wet Werkloosheidsvoorziening', the Law laying down rules for public allowances for unemployed workers, and the 'Rijksgroepsregeling werkloze Bijstandswet'
werknemers', a regulation adopted pursuant to the 'Algemene (the general Law relating to social assistance); the national court was of the
opinion that the last two laws are not social security legislation but social
assistance legislation, the administration whereof is entrusted to the local
authorities and not to the social security institutions.
5 It has therefore asked whether the Netherlands laws relating to social
assistance which apply to workers who are unemployed allow of reliance on
Article 69 of Regulation No 1408/71 and whether persons such as the
plaintiff satisfy 'the conditions of the legislation of a Member State (the
Netherlands) for entitlement to unemployment benefits within the meaning of the regulation relied on, Regulation No 1408/71, with all ensuing consequences for the transferability of her entitlement to unemployment
benefits to another Member State (Belgium) where such benefits are indeed social security benefits'.
6 Article 4 (1) of Regulation No 1408/71 provides that 'This regulation shall
apply to all legislation concerning the following branches of social security: ... (g) unemployment benefits', whilst the fourth paragraph thereof excludes
social and medical assistance from its field of application.
7 Article 5 of that regulation provides that: 'The Member States shall specify the
legislation and schemes referred to in Article 4 (1) and (2) .... in declarations to be notified and published in accordance with Article 96'.
8 In the Netherlands declaration OJ C 12 of 24.3.1973) the 'Wet Werkloosheidsvoorziening' 'Werkloosheidswet'
as well as the are listed under
Heading '(d) Unemployment benefits'.
9 The fact that a national law or regulation has not been specified in the
declarations referred to in Article 5 of the regulation is not of itself proof that law or regulation does not fall within the field of application of the said
regulation; on the other hand, the fact that a Member State has specified a law in its declaration must be accepted as proof that the benefits granted on the
BEERENS v RIJKSDIENST VOOR ARBEIDSVOORZIENING
basis of that law are social security benefits within the meaning of Regulation No 1408/71.
10 This must therefore be the answer to the question referred.
Costs
11 The costs incurred by the Government of the Kingdom of the Netherlands
and by the Commission, which have submitted observations to the Court, are not recoverable.
12 As these proceedings are, in so far as the parties to the main action are
concerned, in the nature of a step in the action pending before the national
court, costs are a matter for that court.
On those grounds,
THE COURT
in answer to the question referred to it by the Arbeidsrechtbank (Labour
Court) of Hasselt by judgment of 16 March 1977, hereby rules:
The fact that a Member State has specified a law in its declaration under Article 5 of Regulation No 1408/71 must be accepted as proof that the benefits granted on the basis of that
law are social security benefits within the meaning of the said
regulation.
Kutscher Sørensen Bosco Donner Pescatore
Mertens de Wilmars Mackenzie Stuart O'Keeffe Touffait
Delivered in open court in Luxembourg on 29 November 1977.
A. Van Houtte H. Kutscher
Registrar President