C-66/77

JUDGMENT OF THE COURT OF 1 DECEMBER 1977 <1>

Petrus Kuyken v Rijksdienst voor Arbeidsvoorziening (preliminary ruling requested by the Arbeidsrechtbank, Hasselt)

Case 66/77

1. Preliminary rulings — Jurisdiction of the Court — Limits (EEC Treaty, Article 177)

2. Social security for migrant workers — Unemployment — Benefits — Entitlement — None — Regulation No 1408/71 — Inapplicability

3. Social security for migrant workers — Unemployment — Benefits — Award — Students — Studies completed in another Member State — Assimilation to those completed in an establishment recognized by the competent State — Requirement — None

PETRUS KUYKEN

and

RIJKSDIENST VOOR ARBEIDSVOORZIENING (National Department of Employment)

on the interpretation of the rules of Community law relating to unemployment for the purposes of the free movement of workers within the Community,

THE COURT

composed of: H. Kutscher, President, M. Sørensen, G. Bosco, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore and A. O'Keeffe, Judges,

Article 124 (1) of the said Royal Decree 'Can the provisions of Article 124 of the provides, inter alia, as follows: Royal Decree of 20 December 1963 on the unemployment benefit rules in 'A young worker who has completed a Belgium be regarded as being compatible full course of study in an educational with the letter and the spirit of the establishment provided, recognized or relevant Community law which seeks to ensure free movement of workers within subsidized by the State, or who has obtained a diploma or a school-leaving the Community: certificate from the central board ... may — with regard to Belgian subjects who have studied in one of the Member qualify for unemployment benefits States; or provided that: 1. ... — with regard to persons who are not 2. The period which has elapsed Belgian subjects but who possess the between the completion of studies, nationality of one of the Member States; or the grant of a school-leaving diploma or a certificate from the central board Do the provisions of Article 124 of the or the completion of apprenticeship Royal Decree of 20 December 1963 and the application for benefit does constitute, directly or indirectly, an not exceed one year.' obstacle to the free movement of workers within the Community?' He was refused unemployment benefits by decision of the Rijkdienst voor The judgment making the reference Arbeidsvoorziening of 20 January 1977 reached the Court on 31 May 1977. because more than a year had elapsed between the date on which he had Upon hearing the report of the completed the studies which entitled Judge-Rapporteur and the views of the him to payment of those benefits (30 Advocate-General, the Court decided to June 1971) and the date on which he open the oral procedure without any made his application (28 October 1976). preparatory inquiry. The studies completed by him at the Hogere Technische School in Apeldoorn were not regarded as preventing this II — Summary of the written period from running since they had not observations submitted been completed, 'in an educational under Article 20 of the establishment provided, recognized or Protocol on the Statute of subsidized by the Belgian State. the Court of Justice of the EEC

study in an establishment which is not After describing the nature of the provided, recognized or subsidized by the question which arises in the case and Belgian State is not presumed to be concluding that the only measures likely preparing to enter the Belgian labour to be involved in this matter are market: the establishment can provide no Regulation (EEC) No 1408/71 and No such guarantee. The same would apply to 574/72 of the Council on the application a foreign national. On the other hand, all of social security schemes to employed other things being equal, a foreign persons and their families moving within national who, like a Belgian national, the Community, the Commission states follows a course of study in an that the grounds of the judgment establishment provided, recognized or expressly refer to Regulation (EEC) No subsidized by the Belgian State fulfils 1408/71 and quote two recitals from the this condition. preamble thereto one of which refers to the provisions of the regulation which There is accordingly no difference of are specifically concerned with treatment or obstacle to the free unemployment benefits. Consequently, movement of workers since es­ the question referred to the Court is the tablishments provided, recognized or following: subsidized by the Belgian State are open to all regardless of nationality. 'Are the provisions of Regulation (EEC) No 1408/71 of the Council, in particular, Observations of the Commission those relating to the coordination of the laws of the Member States concerning In the Commission's view, the question unemployment benefits, to be inter­ arises whether it is within the Court's preted as meaning that periods of study jurisdiction to give a preliminary ruling completed by a national of a Member on the question referred to it by the State in an educational establishment national court. The question refers which is not provided, recognized or expressly neither to the interpretation subsidized by the State under whose nor to the validity of specific provisions legislation unemployment benefits are of Community law but, in addition, it applied for must, for the purposes of the asks the Court to give a ruling on the award of such benefits, be treated as compatibility of the law of a Member though they were periods of study State with Community law. completed in an establishment provided, recognized or subsidized by the Member However, in order to avoid a formalism State concerned?' which the Court has felt to be contrary to the very nature of the procedure Going on to examine the substance of established by Article 177 of the Treaty, the issue raised in the case, the in particular in its judgment of 1 Commission states that it largely depends December 1965 in Case 16/65 Schwarze on educational policy in Belgium v Einfuhr- und Vorratsstelle für whether periods of study completed by a Getreide und Futtermittel [1965] ECR young unemployed person who has 886 the Commission believes it is never worked in Belgium are to be taken possible for the Court to be considered as into account so as to enable him to

In any event it is difficult to see how To sum up, and on the assumption that the provisions of Regulation (EEC) No Mr Kuyken could validly claim the 1408/71 concerning unemployment, that application of Regulation (EEC) No is to say, Articles 67 to 71 inclusive, can 1408/71, there is no provision in the apply in the plaintiff's case. regulation enabling him to have the periods of study completed in the Article 67, which repeats the general rule Netherlands treated as though they were on aggregation, refers only to periods of periods of study completed in an insurance or employment and cannot establishment provided, recognized or therefore apply to the circumstances of subsidized by the Belgian State in order the plaintiff in view of the fact that to receive unemployment benefits in students are not, in the Netherlands, Belgium. subject to the legislation applicable to salaried workers, including that on Consequently, the Commission considers unemployment. that the reply which the Court should give to the question referred to it might Article 68 is concerned only with the be the following: calculation of benefits. The provisions of Regulation (EEC) No It is clear both from the wording of 1408/71 of the Council on the subject of Article 69 (1) and from the preamble to unemployment, do not enable periods of the regulation that, under certain study completed in an establishment conditions, that provision makes it which is not provided, recognized or possible for an unemployed worker who subsidized by a Member State to be has acquired a right to benefits in one treated as though they were periods of Member State and goes to another study completed in an establishment Member State in order to seek which is so provided, recognized or employment, to continue to receive such subsidized.' benefits. But the article cannot apply in the case of the plaintiff, who acquired no right to unemployment benefits in the III — Oral procedure Netherlands.

3 Article 124 (1) of the Arrêté Royal provides inter alia as follows:

'A young worker who has completed a full course of study in an educational establishment provided, recognized or subsidized by the State, and who has obtained a diploma or a school-leaving certificate from the central board ... may qualify for unemployment benefits provided that:

1. ...

2. The period which has elapsed between the completion of studies, the grant of a diploma or a school-leaving certificate from the central board or the completion of apprenticeship and the application for benefit does not exceed one year.'

4 The file indicates that, after obtaining his school-leaving certificate in Belgium on 30 June 1971, the plaintiff in the main action followed a course of study at the Hogere Technische School (College of Advanced Technology) at Apeldoorn, the Netherlands, until 24 June 1976.

5 On completion of his studies in the Netherlands he returned to Belgium where, after failing to find employment, he submitted the aforesaid application on 28 October 1976.

— with regard to persons who are not Belgian subjects but who possess the nationality of one of the Member States; or

Do the provisions of Article 124 of the Royal Decree of 20 December 1963 constitute, directly or indirectly, an obstacle to the free movement of workers within the Community?'

9 The national court points out, inter alia, that the question which it has to consider is whether Article 124 of the aforesaid Arrêté Royal is compatible with the Treaties establishing the European Communities and also with the provisions of Community rules including those of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 (OJ 1971 L 149, p. 2).

10 Although the Court has no jurisdiction within the framework of the application of Article 177 of the Treaty to decide upon the compatibility of a national provision with Community law, it may nevertheless extract from the wording of the question formulated by the national court, having regard to

JUDGMENT OF 1. 12. 1977 — CASE 66/77

the facts stated by the latter, those elements which come within the interpretation of Community law.

16 Furthermore, subject to certain conditions, Article 69 makes it possible for a wholly unemployed worker who has acquired a right to benefits in one Member State and who goes to another Member State in order to seek employment there to retain his entitlement to those benefits.

17 A worker who does not satisfy the conditions laid down by the legislation of a Member State cannot take advantage of the provisions of Article 69 if he moves into another Member State.

KUYKEN v RIJKSDIENST VOOR ARBEIDSVOORZIENING

18 Finally, Article 71, which derogates from the provisions of Article 67 (3), under which, subject to the completion lastly of periods of insurance or of employment in accordance with the provisions of the legislation under which the benefits are claimed, the application of the rule on aggregation makes it possible, under certain conditions, for an umemployed worker who, during his last employment, resided in a Member State other than the competent State, to claim the benefits from that State rather than from the one in which he completed the aforementioned periods.

19 That article cannot apply to the case of an unemployed person who has not pursued any activity as an employed person or any activity treated as such and who, in consequence, has not yet acquired any entitlement to unemployment benefit.

20 It remains to be considered whether national rules, to the extent to which, for the purposes of the award to young unemployed workers who have never been employed of unemployment benefits, they impose conditions similar to those described in the judgment referring the matter to the Court, may be regarded as incompatible with the rules on non-discrimination and on the free movement of workers within the Community.

25 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.

On those grounds,

THE COURT,

in answer to the question referred to it by the Arbeidsrechtbank, Hasselt, by judgment of 18 May 1977 hereby rules:

Neither the Treaty establishing the EEC nor the provisions of Regulation (EEC) No 1408/71 of the Council relating to unemployment require a competent institution in one Member State, for the purposes of the award of unemployment benefits to former students who have never been employed, to treat studies completed in another Member State as though they had been completed in an establishment provided, recognized or subsidized by the competent State.

Kutscher Sørensen Bosco