C-139/78

JUDGMENT OF THE COURT OF 20 MARCH 1979 <apnote>1</apnote>

Giovanni Coccioli v Bundesanstalt für Arbeit (preliminary ruling requested by the Sozialgericht Hildesheim)

Case 139/78

1. Social security for migrant workers — Unemployment — Benefits — Retention of entitlement to benefits during stay in another Member State — Period of three months — Extension — Request made after expiration ofperiod — Extension permissible (Regulation No 1408/71 to the Council, Art. 69 (2))

2. Social security for migrant workers — Unemployment — Benefits — Retention of entitlement to benefits during stay in another Member State — Period of three months — Extension — Discretion of national authorities (Regulation No 1408/71 of the Council, Art. 69 (2))

1. An extension of the period referred to institutions of the Member States to in Article 69 (2) of Regulation No take into consideration, with a view 1408/71 is permissible even when the to deciding upon any extension of the request is made after the expiration of period laid down by that Regulation, that period. all factors which they regard as relevant and which are inherent both 2. Article 69 (2) of Regulation No in the individual situation of the 1408/71 does not restrict the freedom workers concerned and in the exercise of the competent services and of effective control.

BUNDESANSTALT FÜR ARBEIT (Federal Employment Bureau)

on the interpretation of Article 69 (2) of Regulation 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 (Official Journal, English Special Edition 1971 (II), p. 416),

THE COURT

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

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

"If the person concerned returns to the On 15 May 1977 he came back to the competent State before the expiry of the Federal Republic of Germany and on 16 period during which he is entitled to May 1977 he applied to the Arbeitsamt benefits under paragraph (1) (c), he shall Göttingen for unemployment benefit, continue to be entitled to benefits under alleging that he had been prevented by the legislation of that State; he shall lose his illness from coming back to the all entitlement to benefits under the Federal Republic within the prescribed legislation of the competent State if he period of three months.

He was paid likelihood of placement in the area to unemployment benefit by the Arbeitsamt which he had gone in search of work (Employment Office) Göttingen from 13 and since by extending his stay in Italy December 1976 to 18 December 1976. for other reasons the applicant had taken On 15 December 1976, Mr Coccioli upon himself the risk of an unforeseeable informed the Arbeitsamt of his intention event occurring which would prevent to return to Italy. In consequence, on 17 him from coming back to the Federal December 1976 the Arbeitsamt drew up Republic in time. Certificate E 303 concerning retention of entitlement to unemployment benefits. The applicant objected unsuccessfully to That certificate stated that the applicant the refusal of his application by the Ar was entitled to benefits for a period of beitsamt, and brought the matter before the Sozialgericht (Social Court)

According to the form, the Arbeitsamt which issued the E 303 certificate may authorize exceptions. During the said month of December 1976, the applicant went back to Erchi in Italy in order to find employment. There was no likelihood of placement for him in that area either at the time when he went back or in the following weeks. On 16 March 1977, he fell ill and was declared unfit for work from 16 March to 14 May 1977.

2. If so: results partly from the fact that Are the competent employment applicants underestimate the time services acting within the limits of required for postal delivery. Therefore for social reasons the defendant inclines their discretion in rejecting an exceptional case for extension of the towards the view that it is possible to period because extend the three-month period even after it has expired, provided that all the other (a) there was no likelihood of conditions are fulfilled. placement for the unemployed person in the other Member In the defendant's view, Question 2 is inadmissible, because it refers not to the State to which he had gone interpretation of Article 69 (2) of the seeking work and regulation but to the exercise of the (b) return within the prescribed administration's discretion under that period was impossible as a result provision in this particular case. The of sudden illness?" question whether the employment services abused their discretion by basing The order making the reference was their decision on unlawful considerations registered at the Court Registry on 14 can be decided only in the light of the June 1978. facts of the case, taking account of all Written observations were submitted the circumstances. However, Article 177 under Article 20 of the Protocol on the of the EEC Treaty does not give the Statute of the Court of Justice of the Court of Justice jurisdiction to assess the EEC by the Bundesanstalt für Arbeit facts of the case pending in the main (Federal Employment Bureau), the action in the light of a legal rule. defendant in the main action, and by the The Commission first of all raises the Commission of the European issue of the possible incompatibility of Communities. Article 69 (2) of Regulation No 1408/71 After hearing the report of the Judge- with Article 51 of the EEC Treaty. It Rapporteur and the views of the argues that an unemployed person who Advocate General, the Court decided to returns to the competent Member State open the oral procedure without any and fulfils all the requirements for continued entitlement to benefits under preparatory inquiry. the legislation of that State is punished under Article 69 (2) for exceeding the II — Written observations sub­ time-limit by forfeiture of any further mitted under Article 20 of rights which may exist exclusively under the Protocol on the Statute the legislation ofthe said State. of the Court

The Commission points out that the The following considerations appear Arbeitsförderungsgesetz (Law for the relevant for the purpose of defining promotion of employment) also provides those limits: for sanctions. According to Article 120 According to the second sentence of of the Arbeitsförderungsgesetz, Article 69 (2), if a case is exceptional, this unemployment benefits are suspended suffices for an extension of the time-limit for six working days when the to be granted. Any development which unemployed person does not comply departs from the normal and usual with a request by the Arbeitsamt to course of events may be an "exceptional present himself. Exceeding the three- case". It must be required that the month period may be regarded as unemployed person concerned was not equivalent to failing to fulfil the the cause of or responsible for the obligation to present oneself. Therefore exceptional character of the case. Any the only question remaining to be settled illness sufficiently serious to make the is whether the total forfeiture of further unemployed person's return within the rights under Article 69 (2) is dispro­ prescribed period appear impossible or portionate and for that reason undesirable from the medical point of unfounded in internal law. view constitutes an "exceptional case" The Commission points out the nature of within the meaning of the the problem raised by Article 69 (2) and aforementioned provision. continues its observations on the The question then arises whether the assumption that that provision is employment services may, without compatible with Article 51 of the Treaty. abusing their discretion, make the As regards Question 1, the Commission unemployed person concerned bear the risk of illness if there is no likelihood of notes that Article 69 (2) makes no provision as to whether extension of the placement for him in the place to which time-limit must be applied for before or he has gone seeking work. The purpose after the period has expired, from which of Article 69 (1) of the regulation is to ensure that benefits continue to be it may be inferred that an application for extension may be made either before or granted so that employment may be after expiry of the period. However, an sought in another Member State, If in a application is admissible only if it is made as quickly as may reasonably be expected in the particular circumstances of the case under consideration.

particular case there is no likelihood of III — Oral Procedure placement for the unemployed person in the State to which he has gone seeking At the hearing on 30 January 1979 the work, the continued granting of benefits defendant in the main action, fails to fulfil its objective. In accordance represented by its director, M. Müller, with the purpose of the provision, an and the Commission, represented by N. unemployed person who has gone Koch, acting as Agent, presented oral seeking work should be required to argument. return forthwith to the competent At the hearing the defendant in the main Member State as soon as he has action explained in particular the established that his efforts are in vain. administrative practice followed by the In conclusion, it is the Commission's German authorities in applying Article 69 of Regulation No .1408/71. It view that the questions asked by the appeared from that explanation that the Sozialgericht Hildesheim could broadly German authorities do not seek to be answered as follows: ascertain in advance whether the quest 1. An extension of the time-limit under for work abroad has any chances of the second sentence of Article 69 (2) success because, at the time of the of Regulation No 1408/71 is lodging of Form E 303, it is impossible permissible even if the application for to state with certitude in every case whether the visit abroad is undertaken extension is made after expiry of the period. However, an application thus for the purpose of seeking work or made is admissible only if it is made whether, on the other hand, there is a as quickly as may reasonably be risk of abuse. It is only when the worker expected in the particular circum­ comes back late — that is to say after the stances of the case under period of three months has elapsed — consideration. and when an application is made for an extension that inquiry is made to 2. Even if the unemployed person ascertain whether the visit to another seeking work suddenly falls ill, the Member State was in fact justified by the employment services do not exceed quest for employment. The circumspect the limits of their duly-exercised attitude of the German authorities in discretion in denying the existence of regard to the grant of an extended an exceptional case such as to justify period is explained in particular by the extension of the period under the fact that applications for Form E 303 second sentence of Article 69 (2) have shown a considerable increase and because there was no likelihood of that they are always presented at the placement for the unemployed person beginning of the summer holidays and before the Christmas festivities. in the place to which he had gone seeking work, provided that the The Advocate General delivered his unemployed person concerned was opinion at the hearing on 21 February aware of that fact. 1979.

(b) return within the prescribed period was impossible as a result of sudden illness".

First question

4 Article 69 (1) (c) of Regulation No 1408/71 permits a worker who is wholly unemployed and who satisfies the conditions of the legislation of a Member State for entitlement to unemployment benefits to go to one or more other

JUDGMENT OF 20. 3. 1979 — CASE 139/78

Member States in order to seek employment and to retain his entitlement to benefits during a maximum period of three months from the date when he ceased to be available to the employment services of the State which he has left.

In the words of paragraph (2) of that article

7 Article 69 of Regulation No 1408/71, in giving a worker the right to go to another Member State to seek employment, confers on a person who avails himself of that provision an advantage as compared with a person who remains in the competent State inasmuch as, by the effect of Article 69, he is

COCCIOLI v BUNDESANSTALT FÜR ARBEIT

freed for a period of three months of the duty, which is the counterpart of the grant of unemployment benefits, to keep himself available to the employment services of the competent State and to be subject to the control procedure organized therein, even though he must register with the employment services of the Member State to which he goes.

8 It is for the authorities concerned to check whether the use made by the worker of the right conferred upon him by Article 69 of Regulation No 1408/71 was in conformity with the objective for which it was instituted.

Consequently it is for the competent services and institutions of the Member States to assess in each specific case the factual circumstances constituting an "exceptional case" as relied on in support of a request for extension of the period referred to in Article 69 (2) of Regulation No 1408/71.

9 The answer to be given to the second question should therefore be that that provision does not restrict the freedom of the competent services and institutions of the Member States to take into consideration, with a view to deciding upon any extension of the period laid down by the regulation, all factors which they regard as relevant and which are inherent both in the individual situation of the workers concerned and in the exercise of effective control.

in answer to the questions referred to it by the Sozialgericht Hildesheim by order of 8 June 1978,

hereby rules:

1. An extension of the period referred to in Article 69 (2) of Regulation No 1408/71 is permissible even when the request is made after the expiration of that period.

2. That provision does not restrict the freedom of the competent services and institutions of the Member States to take into consideration, with a view to deciding upon any extension of the period laid down by the Regulation, all factors which they regard as relevant and which are inherent both in the individual situation of the workers concerned and in the exercise of effective control.

Kutscher Mertens de Wilmars Mackenzie Stuart Donner Pescatore

Sørensen O'Keeffe Bosco Touffait