C-227/81

JUDGMENT OF 27. 5. 1982 — CASE 227/81

In Case 227/81

R E F E R E N C E to the Court under Anicie 177 of the E E C Treaty by the French Cour de Cassation [Court of Cassation], Social Chamber, for a preliminary ruling in the action pending before that court between

FRANCIS A U B I N

and

1. U N I O N NATIONALE INTERPROFESSIONNELLE POUR L'EMPLOI DANS L'INDUSTRIE ET LE COMMERCE [National Trades Association for Employment in Industry and C o m m e r c e , hereinafter referred to as "the National Association") ( U N E D I C )

AUBIN v ĽNEDIC AND ASSEDIO

JUDGMENT

Facts and Issues

The facts of the case, the course of the of Regulations No 1408/71 and No procedure and the observations sub­ 574/72 of the Council. mitted by the parties pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European On that advice Mr Aubin presented Economic Community may be sum­ himself to the employment authorities in marized as follows: Belgium and asked the French auth­ orities to send him the forms necessary for the application of Regulation N o 1408/71 which were drawn up by- I — Facts and written p r o c e d u r e Commission Decision N o 72 of 1 October 1972 (Journal Officiel L 261, p. 1). The French employment authorities refused, however, to supply certain Mr Aubin, a French national, was documents which were intended in their working in Paris for a Belgian under­ opinion to govern legal situations taking when in September 1970 his different from that of Mr Aubin. employer offered him a post in Brussels. Mr Aubin decided therefore to move with his family to Belgium. In any event the Belgian Office National de l'Emploi [national employment bureau] informed Mr Aubin, by a In December 1972 he took up other decision notice of which he received on employment and returned to work in 8 August 1975, that he was not entitled France, in the Paris area, but retained his to unemployment benefit because he did home in Belgium for the time being. not meet the conditions laid down by the Arrêté Royal Beige [Belgian Royal Decree] of 20 December 1963 on Mr Aubin was made redundant on emplovment and unemployment, which economic grounds on 25 February 1975 required that he should have engaged in and as he had paid regular unemploy­ paid work in Belgium for at least one ment insurance contributions in France, day in the course of the eighteen months sought information as to how to set preceding his being made redundant. about claiming benefit.

Despite Mr Aubin's repeated attempts to (2) Whether the fact that he had extricate himself from this impasse the registered in Belgium as a person French authorities merely confirmed that seeking work is of such a nature as their Belgian counterparts were adopting to require the condition of French a different interpretation of the Com- legislation that he should be munity provisions concerning unem- registered in France with the ployed migrant workers. Agence Nationale pour l'Emploi as a person seeking work to be deemed to be fulfilled." On 1 October 1976 Mr Aubin trasferred his residence to the Paris region, where he found fresh employment. The judgment making the reference was lodged at the Court Registry on 3 August 1981. He sought to recover from the national Association and the Yvelines Association In accordance with Article 2D of the unemployment benefit to which he was Protocol on the Statute of the Court of entitled under French legislation for the Justice of the European Economic period between 25 February 1975 and 30 Community written observations were September 1976 in the Tribunal de submitted by Claire Waquet, advocate at Grande Instance [Regional Court), Paris, the Conseil d'Etat and the Cour de which by a judgment of 1 June 1978, Cassation, and by Catherine Veron'-- ruled that the claim was inadmissible Claviere, advocate at the Cour de Paris, with regard to the National Association on behalf of Francis Aubin, the and unfounded with regard to the other appellant; by Christian Bouliez, advocate defendant. at the Conseil d'Etat and the Cour de Cassation, on behalf of the National Association and the Yvelines Association, Mr Aubin appealed against that decision the respondents; by Maryse Aulagnon, a Member of the Interministerial and subsequently brought the matter Committee on European Economic before the Cour de Cassation. By a Cooperation, acting as Agent, on behalf judgment of 7 July 1981 the Social of the French Government; and by Jean Chamber of that court decided to refer Amphoux, Legal Adviser to the Com- the following two questions to the Court mission of the European Communities, of Justice for a preliminar)· ruling: acting as Agent, assisted by Georges Vandersanden of the Brussels Bar, on behalf of the Commission. "(1) Whether a French national, who worked in France until made redundant, who was not registered On hearing the repon of the Judge- in France as a person seeking work Rapporteur and the views of the and resided in Belgium where he Advocate General the Court decided to had registered as a person seeking open the oral procedure without any work, was entitled under Com- preparatory inquiry. munity legislation to be paid un- employment benefit by the com- petent institution of the Belgian By order dated 3 February 19S2 the State, or whether he was entitled to Court decided to assign the case to the claim it from that of the French Second Chamber pursuant to Amele 95 State as well, (1) and (2) of the Rules of Proceaure.

II — Summary of the written is interpreted by them in different ways. o b s e r v a t i o n s submitted to The text reads as follows: the Court "An unemployed person who, during his last emplovment, was residing in the First question territory of a Member State other than the competent State shall receive benefits in accordance with the following provisions : The appelUnt, Mr Aubin, submits that the reply to the first question is to be found without difficulty in Article 13 (2) (i) a worker, other than a frontier (a) of Regulation N o 1408/71 of the worker, who is partially, intermit- Council which states that "a worker tently or wholly unemployed and employed in the territory of one Member who remains available to his State shall be subject to the legislation of employer or to the employment that State even if he resides in the services in the territory of the territory of another Member State or if competent State shall receive benefits the registered office or place of business in accordance with the provisions of of the undertaking or individual the legislation of that State as employing him is situated in the territory though he were residing in its of another Member State". As a general territory; these benefits shall be principle that is confirmed by Article 67 provided by the competent insti- of Regulation No 1408/71 which makes tution; application of paragraphs (1) and (2) of that article subject to "the condition that the person concerned should have (ii) a worker, other than a frontier completed lastly . . . periods of insurance worker, who is wholly unemployed . . . [or] periods of employment . . . in and who makes himself available for accordance with the provisions of the work to the employment services in legislation under which the benefits are the territory of the Member State in claimed". which he resides, or who returns to that territory, shall receive benefits in accordance with the legislation of that State as if he had last been Since none of the exceptions provided employed there; the institution of the for in Articles 14 to 17 of Regulation No place of residence shall provide such 1408/71 apply, the appellant considers benefits at its own expense. How- that it is the authorities of the Member ever, if such worker has become State in which he was last employed — entitled to benefits at the expense of in his case the French authorities — who the competent institution of the are responsible for the payment of the Member State to whose legislation unemployment benefit. he was last subject, he shall receive benefits under the provisions of Article 69. Receipt of benefits under Mr Aubin observes that the debate which the legislation of the State in which has arisen v uhin the French adminis- he resides shall be suspended for any tration and the Belgian institutions has period during which the unemployed centred on Anicie 71 (1) (b) of Regu- person may, under the provisions of lation No 1408/71, each of the States Article 69, make a claim for benefits concerned claiming that Mr Aubin falls under the legislation to which he was within the scope of that provision which last subject."

The French authorities consulted by the worker maintains his habitual centre of appellant decided that inasmuch as Mr interest in the State which is claimed to Aubin was living in Belgium and had be the State of residence. The Court worked in France the competent Sute takes into account "the length and for pavment of the unemployment continuity of residence before the person benefit must be Belgium. The appellant concerned moved, the length and contends, however, that Article 71 (1) purpose of his absence, the nature of the (b) (ii) lays down, not an obligation, but occupation found in the other Member merely the possibility of a derogation State and the intention of the person from the general rule contained in concerned as it appears from all the Article 13. By making provision for the circumstances" (paragraph 22 of the transfer of the burden of payment from decision in Di Paolo). the Member Sute of last employment to the State of residence Article 71 (1) (b) (ii) gives workers who reside in a State other than that in which they held their last employment the opportunity of obtaining unemployment benefit in their State of residence provided, however, that they expressly declare their intention According to the facts of the case, which to return to their chosen State and are not contested, Mr Aubin's habitual subject themselves to its legislation. The centre of interest is in France. The applicant considers none the less that if reasons which led the appellant to the worker does not ask for the "move" to Belgium were purely of a provisions of Article 71 (1) (b) (ii) to be short-term economic nature inasmuch as applied in his case that provision may not they were connected with the promotion be applied against him by the State in proposed by the Belgian employer. Mr which he was last employed where he is Aubin clearly manifested his intention to claiming payment of unemployment maintain his centre of interest in France benefit in accordance with general when he lost his employment in Belgium principles. and later when he was made redundant in February 1973. The appellant is anxious to emphasize that registration with the Belgian Office National de l'Emploi was merely an administrative step which was necessary, according to the information he had received from the French authorities, in order to obtain payment of unemployment benefit; such Mr Aubin cites the judgment in Di Paolo a step cannot be considered as evidence (Case 76/76 [1977] ECR 315) in which that the appellant wished to "return" to the Court, after ruling that the exception Belgium and find employment there. contained in Anicie 71 (1) (b) (ii) of Regulation No 1408/71 must be strictly construed, interpreted the concept of residence referred to in that provision as meaning that "whenever a worker has a stabie employment in a Member State there i* a presumption thai he resides there, even if he has left his family in another State". The Di Paolo decision On the basis of the foregoing the makes it clear that that presumption mav appellant considers that he was entitled be rebutted oniv b> evidence thai the to demand payment of unemplo·. •r-it

Furthermore that interpretation of As to the second limb, the defendants Article 71 (1) (b) (ii) is the only interpret- point out that the issue does not turn on ation which is compatible with the the reasons for Mr Aubin's failure to principle of freedom of movement set register as a person seeking work in out in Anicie 51 of the Treaty. The France, but on the fact that he presented appellant adds, on the basis of the himself to the employment authorities in decisions in Petroni (Case 24/75 [1975] Belgium. That being so, his position is ECR 1149) and Manzoni (Case 112/76 governed by the terms of Article 71 of [1977] ECR 1647) that any interpret- Regulation No 1408/71 whereby the ation of a provision of Community law national institution charged with which results in depriving the migrant payment is that of the State in which the worker of the rights he enjoys under worker registers as a person seeking national legislation alone must be work, namely the Belgian Office rejected. That applies to the interpret- National de l'Emploi. ation of Article 71 (1) (b) (ii) suggested by the French administration inasmuch as it leaves the worker without any protection against unemployment. The Commission, after recalling the terms of Article 71 of Regulation No 1408/71, points out that the aim of that provision as expressed in the ninth recital The defendants (the National Association in the preamble to Regulation No and the Y vélines Association) claim that 1408/71 is to enable unemployed the first question which has been workers to receive unemployment benefit submitted for a preliminary ruling has on conditions most favourable to the two limbs: the first asks whether Mr search for new employment. To that end Aubin could choose to seek payment of the Community rules allow a worker to unemployment benefit from either the draw benefit under the unemployment Belgian or the French competent auth- insurance scheme in the Member State in orities, and the second asks which of the which he resides (Case 39/76 Mouthaan two national institutions concerned was [1976] ECR 19C1). responsible for paying benefits under unemployment insurance. The Commission draws a distinction based on the terms of Article 71 between •As to the first of those points the the position of a frontier worker (Article defendants observe that Regulations No 71 (all and that or any other worker 1438/71 and No 574/72 of the Council, who during his most recent period of the principal purpose of which is to co- employment resided in a Member State ordinate measures for unemployment other than that in which he worked compensation within the EEC. define the (Anicie 71 111 lb)). national institution charged with making payment on the basis of objective criteria. Consequently it was not open to Mr Aubin to choose which system The Commission is of the opinion that it (Belgian or French) was to apply, that is not possible on the basis of the intor-

The French Government lays emphasis on the preliminary point that inasmuch as Second question Regulation No 1408/71 of the Council contains provisions to prevent the over- lapping of benefits (Article 12) Mr Aubin The appellant, Mr Aubin, submits that could only be entitled to benefit from the principle that the conditions which either the Belgian State or the French must be satisfied in various Member State. States for the enjoyment of rights deriving from the contract of employment must be equivalent is a Anicie 67 (3) of Regulation No 1408/71 necessary consequence of the principle of provides that the last period of the free movement of workers laid down employment must have been completed in Anieles 48 to 51 of the Treaty of in accordance with the provisions of the Rome. By vinue of that principle a legislation under which the benefits are worker's failure to satisfy in one Member claimed, which means, in fact, in the State a condition imposed by the State of residence, the State responsible legislation of that State for the grant of for providing total unemployment benefits deriving from the contract of benefit. employment may not be held against him provided that he fulfils, in good faith, the same or an equivalent condition in a The French Government observes that different Member State. Article 71 ( 1 ) contains an exception to that provision in favour of frontier »orkers and certain migrant workers. According to the observations submitted That provision, as interpreted by the on behalf of the appellant the principle Court in the Di Paolo decision iCase of equal conditions is a means of sur- 76/76 [1977] ECR 315. paragraph 3 of mounting the inconsistencies arising the decision), enables benefits to be from application of different national

In so far as it may be pertinent, the The appellant concludes that the absence Commission points out that Anicie 86 of of affiliation in a Member State does Regulation No 1408/71 or the Council not prevent payment of unemployment ("Claims, declarations or appeals benefit, a fortiori when, as in the present submitted to an authority . . . of a instance, registration was not lacking but Member State other than a competent merely incorrect and the mistake was not State") provides no assistance for Mr attributable to the person concerned. The Aubin inasmuch as that provision does reply to the second question must not enable registration as a person therefore be in the affirmative. seeking work in Belgium to be considered sufficient to make the French authorities the competent institution when in the circumstances u is the He further emphasizes that the principle Belgian authorities who are responsible of equity embodied in manv of the for payment ot the unemployment fundamental rights which are guaranteed benefit.

JUDGMENT OF 27. 5. 1982 — CASE 227/81

: The questions arose in the course of an action between Mr Aubin and the Union Nationale Interprofessionnelle pour l'Emploi dans l'Industrie ei le Commerce [National Trades Association for Employment in Industry and Commerce, hereinafter referred to as "the National Association"] and the Association pour l'Emploi dans les Industries et le Commerce du Département des Yvelines [Association for Employment in Industry and Commerce of the Yvelines, hereinafter referred to as "the Yvelines Association"].

;. Mr Aubin, a French national, worked in Paris for a Belgian undertaking. In September 197; he accepted his employer's offer of a post in Brussels and

AUBIN v UNEDIC AND ASSEDIC

decided to move with his family to Belgium. In December 1972 Mr Aubin changed his employment and returned to work in France, in the Paris area, but retained his home in Belgium.

4 On 25 February 1975 Mr Aubin was made redundant on economic grounds. As he had regularly paid unemployment insurance contributions in France, he sought information from the Yvelines departmental employment and labour office as to how to set about claiming benefit. By letter dated 12 March 1975 the Inspecteur du Travail [employment officer] for the Yvelines informed him that he must apply to the employment institution in his place of residence, Belgium, for registration as a person seeking work, and that he would be paid unemployment benefit by the Belgian authorities in accordance with the terms of Regulations Nos 1408/71 of 14 June 1971 and 574/72 of 21 March 1972, both of the Council.

i On 6 August 1975 the Belgian Office National de l'Emploi [national employment bureau] took a decision informing Mr Aubin that he was not entitled to unemployment benefit in Belgium, mainly on the grounds that he did not meet the conditions laid down by the Arrêté Royal Beige [Belgian Rovai Decree] of 20 December 1963 on employment and unemployment, inasmuch as he had not engaged in paid work in Belgium for at least one day in the course of the eighteen months preceding his being made redundant.

"(1) Whether a French national, who worked in France until made redundant, who was not registered in France as a person seeking work and resided in Belgium where he had registered as a person seeking work, was entitled under Community legislation to be paid unemployment benefit by the competent institution of the Belgian State, or whether he was entitled to claim it from that of the French State as well;

(2) Whether the fact that he had registered in Belgium as a person seeking work is of such a nature as to require the condition of French legislation that he should be registered in France with the Agence Nationale pour l'Emploi as a person seeking work to be deemed to be fulfilled."

First q u e s t i o n

10 Article 13 (2) (a) of Regulation (EEC) N o 1408/71 of the Council of 14 June 1971 states that "a worker employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State".

i¡ That general provision, however, which appears in Title II of Regulation No 1408/71, headed "Determination of the Legislation Applicable", applies only in the absence of provision to the contran· in the special provisions relating to the various categories or benefits which constitute Title III of the same regulation.

12 That is precisely the case with Chapter 6 of Title III on unemployment, the provisions of which, as the Court has already held in its judgment of 13 December 1976 (Case 39/76 Bestuur der Bedńfsteremging voor dc Metaal-

1 4 It must be noted with reference to that provision, and before the content of Article 71, which was cited in the grounds of the Cour de Cassation's judgment referring the questions to this Court, is discussed, that although the criteria on the basis of which the concept of "resident" within the meaning of Anicie 71 (1) (b) (ii) is to be interpreted were defined by the Court of Justice in its judgment of 17 Februar)' 1977 (Case 76/76 Silvana Di Paolo v Office National de l'Emploi [1977] ECR 315), the national court has stated that the worker whose situation was under consideration by the court was residing in Belgium, and it has not referred any question to this Court as to what is to be understood by the place of residence of a migrant worker. The Court must therefore regard as established the fact that, in the words used in the judgment of the Cour de Cassation, the worker in question "worked in France until made redundant, . . . was not registered in France as a person seeking work and resided in Belgium where he had registered as a person seeking work".

1 5 Anicie 71 (1) of Regulation No 1408/71 contains different rules according to whether the unemployed person is a frontier worker (under (a)), or other than a frontier worker (under (b)). Whether Mr Aubin was or was not. on the material date for the purposes of the main action, a frontier worker as defined in Article 1 (b) of that regulation is a question for the national court. However, since the Cour de Cassation has referred to both possibilities in the grounds of its judgment without stating whether it considered Mr Aubin to be a frontier worker or not, it is appropriate for the Court to examine the scope of the relevant provisions in both cases, even though Mr Aubin does not appear to have claimed during the proceedings thai he should be regarded as a frontier worker.

(ii) 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, shall receive benefits in accordance with the legislation of that State as if he had last been employed there; the institution of the place of residence shall provide such benefits at its own expense. However, it such worker has become entitled to benefits at the expense of the competent institution of the Member State to whose legislation he was last subiect, he shall receive benefits under the provisions of Article 69. Receipt of benefits under the legislation of the State in which he resides shall be suspended tor any period during which the unemployed person mav. under the provisions of Article 69, make a claim tor benefits under the legislation to which he was last subiect."

2 " 4

AUBIN v UNEDIC AND ASSEDIC

Second q u e s t i o n

:i In the second question the Cour de Cassation asks the Court of Justice whether registration of a migrant worker as a person seeking work in Belgium mav be regarded as a substitute for registration as a person seeking work with the French Agence Nationale pour l'Emploi, such registration being required by French law as a condition for the gram of French unemployment benefit.

As has been stated above, by registering for work at the employment offices of the Member State in whose territory he resides and not those of the Member States in whose territory he worked before he became unemployed.

JUDGMENT OF 27. S. 1982 — CASE 227/81

the worker himself chooses to be subject to the legislation on unemployment benefit of the State in which he resides. N o principle or rule of Community law runs counter to this finding, or permits, subject to the application of the provisions in Article 69 of Regulation No 1408/71, registration as a person seeking work with the relevant authorities in Belgium to be assimilated to such registration with the French Agence Nationale pour l'Emploi.

On those grounds,

THE COURT (Second Chamber)

in answer to the questions referred to it by the French Cour de Cassation by a judgment of 7 July 1981, hereby rules:

1. A national of one of the Member Sutes of the European Community, who worked in France until made redundant, who was not registered in France as a person seeking work and who resided in Belgium where he had applied for such registration, is entitled to claim only the unemployment benefits provided for by Belgian legislation, irrespective of whether he has the status of a frontier worker.

2. No provision of Community law permits the registration of a migrant worker as a person seeking work in Belgium to be assimilated to such registration with the French Agence Nationale pour l'Emploi.

Due Chloros Grévisse