C-128/83

In Case 128/83

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d'Appel [Court of Appeal], Rouen, for a preliminary ruling in the proceedings pending before that court between

CAISSE PRIMAIRE D'ASSURANCE MALADIE DE ROUEN

and

A. GUYOT

on the interpretation of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed 1 — Language of the Case: French.

JUDGMENT

Facts and Issues

I — Facts and w r i t t e n p r o c e d u r e employment^ was residing in a Member State other than the competent State. Article 25 of Regulation N o 1408/71 According to Article 71 (1) (b) (ii) a gives unemployed persons who move worker, other than a frontier worker, within the Community some rights to who is wholly unemployed and who sickness benefits. Those rights depend makes himself available for work to the upon the worker's entitlement to employment services in the territory of unemployment benefits governed by the Member State in which he resides, or Articles 69 and 71 of that regulation. who returns to that territory, is to Article 69 governs the situation of an receive benefits in accordance with the unemployed person who goes to a legislation of that State as if he had last Member State other than the competent been employed there. State. He retains the right to benefits granted by the competent State for three months, provided he has completed The position of the respondent in the main certain formalities. After that period, he action must return to the competent State in order to safeguard his rights. The respondent in the main action, of German nationality, resigned from her Article 71 governs the situation of an employment in the Federal Republic of unemployed person who, during his last Germany on 30 June 1977. On 1 August

CAISSE PRIMAIRE D'ASSURANCE MALADIE DE ROUEN v GUYOT

In 1978, the Caisse Primaire d'Assurance Maladie [Local Sickness Insurance Fund, II — W r i t t e n o b s e r v a t i o n s sub- hereinafter referred to as "the Fund"] m i t t e d to t h e C o u r t refused to reimburse her for medical expenses (sickness benefits in kind) The Direction Régionale des Affaires Sani- incurred between January and March taires et Sociales de Haute-Normandie 1978 or to pay her daily allowances in submits that paragraph 1 of Article 71 respect of incapacity for work. refers to unemployed persons who, during their last employment, were Procedure residing in the territory of a Member State other than the competent State. In On 28 April 1981, the Commission de the present case, Mrs Guyot's last Première Instance de Sécurité Sociale employment was in Germany until 30 [Social Security Board of First Instance], June 1977. On that date and until Rouen, ordered the Fund to pay the September 1977, she lived in German disputed benefits. The Fund appealed to territory. Germany is therefore both the the Cour d'Appel, Rouen. That court State of residence during the period of took the view that interpretation of . the last employment, and the State of the Regulation No 1408/71 was required competent institution since Mrs Guyot and therefore suspended the proceedings registered as unemployed in her country and submitted the following question to of origin from 1 August 1977. The the Court of Justice: Direction Régionale submits that those factors alone suffice to show that Mrs "In the case envisaged by Article 71 (1) Guyot does not fulfil the conditions set (b) (ii) of Regulation (EEC) No 1408/71 out in Article 71 (1) (b) (ii) but that she of the Council of the European Com- falls within the exception laid down by munities of 14 June 1971, is residence in that article in the following terms : the competent State prior to the end of the period of last employment in the Member State other than the competent "However, if such worker has become State one of the conditions for obtaining entitled to benefits at the expense of the the benerits referred to in Article 71?" competent institution of the Member State to whose legislation he was last Written observations were submitted subject [in the present case Germany], pursuant to Article 20 of the Statute of he shall receive benefits under the pro- the Court of Justice by the Directeur visions of Article 69" of Regulation No Régional des Affaires Sanitaires et 1408/71.

The Commission examines the scope of have a choice: they may either apply to Articles 69 and 71 in the light of the the unemployment benefit scheme in the judgments of the Court of Justice on the State in which they were last employed subject: judgment of 10 July 1975 in or claim benefits in the State in which Case 27/75 Bonaffini and Others v they reside. The worker makes that Istituto Nationale della Previdenza Sociale choice, in particular, by making himself [1975] ECR 971; judgment of 23 available to the employment office of the November 1976 in Case 40/76 State from which he is claiming benefits Kermaschek v Bundesanstalt für Arbeit (see paragraph 19 of the decision in [1976] ECR 1669; judgment of 15 Aubin cited above). December 1976 in Case 39/76 Metaal- nijverheid'v Mouthaan [1976] ECR 1901; judgment of 17 February 1977 in Case The Commission submits that Article 71 76/76 Di Paolo v Office National de (1) (a) (ii) and (b) (ii) provide an l'Emploi [1977] ECR 315; judgment of exception to the general rule set out in 1 December 1977 in Case 66/77 Kuyken Article 67 and are therefore to be v Rijksdienst voor Arbeidsvoorziening interpreted narrowly (see paragraph 13 [1977] ECR 2311; judgment of 20 of the decision in Di Paolo cited above). March 1979 in Case 139/78 Coccioli v Bundesanstalt för Arbeit [1979] ECR 991; judgment of 19 June 1980 in Joined Article 69 is intended to make it easier Cases 41, 121 and 796/79 Testa and for an unemployed person to look for Others v Bundesanstalt für Arbeit [1980] employment by maintaining his right to ECR 1979; judgment of 27 May 1982 in benefits for three months, thus freeing Case 227/81 Aubin v Unedic and Assedie him, during that period, from the [1982] ECR 1991.

Her concerned should have completed lastly last employment was in the Federal either periods of insurance or periods of Republic of Germany, the country where employment, as the case may be, in she also resided. She did not settle in accordance with the provisions of the France until after having resigned from legislation under which the benefits are her employment. She could therefore claimed. have continued to receive benefits from Germany for three months pursuant to Article 69. However, for certain categories of workers Article 71 (1) provides an exception to that requirement. Workers The Commission points out a misunder- who, during their last employment, standing on the part of the Cour d'Appel retained close links with a country other which misconstrued the expression "the than that where they were employed, competent State".

CAISSE PRIMAIRE D'ASSURANCE MALADIE DE ROUEN v GUYOT

institution from which benefits had been Community rules as they now stand. The claimed was in its territory. reason is that at the time Regulation N o 1408/71 was drawn up, the Community was experiencing a period of economic prosperity and unemployed persons The Commission observes that the could thus find work reasonably quickly. competent State concerned in Article 71 The need to retain the right to is the State of last employment envisaged unemployment benefits outside the by Anicie 67. This is evident from the country of last employment had not yet combined effect of the definitions in made itself felt. The change in the Article 1 (o) and (q) and of Articles 13 situation has prompted the Commission and 67 of the regulation. to submit a proposal to the Council for a regulation amending the original regu- lation (proposal submitted by the Com- mission to the Council on 18. 6. 1980, Mrs Guyot is therefore entitled to Official Journal, C 169 of 9. 7. 1980, receive German benefits for three p. 22). months, and to continue to receive them on condition that she returns to Germany or that she obtains an extension of the time-limit. She was The Commission's analysis is unaffected at no time entitled to French by the fact that the respondent in unemployment benefits, on the other the main action received French hand, since her last employment was not unemployment benefits granted by the in France. French institutions without reference to the criterion of last employment laid down by Anicie 67. Article 25 (2) is not applicable in the present case, inasmuch Unemployment benefits may be paid to as the respondent in the main action is unemployed persons who are not in the not covered by Article 71 (1) (b) (ii). Member State where they were last employed in two cases only:

2 The question was raised in the context of an appeal brought by the Caisse Primaire d'Assurance Maladie [Local Sickness Insurance Fund, hereinafter referred to as "the Fund"], Rouen, against a decision of the Commission de Première Instance de Sécurité Sociale [Social Security Board of First Instance] ordering it to pay the respondent in the main action the sums corresponding to reimbursements for medical expenses incurred between January and March 1978 and to daily allowances in respect of incapacity for work.

3 The respondent in the main procedings, of German nationality, resigned from her employment in the Federal Republic of Germany on 30 June 1977. On 1 August 1977 she registered with the German employment authorities as a person seeking employment. She went to France in September 1977 to rejoin her husband, settled permanently there, and registered with the Agence Nationale pour l'Emploi [National Employment Agency]. For three months she received German unemployment benefit and subsequently she received unemployment benefit from the Association pour l'Emploi dans les Industries et le Commerce (Assedie) [Association for Employment in Industry and Commerce].

4 The Fund refused to reimburse her for medical expenses on the grounds that Article 25 of Regulation No 1408/71 gave unemployed migrant workers the right to sickness and maternity benefits only if they were also entitled to

CAISSE PRIMAIRE D'ASSURANCE MALADIE DE ROUEN v GUYOT

unemployment benefits. According to the Fund, the respondent in the main proceedings was not entitled to French unemployment benefits because she had not worked in France before becoming unemployed.

8 By "competent State", within the meaning of that provision, the Community legislature is referring to the Member State in whose territory the competent

JUDGMENT OF 11. 10. 1982 — CASE 128/83

institution is situated, that is, the Member State in which the person was last employed. The provision therefore concerns only workers who were residing in a Member State other than that in which they were last employed.

9 The reply to the question submitted by the national court must therefore be that Article 71 of Regulation N o 1408/71 does not apply to an unemployed person who, during his last employment, was residing in the Member State in which he was employed.

Costs

10 The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision as to costs is a matter for that court.

For the Registrar

D. Louterman G. Bosco Administrator President of the First Chamber