C-236/87

Mr President, Services immediately. She did not register as Members of the Court, unemployed until 18 September 1984, upon the expiry of the statutory period of maternity leave. In the mean time, from 15 A — Facts July 1984 to 17 September 1984 she received a maternity allowance from the Netherlands sickness insurance fund. 1. This case concerns the interpretation and application of the provisions of Chapter 6 of Regulation (EEC) N o 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 4. According to the findings of the national Community. 1 court, which are binding on the Court of Justice, the plaintiff is not entitled under German law to unemployment benefit or 2. The request for a preliminary ruling unemployment assistance because she had received from the Landessozialgericht not completed the requisite qualifying (Higher Social Court) of the Land period under the Arbeitsförderungsgesetz Nordrhein-Westfalen arose from the (Law on the Promotion of Employment). following situation: Anna Bergemann, the Since she had however completed insurance plaintiff in the main proceedings (here- periods in the Netherlands, the question inafter referred to as 'the plaintiff'), a arose whether she might nevertheless be Netherlands national, worked as an animal- entitled to claim benefits under the keeper in Venlo, the Netherlands. Her Community coordination provisions. In employment relationship ended on 30 June order to resolve this matter the national 1984. Prior to that date, on 5 June 1984, court asked the Court of Justice for a she had married and moved to her preliminary ruling on the following husband's home in Kerken, the Federal question: Republic of Germany, on 6 June 1984. As she was on leave at the time she did not have to return to work before the end of her employment relationship and therefore did not have to return to the State of employment in connection with her 'Does a worker qualify for the status of contractual duties. "frontier worker" within the meaning of Article 1 (b) and Article 71 (a) of Regu- lation (EEC) No 1408/71 even during a 3. As a result of the birth of her child, on period of leave in accordance with the terms 6 August 1984, she did not place herself at of his employment contract, when he does the disposal of the German Employment not in fact return to work following that period of leave or before the end of the * Translated from the German. employment relationship, in other words he 1 — OJ English Special Edition 1987 (II), p. 416, as amended never returns to his place of employment in and updated in Regulation (EEC) No 2001/83 of 2 June 1983 (OI L 230, 23.8.1983, p. 6), most recently amended one Member State from his place of by Regulation (EEC) No 3811/86 (OJ 1986, L 355, p 5) residence in another?

6. In order to reply to the question whether the plaintiff can rely on a right to unem- 8. I propose to deal first with the second ployment benefit as against the German question, namely whether the plaintiff can employment service, it is necessary in the establish a right under Article 69 of Regu- first place to consider the overall system set lation N o 1408/71. She in fact first relied up under Regulation N o 1408/71. In Article on this provision in the main proceedings. 5 13 (2) (a), which contains a general rule The underlying scheme of Articles 69 and for determining the applicable legislation, it 70 militates in favour of the applicability of is provided that the legislation of the State Article 69. Its starting-point is the situation of employment is to be applicable. Chapter in which an unemployed person has paid his 6 of Regulation N o 1408/71 adds certain social security contributions in a State other riders to that general rule so far as unem- than that in which he seeks work. Rights to ployment is concerned. In principle, unemployment benefit acquired under the according to those provisions, the social security scheme of a Member State 'competent State' is the State of last must not be allowed to stand in the way of employment. 3The Court has adopted this effective steps within the territory of interpretation on the basis of the wording of another Member State to seek work there. Articles 67 (3), according to which claims In those circumstances, the unemployed for benefits under paragraphs (1) and (2) of person's rights as against the competent that provision are subject to the condition institution are preserved for a limited period that the person concerned must have of time, even where, under the legislation of completed 'lastly' periods of insurance or the Member State concerned, such rights are extinguished when the person entitled 2 — OJ 1974, C 126, p. 22. leaves the territory of that State. 3 — See, as regards this rule, the judgment of 28 April 1988 in Case 192/87 M.-J. Vanhaeren v Rijksdienst voor Arbeids- voorziening [1988] ECR 2411, paragraphs 10 to 12 of the 4 — Article 71 (I) (a) (ii) and (b) (¡i). decision. 5 — Order of the Landessozialgericht, p. 5.

9. It is merely in order to make things employment prospects seeks work on the easier administratively for unemployed labour market in another Member State or persons that the first subparagraph of States. Article 70 (1) provides that unemployment benefit is to be paid by the institution of the Member State in which the unemployed 12. Nor does the Commission's reference to person seeks work. However, under the the proposal to add an Article 69a to Regu- second subparagraph of Article 71 (1), the lation N o 1408/71 6 provide any grounds amount of any benefits must be reimbursed for altering that view.

10. The situation in the main proceedings rights lawfully acquired should be corresponds to the cases covered by Article guaranteed in the event of a change of 69 et seq. of Regulation No 1408/71 only in residence which is allowed or even so far as the plaintiff paid her contributions encouraged under Community law, as is to the Netherlands funds and may lose all also clear from the fact that the competent her rights as a result of her move to the institution of the State of employment must Federal Republic of Germany, although she contribute to the resulting costs. 7 is also seeking employment in her new place of residence.

the Netherlands. On the contrary, the salient feature of her particular situation is 14. As the national court correctly states, that her employment relationship continued the question whether the plaintiff is entitled to exist for just four weeks after her move to a benefit depends on whether she comes to the Federal Republic of Germany and within the scope of Article 71 of Regulation that she was still in receipt of a salary 1408/71. In this respect it must first be during this period. Her position did not established whether she is a 'frontier therefore correspond to the typical situation worker' within the meaning of the provided for in Article 69 in which a worker provision. becomes unemployed, fails to find new employment in the State of last employment 6 — OJ C 169, 9.7.1980, p. 22. 7 — See new paragraph (2) for insertion in Article 70 under the immediately, and in order to increase his Commission's proposal.

16. An essential factor for classifying a person as a 'frontier worker' is therefore that he returns regularly from his place of 19. It may be seen that Article 71 does not employment to his place of residence. In fix any periods for which the typical fact it is just that, namely travelling from situation covered by the provision must have one place to another, crossing the frontier existed, in other words that in which the to fulfil obligations arising out of an State of employment and State of residence employment relationship, which the plaintiff are not the same. Even relatively short did not do after her move. The retention of periods of time may suffice for the retention the status of 'frontier worker' provided for of rights or their acquisition. For example, in the second half of the definition, where for the 'export' of rights under Article 69 of the test of regular return is not satisfied, is Regulation No 1408/71 a four-week period linked to the condition that such return is is sufficient and indeed this period may be made impossible as a result of obligations shortened subject to official authorization. arising out of the employment relationship. The essential question is therefore whether Here again the plaintiffs position during the employment relationship was one which the relevant period does not satisfy this existed in law and in fact. condition. On the contrary, her obligation under the employment contract was suspended because she was on leave. Thus, as the plaintiff cannot qualify for the status of 'frontier worker', she cannot rely on 20. It is not disputed between the parties Article 71 (1) (a) (ii) in order to obtain that the employment contract did not expire unemployment benefit. until 30 June 1984. Until that time, moreover, the plaintiff continued to receive her salary. The fact that, as she was on 17. However, Article 71 (1) (b) of Regu- leave, she did not have to fulfil her duties at lation No 1408/71 provides for the case of work for some four weeks, makes no

21. The doubts expressed by the Bundes- anstalt für Arbeit (Federal Labour Office) 8 24. The abovementioned case turned on the as to whether the plaintiff would have interpretation of the criterion of return to moved to her husband's home if she had the State of residence. In this respect it is had to continue working are purely hypo- clearly important to define accurately the thetical and irrelevant to the assessment of criterion of 'residence', since the worker the true situation. who has returned home has resided, at least provisionally, in another Member State. In order to leave a place of 'residence', even in the event of physical absence, specific 22. In order to be able to rely on Article criteria must be satisfied. 71 (1) (b) (ii) of Regulation No 1408/71, the plaintiff must have 'reside(d)' in a State other than the competent State or 25. In the case now before the Court, the 'return(ed)' to the territory in question, the situation is different. The plaintiff did not latter alternative being ruled out on the facts return to her State of residence; on the of this case. contrary she took up residence elsewhere. More specifically, she set up a shared home with her husband. However, in such a case too it is necessary to lay down stringent 23. The Court has already had occasion to requirement with regard to the criterion of rule on the notion of 'residence' within the 'residence', in particular where a relatively meaning of this article. In the Di Paolo short period of residence in another case, 9 the Court first stated that: 'the Member State is concerned, since the rules transfer of liability for payment of unem- in question are of a derogating nature and ployment benefits from the Member State of in principle must be interpreted strictly, in last employment to the Member State of order to prevent possible abuse. residence is justified for certain categories of workers who retain close ties with the country where they. . . habitually 26. By moving, the plaintiff contributed to reside . . . '. This transfer would, as the the setting-up of a family home. Since 6 Court held, be no longer justified if, by an June 1984, her home and habitual residence excessively wide interpretation of the have been in the Federal Republic of concept of residence, the point were to be 10 — Case 76/76, cited above, paragraphs 11 to 13 of the 8 — Observations of the Bundesanstalt für Arbeit, pp. I and 2. decision. 9 — Judgment of the Court of 17 February 1977 in Case 76/76 1 1 — Case 76/76, cited above, paragraphs 17 to 20 of the Di Paolo w Office national de l'emploi [1977] ECR 315. decision.

28. The European Social Charter which has been ratified by all the Member States except Belgium, Luxembourg and Portugal 27. Marriage and the family enjoy also contains provisions for the protection considerable protection both at international of the family. The first part of the Charter level and within the legal systems of the guarantees social, legal and economic Member States. The European Convention protection to the family. In the second part for the Protection of Human Rights and of the charter the Member States agree on Fundamental Freedoms, which all the the practical effects of such protection, so Member States of the Community have that, amongst other things, family ratified in the mean time, proclaims in allowances and social benefits, tax legis- Article 8 thereof a right to respect for lation and aid to young couples are family life. Article 12 of the Convention lays regarded as being means of ensuring the down the right to marry and to found a protection of the family. It is true that family. Respect for family life comprises inter alia the unity of the family and life according to the third part of the Charter it together. 12 Even the project of founding a is binding on Member States only at a family, when by definition various national level so that it does not generate constituent elements thereof do not yet any direct right for the protection of indi- exist, is capable of receiving the protection viduals. 15 Nevertheless the signing and the secured under Article 8 of the European ratification of the Charter gave expression Convention on Human Rights. 13 Article 8 to a common political will and entailed the recognition of common values which are capable of bearing on the interpretation of 12 — Opsahl: 'La convention el le droit au respect de la vie familiale spécialement en ce qui concerne l'unite de la directly applicable law. 16 famille et la protection des parents et tuteurs familiaux dans l'éducation des enfants', in: Vie privée et droits de l'homme, Proceedings of the Third International Colloquy on the 14 — Jacobs: The European Convention on Human Rights, 1975, European Convention on Human Rights (Brussels, 30 p. 164; Partsch: Die Rechte und Freiheiten der europäischen September to 3 October 1970), 1973, pp. 243, 259 et seq.) Menschenrechtskonvention, 1966, p. 217. 13 — Judgment of the European Court of Human Rights of 28 15 — Wengler: Die Unanwendbarkeit der europäischen Sozial- May 1985 in the case of Abdulaziz and Others, Publi- charta im Staat, 1969, p. 10 et seq. This point is a matter of cations of the European Court of Human Rights, Series A, dispute among German academics, see Hohnerlein: Vol. 94, p. 32, paragraph 62; Frowein/Peukert, EMRK- 'Federal Republic of Germany', in: Jaspers/Betten, 25 years Kommentar, 1985, Article 9, point 17; Guradze: Die of the European Social Charter, 1988, pp. 105, 111 to 113. europäische Menschenrechtskonvention, Kommentar, 1968, 16 — Hohnerlein, cited above, pp. 113 and 114; Bundesverwal- Article 8, point 8; Moser: Die europäische Menschenrechts- tungsgericht, judgment of 30 November 1982, BVerwGE konvention und das bürgerliche Recht, 1972, p. 174. 66, pp. 268 and 274.

30. Finally, the Contracting States to the International Covenant on Economic, Social 32. In Belgium there is in fact no constitu- and Cultural Rights — which has been tional provision protecting marriage and the ratified by all the Member States of the family. Under labour law, however, a European Community except Ireland — statutory provision declares void any term in acknowledge in Article 10 of that a contract of employment 19 providing for instrument that 'the widest possible the termination of the contract in the event protection and assistance should be of marriage or pregnancy. Again, in accorded' to the family. This provision is Denmark, no express protection of the part of a programme which the Contracting family is laid down in the constitution. On States intend to implement. As in the the other hand, such protection is afforded European Social Charter, the aim of taking under labour law and social law. The fact positive measures in favour of the family that a spouse leaves his or her employment was proclaimed. However, these provisions to follow the other spouse to the latter's are not sufficiently precise for it to be place of employment does not prevent him possible to deduce from them an obligation or her from claiming unemployment benefit. on the public authorities to take specific and concrete measures.

33. Under most of the legal systems of the Member States the award of unemployment benefit is linked to the requirement that the 31. Similarly, the legal systems of the person concerned has become unemployed Member States make provision for a special involuntarily or that there are good reasons protection for marriage and the family, even justifying his situation. Thus the aim of if the level of the protection and the manner following a spouse to his or her place of residence and work may constitute under 17 — Sieghan: The International Law of Human Rights, 1983, pp. 315 etieq. 19 — Article 36 of the Law of 3 July 1978 on employment 18 — Sieghan, note 17, p. 204. contracts.

German law a valid reason, justifying the 35. A comparative examination of these termination of the employment relationship provisions does not then disclose the so that where the employee gives notice existence of a general principle of law terminating the contract of employment, according to which the spouse is always this does not constitute an obstacle to the entitled to unemployment benefit, where his award of unemployment benefit. The same or her unemployment is the result of a is true, in terms of result, in the French and change of residence linked to family circum- Spanish legal systems, and the Portuguese, stances. It is to be observed, however, that although in Portugal the administrative the principle that an employee who gives up authorities have a certain discretion. Under his employment in order to live together Netherlands law, it is in principle possible to with his spouse or to be able to continue claim unemployment benefit in the living together should not be refused unem- aforementioned circumstances. However, ployment benefits is widely accepted. the outcome ultimately depends on an examination of all the surrounding circum-

In the light of the prevailing views, it appears probable that an employee finding himself in such a situation in those countries would be unable to claim unem- 37. In the light of the foregoing legal ployment benefit. assessment, the setting-up of a family home in a Member State other than the previous State of residence also amounts to 'residing' within the meaning of Article 71 of Regu- lation No 1408/71. 22 The decisive factor in this respect is whether the person concerned has actually taken up residence, so that even

OPINION OF MR LENZ — CASE 236/87

choose the employment services 23 to which the employment services of the home she intended to make herself available, in State, 25 are groundless. For this class of other words either the employment services worker this would be a return within the of the State of employment or those of the meaning of the regulation. However, in this State of residence. This choice determined case — as the Court has already the competent employment services, whose held 26 — close ties to the country of origin benefits can accordingly be claimed by the for the period before the return and during plaintiff. the worker's physical absence are decisive.

BERGEMANN v BUNDESANSTALT FÜR ARBEIT

A decision of the Administrative 43. The decision is intended to facilitate the Commission could indeed provide guidance application of Article 71 of Regulation No for the social security institution responsible 1408/71. To this end separate categories of for the implementation of Community law persons are enumerated. These categories of in this field. It could not however impose on persons are typical of the classes of worker them a requirement to use certain methods to which Article 71 (1) (b) (ii) is intended in the application of Community law or to to apply. If workers from other categories adopt a particular interpretation. seek to rely on the provision, their position must first be considered in the light of the 42. The practice of the Administrative classes enumerated in the decisions. If the Commission itself shows that its decisions specific case does not fall within the usual are not exhaustive. The decision in question, categories, it does not necessarily follow No 94, was replaced in its entirety by that the worker concerned is not entitled to Decision No 131, 29 whereby the scope of rely on Article 71 of Regulation No the provisions was extended to a larger 1408/71. In the light of the foregoing category of persons. considerations, I therefore consider that the plaintiff may rely on Article 71 of Regu- lation No 1408/71.

C — Conclusion

I accordingly propose that the following reply should be given to the national court:

44. A worker cannot qualify for the status of 'frontier worker' within the meaning of Article 1 (b) and Article 71 (1) (a) of Regulation N o 1408/71 solely on the basis of the period of his contractual leave.