C-388/87

OPINION OF MR VAN GERVEN — CASE 388/87

OPINION OF MR ADVOCATE GENERAL VAN GERVEN * delivered on 14 March 1989

Mr President, On that date the Social Security Act 1975 Members of the Court, came into force, which, according to a declaration set out in the Official Journal of the European Communities, 2 constitutes legislation for the purposes of Article 4(1) and (2) of Regulation No 1408/71 and to 1. The Centrale Raad van Beroep, Utrecht, which that regulation is therefore has submitted to the Court two questions applicable. 3 As from that date separate for a preliminary ruling on the interpre­ contributions for insurance against the risk tation of certain provisions of Regulation of accident were no longer levied from Mrs (EEC) No 1408/71 of the Council 1 Warmerdam in the United Kingdom, since, concerning entitlement to unemployment under the new legislation, she was no longer benefit for workers moving within the liable to pay any contributions because of Community. her low income.

BESTUUR VAN DE NIEUWE ALGEMENE BEDRIJFSVERENIGING v WARMERDAM-STEGGERDA

Board') decided not to grant unemployment afforded by Regulation No 1408/71 benefit to Mrs Warmerdam. The Board with regard to another branch of social relied on the argument that, as during her security (in this case, the branch period of employment in the United mentioned in Article 4(1)(g))? Kingdom Mrs Warmerdam had not been insured against the financial consequences of unemployment, she could not be regarded as a worker within the meaning of Regulation No 1408/71. Since, according to (2) May the competent institution of a that decision, the regulation provides for the Member State, as referred to in Article grant of unemployment benefit only in 67(1) of Regulation No 1408/71 as favour of workers, Mrs Warmerdam was that regulation was then worded, only not entitled to them. take into account, for the purposes of applying the legislation of that Member State, "periods of employment" completed under the legislation of another Member State (which satisfy Mrs Warmerdam appealed against that the condition that they would have decision to the Raad van Beroep, Arnhem, been counted as periods of insurance which, by judgment of 8 September 1977 had they been completed under the upheld her claim and referred the case back first-mentioned legislation) if those to the Board for the adoption of a fresh periods of employment are also defined decision taking account of its judgment. or recognized by the legislation under The Board appealed against that judgment which they were completed as periods to the Centrale Raad van Beroep, Utrecht, of insurance for the same branch of requesting the latter to quash the decision of social security?' the lower court and declare the action brought by Mrs Warmerdam at first instance unfounded.

contain a number of general rules on the (ii) a worker, other than a frontier a re gg gation of periods of insurance or worker, who is wholly unemployed employment completed in different Member and who makes himself available States (Article 67), the calculation of for work to the employment benefits (Article 68), and the grant of services in the territory of the benefits to unemployed persons moving to Member State in which he resides, another Member State (Articles 69 and 70). or who returns to that territory, Section 3 of that chapter consists of a single shall receive benefits in accordance provision, Article 71 , and guarantees to with the legislation of that State as frontier workers (Article 71(1)(a)) and other if he had last been employed there;' workers (Article 71(1)(b)) who, before becoming unemployed, were last employed within the territory of a Member State other 4 than the 'competent' State, entitlement to unemployment benefit on certain conditions in accordance with the legislation of either the Member State in which the worker was The established case-law of the Court last employed ((b)(i)) or the Member State concerning Article 71(1)(b)(ii) in which the worker resides ((b)(ii)). Article 71(1)(b)(ii) reads as follows:

5. The judgment of the Court must enable '(1) An unemployed person who, during his the national court to apply Article 7 last employment, was residing in the 1(1)(b)(ii) correctly. That is why it seems territory of a Member State other than appropriate to me, before dealing with the the competent State shall receive questions raised in this case, to recall the benefits in accordance with the Court's case-law concerning that provision. following provisions: That case-law strikes me as particularly enlightening with regard to the purpose and scope of Article 71 which, in my view, are crucial to the answer to be given by the Court to the questions submitted by the national court.

In its judgment the Court made it clear that Article 71(1) derogates from the rule in The second judgment which I wish to refer Article 67(3), subject to certain conditions, to here is that of 27 May 1982 in Case in favour of frontier workers and other 227/81 Aubin [1982] ECR 1991, in which workers. The decisive factor is the residence the Court stated that Article 71(1)(b)(ii) of the person concerned in a Member State essentially offers a choice to unemployed other than the State to whose legislation he persons who, during their last employment, was subject during his last employment were residing in a Member State other than (paragraphs 10 and 11). The Court pointed the competent State. They may opt for the out that the aim of that provision is to benefit scheme of the State in which they transfer liability for payment of unem­ were last employed or for the benefit ployment benefit to the State of residence scheme of the State in which they reside (instead of the State of last employment) for (paragraphs 13 and 19); see also the certain categories of workers who retain judgment in Miethe, cited above, paragraphs close ties with the country where they have 9 and 10). settled and habitually reside. However, that rule would no longer be justified 'if, by an excessively wide interpretation of the concept of residence, the point were to be Finally, I wish to refer to the Court's reached at which all migrant workers who judgment of 17 February 1977 in Case pursue an activity in one Member State 76/76 Di Paolo [1977] ECR 315. That case while their families continue habitually to was referred to the Court of Justice by the reside in another Member State were given Belgian Court of Cassation, which had to the benefit of the exception contained in adjudicate on a claim to unemployment Article 71 of Regulation No 1408/71'. It is benefit on the part of a Belgian resident for those reasons that Article 71(1)(b)(ii) who had most recently been employed in must be strictly interpreted (paragraphs 12 the United Kingdom and had subsequently and 13). rejoined her family in Belgium where she applied for the grant of unemployment benefit. One of the conditions for the grant of unemployment benefit in Belgium is proof that the claimant has worked a given number of days. The plaintiff had sought With regard to the condition of residence, the application of Article 67, with a view to the Court subsequently investigated the furnishing such proof. Article 67(3) provides meaning of the phrase 'the Member State in that the application of the 'rules on aggre­ which he resides' in Article 71(1)(b)(ii). gation' set out in paragraphs 1 and 2 of that That phrase is to be understood as covering article is subject only to the condition that the Member State where the worker, the person concerned should have although employed in another Member completed lastly periods of insurance or State, continues habitually to reside and in periods of employment in accordance with which the habitual centre of his interests is

It is unclear from the order for reference whether Mrs Warmerdam actually retained For the purposes of the answer to this her residence in the Netherlands while she question, the observations submitted to the was employed in the United Kingdom. Court generally take as their point of Henceforth I shall proceed on the departure the definition of 'worker' in assumption that the residence requirement is Article 1(a) of Regulation No 1408/71. not contested in this case (although this Subparagraph (a) contains a number of must be verified by the national court), and alternative definitions of the concepts of that consequently Mrs Warmerdam may be 'employed person' and 'self-employed regarded during her stay in the United person'. The length and complexity of that Kingdom as having retained her

7. The Board takes a different view, which is shared by the Commission in its obser vations. In general, the Board maintains that the two questions formulated by the Centrale Raad van Beroep raise the same problem, namely whether a worker who was insured in one Member State against only one risk can rely on that limited insurance Mrs Warmerdam, whose point of view is cover in another State in order to claim shared by the Netherlands Government, entitlement to insurance against other risks. considers that her status as a worker is The Board maintains that that question apparent from the wording of Article 1(a). should be answered in the negative: to take She and the Netherlands Government point a different view would constitute an encour out that Article 1(a) makes the status of agement to take out insurance in one worker conditional on insurance for one or Member State against only one risk and more of the contingencies covered by the subsequently lay claim, on the basis of that branches of a social security scheme, insurance, to the advantages resulting from without that status being assessed according the application of all the other branches of to each branch of social security.

7 nition of a worker in Regulation No 3 9 — On the whole, that point of view strikes me as being which preceded Regulation No 1408/71. In incorrect. The acquisition of the status of worker in a given Member State docs not ipso facto confer entitlement to the that judgment, the Court confirmed that the advantages of all the branches of social security in another concept of 'worker' had a Community Member State. Regulation No 1408/71 is designed primarily to coordinate and not to harmonize the social meaning and referred to all those who, as security systems of the Member States. In that connection, the basic principle of Regulation No 1408/71 is that such and under whatever description, were migrant workers are entitled to social security benefits covered by the different national systems of regardless of their place of employment or residence, so that the exercise of the rights which they have acquired is social security. 8 Mrs Warmerdam and the facilitated to the greatest possible extent throughout the territory of the Community, without however affecting the Netherlands Government therefore manner in which social security rights are acquired in the conclude that for the application of Article Member States. That principle has been implemented by the introduction of 'rules on aggregation' and by the grant of benefits regardless of such workers' place of residence (see the preamble to Regulation No 1408/71, OI L 149, 7 — Regulation No 3 of the Council concerning social security 5.7.1971, p. 2), but in accordance with the legislation of (or migrant workers, OJ 30, 16.12.1958, p 561 et seq. the Member State which must provide the benefits.

OPINION OF MR VAN GERVEN —CASE 388/87

10 The be viewed in isolation. The Board points out Commission also considers that the that the purpose of that provision is to inference to be drawn from the judgment in distinguish the category of workers from the Brack is that, for the purposes of the category of self-employed persons and that application of Regulation No 1408/71, the it was missing from the previous regulation, status of worker must be considered Regulation No 3. That regulation did not according to each risk. contain any definition of the concept of worker and it was necessary, according to the Board, to deduce the status of worker from the application of the provisions relating to the separate branches of social

The Board points out that, in the regulation, those rules on aggregation are set out sepa rately according to each branch of insurance Finally, the Board refers to the Court's (and, as I understand its argument, in a judgment of 29 September 1976 in Case different manner). 11 17/76 Brack [1976] ECR 1429 from which it infers that it is necessary, even in the context of Regulation No 1408/71 which is now in force, to assess the status of worker according to each branch of social security. In that judgment the question which arose For its part, the Commission also points out was whether a British accountant who had that, viewed as a whole, the definition in been insured for 17 years under a social Article 1(a)(ii) is incompatible with the security scheme as a self-employed argument that the concept of worker in person — admittedly after having previously been insured for nine years as an employed 10 — Emphasis added by the Board. I wish to state here and now person — could be regarded as a worker that that interpretation of the Court's judgment strikes me

In that Member State. The Board refers to judgment the Court deduced that status only from the existence of insurance cover against a given risk, namely paragraph 30 of the judgment, in which the the sole risk which was at issue in the proceedings. Court held that persons (such as Mr Brack) 11 — The Board refers to Article 18 as regards sickness benefits and to Article 38 as regards invalidity benefits.

Regulation No 1408/71 is a uniform 9. Without denying that the concept of concept which should not be assessed worker in Article 71 must be defined by according to each branch of social security. reference to Article 1(a), I consider that the For further details of the Commission's answer to the first question submitted by the argument on this point, I refer to the Centrale Raad van Beroep must instead be Report for the Hearing (see section 4). sought in Article 71(1)(b)(ii) itself (on which, as I pointed out earlier, Mrs Warmerdam has based her claim to benefits). It is possible to infer from the aforesaid case-law (see the judgments in Motithaan, Aubin and Di Paolo) that this rule constitutes an exception (to the general rule contained in Article 67) which is 8. That brings me to my own assessment of designed to offer migrant workers, on the first question. The most striking feature certain conditions, a choice between two of the observations submitted to the Court, different Member States as regards the as outlined above, is that although the grant of unemployment benefit with a view parties take as their point of departure the to facilitating their search for new definition of the concept of worker in employment. Those judgments clearly Article 1(a) they appear to make no indicate that that provision, which must be distinction between the four alternative defi­ interpreted strictly, does not confer entit­ nitions set out in that provision. In its obser­ lement to unemployment benefit. Instead, it vations the Netherlands Government seems permits migrant workers who become to acknowledge that the definition in Article unemployed in a Member State other than 1(a)(i) (which would appear to be the one the State in which they reside to exercise the that accords with the Netherlands system) is rights to benefits which they have acquired, applicable. Mrs Warmerdam also seems to in keeping with their choice, either in the start from that premise. The Commission, Member State in which they were last on the other hand, focuses in its obser­ employed or in the Member State in which vations on both the definition in they reside, in accordance with the legis­ subparagraph (a)(i) and that in 1 lation of the country of their choice. 2 subparagraph (a)(ii) (which is, it would appear, the definition specifically orientated towards the United Kingdom). Finally, the Board refers to the wording of Article 1(a) only in general terms.

OPINION OF MR VAN GERVEN —CASE 388/87

13 before becoming unemployed) or those assumption that she retained her residence concerned acquired the status of worker there — see section 5 above) the status of during and by virtue of their last worker within the meaning of Article 1(a)(i) employment.14The rationale behind Article at the time of her departure from the 71, namely to encourage the mobility of Netherlands to the United Kingdom in labour by facilitating the search for new March 1975 or whether, by virtue of her employment, justifies in my view the grant employment in the United Kingdom, she of freedom of choice in both of those situ could be treated as having acquired in that ations. country the status of worker within the meaning of Article 1(a)(ii). That 'test' is to be carried out for each Member State (which, moreover, as stated earlier, derives from the structure of Regulation No 1408/71 which refers to national schemes for the purpose of supplementing the concept of worker). In connection with that investigation, however, there are two reasons why it is unnecessary to consider, as

The in the light of the definition in Article 1(a) statutory scheme of the State in which he which is orientated towards the scheme of last resided is not relevant in that regard. the Member State in which they were last Secondly, Article 71 introduces the fiction employed), as well as persons who acquired that the worker is to be regarded as having 15 the status of worker (to be determined on been last 'employed' in the Member State the basis of the definition orientated in which he resides (in this case, pres towards the scheme of the Member State in umably, the Netherlands once again).

BESTUUR VAN DE NIEUWE ALGEMENE BEDRIJFSVERENIGING v WARMERDAM-STEGGERDA

worker was last employed (in this case the the aggregation of periods of employment United Kingdom) are not relevant and it is completed in another Member State only in therefore unnecessary to raise the question so far as those periods are counted as whether the worker was insured against periods of insurance in that other State, that unemployment in that country. is to say as periods of insurance for the same branch of social security as that which provides the benefits that are claimed. Since during her employment in the United Kingdom Mrs Warmerdam had not been The second question: the application of the insured against the risk of unemployment, 'rules on aggregation' the work she did there cannot be taken into account as a 'period of insurance' for the purposes of aggregation.

11. I now turn to the second question submitted by the Centrale Raad van Beroep.

OPINION OF MR VAN GERVEN — CASE 388/87

the aggregation of periods of employment 13. I shall consider first of all the situation since at the time of the contested events in which the national court would apply entitlement to unemployment benefits in the paragraph 2 of Article 67 (and, in the first Netherlands was conditional on completion stage of my reasoning, without reference to of a number of periods of employment. In Article 67(3)). As stated earlier, that order to dispel any uncertainty, I shall deal provision must be applied in Member States with both of those provisions below. 'whose legislation makes the . ..right to benefits subject to the completion of periods of employment'. In such Member States the competent institution must take into account

BESTUUR VAN DE NIEUWE ALGEMENE BEDRIJFSVERENIGING v WARMERDAM-STEGGERDA

regarded as a period of employment must 67. According to Article 71(1)(b)(ii), a be assessed primarily on the basis of the worker is entitled to receive benefits in legislation under which it has been accordance with the legislation of the State completed. In other words it must be a in which he resides 'as if he had last been period of employment 'defined or employed there'. That rule on aggregation recognized as such in a Member State other makes it quite clear that only the legislation than that in which the competent institution of the competent Member State is to be 16 7 is established'. According to the Board, taken into account, 1 and that for the periods completed in another Member State purpose of determining entitlement to can be taken into account for the purposes benefits account must be taken of of the rule on aggregation in Article 67 only employment in the other Member State (in if, pursuant to the legislation of that other other words the 'last employment') as Member State, they are relevant with regard though the worker had been employed in 18 to the branch of social security concerned the Member State in which he resides. with unemployment.

I am not swayed by that reasoning since, as Mrs Warmerdam rightly emphasizes in her 14. I now turn to the situation in which the observations, it would impose a further national court would apply paragraph 1 of condition for the aggregation of periods of Article 67. That provision must be applied in employment, namely that periods of Member States 'whose legislation makes employment completed in another Member the ... right to benefits subject to the State should, pursuant to the legislation of completion of insurance periods'. In those that State, be regarded as periods in which States the competent institution must take the worker was insured for the same branch into account of social security. No such condition is to be found either in the wording of Article 67(2) or in the relevant case-law.

Conclusion

15. In the light of the foregoing arguments I suggest that the questions submitted by the Centrale Raad van Beroep, Utrecht, should be answered as follows:

'(1) Article 71(l)(b)(ii) of Regulation No 1408/71 must be interpreted as offering a choice between benefit schemes both to persons who, on taking up their last employment, already have the status of worker under the social security scheme of the Member State in which they reside (such status to be determined on the basis of the rule in Article 1(a) of that regulation, which is applicable to the Member State of residence), and who during their last employment retained the status of worker (such status to be determined on the basis of the rule in Article 1(a) of that regulation, which is applicable to the Member State in which they were last employed), and to persons who acquire the status of worker by virtue of their last employment (such status to be determined on the basis of the rule in Article 1(a) of that regulation, which is applicable to the Member State in which they were last employed); in that connection the worker is not required, when opting for the legislation of the Member State in which he resides, to have been insured against the risk of unemployment in the Member State in which he was last employed.

BESTUUR VAN DE NIEUWE ALGEMENE BEDRIJFSVERENIGING v WARMERDAM-STEGCERDA

(2) Article 71(l)(b)(ii) of Regulation No 1408/71 must be interpreted as meaning that the competent institution of the Member State in which the worker resides acts, for the purpose of determining his entitlement to benefits, as though he was last employed within the territory of the Member State of residence; in that connection there is no requirement that such employment should be regarded as a period of insurance for the same branch of social security by the legislation of the Member State in which the worker was actually employed.'