C-163/89

DI CONTI

O P I N I O N O F M R ADVOCATE G E N E R A L LENZ delivered on 7 M a r c h 1 9 9 0 *

Mr President, 3. Reference is made to the Report for the Members of the Court, Hearing for a fuller account of the facts of the case and in particular for a summary of the legal background. The facts will be discussed hereinafter only in so far as is necessary as a basis for this Opinion.

A — Facts

B — Analysis 1. The cour du travail, Liège, has referred to the Court the question whether under Article 69(4) of Regulation (EEC) No 1408/71 1 an unemployed migrant worker who has interrupted his stay in Belgium for more than three months automatically 4. The view originally put forward by the requalifies for benefit in Belgium as soon as Commission must be rejected. Although it he has been employed there for at least takes account of the wording of Article three months or whether in addition he 69(4), namely 'requalifying' for benefits, it must complete the qualifying period under places no limits on such requalification so Belgium law, namely 300 working days or that under the Belgian social security reckonable days 2 in the reference period of scheme a migrant worker would requalify 18 months. even after 10 or 20 years if he worked for only three months after his return whereas in all other Member States after loss of his entitlement under Anicie 69(2) he would have to fulfil the conditions for a fresh entitlement to unemployment benefit. That 2. The appellant, the Office national de interpretation would actually penalize l'emploi, takes the latter view. In its written Belgium for its generous legislation and observations the Commission advocated the would do so as a result of a proviso which first-mentioned view. The respondent, Mr was intended to take account of the Di Conti, is of the opinion that he particular legal situation in Belgium but requalifies if he has interrupted his which on this interpretation would have the insurance cover for more than three months contrary effect. but less than three years. At the hearing the Commission also adopted this last- mentioned view.

11. That disadvantage, we were told, is intended to compensate for the advantage which an unemployed migrant worker 8. According to the case-law of the Court, 3 draws from the fact that he can maintain his he loses entitlement to benefit if he does not entitlement for three months without return before the expiry of the three months making himself available to the employment but that does not mean that he should be in market of the competent State. That a worse position than if he had not claimed consideration, it was said, was the reason the benefit of Article 69(2). Such an inter- for the inclusion of paragraph 4 in Article pretation is contrary to the object of Regu- 69. Thus that interpretation is consistent lation No 1408/71 which is not intended to with the legislative history of the provision. place obstacles in the way of mobility in the Community but to facilitate it so that the migrant worker should not be at a disadvantage. 12. Finally it is also compatible with the judgment of the Court in the Testa case in which it is stated that Article 69 establishes an independent body of rules which 9. The only interpretation that is in constitute an exception to national legal accordance with the wording and purpose rules.

3 — Judgment of 19 June 1990 in Joined Cases 41/79, 121/79 4 — See Article 123(1) of the Royal Decree of 20 December and 796/79 Testa v Bundesanstalt für Arbeit [1980] 1963 as amended by the Royal Decree of 12 April 1983. ECR 1979. 5 — See the Report for the Hearing, p. I-1833.

I - 1836

DI CONTI

13. There is, however, nothing in that that is not covered by Community law. It judgment to suggest that Article69 also cannot therefore be assumed that Article establishes an independent body of rules 69(4) contains definitive rules for Belgium regarding the substantive conditions for in that respect. qualification for entitlement for in principle