C-215/90

TWOMEY

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 24 October 1991 *

Mr President, It is undisputed — and this must be Members of the Court, emphasized — that in the circumstances Mrs Twomey did, not register with the United Kingdom employment services after her employment came to an end but that, had she remained in that country, she would still have qualified for sickness benefit; 1. This request for a preliminary ruling is hence the sole reason which caused the concerned with the definition of the scope entitlement acquired as a result of her affil­ of Articles 19 and 25 of Regulation (EEC) iation to the social security scheme of the 1 No 1408/71 of the Council in a case country of employment to lapse was her whose facts are as follows: Mrs Twomey, a transfer of residence to another Member United Kingdom national who worked and State. resided for a time in the United Kingdom, terminated her employment and moved — for highly personal reasons it would seem — to Ireland where she has since lived without pursuing an activity. 2. Against that background the national court is asking the Court of Justice in substance to rule on the question whether the requirement of territoriality, to which Section 82(5) of the Social Security Act subjects receipt of the sickness benefit A few months after moving to Ireland, claimed, is valid as against the claimant. In Mrs Twomey — who at the time was just particular, the national court wishes to over 20 — was certified as being unfit for ascertain whether a situation of that kind is work due to low back pain. governed by Article 19 or by Article 25 of Regulation No 1408/71.

relevant and maintains that this case falls unemployed person who, when last entirely within the scope of Article 19, employed, resided in a State other than the which would imply that the claimant is competent State (the State of employment) entitled to 'export' to the country to which and who, under Article 71(1)(a)(ii) or she has moved the benefit provided for by (b)(ii), qualifies for unemployment benefit in the United Kingdom legislation. the country of residence will also qualify for sickness benefit (in kind and in cash) in accordance with the legislation of that

If necessary, Article 25 could also be applied As far as its ambit is concerned, that in relation to sickness benefit to which entit provision — as I have said — subjects lement arises under another national sickness benefit to rules essentially parallel insurance scheme, but which is in any event to those laid down for unemployment claimed by a person who is at the same time benefit. Hence an unemployed person who entitled to unemployment benefit. In both moves to another Member State to seek cases, however, as stated earlier, the funda work there and who, in accordance with mental condition for Article 25 to come into Article 69, retains for three months the right operation for the purpose of regulating a to receive unemployment benefit from the given relationship is that the sickness benefit competent State (the State in which he was in question should be claimed by a person last employed) may, under Article 25, who qualifies at the same time for unem qualify over the same period for sickness ployment benefit. If that requirement is not benefit, both in kind (granted by the fulfilled, the application of Article 25 would institution of the State to which he has seem to be wholly inappropriate from a moved, on account of the competent rational point of view since it would make institution), or in cash (granted, in principle, no sense to refer to such a provision, which by the competent institution). Similarly, an is designed to establish a consistent

In the first place, under Article 1(a) of Regulation No 1408/71 the concept of worker is defined exclusively on the basis of 6. That said, the question remains whether, a person's affiliation to an insurance scheme in the specific circumstances of this case, the and not on the basis of the actual pursuit of claimant can usefully rely on Article 19 of an activity. the regulation to defeat the application of the residence requirement provided for by the contested national legislation. In the second place, that approach is firmly supported by the case-law of the Court. In the Pierick judgment 2the Court had already stated as follows: It should be borne in mind in that connection that, as is clear from the order for reference, Mrs Twomey bases her entit­ lement to sickness benefit not on her status as an unemployed person but exclusively on 'Article 1(a) of Regulation No 1408/71 her previous affiliation to the social security defines the concept of "worker" as any scheme provided for employed persons. It person who is compulsorily or voluntarily should also be remembered that the insured under one of the social security claimant fulfilled all the requirements laid schemes referred in subparagraphs (i), (ii) or down by the national legislation for (iii) of that provision. Laid down "for the acquiring entitlement to the benefit in purpose of this regulation", such a defi­ question: it is only because she moved to nition has a general scope, and in the light Ireland that Mrs Twomey lost that right. of that consideration covers any person who has the capacity of a person insured under the social security legislation of one or more Member States, whether or not he pursues a professional or trade activity. It follows that, That being so, it must be pointed out that even if they do not pursue a professional or Article 19 concerns sickness benefit claimed trade activity, pensioners entitled to draw by a 'worker' residing within the territory of a Member State other than the competent 2 — Judgment of 31 May 1979 in Case 182/79 Algemeen Zickenfonds Drenthe-Plaueland v Pierik [1979] State. The question which arises in this case ECR 1977.

Furthermore, it must also be pointed out 'It follows from certain provisions of Regu­ that the interpretation of Article 19 lation No 1408/71 that it applies to certain advocated here is — as the Commission has categories of persons who, when the rightly pointed out — consistent with the contingency occurs, do not have the status fundamental principle concerning the of "employed persons" within the meaning retention of accrued rights, which aims to of the law of employment. It would be ensure that a migrant worker who exercises contrary to the spirit of those provisions and his freedom of movement is not thereby to one of the essential objectives of the deprived or in any event threatened with the regulation, which is to guarantee to workers loss of social security benefits granted to 5 who move within the Community then- him by the legislation of a Member State. accrued rights and advantages, to exclude That is a principle which, in view of its from the scope of the regulation — by importance in affording the highest degree giving a restrictive interpretation to the defi­ of protection to one of the fundamental nition of the term "worker" — any other freedoms provided for by the Treaty, must case where, under the relevant legislation, be guaranteed in the fullest possible manner the insurance continues to cover the insured and therefore serves as a fundamental point against risks but the insured is no longer of reference in defining the scope of the bound to pay contributions.' provisions of Regulation No 1408/71.

8. Finally, for the sake of completeness, it is is to be found precisely in Article 71, whilst necessary to deal with two objections raised there is no express reference in the wording by the Chief Adjudication Officer with of Article 19. Furthermore, apart from the regard to the solution suggested above. fact there is nothing in the wording to support it, such a limitation of the scope of Article 19 would in any event seem to be In the first place, the Adjudication Officer groundless and inconsistent with the aim of maintained that Article 19 would be ensuring a broad degree of protection for applicable only if the transfer of residence the accrued rights of migrant workers. from the competent State to the other Member State took place during the employment relationship and not — as in this case — after the termination of that As for the second objection, it strikes me as relationship. Secondly, the Chief Adjudi­ equally unfounded. Article 25, and Article cation Officer stated that the application of 25 alone, is relevant in cases in which Article 19 to an unemployed worker would sickness benefit is claimed by a person who be irreconcilable with the existence in the is at the same time in receipt of unem­ regulation of an ad hoc provision for unem­ ployment benefit. Conversely, Article 19 ployed persons such as Article 25. remains applicable in a case, which would in any event appear to be of fairly marginal significance, where sickness benefit is With regard to the first objection, it is claimed by a person who is unemployed but readily apparent that the restrictive is not affiliated to any unemployment construction put on Article 19 by the Chief scheme. In the latter case, as I have said, the Adjudication Officer is quite unjustified application of Article 19 ensures that a having regard to the wording and the person who has acquired entitlement to scheme of the provision. Where Regulation sickness benefit under the legislation of the No 1408/71 purported to lay down that the competent State is not deprived of it, as a difference between the competent State and result of residence requirements of the kind the State of residence had to continue provided for by the contested legislation, during the employment relationship, it did exclusively by reason of his transfer of so expressly. A reference in that connection residence to another Member State.