C-302/90
ECLI:EU:C:1991:289
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OPINION OF MR LENZ —CASE C-302/90
O P I N I O N O F M R ADVOCATE GENERAL LENZ delivered on 3 J u l y 1991 *
Mr President, 3. In that respect, it should be recalled that Members of the Court, according to Article l(l)(c) of Regulation N o 36/63 the expression 'frontier worker' means workers who while maintaining their place of residence on the territory of one of the Member States pursue their occupation on the territory of another Member State 1. I consider the following observations to and normally return to their place of be appropriate in connection with the residence daily or at least once a week; that reference to the Court by the Cour du according to Article 2 of that regulation its Travail (Higher Labour Court), Mons, provisions are to apply to frontier workers concerning the interpretation of certain who are or have been subject to the legis- provisions of Community law on social lation of one or more Member States; and security for migrant workers. that Article 19 of the regulation provides that in the event of unemployment frontier workers are to be entitled to benefits according to the provisions of the legislation of the Member State on whose territory Observations they reside as though they had last been employed on the territory of that State.
2. 1. The first question seeks to clarify whether Articles l(l)(c) and 2(1) in 4. It should also be recalled that the clarifi- conjunction with Article 19(1) of Regulation cation sought is considered important in N o 36/63 ' are to be interpreted as meaning regard to claims by the original respondent, that a French woman residing in France a former frontier worker (who resided in who for almost 14 years was employed France and was employed in Belgium), for exclusively in Belgium lost her status as a benefit in respect of her initial incapacity for frontier worker within the meaning of work (from 12 October 1971) and sickness Article l(l)(c), which was recognized at the benefit (from 12 October 1972). time of her dismissal on 4 December 1970, on account of the fact that she became wholly unemployed and thus during the period from 25 February 1971 to 11 October 1971 received benefits from the French institution of her place of residence 5. Those benefits were refused by the pursuant to Article 19(1) of Regulation No appellant by reference to the Belgian Law of 36/63, although she apparently retained that 9 August 1963; and more particularly by status according to Article 2(1) and Article reference to the fact that at the time of 19(1) of that regulation. initial incapacity for work, the original respondent had ceased to be covered by * Original language: German. Belgian insurance for more than 30 days 1 — Journal Officiel 1963, 62, p. 314. (and thus did not fulfil the requirement laid
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down in Article 75 of that law). In benefits in kind (for sickness) pursuant to proceedings, the claims were, however, Article 10 of Regulation No 36/63 only recognized by a judgment of the competent from the French social security. However, court of first instance in 1976, in which it she was not entitled to cash benefits under was essentially held that the original Article 6 of Regulation No 36/63, since as respondent's unemployment supervised in an unemployed person she no longer France was to be treated as a period satisfied the definition (cited above) supervised in Belgium. Since an appeal was contained in Article l(l)(c); in support of brought against that judgment and the that view reference may also be made to the proceedings were resumed in 1989 by the view adopted by the Administrative heirs of the claimant, who died in 1983, the Commission on Social Security for Migrant claims now form the subject-matter of the Workers in its 54th Session concerning the proceedings before the Cour du Travail, interpretation of the expression 'pursues his Mons, which has requested the Court to occupation' in Article 1 of Regulation N o give a preliminary ruling. 36/63.
8. That is emphatically opposed in these 6. Before that court the appellant is known proceedings by both the respondents in the to have taken the view that, at the time main proceedings and the Commission. when she became unemployed (4 December 1970), the original respondent was no longer a frontier worker within the meaning of Regulation No 36/63. Thus, for benefits for her initial incapacity for work she was unable to rely on Article 6 of that regu- 9. It appears to me — if I may say so lation; on the other hand, she was entitled immediately — that the view expressed by to claim from the time when her incapacity them clearly has more to be said for it than for work occurred (12 October 1971) under does the appellant's, and that, accordingly, Article 17 of Regulation N o 3 2 and claim the first question cannot be answered in the invalidity benefit (from 12 October 1972) manner proposed by the appellant. under Article 39 of Regulation No 1408/71, 3 which means that benefits were to be paid by the French insurance institution.
10. Although undeniably the wording of Article l(l)(c) of Regulation N o 36/63 (the expression frontier worker means an employed person who pursues his occupation) is as unambiguous as it could possibly be, it 7. The view taken by the appellant in these surely cannot be appropriate, when deter- proceedings is on these lines. It believes that mining the scope of Regulation N o 36/63, at the time she became unemployed the to attach too much importance to the words original respondent was able to claim cited, which are taken from a provision applicable to the typical frontier worker 2 — Journal Officiel 1958, 30, p. 561. (and thus merely contain a statement of 3 — Regulation (EEC) No 1408/71 of the Council of 14 June 1971, OJ, English Special Edition 1971 (II), p. 416. principle). Indeed, Article 2 (according to
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which the provisions of the regulation are time. Moreover, it should be pointed out also to apply to frontier workers who are or that, according to the case-law (see for have been subject to the legislation of one or example judgment in Case 21/87 ), more Member States) itself militates in decisions of the Administrative Commission favour of a wider scope. In particular, on Social Security for Migrant Workers do however, reference may also be made to the not have the force of law and cannot wording to be found in Article 19 (and in therefore be an authoritative guide to the Article 10) of the regulation. From the fact interpretation of relevant provisions. T h e that, on the one hand, unemployed frontier actual scope of a provision must instead be workers are to be entitled to benefits under left to the interpretation of the Court. the legislation of the Member State on whose territory they reside (Article 19) and, on the other hand, that a frontier worker entitled under Article 19 to unemployment benefits is to be entitled during the same period to benefits in kind from the institution of his place of residence, (Article 10), it may be inferred that, precisely 12. The second question, to which I now because claims are granted to the persons turn, concerns the problem whether the concerned as frontier workers despite their original respondent could claim benefit for being unemployed, the status of frontier her initial incapacity for work from the worker within the meaning of the regulation Belgian institution from 12 October 1971 is not lost on termination of employment pursuant to Article 6 of Regulation N o but is retained for as long as payments are 36/63 and thereafter invalidity benefit. made to the 'former' frontier worker.
13. Article 6 of Regulation N o 36/63 referred to in the question, in the chapter 11. That clearly cannot be altered, in my on Sickness and Maternity, provides that opinion, by the deliberations of the Admin cash benefits which a frontier worker can istrative Commission on Social Security for claim or could claim if he resided on the Migrant Workers at its 54th Session. The territory of the competent State are to be overall content of the document submitted paid to him by the competent institution as to the Court in that connection clearly though he resided on the territory of that reveals that the only issue at that time was State. If it is assumed — as has been done in whether frontier workers in receipt of the answer to the first question — that the benefits for partial or intermittent unem original respondent continued to be a ployment are to be regarded as 'pursuing frontier worker also after she became unem [an] occupation'. There was, however, no ployed, it follows from the provision cited question of a detailed investigation of the that cash benefits were actually to be paid problem of the interpretation of Article during sickness by the insurance institution l(l)(c) of Regulation N o 36/63, and of the State of employment (which, certainly no argument can be based on the fact that wholly unemployed frontier 4 — Judgment in Case 21/87 Borowitz v Bundesvcnichtningi- workers were not also mentioned at that anitallfir Anļtstrlltc[\9iS] ECR 3715.
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incidentally, corresponds to a general country of residence shall be responsible for principle governing the subject-matter, to paying these benefits.' which the Commission's representative rightly referred at the hearing), that is to say, that benefits in respect of the initial incapacity for work were payable in accordance with Belgian law. What was not 15. That provision was introduced by relevant, however — and the appellant was Regulation No 2793/81, 5 which came into wrong to think that it was — , was the force on the day of its publication (29 reference to Article 17 of Regulation N o 3, September 1981). It therefore cannot be in the chapter on Invalidity and Maternity, applied to the case pending in the main which provides that workers who have proceedings, which concerns incapacity for completed periods of insurance pursuant to work which was established as from 12 the legislation of one or more Member October 1971 and continued until States and go on to the territory of another retirement age (30 September 1980). The Member State are to be entitled to the provisions to be applied to that case are benefits provided for by the legislation of instead those in force at the material time, that Member State on certain conditions namely the first two paragraphs of Article (that they were fit for work when they last 39, which provide that: entered the territory of that Member State and that they were liable to pay compulsory insurance after they last entered that territory). 'The institution of the Member State, whose legislation was applicable at the time when incapacity for work followed by invalidity occurred, shall determine, in accordance with that legislation, whether the person concerned satisfies the conditions for en- 14. As to the benefits claimed — from 12 titlement to benefits, taking account, where October 1972 — for invalidity, Regulation appropriate, of the provisions of Article 38. N o 1408/71, which entered into force on 1 October 1972, is clearly applicable. However, — as the Commission has also rightly emphasized — reliance cannot be placed on Article 39(5) in the chapter on A person who satisfies the conditions 'Invalidity', which provides that referred to in paragraph 1 shall obtain the benefits exclusively from the said institution, in accordance with the legislation which it administers.'
'A wholly unemployed worker to whom the provisions of Article 71(l)(a)(ii) and of the first sentence of Article 71(l)(b)(ii) apply 16. Since, however, — as we have shall receive the invalidity benefits provided seen — Belgian law was to be applied at the by the competent institution of the Member time when the incapacity for work occurred State on whose territory he resides, and in (12 October 1971), in accordance with accordance with the legislation which it Article 6 of Regulation N o 36/63 and, administers, as though he had been subject pursuant to that law, benefit in respect of to that legislation during his last employment. . . The institution of the 5 — OJ 1981 L 275, p. I.
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the initial incapacity for work, is to be paid should include contribution periods or for one year, it must be stated that it is to periods of employment as defined or be determined under that law whether the reckoned as insurance periods under the conditions for entitlement to invalidity legislation concerning a contributory system benefits are fulfilled. under which they were completed, and it is also important that the expression 'assimilated periods' should mean periods treated as insurance periods or, where applicable, as periods of employment, as 17. It is in that sense that the second part of defined in the legislation under which they the second question must be answered, and were completed, in so far as they are therein in general terms that means — if I am regarded as equivalent to insurance periods correct — that, contrary to the view taken or periods of employment (Article l(p) and by the appellant, the conditions of Article (r)). Since, however, unemployment is not 75 of the Belgian Law of 9 August 1963 are recognized in France as a period of fulfilled, precisely because the original insurance or a period treated as such or an respondent — despite being unem- equivalent period, neither can it be taken ployed — was insured in accordance with into consideration in the main proceedings Belgian law until 12 October 1972, or at so as to found a claim for benefits. least until the abrogation of Regulation No 36/63, which was repealed by Article 100 of Regulation No 1408/71.
20. In their opposing viewpoint, the 18. 3. The third question — which, conse- respondents are proceeding on the quently (as the Commission's Agent rightly assumption that under Belgian social pointed out), actually no longer calls for a security law periods of unemployment are reply — seeks to resolve the problem treated as equivalent to periods of insured whether, in view of the fact that a frontier activity. Furthermore, they take the view worker who had become unemployed was that, having regard to the fact that the obliged to claim benefits in the State of original respondent was obliged by residence (as Article 19 of Regulation No Community law to claim unemployment 36/63 provided), it is to be assumed that the benefit in her State of residence and not in period of unemployment in France, her State of employment (see Article 19 of although not recognized there as a period Regulation N o 36/63), Belgian law must of insurance or a period treated as such or properly be interpreted in the light of an equivalent period, must be accepted in Community law, with the consequence that Belgium, the country of the place of in the case of frontier workers periods of previous employment, as a period of unemployment in respect of which benefits insurance or a period treated as such or an were granted in the State of residence must equivalent period. also be treated as equivalent periods.
19. The appellant, referring to the defi- nition contained in Article 1 of Regulation 21. On this point also, to my mind, pref- N o 3, has suggested a negative reply to that erence is to be given to the respondents' question. Under that provision, it is essential view rather than to the formalistic and that the expression 'insurance periods' narrow opinion of the appellant.
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22. That is supported by the tendency 23. On the basis of that fundamental orien- which can be detected in the case-law, tation, the considerations put forward by according to which the regulations the respondents must be recognized as concerning social security for migrant plausible — as the Commission's Agent also workers are to be interpreted widely in the felt at the hearing. Thus, if under Belgian interest of the Treaty objectives pursued by law periods of unemployment are in fact them and in such a way that freedom of regarded as periods of insurance for the movement does not lead to the loss of purposes of the acquisition of invalidity advantages arising from a legal system benefits (which appears to be borne out by applicable to a case. It was shown in Case Article 45 of the Belgian law referred to), a 7 3 3 / 7 9 6 — to give but one example — worker in the special situation of a frontier which concerned the interpretation of worker must not be placed at a disad- Article 77 of Regulation N o 1408/71 on the vantage on account of the fact that he is not payment of benefits for children. Referring looked after during unemployment by the to the fact that the Community rules are to State of employment (which would be the be applied in such a way as not to lead to a obvious solution), but by virtue of reduction in the benefits payable by virtue Community law is referred to his State of of the legislation of a Member State, the residence, which appears not to recognize Court reached the conclusion (certainly not such equivalence. Otherwise the conse- suggested by the wording of the provisions) quence in such a case of the exercise of the that — if the benefits in the State of right of freedom of movement and the residence, which is responsible for payment, application of Community law would be a d o not reach the level of benefits in the loss of rights, which would certainly not be State of employment — it is for the latter compatible with the objectives pursued by State to pay the difference. Article 48 of the EEC Treaty.
Opinion
2 4 . O n the basis of all t h e foregoing (in the light of the matters clarified thus far, t h e r e is n o n e e d , it seems t o me, to e x a m i n e t h e fourth question, w h i c h w a s submitted only in the alternative), I consider it a p p r o p r i a t e that the C o u r t give the following answers t o the questions:
(a) Regulation N o 3 6 / 6 3 must be interpreted as meaning t h a t the status of frontier w o r k e r is n o t lost t h r o u g h dismissal a n d the ensuing u n e m p l o y m e n t a n d receipt of benefits u n d e r Article 19 of the r e g u l a t i o n ;
(b) a frontier w o r k e r w h o h a d become u n e m p l o y e d w a s entitled, as l o n g as R e g u - lation N o 3 6 / 6 3 w a s applicable, t o claim cash benefits p u r s u a n t t o Article 6
6 — Case 733/79 CCAFv Utena [1980] ECR 1915.
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under the legislation of the State of employment. Claims to invalidity benefits for a period beginning after Regulation N o 1408/71 entered into force and ending before Regulation N o 2793/81 entered into force are to be assessed in accordance with Article 39(1) and (2) of Regulation N o 1408/71.
(c) If in the State of employment of a frontier worker who has become unem- ployed periods of unemployment are recognized as periods equivalent to insurance periods for the payment of benefits during incapacity for work, it cannot be inferred from the fact that the frontier worker was required under Article 19 of Regulation N o 36/63 to claim unemployment benefits in his State of residence, and from the fact that in that State periods of unemployment are not recognized as equivalent periods, that in such a case the State of employment is likewise not to regard periods of unemployment as equivalent periods.
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