C-62/91

OPINION OF MR TESAURO — CASE C-62/91

OPINION OF ADVOCATE GENERAL TESAURO delivered on 16 January 1992 *

Mr President, register with the competent Spanish Members of the Court, employment office as a person seeking work, since he intended to return as soon as possible to his country of origin. Once he was back in the United Kingdom he claimed 1. In requesting a preliminary ruling in this unemployment benefits, but these were case, the Social Security Appeal Tribunal, refused him by virtue of Article 67(3) of Bognor Regis, is asking the Court about the Regulation No 1408/71. It was that refusal validity of Articles 67(3) and 69(1) of to grant him those benefits that gave rise to Council Regulation No 1408/71. 1 In the present proceedings. particular, the national tribunal raises the question whether those provisions are compatible with Article 51 of the EEC Treaty. 3. It should be noted that Article 67(1) and (2) of Regulation No 1408/71 provide that, for the purposes of acquiring, retaining or recovering the right to unemployment Reference should be made to the Report for benefits, account is to be taken, to the the Hearing for the details, but I shall extent necessary, of periods of insurance or briefly summarize the facts in the main employment completed under the legislation proceedings. of any other Member State. Nevertheless, under Article 67(3) unemployment benefits are granted on condition that the unem- ployed person has most recently completed 2. After working in England, Mr Gray, a periods of insurance or employment 'in United Kingdom national, settled in 1971 accordance with the provisions of the legis- on the island of Grand Canary with his lation under which benefits are claimed' ° in wife, where he worked as the manager of other words, on condition that he has most the restaurant owned by her. This continued recently completed periods of insurance or until 11 January 1990, when Mr Gray's wife employment in the State where hè claims the sold the restaurant. During that time, benefit. therefore, he had been paying social security contributions under Spanish law.

the employment office of the competent security as are necessary to provide freedom State and has remained in that State for at of movement for workers'. least four weeks before departing for another Member State (subparagraph (a]; a further proviso is that he must have registered as a person seeking work with the employment services of the Member State to 4. I would first point out that, in the Testa which he has gone (subparagraph (b]. The judgment, 2 the Court ruled that '(Article entitlement to benefits continues in any 51) does not prohibit the Community legis- event for only three months (subparagraph lature from attaching conditions to the (c]. rights and advantages which it accords in order to ensure freedom of movement for workers or from determining the limits thereto'. More generally, and still in the context of freedom of movement for workers, the Court has recently ruled in the The abovementioned provisions are Antonissen judgment 3 that restrictive extremely clear, and it is not in dispute in conditions are permitted so long as they are this case that Mr Gray cannot avail himself not such as to 'jeopardize the effectiveness in the United Kingdom of Article 67, of the principle of free movement'. inasmuch as the last period of insurance was completed in Spain; nor can he rely on Article 69(1), since he had not registered with the employment office before leaving Spain. However, it is not disputed that the provisions at issue confer such rights on unemployed persons, so as to prevent their finding themselves at a disadvantage when they move to another Member State in In those circumstances the national tribunal search of work; and they would not enjoy decided to refer the matter to this Court, in such rights under national law alone. order to establish whether the provisions at Moreover, whilst it is true that freedom of issue are invalid on the grounds of incom- movement for persons seeking work is a patibility with Article 51 of the EEC Treaty necessary expedient for achieving and because they have the effect of restricting enlarging the freedom of movement for freedom of movement for workers, which is workers, I do not consider, in view of the guaranteed by the Treaty. aims pursued by the provisions, that it can reasonably be asserted that the conditions they impose are such as to impede or restrict that freedom.

benefits can, for the purposes of Article partly settled by the recent Van Noorden 67(3), only be the institution of the State in judgment. 5In that judgment the Court held which the worker has most recently that 'a person seeking work who has never completed periods of insurance or been subject to the social security legislation employment stems from the broader of the Member State in which he claims principle — emphasized by this Court on entitlement to unemployment benefits and several occasions — that an unemployed thus has not most recently completed person is governed by the laws of the State periods of insurance or employment under in which he was last employed. 4 the laws of that Member State cannot claim unemployment benefits pursuant to Article 67 of Regulation No 1408/71 but only under Article 69 thereof' (paragraph 10). In The same approach must guide the interpre- the same judgment the Court dismissed the tation of Article 69(1), which allows the thesis that Article 67 was incompatible with exportation of unemployment benefits for a the other relevant provisions of Community period of three months but stipulates that law, including Articles 7 and 58 to 66 of the the unemployed person, before moving to EEC Treaty (paragraph 11). another Member State, shall have been registered with the employment office of the State of most recent employment ° the reason being, precisely, that unemployment benefits are granted under the social security legislation of that State, which must refund them to the competent institution of Turning to the condition in Article 69 the State to which the unemployed person requiring registration with the employment has gone in search of work. office of the State of last employment, I find it wholly consistent with the established scheme, inasmuch as it is the only means whereby the status of 'unemployed' can be Basically, therefore, the imposition of the defined in accordance with the laws of the conditions at issue here constitutes a policy State responsible for granting social security decision intended to ensure that the benefits. Member State in which the person in question has most recently paid contributions bears the burden of providing benefits. There is at the same time a concern, in the absence of a common labour market, to avoid the exportation of unem- ployment by encouraging the unemployed In short, I consider that the conditions to seek work, in the first instance, in the imposed by Articles 67(3) and 69(1) of State where they were last employed. Regulation No 1408/71 are not such as to impede or restrict the freedom of movement for workers as guaranteed by the Treaty. In particular, the provisions of the regulation 6. Having said that, I must point out that which are relevant here do not show any the question before the Court has been evidence of incompatibility with Article 51 of the EEC Treaty. 4 — See judgments in Cases 145/84 Cochet v Bedrijfsvere- niging voor de Gezondheid [1985] ECR 801 and 302/84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging [1986] 5 — Judgment in Case C-272/90 Van Noorden v Association ECR 1821. pour l'Emploi [1991] ECR I-2543.