C-308/94

Heidemarie Naruschawicus

on the interpretation of Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as codified by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

T H E C O U R T (Sixth Chamber),

composed of: C. N . Kakouris (Rapporteur), President of the Chamber, F. A. Schockweiler, P. J. G. Kapteyn, J. L. Murray and H . Ragnemalm, Judges,

* Language of the case: French.

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after hearing the Opinion of the Advocate General at the sitting on 12 October 1995,

gives the following

Judgment

1 By order of 15 November 1994, received at the Court Registry on 22 November 1994, the Cour du Travail (Labour Court), Liège, referred to the Court for a pre- liminary ruling under Article 177 of the E C Treaty three questions on the inter- pretation of Article 13(2)(a) and (d) and Article 71(l)(b)(i) of Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as codified by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, hereinafter 'Regulation N o 1408/71').

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7 The O N E M appealed against that judgment to the Cour du Travail, Liège, which entertained doubts as to the interpretation of Article 13(2)(a) and (d) and Article 71(l)(b)(i) of Regulation N o 1408/71.

8 Article 13(2) provides:

'Subject to Articles 14 to 17:

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or indi- vidual employing him is situated in the territory of another Member State;

'an employed person, other than a frontier worker, who is partially, intermittently or wholly unemployed and who remains available to his employer or to the employment services in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State as though he were residing in its territory; these benefits shall be provided by the competent institu- tion'.

1 1 In its judgment, the Cour du Travail, Liège, observes first that, whilst the respon- dent was employed, the Belgian State (Ministry of Defence), as employer, paid social security contributions to the O N E M , so that the competent State is, pursu- ant to Regulation N o 1408/71, the Kingdom of Belgium.

i2 It notes however that a particular feature of this case is that, whilst employed, the respondent was a civil servant working for the Ministry of Defence whereas, when her contract was terminated, that Ministry adopted the legal fiction of deeming her to have worked as an ordinary employee; she was therefore issued with the 'Form B' certificate provided for by Belgian legislation. The purpose of that retroactive classification was to grant her entitlement to unemployment benefit and sickness and invalidity-insurance cover. If the respondent was deemed to be an ordinary employee from the inception of her employment, the applicable legislation was German legislation by virtue of Article 13(2)(a) of Regulation N o 1408/71,

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whereas if she was deemed to be a civil servant or a person treated as such the applicable legislation was Belgian legislation by virtue of Article 13(2)(d) of Regu- lation N o 1408/71.

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proposed by the said services and cannot be the subject of a check by the com- petent services of that institution to verify whether he fulfils the requirements for the grant of benefits?

(3) May a Belgian worker who has been resident for more than ten years in Ger- many where he was employed by the Belgian State, the employer for whom he is to resume work after some months of being wholly unemployed, be assim- ilated to a worker of the category governed by Article 71(l)(b) in view of the special personal and business links formed with the competent State?'

is Before those question are considered, it should be noted that Article 4(4) of Regu- lation N o 1408/71 excludes from the matters covered by it special schemes for civil servants and persons treated as such. It is apparent, however, from the documents forwarded by the national court that the latter is of the opinion that Ms Narus- chawicus, as a civil servant of the Belgian State, was subject not to a special unem- ployment insurance scheme for civil servants but to the scheme which, under Bel- gian law, applies generally to employed persons.

The first question

The second question

20 By its second question the national court seeks to determine whether Article 71(l)(b)(i) of Regulation N o 1408/71 must be interpreted as meaning that a person other than a frontier worker who, having been employed, is wholly unemployed, and who resides in the territory of a Member State other than the competent Member State, may obtain unemployment benefit from the competent State when he registers with the employment services of that State as a person seeking

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employment, even though, by virtue of distance, he is less available to respond to offers of employment made by those services and cannot be the subject of checks by the competent services of that State to verify whether he fulfils the require­ ments for the grant of benefits.

21 It must be observed, first, that the fact that civil servants are mentioned as a sep­ arate category by Article 13(2)(d) of Regulation N o 1408/71 with a view to deter­ mining the legislation applicable to them does not deprive them of their status as employed persons — a wider concept — as far as the application of the remaining provisions of that regulation is concerned (see to that effect Case C-71/93 Van Poučke v Rijksinstituut voor de Sociale Verzekeringen der Zelfstandigen [1994] E C R I-llOl, paragraphs 17 and 18).

6 Consequently, the circumstances which must exist for the condition as to availabil- ity to be satisfied cannot have the direct or indirect effect of requiring the person concerned to change his residence.

!7 In the light of those considerations, it must be held that a person remains available to the employment services in the territory of the competent State if he registers with those services as a person seeking employment (see to that effect Case 227/81 Aubin v UNEDIC and ASSEDIC [1982] E C R 1991, paragraph 20) and undergoes the checks by the competent services of that State.

28 In view of the foregoing, the answer to the second question must be that Article 71(l)(b)(i) of Regulation N o 1408/71 must be interpreted as meaning that a person other than a frontier worker who, having been employed, is wholly unemployed, and w h o resides in the territory of a Member State other than the competent Member State, may obtain unemployment benefit from the competent State if he registers with the employment services of that State as a person seeking employ- ment and undergoes the checks of those services.

The third question

29 This question was asked in case an employed person such as Ms Naruschawicus is excluded in principle from the scope of Article 71(l)(b)(i) of Regulation N o 1408/71. However, by virtue of the answers given to the first and second ques- tions, it is clear that a person in the circumstances of the respondent in the main proceedings is covered by that provision.

30 It is therefore unnecessary to answer the third question.

in answer to the questions referred to it by the Cour du Travail, Liège by judg- ment of 15 November 1994, hereby rules:

1. Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as codified by Council Regulation (EEC) N o 2001/83 of 2 June 1983 must be interpreted as meaning that the legislation applicable to a civil servant in the employ of one Member State working in the territory of another Member State w h o , upon termination of his employment contract, is retroactively deemed by the first Member State, by way of legal fiction intended to give him the right to unemployment benefit and cover by the sickness and invalidity-insurance legislation, to have worked as an ordinary employee and not as a civil ser- vant, must be determined on the basis of Article 13(2)(d) of that regulation.

2. Article 71(l)(b)(i) of Regulation N o 1408/71 must be interpreted as meaning that a person other than a frontier worker who, having been employed, is

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wholly unemployed, and w h o resides in the territory of a Member State other than the competent Member State, may obtain unemployment benefit from the competent State if he registers with the employment services of that State as a person seeking employment and undergoes the checks of those services.