C-131/95

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OPINION OF MR LA PERGOLA — CASE C-131/95

N o 1408/71. The appellant appealed against Article 2(l)(a)(3) of the IOAW to the that decision to the Raad van State (State effect that benefit must have been Council). received during the whole period for which benefit was payable under the statutory provisions on unemployment in force in the competent Member State is satisfied, no account is taken of unemployment benefit received in another Member State constitute dis- 5. The Raad van State, considering that the crimination on grounds of nationality dispute brought before it raised matters within the meaning of Article 7 of the involving interpretation of Community law, EEC Treaty (now Article 6 of the EC decided that the following questions ought Treaty)?' to be referred to the Court for a preliminary ruling:

IV — The relevant provisions of Community law

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7. Article 67 of Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed per­ sons, to self-employed persons and to mem­ bers of their families moving within the 8. Article 71, in the version set out in Regu­ Community, in the version in force at the lation N o 2001/83, provides that: time the facts material to the main proceed­ ings took place (Regulation (EEC) N o 2001/83 1) provides that:

11. With regard to the nature of the IOAW, the Court has already held that that scheme is among those covered by Regulation N o 1408/71. 2 Next, as regards the alleged V — Analysis of the dispute absence of a situation having any relevance for the application of Community law, more than one consideration must be taken into account. The appellant has exercised her 9. The questions formulated by the national right to freedom of movement, on the one court essentially raise this point: whether the hand, by taking up residence in Belgium and, period of unemployment during which the on the other, by working in the Netherlands. appellant received benefit paid by the com­ Furthermore, she falls into the category of petent Belgian institution counts for the pur­ frontier workers referred to in Article 1(b) of poses of obtaining the benefit provided for Regulation N o 1408/71 and therefore ben­ by the IOAW, to which the appellant would efits by the provisions concerning frontier be entitled if she had received unemploy­ workers which the Community legislature ment benefit in the Netherlands from the adopted in order to secure insurance cover outset. and other social advantages for the persons concerned, pursuant to Article 51 of the Treaty. The Spanish Government, for its part, refers to various decisions of the 10. Before dealing with the ;1 substance of Court 3 to argue that this present case is not the question, it is necessary to consider the concerned with situations governed by the validity (a) of a number of objections raised Community rules on freedom of movement by the respondent as preliminary issues and and that the appellant cannot, therefore, rely embodied in its decision rejecting the initial upon those provisions. However, the deci­ appeal and (b) of others raised by the Neth­ sions which it is claimed rule to that effect erlands and Spanish Governments during the have been put, to an appreciable extent, into a proceedings. Those objections relate to the new perspective by subsequent case-law. The relevance of the questions under consider­ criteria laid down by the Court in Schu­ ation. The first concerns the disputed nature macher, 4 and later confirmed in Imbernon of the IOAW. It is raised in order to argue that that law should not be regarded as an insurance scheme on the basis of which 2 — Case C-66/92 Acciardi ν Commissie Beroepszaken Adminis­ Regulation N o 1408/71 can be applied to tratieve Geschillen in de Provincie Noord-Holland [1993] this case. The second objection is that the ECR I-4567. 3 — Case C-112/91 Werner ν Finanzamt Aachen-Innenstadt appellant's circumstances are without any [1993] ECR I-429 and Case C-153/91 Petit ν Office National Community relevance: in the view of the des Pensions [1992] ECR I-4973. 4 — Case C-279/93 Finanzamt Köln-Altstadt ν Schumacker Netherlands and Spanish Governments there [1995] ECR I-225, in particular paragraph 28.

Martínez, 5 in some respects constitute a tion. The requirement laid down is different: reversal of judicial precedent intended to the worker is entitled to the award of benefit restore the rules of interpretation which the only if the payment of unemployment ben- Court had consistently followed in the past efit under the scheme established by the WW and which had been temporarily set aside in has ceased. The IOAW scheme therefore Werner, cited above. That judgment, how- does not have regard to the length of the ever, concerned a self-employed worker who period in which the beneficiary completed relied on the application of Article 52 of the periods of employment or insurance and Treaty, a provision concerning the right of merely takes into account the fact that the establishment. The appellant in this case, by person concerned was previously but is no contrast, is certainly among those qualifying longer in receipt of benefit paid under the for the benefit of other provisions of the WW. Treaty, namely those guaranteeing freedom of movement for workers. The situation before the Court falls within the scope of Regulation N o 1408/71, adopted pursuant to Article 51 of the Treaty. If that is so, then the decision in Werner, which has remained an isolated case and was shortly afterwards con- 13. As formulated, the question referred by tradicted by subsequent decisions, cannot be the national court does, however, clearly regarded as a helpful precedent for the pur- indicate another point of view from which poses of this case. the question should in any event be consid- ered by the Court. O n careful inspection, the problem raised before the Court is whether or not unemployment benefits received in other Member States are to be treated in the same way as those awarded under the WW scheme. Once it is established that they are 12. I now turn to the ;1 substance of the two to be so treated, the direct consequence will questions referred by the national court. The be that, contrary to the respondent's argu- Netherlands Government and the Commis- ments, the condition permitting the unem- sion are at one in considering that court's ployment allowance paid under the IOAW reference in the first question to Article 67 of to be obtained must be regarded as satisfied. Regulation N o 1408/71 to be without any bearing on this case. I concur with that view. Article 67 concerns insurance schemes which make the grant of unemployment benefit subject to completion of a period of insur- ance or employment. It is plain that the con- dition laid down by the I O AW which is in 14. The question having been set out in issue does not possess those features. The those terms, what answer is to be given to person concerned is not required to have the national court? There is a fixed datum completed a period of insurance or employ- which can serve as our starting point. Article ment in order to obtain the benefit in ques- 71(l)(a)(ii) provides that a frontier worker who is wholly unemployed is to receive unemployment benefits from the competent institution of the Member State in whose ter- 5 — Case C-321/93 Imbemon Martinez ν Bundesanstalt für Arbeit [1995] ECR I-2821. ritory he resides. The rule contained in the

provision in question, as the Court has had allowance provided for by the I O AW if she occasion to explain elsewhere, 6is binding had resided in the Netherlands from the out and therefore does not permit workers or set and in consequence received the unem national institutions to derogate from its ployment benefit paid under the WW pursu provisions. Consequently it was inevitable ant to Regulation N o 1408/71. that the appellant should receive the relevant benefits in Belgium from the beginning of her unemployment.

Here there is or Netherlands legislation. She has exercised discrimination as referred to in the Schu her right to freedom of movement under the macher and Imbernon Martinez judgments. Treaty, by moving her residence from one The Netherlands legislation excludes work country in the Community to another. ers who have received equivalent benefits Because the appellant has made use of a right under the system in another Member State guaranteed by the Community legal order — from the class of potential recipients of the most recently enshrined in Article 8 of the benefit concerned. However, it does not Treaty 7 — her right to receive the social appear that the discriminatory effect pro security benefits which would have been duced by such a provision can be justified by awarded to her if she had resided in the any criterion deserving of protection by the Netherlands from the outset may not be lim Community judicature. The rules applying ited or negated in any way. The Court has in the Netherlands must therefore be consid consistently ruled to that effect in its judg ered to be contrary to the principle of free ments. 8 This has been confirmed by the dom of movement for workers and to the Netherlands Government, which stated dur other related principle that frontier workers ing the proceedings that the appellant would must not be discriminated against on normally have received the unemployment grounds of nationality.

reasons. In either case the appellant established residence of their finding work opportunities in other utendo juribus and therefore cannot be denied the protection of Community law. Member States more burdensome and dis 8 — See Case C-302/90 Faux [1991] ECR I-4875 and Case courages them from taking it up. As has been C-102/91 Knock [1992] ECR I-4341. Most recently, see Case C-165/91 Wan Muster [1994] ECR 1-4661; C-481/93 Moscato shown, the disputed provision limits, as far [1995] ECR I-3525 and Case C-482/93 Klaus [1995] ECR as workers moving from the Netherlands I-3551.

VI — Conclusions

19. F o r the reasons set o u t above, I p r o p o s e t h a t the C o u r t reply as follows t o t h e questions referred b y the Raad van State, T h e H a g u e :

C o m m u n i t y law, in particular Articles 48 and 51 of t h e Treaty, precludes the i m p o ­ sition of a c o n d i t i o n such as that laid d o w n in Article 2(l)(a)(3) of the I O A W o n a w h o l l y - u n e m p l o y e d frontier w o r k e r w h o received u n e m p l o y m e n t benefits in the M e m b e r State in w h i c h he resided at t h e time of his last e m p l o y m e n t a n d subse­ q u e n t l y transferred his residence t o t h e M e m b e r State in w h i c h he was last e m p l o y e d , w i t h the result that such a w o r k e r is denied the benefits p r o v i d e d for b y t h a t legislation.

9 — Sec Case C-349/87 Paraschi [1991] ECR I-4501.

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