C-444/98
ECLI:EU:C:2000:635
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DE LAAT
OPINION OF ADVOCATE GENERAL MISCHO delivered on 16 November 2000 1
1. This reference for a preliminary ruling 3. Article 13 provides: relates to a negative conflict of laws arising from differing interpretations by the Bel- gian and the Netherlands social security institutions of the terms 'partially unem- ployed' and 'wholly unemployed' in Arti- cle 71(1)(a)(i) and (ii) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self- '1. Subject to Article 14c, persons to whom employed persons and to members of their this Regulation applies shall be subject to families moving within the Community the legislation of a single Member State ('the Regulation'), as amended and updated only. That legislation shall be determined in by Council Regulation (EEC) No 2001/83 accordance with the provisions of this Title. of 2 June 1983. 2
2. Subject to Articles 14 to 17:
I — Legal background
(a) a person employed in the territory of one Member State shall be subject to 2. The relevant provisions of Community the legislation of that State even if he law are set out in Articles 13 and resides in the territory of another 71(1)(a)(i) and (ii) of the Regulation. Member State or if the registered office or place of business of the undertaking or individual employing him is situated 1 — Original language: French. 2 — OJ, English Special Edition 1971 (II), p. 416; Regulation in the territory of another Member (EEC) No 2001/83 (OJ 1983 L 230, p. 6). State;
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(b) ... '. t h a t legislation while last employed; these benefits shall be provided by the institution of the place of residence at its own expense.'
4. Article 71(1)(a)(i) and (ii) provides:
I I — Facts
'An unemployed person who was formerly employed and who, during his last employ- 5. According to the order for reference and ment, was residing in the territory of a the documents from the national court, Mr Member State other than the competent De Laat, a Netherlands national, resides in State shall receive benefits in accordance the Netherlands with his family. He was with the following provisions: employed in a managerial capacity by Amstelstad Belgium at Bree in Belgium from 1 December 1994 until 30 November 1996 inclusive, the latter being the date on which that employment was terminated. Mr De Laat was re-engaged by Amstelstad Belgium as a window-cleaner under a part- time contract of employment for 13 hours (a) (i) A frontier worker who is partially per week with effect from Monday or intermittently unemployed in 2 December 1996. the undertaking which employs him shall receive benefits in accor- dance with the provisions of the legislation of the competent State as if he were residing in the terri- tory of that State; these benefits 6. According to the observations of the shall be provided by the competent Netherlands Bestuur van het Landelijk institution. Instituut Sociale Verzekeringen ('the LISV), at the material time Amstelstad Belgium was experiencing financial diffi- culties but did not wish to lose Mr De Laat's services; moreover, he resumed full- time employment with Amstelstad Belgium in February 1997. (ii) A frontier worker who is wholly unemployed shall receive benefits in accordance with the provisions of the legislation of the Member State in whose territory he resides 7. The national court relates that, on as though he had been subject to 30 November 1996, Mr De Laat applied
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to the LISV for unemployment benefil De Laat was to be regarded, under Belgian under the Netherlands Werkloosheidswei law and — in the view of that institu- (Law on Unemployment; 'the WW') in tion—under Article 71(1)(a)(ii) of the respect of a period of partial unemploy- Regulation, as a wholly unemployed fron- ment commencing 2 December 1996. tier worker and therefore as covered by the legislation of the State of residence, namely, the Netherlands.
8. The LISV refused that application on the 11. Mr De Laat has not challenged the basis of Article 71(1)(a)(i) of the Regula- decision of the competent Belgian institu- tion and referred Mr De Laat to the tion and has simply appealed against the competent Belgian institution on the decision of the LISV. The Arrondissements- ground that it considered him to be par- rechtbank (District Court), Roermond ('the tially unemployed. Because of the continu- national court'), having examined the con- ing link with the State of employment, in flicting decisions of the competent Belgian the form of the part-time contract of and Netherlands institutions and being employment between Mr De Laat and uncertain as to the interpretation of the Amstelstad Belgium, he could not claim terms 'partially unemployed' and 'wholly unemployment benefit in the Netherlands, unemployed' within the meaning of Arti- the State of residence, but was covered by cle 71(1)(a)(i) and (ii) of the Regulation, the legislation of the State of employment, has referred a number of questions to the in this case, by Belgian legislation. Court.
9. Mr De Laat also applied to the compe- III — The questions tent Belgian institution for payment of an 'income-guarantee benefit', stating that as from 2 December 1996 he was obliged to work for his employer on a part-time basis. '(1) When determining whether a frontier worker is partially unemployed and therefore on the basis of Arti- cle 71 ( 1 ) ( a ) ( i ) of R e g u l a t i o n No 1408/71 may claim benefit from the competent Member State, or is wholly unemployed and therefore on 10. The competent Belgian institution the basis of Article 71(1)(a)(ii) of Reg- rejected his claim on the ground that Mr ulation No 1408/71 may claim benefit
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from the Member State in which he continuing link with the State of resides, is it relevant whether under the employment, and if so, what conditions national legislation of the competent must be satisfied for there to be such a Member State or of the Member State link? Is there such a link if: in which he resides the worker in question is to be regarded as partially or wholly unemployed or should "par- tially unemployed" and "wholly unem- ployed" be given a univocal — Com- munity — construction? (a) there is a concrete prospect that the employee may be re-employed by the former employer, or
(2) If the classification under national law is relevant, which classification should (b) the employee continues to work in prevail where the view adopted under the same State, even though to a the law of the competent Member State lesser extent? and that under the law of the Member State in which the worker resides lead to different results?
(5) Alternatively, when determining whe- ther the criterion referred to in Ques- tion 3 above is fulfilled, should a more formal test be applied, such as, for (3) If the classification under national law example, whether or not there is a is irrelevant and "partially unem- continuing employment relationship ployed" or "wholly unemployed" must for the purposes of labour law? be given a univocal — Community — construction, what criterion should then be applied?
(6) Having regard to the answers to the above questions, is a frontier worker who, immediately following termina- tion of his full-time employment, com- mences work with the same employer (4) Is it of decisive importance in that under a part-time contract of employ- regard whether or not there is a ment to be regarded as a partially
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unemployed frontier worker within the the period of inactivity does not confer a meaning of Article 71(1)(a)(i) of the right to compensation for unemployment. Regulation or as a wholly unemployed The only recompense is a limited right to frontier worker within the meaning of 'income-guarantee benefit'. This is a fixed Article 71(1)(a)(ii) of the Regulation?' sum paid to wholly unemployed people who accept part-time employment and therefore lose their unemployment benefit. In the absence of income-guarantee benefit, such part-time workers would have a lower income than they had previously received in the form of unemployment benefit.
IV — Observations submitted to the Court
12. In respect of the interpretation of the terms 'partially unemployed' and 'wholly unemployed' within the meaning of the 14. As this income-guarantee benefit is Regulation, the LISV has referred to the regarded as a benefit for wholly unem- case-law of the highest Netherlands court, ployed people, it is also granted to workers the Centrale Raad van Beroep (Higher in part-time employment in the Nether- Social Security Court), according to which lands who reside in Belgium and who a person is wholly unemployed where, at previously received unemployment benefit the time unemployment arises, a link can in Belgium for all days of the week. no longer be deemed to exist between Situations where a person is partially employer and employee in the form of a unemployed, on the other hand, are those concrete prospect that the latter will be re- involving the temporary suspension of a employed. On the other hand, where there contract of employment, whether in whole is a continuing link, the worker is regarded or in part. Belgian legislation recognises as partially or intermittently unemployed; inter alia the following circumstances: if partially unemployed, he must apply to suspension of the contract on account of the competent Member State for unem- force majeure, technical problems or bad ployment benefit. weather, or where there is insufficient work for economic reasons. The benefit granted in this case is to compensate for hours not worked because of unforeseen circum- stances and is in proportion to the number of hours for which performance of the contract of employment has been suspen- ded. The Belgian Government takes the 13. The Belgian Government states that in view that the terms 'partially unemployed' Belgium, in cases of partial employment, and 'intermittently unemployed' in Arti-
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cle 71(1)(a)(i) of the Regulation largely covered by the social security scheme of the cover the same cases as Belgian law. Member State where he works.
18. In respect of Article 71 of the Regula- 15. Relying on various judgments of the tion, which provides for an exception to Court, the Portuguese Government takes that principle, the Community legislature the view that a frontier worker bound to a has started from the premiss that in the case particular employer by a full-time contract of a frontier worker who becomes unem- of employment, who, on termination of ployed and is therefore present in his State that contract, commences work with the of residence, the institution best placed to same employer under a part-time contract assist him and from which he can most of employment must be regarded as a easily receive the benefits to which he is partially unemployed frontier worker entitled is the competent institution of the within the meaning of Article 71(1)(a)(i) State of residence. of the Regulation.
19. If, on the other hand, links with the 16. The Commission points out, first, that State of employment have not been com- under Article 13(1) of the Regulation, per- pletely severed, notably because the person sons covered by the Regulation are subject concerned still has employment there, even to the legislation of only one Member State if only part-time, then the logic of that and that, according to the case-law of the exception to the principle of lex loci laboris Court, the Regulation must be interpreted no longer holds good, and the principle so as to avoid not only any positive conflict reasserts itself. but also any negative conflict between the social security schemes of Member States.
20. According to the Commission, 'a fron- tier worker is "partially unemployed" if he 17. The second principle to be taken into has continuing employment (other than account, set out in Article 13(2)(a) of the full-time employment) in the territory of Regulation, is that the Regulation is based the State of employment, so that he remains on the principle of lex loci laboris, accord- subject to the social security scheme of the ing to which the person concerned is State of employment under Article 13(2)(a)
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of the Regulation. However, a frontier Netherlands social security scheme as a worker who is "wholly unemployed" is a wholly unemployed person or by the Bel- person who has lost any employment or gian social security scheme as a partially social security link with the State of unemployed person or, as the Belgian employment'. Government is essentially maintaining, by both these schemes at the same time.
Questions 1 and 2 V — Appraisal
23. By its first question, the national court essentially asks whether 'partially unem- 21. It should be noted at the outset that the ployed' and 'wholly unemployed' should be Regulation does not set up a common given a uniform Community construction. scheme of social security, and that its sole All the Member States that have submitted objective is to coordinate national observations to the Court, as well as the schemes. 3 It sets out criteria of applicabil- Commission, agree that the answer to this ity in order to avoid situations where a question should be in the affirmative. migrant worker is not covered by any social security scheme or is covered simulta- neously by the schemes of more than one Member State.
24. This response should obviously be endorsed.
22. However, that is clearly the type of problem on which a ruling is sought: the national court asks whether a worker in Mr De Laat's situation is covered by the 25. It is clear from settled case-law that 'the essential object of Regulation No 1408/71 adopted under Article 51 of 3 — See, inter alia, Case 21/87 Borowitz v Bundesversicherung- the Treaty is to ensure that social security sanstalt für Angestellte [1988] ECR 3715, paragraph 23. schemes governing workers in each Mem-
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ber State moving within the Community Questions 3, 4, 5 and 6 are applied in accordance with uniform Community criteria'. 4 5
28. By the third, fourth and fifth questions, the national court asks what criteria can be applied in order to determine, under Com- munity law, whether a worker is partially unemployed or wholly unemployed. 26. As regards the legislation applicable in a given situation, the Court has stated that it follows from the provisions of Title II of Regulation No 1408/71 'that the applica- tion of national legislation is determined by reference to criteria drawn from the rules of Community law'. Although 'it is for the legislature of each Member State to lay 29. By its sixth question, the national court down the conditions creating the right or asks whether a person in Mr De Laat's the obligation to become affiliated to a situation is to be regarded as a frontier social security scheme or to a particular worker who is partially unemployed within branch under such a scheme, it must be the meaning of Article 71(1)(a)(i) of the emphasised that this does not mean that the Regulation or as a frontier worker who is Member States are entitled to determine the wholly unemployed within the meaning of extent to which their own legislation or Article 71(1)(a)(ii) thereof. that of another Member State is applic- able'. 6
30. Clearly, under Community law, such a worker cannot be regarded as wholly unemployed. 27. Having regard to the answer I propose be given to the first question, there is no need to reply to the second question.
4 — Emphasis added. 5 — Case 69/79 Jordens-Vosters v Bedrijfsvereniging voor de Leder- en Lederverwerkende Industrie [1980] ECR 75, paragraph 11. 6 — Case 276/81 Sociale Verzekeringsbank v Knijpers [1982] 31. The ordinary meaning of the term ECR 3027, paragraph 14. suggests that a wholly unemployed worker
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is a worker who, following termination of rights to which a wholly unemployed the employment relationship, no longer has worker may be entitled. Such rights are a job, and is looking for work. defined by national legislation. Thus, it may be the case that in one Member State a worker who has voluntarily resigned from his employment will not receive compensa- tion for unemployment, while in another Member State the reverse might be true.
32. Indeed, this is also the definition that the Commission, in a proposal submitted to the Council on 12 January 1996 and not yet adopted, 7wishes to incorporate in the Regulation. 35. It can be concluded, therefore, that the term 'wholly unemployed', within the meaning of the Regulation, refers to the position of a formerly employed person whose employment relationship has been broken off or has expired and who is looking for new employment. 9 33. According to that proposal, the term 'wholly unemployed' 'refers to the position of a formerly employed person whose employment relationship has been severed or has expired'.
36. As Mr De Laat worked in Belgium throughout the period in question, he cannot be regarded as a wholly unem- ployed worker.
34. That definition would cover not only workers whose contracts have expired and those who have been dismissed, but also those who have resigned 8 from their employment. I consider this to be accepta- ble given that, in any case, the object of the Regulation is not to define the substantive 37. On the other hand, the question arises whether Mr De Laat is partially unem- ployed or a part-time employee. There is no 7 — Proposal for a Council Regulation amending, for the benefit doubt that, under Community law, a per- of unemployed persons, Regulation (EEC) No 1408/71 and son who has a contract of employment and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1996 is involuntarily placed in the position of C 68, p. 11), paragraph 9. 8 — However, it is clear from one of the documents provided by the national court that Mr De Laat was made redundant. He remained without a contract of employment for one clay (a 9 — The fact that he is looking for employment is proved by Sunday). registration with the competent body.
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working fewer hours than the number fact wishes to continue working only if his contractually provided for must be regar- hours are reduced and that he arranges to ded as partially unemployed. be assigned to other duties in the under- taking for that purpose, but that he is nevertheless tempted to apply to the com- petent authorities for compensation for loss of earnings in the form of benefits payable for partial unemployment.
38. Should a situation such as the one in this case, where a reduction in working hours was implemented in the same under- taking but by means of a new contract, be deemed to fall within this definition? 42. Furthermore, if a worker who has entered into a new contract of employment with his employer for reduced working hours should be regarded as partially unemployed, it is not clear how his situa- tion would differ from that of a worker who enters into such a contract with a new 39. At first sight, one might be tempted to employer. Logically, therefore, the latter answer this question in the affirmative in would also have to be regarded as partially all cases where the worker had first been unemployed. dismissed and where the old (full-time) contract was immediately followed by the new (part-time) contract.
43. To regard a person who enters into a new, part-time contract of employment with a new employer as partially unem- 40. However, that approach is problematic ployed, in so far as the person concerned in view of the difficulty of determining still intends to resume full-time work, could objectively whether the worker concerned give rise to uncertainties. It would effec- has actually freely chosen to move to tively mean that the worker's intentions reduced hours. The new contract will very had to be taken into account, which is often be formulated in identical terms in precisely what the Regulation aims to both situations. prevent.
41. The possibility cannot be totally exclu- 44. To my mind, the interpretation of ded that, unlike Mr De Laat, a worker in 'partially unemployed' must be based pri-
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marily on Article 71(1)(a)(i) of the Regula- part-time because it deems them eligible for tion, which provides that: compensation for unemployment, it is self- evident that a worker cannot be refused such allowances on the pretext that he resides in another Member State.
'A frontier worker who is partially or intermittently unemployed in the undertak- ing which employs him, shall receive ben- efits in accordance with the provisions of the legislation of the competent State...'. 48. Indeed, a refusal would amount to direct contravention of the principle of non-discrimination set out in Article 48 of the EC Treaty (now, after amendment, Article 39 EC).
45. The words 'which employs him' imply a continuity in the employment relation- ship, that is to say, they suggest that moving from full-time to part-time work has been within the same undertaking, and that the contract has not been broken off or mod- ified by an addendum reducing the working hours. 49. Ultimately, therefore, I take the view that a person who has a contract of employment and is involuntarily 10 placed in the position of working fewer hours than the number provided for in that contract must be regarded as partially unemployed within the meaning of Article 71(1)(a)(i) of 46. It should be noted that this in no way the Regulation. prejudices the substantive rights which a person in Mr De Laat's situation might enjoy in the State whose legislation applies to him under the Regulation.
50. However, the national court has not asked the Court to interpret the term 47. Consequently, if the applicable legisla- tion, as determined by the criteria of Community law, confers rights to certain 10 — This should he objectively documented by the existing, allowances on workers who are employed unamended contract.
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'partially unemployed' in relation to part- legislation of the Member State where he time employment. Indeed, it makes no was employed, namely, Belgium. difference into which of these two cate- gories a worker falls from the point of view of the legislation applicable under the Regulation. Both Article 71(1)(a)(i) (par- tially unemployed frontier workers) and Article 13(2)(a) (employed workers, including those working part-time) apply the same criterion, namely that of where the employment is pursued. 53. Moreover, it is settled law that 'Arti- cle 13(2)(a) of Regulation No 1408/71 must be interpreted as meaning that a person covered by that regulation who is employed part-time in the territory of a Member State is subject to the legislation of that State both on the days on which he pursues that activity and on the days on which he does not'. 11
51. Essentially, the national court would like to know whether a worker in Mr De Laat's situation may be regarded as wholly unemployed within the meaning of the 54. I therefore propose that the Court reply Regulation, as a consequence of which, as follows to the third, fourth, fifth and under Article 71(1)(a)(ii), the legislation of sixth questions: the Member State in which he resides would be the legislation applicable to him.
'A frontier worker who is in paid employ- ment cannot be regarded as wholly unem- ployed within the meaning of Regulation No 1408/71. He is covered by the legisla- tion of the Member State where he is employed, even if he resides in the territory of another Member State'. 52. It is common ground that Mr De Laat was in paid employment throughout the period at issue, on the basis of which he 11 — Case C-2/89 Kits van Heijningen [1990] ECR I-1755, was covered under Article 13(2)(a) by the paragraph 15.
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VI — Conclusion
55. On the basis of all the foregoing considerations, I propose that the Court reply as follows to the questions referred by the Arrondissementsrechtbank te Roermond:
(1) The terms 'partially unemployed' and 'wholly unemployed' in Arti- cle 71(1)(a) of Regulation (EEC) No 1408/71 of the Council 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 must be given a Community interpretation.
(2) A frontier worker who is in paid employment cannot be regarded as wholly unemployed within the meaning of Regulation No 1408/71. He is covered by the legislation of the Member State where he is employed, even if he resides in the territory of another Member State.
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