C-189/00

3 — The form is intended to certify 'the periods to be taken into account for the granting of unemployment benefits" for the 1 — Original language: German. purposes of Articles 67, 68, 71 (1)(a)(ii) and 71(1)(b)(ii); see 2 — See Regulamin No 1408/71 in the version cornameli in Decision No 1.54 of 8 February 1994 on the model forms Council Regulation (EC) No 118/97 of 2 December 1996 necessary for the application or Council Regulations (EEC) amending and updating Regulation (EEC) No 1408/71 No 1408/71 and (EEC) No 574/72 (E 301, E 302, E 303), (OJ 1997 L 28, p. 1). OJ 1994 1.244, p. 123.

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capacity as a national of a non-member self-employed persons and to members of country or on the basis of provisions of their families moving within the Commu- Community law, on the exceptional provi- nity (OJ 1971 L 149, p. 2), given by the sion for frontier workers. Court of Justice in its judgment in Case 40/76 Slavika Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669, still author- itative even when it also indirectly affects the freedom of movement of a Member State national?

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stateless persons or refugees residing within (b) Europe Agreement between the Eur- the territory of one of the Member States, opean Communities and their Member as well as to the members of their families States, of the one part, and the Republic and their survivors. 4 of Poland, of the other parts

10. Articles 37 and 38 of the Agreement read: In addition, this regulation shall apply to the survivors of employed or self-employed persons who are or have been subject to the legislation of one or more Member States, irrespective of the nationality of such employed or self-employed persons, where their survivors are nationals of one of the Member States, or stateless persons or refugees residing within the territory of 'Article 37 one of the Member States.'

(1) Subject to the conditions and modalities applicable in each Member State:

9. Article 71(1)(a)(ii) reads as follows:

Article 38 11. The Austrian Government points out that a Polish national can be included among the persons covered by the regula- tion, as laid down in Article 2(1) of Reg- 1. With a view to coordinating social ulation No 1408/71, only in his capacity as security systems for workers of Polish a member of the family or a survivor of a nationality, legally employed in the terri- worker who is himself a national of a tory of a Member State, and for the Member State. However, it follows from members of their family legally resident the judgment in Kermaschek 6 that the there, and subject to the conditions and provisions of Regulation No 1408/71 con- modalities applicable in each Member cerning unemployment benefits, in particu- State: lar Article 71 thereof, are not applicable to nationals of non-member countries who are members of the family of a Community worker.

— all periods of insurance, employment or residence completed by such work- ers in the various Member States shall be added together for the purpose of 12. The Austrian Government stresses that pensions and annuities in respect of old the findings of that judgment were con- age, invalidity and death and for the purpose of medical care for such work- ers and such family members; 6 — Case 40/76 Kermaschek [1976] ECR 1669.

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firmed by the judgment in Case C-308/93, 7 15. The Austrian Government therefore in which the Court fundamentally revised proposes that the question referred be the view it had expressed in Kermascbek to answered as follows: the effect that family members can claim only derived rights under Regulation No 1408/71 and held that

13. However, even from the perspective adopted by the referring court of a possible restriction of freedom of movement, there is no reason, in the Austrian Government's view, to revise the judgment in Cabanis- lssarte. After all, it is clear from the order for reference that the husband of the plaintiff in the main proceedings lives in (b) The United Kingdom Government Germany and has not exercised his right to freedom of movement. There can therefore be no question of a restriction of freedom of movement. 16. The United Kingdom Government points out first of all that the factual situation that has given rise to this case is not one involving the exercise by either 14. In this case, it submits, the fact that spouse of any rights conferred by Commu- Article 71 of Regulation No 1408/71 is not nity law. In particular, as a national of a applicable to the plaintiff in the main non-member country, the plaintiff does not proceedings does not result in a restriction have a right to freedom of movement on the freedom of movement of her spouse pursuant to Article 39 EC. Article 38 of but amounts to recognition of the existence the Europe Agreement between the Eur- of such freedom of movement for a opean Communities and their Member national of a non-member country. States, of the one part, and Poland, of the other part, 9provides for the aggregation of periods of employment or insurance com- 7 — Case C-308/93 Cabanis-Issarte[1996] ECR I-2097, para- graph 23. 8 — See judgment in Cabanis-Issarte (cited in footnote 7, paragraph 23). 9 — OJ 1993 L 348, p. 2

18. That interpretation, it submits, is impossible to reconcile with the wording of Article 2 of the regulation, which clearly relates to two distinct categories of persons 21. The United Kingdom Government (workers on the one hand and family takes the view that there are no reasons members and survivors on the other), and for changing that case-law. The only reason is not necessary in order to facilitate the given by the Sozialgericht for departing free movement of workers within the from the existing case-law is that this is meaning of the Treaty. necessary in order to facilitate the freedom of movement of a Community national who is the spouse of a person such as the plaintiff. However, that is not the case. As far as Mr Ruhr is concerned, there is no reason to assume that the inapplicability of 19. In the opinion of the United Kingdom Article 71 to his wife would have affected Government, it is also clear from the case- his decision on his own employment or self- law of the Court that the two categories of employment in Germany. persons described in Article 2(1) of Regu- lation No 1408/71 have different rights. Only persons in the first category (workers 10 — See judgment in Kermaschek (cited in footnote 6, para- who are nationals of a Member State) have graphs 7 and 9) and the Opinion of Advocate General Reischl in that case, delivered on 11 November 1976 'primary' rights of their own under Arti- ([1976] ECR 1682 to 1683).

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22. Finally, the United Kingdom Govern- 25. The referring court, it submits, puts ment submits that, if the Court were to forward two arguments: in the judgment in change the law as it has been understood Kermaschek, the Court did not take suffi- for more than a quarter of a century, it cient account of the effects its decision should place a temporal limitation on its might have on spouses who are nationals of judgment, as it did in Cabanis-lssarte. a Member State and on their right to freedom of movement in the Community; furthermore, the development of Commu- nity law in the last twenty years may call for a change to the case-law relating to nationals of non-member countries. 23. In conclusion, the United Kingdom proposes that the Court answer the ques- tion referred as follows:

27. The present case, it contends, concerns whether or not nationals of non-member countries have a personal right to freedom (c) The Commission of movement which necessarily results in the corresponding application of Arti- cles 67 to 71 of Regulation No 1408/71. However, no such general right exists at present. In cases where the rights of Com- 24. The Commission submits that the dis- munity citizens are not affected, the fact pute in the main proceedings is essentially that a national of a non-member country is the same as that which gave rise to the married to a Community citizen is in Kermaschek case, and that the relevant principle immaterial and such cases are provisions of Regulation No 1408/71 have not to be treated any differently from ones remained largely unchanged since 1976. A in which the national of the non-member decision by the Court which departed from country is single. The Commission points the judgment in Kermaschek would there- out in this respect that it submitted to the fore be conceivable only if the arguments Council a proposal aimed at including adduced in favour of such a change were nationals of non-member countries legally very compelling. resident in a Member State within the

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social provisions safeguarding freedom of Germany, where she has never worked, movement for employed and self-employed leads to a different conclusion, since she is workers within the Community. 1 1How- claiming benefit not from the Luxembourg ever, this is a matter for the discretion of the but from the German unemployment insur- legislature of each Member State, since the ance scheme. EC Treaty merely provides for the possibi- lity of such a measure rather than making it a mandatory requirement.

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principle of treatment as a national under Regulation No 1408/71 cannot be applied Article 37(1) of the Europe Agreement, to them or extended to them through mean that such a possibility is also provi- Article 37 of the Europe Agreement, unless ded for a Polish national. expressly so decided, is entirely consistent with that interpretation of Articles 37 and · 38 of the Europe Agreement. Since unem- ployment insurance is not referred to in Article 38, Polish nationals at present have no rights under Article 71(1)(a)(ii) or (b)(ii) of Regulation No 1408/71. 33. However, in view of the scheme of the chapter on freedom of movement and the wording of Article 38(1), first indent, of the Europe Agreement, which lays down the rule on the aggregation of periods of insurance, employment and residence but does not refer to unemployment insurance, that point of view cannot be upheld. 35. The Commission emphasises that the Unemployment insurance cannot therefore plaintiff's perfectly legitimate claim can be be covered by Article 37 of the Europe resolved only under Luxembourg national Agreement either. law, by way, if necessary, of a reference to the European Court of Human Rights in Strasbourg.

37. The referring court would like to know whether the plaintiff in the main proceed- 'It is evident from the juxtaposition indi- ings can successfully rely on Articles 67 to cated by the use of the words "as also" 71 of Regulation No 1408/71. [now rendered in the English version of the regulation as "as well as"] that this provi- sion refers to two clearly distinct cate- gories: workers on the one hand, and members of their family and their survivors on the other. Only the nationals of one of the Member States, stateless persons and refugees who are or have been subject to 38. Article 2(1) of the regulation defines the social security scheme of one or more the persons covered by it as follows: Member States are covered in their capacity as workers. "Whereas the persons belonging to the first category can claim the right to benefits covered by the regulation as rights of their own, the persons belonging to the second category can only claim derived rights, acquired through their status as a 'This regulation shall apply to employed or member of the family or a survivor of a self-employed persons who are or have worker, that is to say of a person belonging been subject to the legislation of one or to the first category. more Member State and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.' 12 This interpretation is confirmed by the text of Article 2(2), 13 which provides that workers who are not nationals of a Mem- ber State shall nevertheless be assimilated to those nationals as regards the rights of their survivors, provided that the latter are nationals of one of the Member States, or 39. On the basis of the Court's case-law to stateless persons or refugees residing within date, it must be assumed that workers and the territory of one of the Member States. members of their families are in principle The said interpretation receives added two distinct categories of persons. In the confirmation from the fact that Article 1 judgment in Kermaschek, which concerned of the regulation also makes a clear dis-

tinction between workers on the one hand of the regulation to the family members or and members of their family on the other, survivors of workers who are themselves inasmuch as it defines, at subparagraphs Community nationals.' 17 (a), (b) and (c), the concepts of "worker", "frontier worker" and "seasonal worker", but refers back, at subparagraphs (f) and (g), to the national legislation indicated for the definition of the terms "member of the family" and survivor.' 14 41. In view of her Polish nationality, there is no doubt that the plaintiff does not fall into the first category of persons defined in Article 2(1) of the regulation. As the spouse of a citizen of the Union, she may, however, fall into the second category of persons 40. Although the first category of persons referred to in Article 2(1) of the regulation. was extended by Regulation No 307/1999 It is not clear from the order for reference amending Regulation No 1408/71, 1 5that whether and in what capacity (employed basic distinction between the first category person, self-employed person, etc.) the and members of the family as the second plaintiff's German husband falls within category of persons covered by the provi- the scope of Article 2(1) of the regulation. sion must nevertheless be maintained. This However, since the national court refers in assessment is borne out by the judgment in its reasoning to a direct restriction of the Cabanis-Issarte, 16in which the Court held: husband's freedom of movement, it must be assumed for the purposes of the line of argument that follows that he satisfies in his own right the conditions for falling within the scope of Article 2(1) of the regulation, and consequently that the plain- tiff, as a member of his family, is to be classified under the second category refer- 'Article 2(1) of Regulation No 1408/71, red to in Article 2(1) of the regulation. which defines the persons covered by the regulation, refers to two clearly distinct categories of persons: workers, on the one hand, and members of their family and their survivors on the other. In order to fall within the scope of the regulation, the former must be nationals of a Member 42. The question now is whether, by virtue State, or stateless person or refugees resid- of the fact that she might fall within the ing within the territory of one of the scope of Regulation No 1408/71 as a Member States. There is on the other hand family member within the meaning of no nationality requirement for application Article 2(1) thereof, she might be able to rely on Articles 67 to 71 of that regulation, in other words whether she could seek 14 — See judgment in Kermaschek (cited in footnote 6, para¬ graphs 7 and 8). 15 — Regulation No 307/1999 brought students within the scope of Regulation No 1408/71. 17 — See judgment i n Cabanis-lssarte (cited in footnote 7, 16 —Judgment in Cabanis-Issarte (cited in footnote 7). paragraph 21).

'It follows that Articles 67 to 70 of Reg- ulation No 1408/71 have only one main purpose, namely the coordination of the rights to unemployment benefits provided 44. In terms of the material provisions of by virtue of the national legislation of the Regulation No 1408/71, the facts under- Member States for employed persons who lying the judgment in Kermaschek were are nationals of a Member State. The similar to those of this case. members of the family of such workers are entitled only to the benefits provided by such legislation for the members of the family of unemployed workers, and it is to be understood that the nationality of those members of the family does not matter for this purpose.' 21 '... Mrs Kermaschek, a Yugoslav national, sought application to her case of the provisions of Regulation No 1408/71 relat- ing to the aggregation of periods of insur- ance or employment in order to acquire 46. If those findings are transposed to this entitlement to employment benefits. She case, this means that Article 71 of the could not rely on her status of worker in regulation confers on the plaintiff no right Germany since she was a national of a non- member country. Nor could she rely on her 19 — See judgment in Cabanis-Issarte (cited in footnote 7, paragraph 24). 18 — See judgments in Kermaschek (cited in footnote 6), 20 — See paragraph 7 of the judgment in Kermaschek (cited in Cabanis-Issarte (cited in footnote 7), and Joined Cases point 39 above). C-245/94 and C-312/94 Hoever and Zachow [1996] ECR 21 —Judgment in Kermaschek (cited in footnote 6, paragraph I-4895. 9).

50. Even though, strictly speaking, it must be assumed that the Court considerably 47. In its case-law following the judgment qualified the distinction between rights in in Kermaschek, the Court at first main- person and derived rights in the judgment tained the distinction between rights in in Cabanis-lssarte, an assumption borne person and derived rights for the purposes out, moreover, by the fact that, in its of determining the scope of application of judgment in Hoever and Zachow concern- the provisions of the regulation to the two ing family benefits, the Court held that 'the distinct categories of persons under Arti- distinction between personal rights and cle 2(1) of the regulation. 23 derived rights does not in principle apply to family benefits,' 26 in cases involving facts similar to those at issue in Ker- maschek, it has none the less expressly adhered to the conclusion reached in the judgment in that case. This follows from the judgments in both Cabanis-lssarte 27 48. In the judgment in Cabanis-lssarte, and Hoever and Zachow. 28 however, it fundamentally called that dis- tinction into question, since it 'may under- mine the fundamental Community law requirement that its rules should be applied uniformly, by making their applicability to individuals depend on whether the national law relating to the benefits in question 51. As the facts in this case are similar to treats the rights concerned as rights in those in Kermaschek, it must be assumed, person or derived rights, in the light of on the basis of the case-law to date, that the specific features of the domestic social plaintiff cannot rely in her capacity as a security scheme'. 24 family member on Articles 67 to 71 of Regulation No 1408/71 in order to claim

53. Regard should be had, first of all, to the reference by the national court to the temporal aspect 29 of the case-law estab- 57. More significant is the substantive lished by the judgment in Kermaschek. argument concerning the direct restriction There are several reasons for this. The on the freedom of movement of a spouse case-law established nearly 25 years ago who is a Community national, as put has in fact been significantly called into forward by the referring court. However, question, 30 as explained above. no indication has been given as to what extent the plaintiff's German husband, who lives in Germany, has in fact ever exercised his right to freedom of movement under the Treaty. It is therefore not at all clear whether he is to be regarded as a migrant 54. In purely abstract terms, it is fair to say worker and whether he falls within the that the dynamic nature of Community law scope ratione materiae of Regulation is certainly a potential reason for question- No 1408/71. The abstract possibility that ing a concept established by case-law 25 he might exercise that freedom one day, years ago, especially if the fundamental which potentially exists for all Community freedoms of the Community, which include nationals, is not sufficient to justify a legal freedom of movement, could be better consequence as far-reaching as de facto secured some other way, as the referring freedom of movement within the Commu- court seems to assume. nity for a spouse who is a national of a non- member country. The particular circum- stances of the dispute in the main proceed- 29 — The national court states at the end of the order for ings may therefore not be such as to prompt reference: '[s]ince, against that background, it has there- the Court to reverse its previous case-law. fore become doubtful whether the Court of Justice still adheres today to the principles of the decision of 1976 referred to under paragraph 2 above, another reference is necessary'. 30 — See judgments in Cabanis-Issarte (cited in footnote 7) and 31 — See judgments in Cabanis-Issarte (cited in footnote 7) and Hoever and Zachow (cited in footnote 18). Hoever and Zachow (cited in footnote 18).

62. Faced with a comparable issue arising under German law, the Bundesverfassungs- gericht (Federal Constitutional Court) held 60. With regard to the principle of equal that foreigners from non-Union States liv- treatment established in Article 37 of the ing near the border are entitled to State Agreement, the Commission's conclusion unemployment benefits from the Federal that that provision is directed at the State of Republic if they lost their jobs in Germany employment is to be endorsed. Conse- and had been compulsorily insured against quently, that provision likewise cannot unemployment. 32 The referring court has serve to support a right to unemployment expressly referred to this fact. benefit from the State of residence, Ger- many. However, that view is based on the State of employment and [not], therefore, 32 — See the decision of 30 December 1999 of the Bundesver- on what is really at issue in this case, fassungsgericht (Federal Constitutional Court), 1 BvR (Bundesverfassungsrichter) 809/95, R IW (Recht der Inter- namely that the plaintiff had been in nationalen Wirtschaft) 2000, p. 299.

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63. The referring court will scarcely be able 65. The answer to the question from the to adopt a comparable solution in this case, referring court should therefore be that, as since that would entail reconciliation with Community law stands at present, the the Luxembourg legal system. interpretation of Article 2(1) of Regulation (EEC) No 1408/71 on the application of social security schemes to employed per- sons, to self-employed persons and to members of their families moving within 64. As it stands at present, Community law the Community, in particular for the pur- cannot, however, bridge the gap between poses of Articles 67 to 71 thereof, given by the Luxembourg legal system and the Ger- the Court of Justice in its judgment in Case man legal system (however desirable that 40/76 Slávika Kermaschek v Bundesanstalt may seem in a case such as this). für Arbeit, remains authoritative.