C-215/00
ECLI:EU:C:2001:584
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OPINION OF MR GEELHOED — CASE C-215/00
OPINION OF ADVOCATE GENERAL GEELHOED delivered on 25 October 2001 1
I — Introduction isfies the conditions of the legislation of a Member State for entitlement to benefits and who goes to one or more other 1, In this case, the Regeringsrätten (Su- Member States in order to seek employ- preme Administrative Court) (Sweden) has ment there shall retain his entitlement to referred two questions for a preliminary such benefits under the following con- ruling on the interpretation of Article 69(1) (a) ditions and within the following limits: of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed per- sons, to self-employed persons and to members of their families moving within the Community, as most recently amended (a) Before his departure, he must have by Regulation (EC) No 1386/2001 of the been registered as a person seeking European Parliament and of the Council of work and have remained available to 5 June 2001. 2 the employment services of the com- petent State for at least four weeks after becoming unemployed. However, the competent services or institutions may authorise his departure before I I — Legal background such time has expired.'
Community law 3. Furthermore, Article 83(1) of Council Regulation (EEC) No 574/72 of 21 March 2. Article 69(1)(a) of Council Regulation 1972 laying down the procedure for imple- (EEC) No 1408/71 provides that: menting Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed per- sons and to members of their families moving within the Community, as most '1. An employed or self-employed person recently amended by Regulation (EC) who is wholly unemployed and who sat- No 1386/2001 of the European Parliament and of the Council of 5 June 2001, 3
1 — Original language: Dutch. 2 —OJ2001 L 187, p. 1. 3 —OJ2001 L 187, p. 1.
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provides that, in order to retain the right to Security Administration, a day on which a benefits, an unemployed person is required parent can show that he loses unemploy- to submit to the institution of the place to ment benefit for reasons which entitle him which he has gone a certified statement to temporary parents' benefit should be (certificate E 303) certifying that he is treated as a day on which the parent was entitled to benefits. The unemployed per- unable to pursue gainful employment. son must, prior to departure, apply for this certificate to the competent institution of the State in which he is unemployed.
6. Under Article 20 of the Law on Unem- ployment Benefit, no daily allowance can National law be awarded for a period during which the person concerned receives parents' benefit.
4. According to the Swedish Law on Unemployment Benefit, unemployment benefits are payable to a person who is unemployed and who has previously worked for a certain period. These benefits in respect of shortfall in income are awarded in the form of a daily allowance. III— Facts of the case and the course of A precondition for benefits is that the proceedings unemployed person is fit for work, not prevented from accepting work and pre- pared to accept any appropriate work offered.
7. Ms Rydergård was registered as unem- ployed with the employment services with effect from 25 September 1998 inclusive 5. According to the Swedish Law on Social and received unemployment benefit under Insurance, a parent is entitled to receive the Swedish Law on Unemployment Bene- temporary parents' benefit if the parent is fit. She applied for certificate E 303 and obliged to suspend gainful employment by stated that she intended to travel to France reason, inter alia, of caring for a sick child. on 27 October 1998 in order to look for In practice, the question as to whether work there. The Arbetsmarknadsstyrelse persons who are unemployed can also (the National Labour Directorate) (here- receive temporary parents' benefit has inafter: 'the AMS'), which issues such never been clearly settled. According to certificates, learned that she had received recommendations by the Swedish Social temporary parents' benefit for care of a sick
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child on 28, 29 and 30 September and on and the right to receive a certified state- 12 and 13 October, that is to say, for a ment — presuppose, according to the rel- total of five days during the period when evant EC rules, that the unemployed person she was registered as unemployed. has remained available to the employment services for at least four weeks. According to the AMS, this means that the unem- ployed person must have been entitled to unemployment benefit, without inter- ruption, during the four weeks preceding 8. The AMS rejected Ms Rydergård's appli- his departure. The referring court, how- cation for certificate E 303 on the ground ever, notes that other interpretations are that she had not been entitled to unem- possible. ployment benefit for at least four weeks immediately preceding the planned day of departure.
12. As a result, the Regeringsrätten has referred two questions to the Court for a preliminary ruling. 9. Ms Rydergård challenged that negative decision of the AMS before the Länsrätt (District Administrative Court). The Läns- rätt held that an unemployed person who cares for a sick child for a certain time does not cease on that ground to be available for placement in employment and that there was no reason to refuse to issue the certified statement for which Ms Rydergård IV — The questions had applied. The Länsrätt found for the applicant and ordered the AMS to issue the certificate requested. 13. In its order of 3 May 2000, which was received at the Court Registry on 31 May 2000, the Regeringsrätten referred the following questions for a preliminary rul- ing: 10. The AMS appealed against this judg- ment to the Kammarrätt (Administrative Court of Appeal), but this appeal was dismissed. The AMS then brought a further appeal before the Regeringsrätten. '1. Can a person in the situation of Petra Rydergård be regarded as having been available to the employment services, within the meaning of Article 69(1) of 11. The Regeringsrätten states in its order Council Regulation (EEC) No 1408/71, for reference that the right to benefits — for the days in a period of unemploy-
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ment on which she was prevented from ceedings. According to the AMS, the con- pursuing gainful employment because ditions laid down in Article 69(1) of Regu- she was caring for a sick child, and lation No 1408/71 should be interpreted as does the assessment depend on the meaning that a jobseeker who wants to content of national legislation? retain benefits for three months while seeking work abroad must have remained available to the Swedish labour market for a continuous period of at least four weeks immediately prior to the intended date of departure. The person concerned must, 2. Does Article 69(1) [of Regulation therefore, have received a decision from No 1408/71] require that a person his unemployment benefit fund that he was seeking work must have been available entitled to unemployment benefit for the to the employment services for an four continuous weeks. uninterrupted period of four weeks immediately preceding his departure to another Member State?'
16. The AMS maintains that there must V — Appraisal have been no interruption of the right to receive benefit. It is of the opinion that the conditions in Regulation No 1408/71 have been laid down in order to enable the competent authorities to check that the person concerned is really available to the labour market and is seeking work, and in Observations of the parties order to ensure that the advantage of receiving the E 303 certificate is available only to those who are wholly unemployed, are seeking work and are entitled to benefit. The tests of national legislation must be applied in order to establish 14. The AMS, the Austrian Government whether a jobseeker who wishes to retain and the Commission have made represen- the right to benefits for three months was tations in the proceedings. available to the employment services for at least four weeks before the date of depar- ture and fulfilled the conditions for entitle- ment to unemployment benefits for the same period. For a person to establish that he is wholly unemployed in Sweden he 15. The AMS's observations correspond to must, besides being registered with the the case which it presented when appealing employment services, declare on his benefit during the course of the substantive pro- payment card that he has been wholly
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without work over the same period. The 19. By contrast, the Commission considers question whether a person is unemployed that the conditions laid down in may be resolved only in accordance with Article 69(1)(a) of Regulation No 1408/71 the legislation of the country awarding him must be interpreted uniformly and should unemployment benefits. not depend on the content of national law. The Commission takes the view that caring for a sick child for two periods, of three and two days respectively, does not affect an unemployed person's availability on the labour market.
17. The AMS also argues that a person who receives temporary parents' benefit for the care of a sick child is not available to the employment services, within the mean- ing of Article 69(1). According to the Swedish Law on Social Insurance The first question (Chapter 4, Article 10, of the Lag om Allmän Försäkring (1962:381)), a parent has a right to temporary parents' benefit for the care of a sick child if the parent is obliged to suspend gainful employment by 20. In its first question, the referring court reason, inter alia, of the sickness of the is asking whether Ms Rydergård was avail- child or the risk of contagion. During the able to the employment services throughout period for which Ms Rydergård received the period of unemployment prior to her parents' benefit, she was, according to the intended date of departure, during which AMS, prevented from accepting work she cared for a sick child for a total of five immediately and could not, therefore, be days. regarded as being available to the employ- ment services, nor did she have a right to unemployment benefit. This is why, in the opinion of the AMS, the period laid down in Article 69(1) must be regarded as having been interrupted. The period of at least 21. According to settled case-law of the four weeks can, according to the AMS, be Court, any interpretation of a provision of calculated only from the first day of Community law must take into account not unemployment after the period covered by only its wording but also its context and temporary parents' benefit, that is, from the objectives of the legislation of which it 14 October 1998 inclusive. forms a part.
22. Therefore, before answering this ques- tion, it will be useful to reiterate the 18. The Austrian Government takes the objectives of Regulation No 1408/71 and, same view as the AMS. in particular, of Article 69.
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23. Regulation No 1408/71 seeks to give legislation of a Member State for entitle- effect to Article 51 of the EC Treaty (now, ment to benefits'. The Community legis- after amendment, Article 42 EC) and to lature then makes the possibility of expor- facilitate freedom of movement for ting entitlement to benefits subject to the workers. The possibility for an unemployed two conditions mentioned in point 23. person to seek work elsewhere in the Community forms part of that objective. This possibility is provided for by Article 69 of Regulation No 1408/71. First, this provision governs the continued right to benefits and, second, it frees the jobseeker, for a certain period, from his obligation to be available to the employ- 26. It is clear from the wording of ment services in his country. In so doing, Article 69(1) of Regulation No 1408/71 the provision allows him to seek work that the question of the existence of entitle- more easily elsewhere in the Community. ment to benefits is within the purview of This possibility of seeking work in another national law. Therefore, it is effectively for Member State is, however, subject to two the national legislature to determine the conditions. Thus, the Community legis- conditions under which a person can lature requires that, before his departure, receive unemployment or other benefits the unemployed person must (1) have been within national territory. registered as seeking work for at least four weeks after becoming unemployed and (2) have remained available to the competent employment services during that period.
27. On the other hand, the conditions which must be fulfilled in order to be able to exercise the right in Article 69(1) are a matter for the Community legislature. This 24. The referring court wishes to know provision is intended to make it possible for whether these conditions must be inter- a worker who has become unemployed to preted in the light of the national legislation seek work in another Member State. applicable to the worker concerned or National law cannot present any obstacle whether they must, as part of a provision to the achievement of this objective. of Community law, be given a uniform interpretation and application independent of national legislation.
The rights which jobseekers may derive from Article 69(1) of Regulation 25. Article 69(1) of Regulation No 1408/71 No 1408/71 cannot vary depending on provides that the unemployed person con- the Member States in which they become cerned must satisfy 'the conditions of the unemployed.
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28. In this regard, it should be borne in has no bearing on the question whether mind that, as the Court stated in its judg- that person has satisfied the two conditions ment in Testa, 4Article 69 is not simply a which make it possible to seek work in measure to coordinate national laws, but another Member State. also establishes an independent body of rules in favour of workers claiming the benefit thereof which constitute an excep- tion to national legal rules and must be interpreted uniformly in all the Member States. 31. It is also established that Ms Rydergård was registered as a j obseeker and remained available to the employment services for at least four weeks. The fact that she cared for her sick child for five days during this period and that therefore, under Swedish law, she was entitled to receive only temporary parents' benefits instead of 29. I am therefore of the opinion that the unemployment benefits cannot be used in question whether Ms Rydergård satisfies argument to conclude that she was not the conditions laid down in Article 69(1) (a) available to the employment services. An of Regulation No 1408/71 must be settled interpretation to the contrary would pre- regardless of Swedish legislation. Any other vent unemployed people who are actively interpretation would deflect the provision seeking work, but whose family or personal from its objective, since it would make the circumstances in fact prevent them, for a possibility of seeking work elsewhere in the short period, from working, from being Community dependent on rules of national able to exercise the rights afforded them by law, which may vary considerably in their Article 69(1) of Regulation No 1408/71. In content and scope. my opinion, such a consequence is incom- patible with the purpose of that provision.
30. It is common ground that Ms Ryder- gård was wholly unemployed and satisfied The second question the conditions for receipt of unemployment benefits. The nature and amount of benefits are, under Article 69(1) of Regulation No 1408/71, governed entirely by the applicable national laws. As the Commis- 32. In its second question, the referring sion has rightly noted, the nature of the court asks whether the condition of remain- benefit received by an unemployed person ing available to the employment services must be satisfied for an uninterrupted period of four weeks immediately prior to 4 — Joined Cases 41/79, 121/79 and 796/79 Testa, Maggio and Vitale v Bundesanstalt für Arbeit [1980] ECR 1979. departure.
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33. It is already self-evident from the ority cannot decide that the period of four answer to the first question that the rights weeks laid down in Article 69(1)(a) has conferred on jobseekers by Article 69(1) of been interrupted by virtue of the fact that a Regulation No 1408/71 can in no case be registered jobseeker is required to care for a restricted by the interpretation placed on sick child for a short time and, because of them, in light of national legislation, by the this, is in fact prevented from working. In competent national authorities. so far as such an interruption would effec- tively prolong the period of four weeks laid down as a condition by the Community legislature, the rights conferred on job- seekers by Article 69(1) of Regulation 34. Under Article 69(1)(a) of Regulation No 1408/71 would be restricted. I would No 1408/71, the unemployed person regis- further point out in this regard that the tered as a person seeking work must have period of four weeks laid down by the remained available to the employment ser- Community legislature, and which guaran- vices for at least four weeks after becoming tees legal certainty to the individual, could unemployed. It is not apparent from the be seriously undermined if restrictions wording of that article that the period in resulting from national law could be question must be an uninterrupted period attached to that period. The legal uniform- of four weeks immediately prior to depar- ity and legal certainty sought by the ture. Therefore, as the Commission has also Community legislature would thereby be pointed out, a national legislature or auth- adversely affected.
VI — Conclusion
35. Having regard to the above, I propose that the Court reply as follows to the questions referred by the Regeringsrätten for a preliminary ruling:
(1) Article 69(1)(a) of Council Regulation (EEC) No 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
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Community must, as a provision of Community law capable of conferring rights on persons seeking work, be interpreted and applied uniformly, regardless of the national legislation applicable to the persons concerned. It follows from the wording and scope of Article 69(1)(a) of Regulation No 1408/71 that a person seeking work must be regarded as having remained available to the employment services in the case where he was prevented from working by the need to care for a sick child for a limited time during the period of four weeks after becoming unemployed.
(2) That provision must therefore be interpreted as meaning that the period of at least four weeks which it lays down is not interrupted by virtue of the fact that the person seeking work was not in a position to work for a short time over that period during which he had to care for a sick child.
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