C-92/02
ECLI:EU:C:2002:141
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OPINION OF MR ALBER — CASE C-92/02
OPINION OF ADVOCATE GENERAL ALBER delivered on 6 March 2003 1
I — Introduction I I— Rules applicable
A — Community law
2. Article 39(1) and (2) of the Treaty reads as follows:
' 1 . Freedom of movement for workers shall be secured within the Community.
1. This reference for a preliminary ruling from the Arbeidsrechtbank van het Arron- dissement Tongeren (Tongeren District Labour Court) concerns the relationship 2. Such freedom of movement shall entail between the provisions laid down in the the abolition of any discrimination based Belgian national system of unemployment on nationality between workers of the insurance and the rules concerning unem- Member States as regards employment, ployment benefits for officials of the insti- remuneration and other conditions of work tutions of the European Communities. The and employment.' national court would like to know whether any unemployment benefits which the institutions may award can be taken into consideration within the framework of the national rules against overlapping of bene- fits. In addition, the national court would 3 . Article 7 of R e g u l a t i o n (EEC) like to know how the social-security status No 1612/68 on freedom of movement for of post-doctoral assistants fits into that workers within the Community 2reads as • structure. follows:
2 — Regulation (EEC) No 1612/68 of the Council of 15 October 1 — Original language: German. 1968 (OJ, English Special Edition 1968 (II), p. 475).
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' 1 . A worker who is a national of a 4. Article 28a(1) and (2) of the Conditions Member State may not, in the territory of of Employment of Other Servants of the another Member State, be treated differ- European Communities 3reads as follows: ently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal,, and should he become unemployed, reinstate- ment or re-employment; ' 1 . A former member of the temporary staff who is unemployed when his service with an institution of the European Commu- nities has been terminated:
2. He shall enjoy the same social and tax advantages as national workers.
— who has completed a minimum of six months' service,
— and who is resident in a Member State of the Communities,
4. Any clause of a collective or individual agreement or of any other collective regu- shall be eligible for a monthly unemploy- lation concerning eligibility for employ- ment allowance under the conditions laid ment, employment, remuneration and down below. other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in 3 — See Regulation (EEC, Euratom, ECSC) No 259/68, as respect of workers who are nationals of amended by Regulation No 2799/85 of 27 September 1985 (OJ 1985 L 265, p. 1); heteinafter also 'the Conditions of the other Member States.' Employment'.
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Where he is entitled to unemployment 5. Article 67 of Regulation (EEC) benefits under a national scheme, he shall No 1408/71 on the application of social be obliged to declare this to the institution security schemes to employed persons, to to which he belonged, which shall immedi- self-employed persons, and to members of ately inform the Commission thereof. In their families moving within the Commu- such cases, the amount of those benefits nity 4 reads as follows: will be deducted from the allowance paid under paragraph 3.
2. To be eligible for this unemployment ' 1 . The competent institution of a Member allowance, a former member of the tem- State whose legislation makes the acquisi- porary staff shall: tion, retention or recovery of the right to benefits subject to the completion of periods of insurance shall take into account, to the extent necessary, periods of insurance or employment completed as an employed person under the legislation of (a) be registered, at his own request, as any other Member State, as though they seeking employment with the employ- were periods completed under the legis- ment authorities of the Member State lation which it administers, provided, how- in which he establishes his residence; ever, that the periods of employment would have been counted as periods of insurance had they been completed under that legis- lation.
(b) fulfil the obligations laid down by the law of that Member State for persons in receipt of unemployment benefits under that law;
2. The competent' institution of a Member State whose legislation makes the acquisi- tion, retention or recovery of the right to benefits subject to the completion of periods of employment shall take into (c) forward every month to the institution account, to the extent necessary, periods to which he belonged, which shall of insurance or employment completed as immediately forward it to the Commis- an employed person under the legislation of sion, a certificate issued by the com- any other Member State, as though they petent national employment authority stating whether or not he has fulfilled the obligations and conditions referred 4 — As amended by Regulation (EC) No 118/97 (OJ 1997 L 28, to in (a) and (b).' p. 1).
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were periods of employment completed B — National rules under the legislation which it administers.
6. Article 30 of the Royal Decree of 25 November 1991 5provides in essence as follows: 3. Except in the cases referred to in Article 71(1)(a)(ii) and (b)(ii), application of the provisions of paragraphs 1 and 2 shall be subject to the condition that the person concerned should have completed lastly: 'In order to be eligible for unemployment benefit, a full-time worker must have com- pleted a waiting period comprising the following number of working days:
— in the case of paragraph 1, periods of insurance,
— in the case of paragraph 2, periods of employment, 2. 468 during the 27 months preceding the claim, if the worker is more than 36 and less than 50 years of age.
in accordance with the provisions of the legislation under which the benefits are claimed. The reference period referred to in the first paragraph is extended by the number of days included in the period [of]:
4. Where the length of the period during which benefits may be granted depends on the length of periods of insurance or employment, the provisions of paragraph 1 or 2 shall apply, as appropriate.' 5 — Belgische Staatsblad of 31 December 1991.
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3. at least six months in which the person Article 46 provides in essence as follows: concerned carries on an occupation in the course of which the person con- cerned does not come under the social security system in respect of unemploy- ment; the extension may not be for 'The following in particular are regarded as more than nine years.' remuneration within the meaning of Article 44:
Article 37(1) of the Royal Decree provides in essence as follows:
5. payment to which the employee is entitled on termination of his employ- 'In the application of this section, periods ment, with the exception of compen- of employment are to be taken into account sation for non-material damage and in an occupation or undertaking subject to payment which is awarded in addition social security in respect of unemployment, to unemployment benefit; and for which simultaneously:
1. payment of at least the minimum wage has been made
For the purposes of the first subparagraph of Article 46(1 )(5), payment awarded in addition to unemployment benefit is deemed to be the remuneration or part of the remuneration which a person who is involuntarily unemployed receives as a consequence of the termination of an employment relationship, if the following conditions are fulfilled:
2. deductions for social security, includ- ing those in respect of unemployment, have been made.'
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— the payment or part of the payment 8. From 1 November 1994 to 31 October must not have been paid in substitution 1996 she worked for the Institute for for the benefits normally awarded Reference Materials and Measurements under arrangements relating to the (hereinafter 'the IRMM') in Geel, Belgium, termination of employment, in so far under an 'Individual Fellowship Contract' as such benefits have in fact been paid.' with the Commission. That post-doctoral scholarship was not subject to social secur- ity. Under the contract, the applicant was required to take part in a research training project, which was described in an annex to the contract. In accordance with that annex, the primary objective of such a Article 14 of the Ministerial Decree of contract was to enhance the professional 26 November 1991 6 provides in essence as qualifications of young workers through follows: the acquisition of further knowledge and greater skill in their scientific field and at the same time to increase the scientific potential of the Community.
'When calculating the necessary days of work, services are not to be taken into account which have been performed in an occupation or in an undertaking not subject 9. The contract provided for a monthly to social security in respect of unemploy- remuneration of ECU 3 500. In accordance ment, even if deductions were made.' with the general requirements applicable to such contracts, the remuneration was intended to finance scholars' subsistence, travel costs, publication of their studies and participation in conferences. Social security contributions and taxes were also to be covered by that amount, that is to say they had to be paid by the scholars themselves. III— Facts and procedure
7. The applicant in the main proceedings 10. After that two-year contract expired, (hereinafter 'the applicant') is a Norwegian the applicant was unemployed for one national. She was born in 1961, finished month. her studies in 1988 and took up employ- ment in Norway which was subject to social security, working there from 1 July 1988 to 31 October 1994.
1 1 . From 1 December 1996 to 6 — Belgische Staatsblad of 25 January 1992. 30 November 1999 the applicant worked
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as a temporary official with the Commis- 14. Before it rules on the dispute, the sion, where she was subject to the Com- national court considers the answer to the munity social security scheme. After the following two questions to be material to temporary contract with the Commission the decision: expired, she applied to the Belgian Rijks- dienst voor Arbeidsvoorziening (National Employment Office, hereinafter 'the RVA') for unemployment benefit. The application was rejected on the ground that the appli- cant did not meet the requirements laid (1) In respect of members of the temporary down by Belgian legislation with regard to staff of the EC who, after the end of unemployment benefit, that is to say, in her their period of service with the EC, case 468 working days in the 27 months reside in Belgium, and in respect of preceding her application. whom no contributions were deducted in favour of the social security system, and who are entitled to unemployment benefits paid by the EC, do the provi- sions of Regulation (EEC) No 1408/71 preclude national legislation from being fully applied to them, including the national rule against the overlap- 12. Under Article 30(3) of the Royal ping of benefits under which, in Decree of 25 November 1991, the reference accordance with the conditions govern- period may be extended. The Belgian ing the award of unemployment bene- institution recognised the period of employ- fit, the employee must be out of work ment as a temporary official with the and not in receipt of remuneration, the Commission as being capable of extending latter term being defined to include in the reference period. However, it did not particular: payment in lieu of notice or give similar consideration to the period any compensation payable to the spent as a scholar at the IRMM. The employee in respect of termination of Belgian institution regarded that as a period his contract of employment, with the of training. Accordingly, it was not possible exception of compensation for non- to add that period to the period of time material damage? spent in employment in Norway which was subject to social security.
(2) Does it run counter to Regulation (EEC) No 1612/68 of the Council (Article 7(4) of Title II), which provides that uniformity in social security matters must be pursued and that there 13. The applicant instituted legal proceed- may be no discrimination, that (in the ings against that decision. She asked the applicant's view) there is inequality in Commission for assistance under Article 24 the social security status of postgradu- of the Staff Regulations. This was given to ate students within the EEA, in that in her for the purposes of the proceedings various Member States of the EEA a before the national court. postgraduate student is deemed to I - 14606
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carry on an occupational activity, assistant is regarded, wrongly according to albeit not subject to social security, the applicant, as a trainee fellowship stu- and in Belgium a postgraduate student dent. A post-doctoral fellow must arrange (in the applicant's view unjustly) is for his own insurance under the Belgian deemed to be a trainee fellowship national security system, although that is student, who must arrange for his not possible on a voluntary basis. The own social security cover under the applicant claims that this runs counter to Belgian national system although that Regulation No 1612/68, in particular is not possible on a voluntary basis (at Article 7(4) therein, under which uniform- any rate in regard to unemployment ity in social-security matters must be pur- insurance)? sued and there may be no discrimination.
15. The Commission alone took part in the proceedings before the Court of Justice. 17. The Commission considers that the applicant may assert in Belgium the Com- munity rules on freedom of movement for workers by means of the provisions of the EEA Agreement. The Commission's view on the specific questions submitted by the national court is that the Conditions of Employment of Other Servants of the European Communities which apply to IV — Arguments of the parties workers appointed by the Community do not come under the definition of 'legis- lation' within the meaning of Article 1(j) of Regulation No 1408/71 and consequently that regulation is not applicable to the 16. The arguments of the parties in the present case. main proceedings can be inferred only from the order for reference. The applicant's submission therein is summarised as fol- lows. The specific position of a post-doc- toral assistant with the EU must be regarded as an occupation which is not subject to social security and which falls under Article 30(3)(3) of the Royal Decree 18. Nevertheless, the Commission con- of 25 November 1991. There is inequality siders it necessary to provide further infor- with regard to the social security status of mation so that the first question referred post-doctoral assistants within the EEA. In may be answered. It states that the Con- various Member States of the EEA a post- ditions of Employment were adopted by doctoral assistant is 'deemed to carry on an means of a Council regulation. By virtue of occupational activity, albeit not subject to the second paragraph of Article 249 EC, a social security'. In Belgium, a post-doctoral regulation is binding in its entirety and
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directly applicable in [all] Member States. ployment benefits under the Belgian It follows that, in addition to having effects scheme. Finally, the Commission points within the Community administration, the out that it is for the Member States to rules are also binding on Member States in determine the conditions for affiliation to a so far as their cooperation is necessary in social security scheme and that the Belgian order to give effect to those measures. 7 rules do not discriminate against the appli- cant.
19. According to the Commission, the second paragraph of Article 28a(1) of the Conditions of Employment establishes the V — Assessment supplementary effect of the Community scheme for unemployment benefits. This cannot be disregarded by Member States. 8 The nature of the Community scheme likewise obliges the applicant to claim unemployment benefits from the Belgian institution. A — The first question
21. Although the national court has not stated so expressly, it appears that the first 20. With regard to the answer to the question is seeking to establish to what second question, the Commission points extent unemployment benefits awarded out first of all that the national court is under the Community social security wrong to assume that Article 7(4) of scheme may be taken into consideration Regulation No 1612/68 seeks to secure within the framework of the national rules uniformity in social-security matters. How- against overlapping. The issue is which ever, it does not share the assessment of the legal provisions are applicable and how Belgian institution that the applicant must they relate to one another. be deemed to be a 'trainee fellowship student' and therefore not an employee. Relying on the case-law of the Court, the Commission takes the view that the appli- cant may be deemed to be an employee within the meaning of Regulation 22. It should first of all be pointed out that No 1612/68. However, that assessment the Community provisions relating to the still does not make her eligible for unem- EEA Agreement are applicable to a Nor- wegian national. 9
7 —Case 186/85 Commission v Belgium [1987) ECR 2029, paragraph 21. 9 — Agreement on the European Economic Area (OJ 1994 L 1, 8 — Commission v Belgium (cited in footnote 7), paragraph 23. p. 3 et seq.).
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23. In the view of the national court, the ance with the institutions of the European answer to the first question can be deduced Communities, if the rules laid down in from Regulation No 1408/71 because of Article 67(3) of Regulation No 1408/71 are the way in which that question is worded. applied, the Community scheme could be In Chapter VI entitled 'Unemployment', deemed to take precedence. By extension, if that regulation determines which institu- the opposite were the case and periods of tion must pay benefits if the employee has employment and/or insurance had been completed periods of employment subject most recently completed under the Belgian to social security under the legal system of scheme, it could likewise mean that periods more than one Member State. The regu- completed under the Community scheme lation also governs how the competent would have to be taken into account, institution must take into account periods within the meaning of Article 67(1) and of employment and/or insurance completed (2), for the purposes of entitlement to under the legal system of another Member benefits. State.
26. However, the above considerations are 24. For the situation which is considered to of interest only if Regulation No 1408/71 is be the norm, where an employed person applicable to the present case in the first also resides in the Member State in which place. The Commission has stated categori- he is employed, 10 Article 67(2) of Regu- cally that it is not. I cannot be as categorical lation No 1408/71 governs the competence myself. In any event, since the adoption of of an institution of a Member State under Regulation (EC) No 1606/98 amending whose legislation periods of insurance Regulation No 1408/71 with a view to and/or employment were most recently extending it to cover special schemes for completed. civil servants, 11 I do not consider EC officials to be precluded in principle from the scope of Regulation No 1408/71.
25. There appears to be no doubt as to the competence of the Belgian institution in the present case and consequently there is really no need to invoke Regulation 27. The expression 'special scheme for civil No 1408/71 in that regard. Nevertheless, servants' is defined in Article 1(ja) as there is uncertainty as to how any benefits follows: awarded by the Belgian institution relate to those awarded by the Community. In so far as the applicant has more recently com- 11 — Council Regulation (EC) No 1606/98 of 29 June 1998 pleted periods of employment and insur- amending Regulation (EEC) No 1408/71 on the appli- cation of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing 10 — See Article 71 of Regulation No 1408/71 for cases where Regulation (EEC) No 1408/71 with a view to extending the state of residence and the state of employment are not them to cover special schemes for civil servants (OJ 1998 the same. L 209, p. 1).
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'any social security scheme which is dif- 'legislation' means 'in respect of each ferent from the general social security Member State statutes, regulations and scheme applicable to employed persons in other provisions and all other implement- the Member States concerned and to which ing measures, present or future, relating to all, or certain categories of, civil servants or the branches and schemes of social security persons treated as such are directly subject'. covered by Article 4(1) and (2) or those special non-contributory benefits covered by Article 4(2)(a)'
28. There is no doubt that, purely from the point of view of the above definition, the Staff Regulations of Officials of the Euro- 31. On the one hand, neither the Staff pean Communities are a special scheme for Regulations nor the Conditions of Employ- civil servants. In the Conditions of Employ- ment are the legislation of a 'Member ment of Other Servants of the European State'. On the other, rules adopted by Communities, certain groups of persons are means of a regulation must be deemed to treated as a 'categor[y] of [] civil servants'. be the measures 'of each Member State'.
29. With regard to 'Unemployment', which is the area covered by Chapter 6 of 32. So far, the Court does not yet appear to Regulation No 1408/71, Regulation have given judgment on the relationship No 1606/98 amending that regulation between the Conditions of Employment of expressly provides in Article 71a(1): Other Servants of the European Commu- nities and Regulation No 1408/71 particu- larly since the adoption of Regulation No 1606/98. Since the first question sub- mitted by the national court on the rela- tionship between any benefits awarded 'The provisions of Sections 1 and 2 shall under both social security schemes apply by analogy to persons covered by a (national and Community) can be special unemployment scheme for civil answered without a definitive finding as servants.' to the applicability of Regulation No 1408/71, the above issue must remain open.
30. However, they may not in practice be capable of application to a specific case because Article 67 expressly refers to the 33. In principle, it is for Member States to legislation of a Member State and, in organise their social security systems and to Article 1(j) of Regulation No 1408/71, determine the conditions for entitlement I - 14610
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to benefits. 12 However, the national auth- 35. Article 28a of the Conditions of orities must comply with Community law Employment contains a special rule against when applying national law to circum- overlapping for circumstances involving stances falling within a Community con- both national and Community unemploy- text. 13 ment benefits. National schemes must take into consideration the subsidiarity of Com- munity benefits. Thus, given that unem- ployment benefits may be awarded under Article 28a(3) of the Conditions of Employ- ment, national rules against the overlap- ping of benefits may not be applied first. Only where it is clear that there is no 34. As already mentioned above, the Con- entitlement to unemployment benefits ditions of Employment of Other Servants of under the national scheme is the unem- the European Communities were adopted ployment allowance under Article 28a(3) of by means of a regulation. By virtue of the the Conditions of Employment awarded in second sentence of Article 249 EC, regu- full. lations have general application. They are binding in their entirety and directly appli- cable in all Member States. The Commis- sion has correctly pointed out that the Court has already recognised the binding nature of the Staff Regulations and the 36. In its judgment in Case 186/85, 15 the Conditions of Employment in its judgment Court considered a similar mechanism in of 5 July 1987 in Case 186/85. 1 4 the field of family benefits to be the correct Article 28a(2) of the Conditions of Employ- procedure to follow. ment clearly establishes the duty on the part of a former member of the temporary staff to register as seeking employment with the employment authorities of the Member State in which he resides. Article 28a(1) provides that the Commu- 37. Thus, the answer to the first question nity unemployment allowance does not take precedence. Entitlement to unemploy- should be as follows: ment benefits under a national scheme must be declared to the relevant institution, which forwards the information to the Commission. That provision also provides: '[i]n such cases, the amount of those benefits will be deducted from the allow- National legislation is applicable to ance paid under paragraph 3.' members of the temporary staff of the EC who reside in Belgium after the end of their period of service with the EC, it being understood that, where national rules 12 — See Case 238/82 Duphar and Others (1984) ECR 523, paragraph 16; Case C-70/97 Sodemare and Others [1997] against the overlapping of benefits are ECR I-3395, paragraph 27; Case C-158/96 Kohll [1998] concerned, regard must be had to the fact ECR I-1931, paragraph 17, and Case C-157/99 Ceraets- Smits and Peerbooms [2001] ECR 1-5473, paragraph 44. 13 — Kohll (cited in footnote 12), paragraph 19, and Geraets- Smits and Peerbooms (cited in footnote 12), paragraph 46. 14 — See paragraph 23 of that judgment (cited in footnote 7). 15 — Cited in footnote 7.
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that Article 28a(1) of the Conditions of Regulation No 1612/68. In its original Employment contains a special rule against form it requires Member States to treat the overlapping of benefits which estab- nationals of other Member States and their lishes that the Community unemployment own nationals as equals. Article 7 of allowance is subsidiary to unemployment Regulation No 1612/68 is also to be seen benefits awarded by a Member State. in that light.
B — The second question
39. In my view, that does not lead to the conclusion that there is a requirement to treat post-doctoral assistants uniformly 38. In order to answer the second question, with regard to their social-security status it must be pointed out first of all that it is in within the EEA. Such a requirement would any event based in part on a false premiss. call for the adoption of a harmonisation The national court's assumption that measure. According to information given Article 7(4) of Regulation No 1612/68 by the applicant herself in the course of the provides that 'uniformity in social security main proceedings, the attempt to adopt matters must be pursued' is not correct. As such a measure has been unsuccessful. the Court has consistently held, it is for Member States to organise their social security systems 16 and to determine the conditions for affiliation to each system and for entitlement to benefits. 17 However, Member States must comply with Commu- nity law when exercising those powers. 18 In that regard, they must comply with the equal treatment requirement also men- tioned in the second question, for example. Where freedom of movement for workers is 40. The question raised by the Commission concerned, that fundamental Community as to whether a post-doctoral assistant has principle is already enshrined in Article 39 the status of worker within the meaning of EC and finds expression in Article 7 of Community law is indeed an interesting one. The status of worker, which is key inter alia to Articles 39 EC and 42 EC, as well as Regulation No 1612/68, is the 16 — See Duphar and Others (cited in footnote 12), paragraph 16; Sodemare and Others (cited in footnote 12), paragraph starting point for free movement of persons 27; Kohll (cited in footnote 12), paragraph 17, and as enshrined in Article 39 EC and any Geraets-Smits and Peerbooms (cited in footnote 12), paragraph 44. rights connected with such freedom. The 17 — See Kohll (cited in footnote 12), paragraph 18, and Court has given a relatively broad defini- Geraets-Smits and Peerbooms (cited in footnote 12), paragraph 45. tion in that regard and I do not doubt that a 18—See Kohll (cited in footnote 12), paragraph 19, and post-doctoral assistant in a position such as Geraets-Smits and Peerbooms (cited in footnote 12), paragraph 46. that of the applicant under a fellowship I - 14612
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contract with the Commission must be Ultimately, however, this is a matter for the deemed to be a worker within the meaning national court. It must examine whether of Article 39 EC. For example, the Court there may be any discrimination in relation has recognised the status of worker in to nationals; if so, this would constitute an Lawrie-Blum, 19 Lair, 20 Brown, 21 and Le infringement of Community law. Manoir, 22 which all involved the carrying out of an occupation which was connected with training in one way or another.
43. On the other hand, the position of post-doctoral assistant under the Fellow- ship Contract with the Commission was characterised precisely by the fact that 41. However, the finding that the applicant there was no affiliation to any social must be deemed to be a worker for the security scheme, including the Community period that she was a trainee fellowship scheme. student still has no direct effect on her situation as regards entitlement to social security benefits. Any entitlements could in the first place only arise from the prohib- ition on discrimination contained in Article 39(2) EC and its expression in 44. Even though voluntary affiliation to the Article 7 of Regulation No 1612/68. Regu- Belgian scheme was not possible under the lation No 1408/71, however, relies on prevailing conditions, that is still one of the another definition of worker, which, pur- conditions 23 already referred to for access suant to Article 1(a) of that regulation, is to a social security scheme which it is for essentially defined as any person who is the legislation of the Member States to affiliated to a social security benefits determine. scheme.
45. Thus, the answer to the second ques- 42. In my view, the order for reference in tion referred by the national court should conjunction with the Commission's obser- be as follows: vations show that there is no discrimination on the part of the Belgian institution for the very reason that it classifies the applicant, in her capacity as a post-doctoral assistant, as a trainee fellowship student. Belgian It is for Member States to determine the nationals in the same situation would also conditions for access to national social be regarded as trainee fellowship students. security systems. However, in so doing they must comply with Community law
19 — Case 66/85 [1986] ECR 2121. 20 — Case 39/86 [1988] ECR 3161. 23 — See Kohll (cited in footnote 12), paragraph 17 et seq. and 21 — Case 197/86 [1988] ECR 3205. Geraets-Smits and Peerbooms (cited in footnote 12), 22 — Case C-27/91 [1991] ECR I-5531. paragraph 17 et seq.
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and, in particular, with the prohibition of unemployment insurance, such insurance discrimination. If a national in the position must also be available to a national of a of post-doctoral assistant is given access to Member State of the EEA.
V — Conclusion
46. In conclusion, on the basis of the aforementioned considerations I suggest that the questions referred be answered as follows:
(1) National legislation is applicable to members of the temporary staff of the EC who reside in Belgium after the end of their period of service with the EC, it being understood that, where national rules against the overlapping of benefits are concerned, regard must be had to the fact that Article 28a(1) of the Conditions of Employment contains a special rule against the overlapping of benefits which establishes that the Community unemployment allowance is subsidiary to unemployment benefits awarded by a Member State.
(2) It is for Member States to determine the conditions for access to national social security systems. However, in so doing they must comply with Community law and, in particular, with the prohibition of discrimination. If a national in the position of post-doctoral assistant is given access to unemployment insurance, such insurance must also be available to a national of a Member State of the EEA.
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