62000J0189

Social security for migrant workers - Community rules - Persons covered - Members of a worker's family - Right to rely on that capacity to take advantage of Community provisions on unemployment benefit - Excluded

(Council Regulation No 1408/71, Arts 2(1) and 67 to 71a)

$$It is clear from Case 40/76 Kermaschek that, even if Case C-308/93 Cabanis-Issarte is taken into account, a member of the family of a worker cannot avail himself, in his capacity as such, of Articles 67 to 71a of Regulation No 1408/71, in particular the special provisions laid down for frontier workers in Article 71(1)(a)(ii) thereof, which designate the Member State of residence as the competent State for the purpose of paying unemployment benefit.

The Community legislature itself laid down, in Article 2(1) of Regulation No 1408/71, which defines the persons covered by the regulation, two clearly distinct categories of persons, workers on the one hand, and members of their families and their survivors on the other. It is established that that distinction determines the persons to whom many of the provisions of Regulation No 1408/71 apply, some of which, such as those in Title III, Chapter 6 (Unemployment Benefits), apply solely to workers.

Furthermore, the Court's interpretation of Article 2(1) of Regulation No 1408/71 does not, as such, have any impact on the worker's choice as to whether or not to exercise his right to freedom of movement.

Therefore, the interpretation given by the Court of Justice in Kermaschek continues to hold good in relation to Article 2(1), in conjunction with Articles 67 to 71a, of Regulation No 1408/71.

( see paras 21-24 and operative part )

In Case C-189/00,

REFERENCE to the Court under Article 234 EC by the Sozialgericht Trier (Germany) for a preliminary ruling in the proceedings pending before that court between

Urszula Ruhr

and

Bundesanstalt für Arbeit,

on the interpretation of Article 2(1) 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Council Regulation (EC) No 307/1999 of 8 February 1999 (OJ 1999 L 38, p. 1),

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, L. Sevón and M. Wathelet (Rapporteur), Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- the Austrian Government, by C. Pesendorfer, acting as Agent,

- the United Kingdom Government, by G. Amodeo, acting as Agent, and N. Paines QC,

- the Commission of the European Communities, by J. Sack, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 26 June 2001,

gives the following

Judgment

1 By order of 17 May 2000, received at the Court on 22 May 2000, the Sozialgericht (Social Court) Trier referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Article 2(1) 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Council Regulation (EC) No 307/1999 of 8 February 1999 (OJ 1999 L 38, p. 1; Regulation No 1408/71).

2 That question was raised in proceedings between Mrs Ruhr and the Bundesanstalt für Arbeit (Federal Labour Office) following the refusal of her claim for unemployment benefit.

Legislation

3 Article 2 of Regulation No 1408/71 provides:

1. This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States 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.

2. This Regulation shall apply to the survivors of employed or self-employed persons and of students who have been subject to the legislation of one or more Member States, irrespective of the nationality of such persons, where their survivors are nationals of one of the Member States, or stateless persons or refugees residing within the territory of one of the Member States.

4 As regards the award of unemployment benefits to unemployed persons who, during their last employment, were residing in a Member State other than the competent state, Article 71(1)(a)(ii) of the regulation provides:

...

(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 as though he had been subject to that legislation while last employed; these benefits shall be provided by the institution of the place of residence at its own expense.

The dispute and the question referred for a preliminary ruling

5 Mrs Ruhr, who is of Polish nationality, is married to a German national. She has lived in Germany since April 1998.

6 From 1 July 1998 to 22 December 1999, she worked as a domestic employee in Luxembourg. In January 2000 she registered as a person seeking work at the Arbeitsamt (Labour Office) Trier and applied for unemployment benefit.

7 The Luxembourg employment authorities having stated that they could not issue a certificate concerning the periods to be taken into account for the grant of unemployment benefits (Form E 301) on account of Mrs Ruhr's Polish nationality, the Bundesanstalt für Arbeit refused her application on the ground that she did not satisfy the qualifying conditions for acquisition of entitlement to benefits. More specifically, the Bundesanstalt für Arbeit stated that Mrs Ruhr had not pursued an activity subject to compulsory insurance for at least 12 months during the three-year period prior to her application. Furthermore, it stated that she could not avail herself of either the exception for seasonal workers or, on account of her status as a national of a non-Member country, any provisions of Community law.

8 Following the rejection of her claim, Mrs Ruhr contested the decision of the Bundesanstalt für Arbeit before the Sozialgericht Trier, pointing out that she was not entitled to unemployment benefit in Luxembourg - even though she had pursued an activity there which was subject to compulsory insurance and had done so for more than a year - on the ground that she was not resident there. Nor could she rely on the relevant provisions of Regulation No 1408/71 in Germany on account of her nationality and because of the judgment in Case 40/76 Kermaschek [1976] ECR 1669. As well as being unfair, the decision of the Bundesanstalt für Arbeit prejudiced the right of Mrs Ruhr's husband to move freely within the Community, in so far as, in order to preserve the claimant's rights to benefits, he could not remain resident in Germany but was forced to transfer his residence to another Member State.

9 Although it concurred with the arguments of the claimant in the main proceedings, the Sozialgericht Trier decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

Is the interpretation of Article 2(1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community given by the Court of Justice in Case 40/76 (Kermaschek) still authoritative even when it also indirectly affects the freedom of movement of a national of a Member State?

The question referred for a preliminary ruling

10 By its question, the national court is essentially asking the Court whether the interpretation given by the latter in Kermaschek continues to hold good in relation to Article 2(1) of Regulation No 1408/71, in conjunction with Articles 67 to 71a thereof, even though that interpretation could obstruct the exercise by a national of the right to freedom of movement for workers laid down by Article 39 EC.

11 It is clear from paragraph 7 of the judgment in Kermaschek that under Article 2(1) of Regulation No 1408/71 the members of a worker's family can avail themselves of the regulation only in relation to derived rights, that is to say those acquired through their status as a member of the family of a worker.

12 In Case C-308/93 Cabanis-Issarte [1996] ECR I-2097, the Court nevertheless limited the scope of that restriction to those provisions of Regulation No 1408/71 which are applicable solely to workers. Thus, the spouse of a Community worker cannot rely on his or her status as a member of the worker's family in order to claim rights under the provisions of Title III, Chapter 6, of Regulation No 1408/71 (Unemployment Benefits), the main purpose of which is merely to coordinate rights to unemployment benefits provided by virtue of the national legislation of the Member States for employed persons who are nationals of a Member State and not for members of their families (see Cabanis-Issarte, paragraph 23, and Joined Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR I-4895, paragraph 32).

Observations submitted to the Court

13 The Austrian and United Kingdom Governments and the Commission all take the view that it is appropriate to uphold the line of authority beginning with the judgment in Kermaschek, subject to those limits set by the judgment in Cabanis-Issarte.

14 They observe, as regards the alleged restriction of freedom of movement for workers arising from the application of that case-law in circumstances such as those of the case before the national court, that Mrs Ruhr's spouse, who is of German nationality, lives in Germany and has specifically not exercised his right of freedom of movement. The United Kingdom Government states that the case before the national court has no factors linking it to any of the situations governed by Community law (see, inter alia, Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, paragraphs 16 and 17). Furthermore, there is no suggestion in the order for reference that the fact that Article 71 of Regulation No 1408/71 did not apply to Mrs Ruhr had any effect on her husband's decision as to whether to remain in his post in Germany.

15 The United Kingdom Government and the Commission also examine the applicability of Articles 37 and 38 of the Europe Agreement between the European Communities and their Member States, on the one part, and the Republic of Poland, of the other part, concluded and approved on behalf of the Community by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1; the association agreement.)

16 First, the Commission argues that in view of the scheme of the chapter on freedom of movement for workers Article 37(1) of the association agreement, which safeguards equal treatment for workers of Polish nationality, legally employed in the territory of a Member State, as regards working conditions, remuneration and dismissal, applies only to the Member State of employment.

17 Second, the United Kingdom Government and the Commission argue that the first indent of Article 38(1) of the association agreement, which provides for all periods of insurance, employment or residence completed by Polish nationals in the various Member States to be added together for the purpose of pensions and annuities in respect of old age, invalidity and death and for the purpose of medical care for such workers and such family members, does not cover unemployment insurance.

18 According to the Commission, Mrs Ruhr's claim to be entitled to unemployment benefit would have more chance of success, on the basis of the principle of non-discrimination, in Luxembourg where she last pursued a professional activity and was obliged to pay unemployment insurance.

Findings of the Court

19 Article 2(1) of Regulation No 1408/71, 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 families and their survivors, on the other. In order to fall within the scope of the regulation, the former must be nationals of a Member State, or stateless persons or refugees residing within the territory of one of the Member States. There is, on the other hand, no nationality requirement for application of the regulation to the family members or survivors of workers who are themselves Community nationals (Cabanis-Issarte, paragraph 21).

20 Since Mrs Ruhr is of Polish nationality, there is no doubt that she does not belong to the first of the two categories of persons referred to in Article 2(1) of Regulation No 1408/71. As the spouse of a national of a Member State, she might fall within the second of those categories if it were established that her husband was a worker as defined by Regulation No 1408/71.

21 However, it is clear from the judgment in Kermaschek that, even if the Cabanis-Issarte judgment is taken into account, a member of the family of a worker cannot avail himself, in his capacity as such, of Articles 67 to 71a of Regulation No 1408/71, in particular the special provisions laid down for frontier workers in Article 71(1)(a)(ii), which designate the Member State of residence as the competent State for the purpose of paying unemployment benefit.

22 Neither the points made in the order for reference nor the observations lodged before the Court can undermine that conclusion. As has already been made clear in paragraph 19 of this judgment, the Community legislature itself laid down, in Article 2(1) of Regulation No 1408/71, two clearly distinct categories, workers on the one hand, and members of their families and their survivors on the other. It is established that that distinction determines the persons to whom many of the provisions of Regulation No 1408/71 apply, some of which, such as those in Title III, Chapter 6 (Unemployment Benefits), apply solely to workers.

23 As to the question whether the restrictions on the persons to whom Regulation No 1408/71 applies as regards members of a worker's family are liable to prejudice the right of the worker himself to move freely within the Community, it is obvious that that question bears no relation to the facts of the main action. It is apparent from the documents before the Court that Mrs Ruhr's husband, a German national residing in Germany, did not exercise the freedom of movement to which he is entitled under Article 39 EC. Further, even supposing that he had exercised that freedom within the Community, Mrs Ruhr's legal position, as regards the persons to whom Regulation No 1408/71 applies, would have been no different. Therefore, it must be held that the Court's interpretation of Article 2(1) of Regulation No 1408/71 does not, as such, have any impact on the worker's choice as to whether or not to exercise his right to freedom of movement.

24 Therefore, the answer to be given to the national court is that the interpretation given by the Court of Justice in Kermaschek continues to hold good in relation to Article 2(1), in conjunction with Articles 67 to 71a, of Regulation No 1408/71.

Costs

25 The costs incurred by the Austrian and United Kingdom Governments and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by the Sozialgericht Trier by order of 17 May 2000, hereby rules:

The interpretation given by the Court of Justice in Case 40/76 Kermaschek continues to hold good in relation to Article 2(1), in conjunction with Articles 67 to 71a, 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 307/1999 of 8 February 1999.