61978J0139

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS - RETENTION OF ENTITLEMENT TO BENEFITS DURING STAY IN ANOTHER MEMBER STATE - PERIOD OF THREE MONTHS - EXTENSION - REQUEST MADE AFTER EXPIRATION OF PERIOD - EXTENSION PERMISSIBLE

( REGULATION NO 1408/71 TO THE COUNCIL , ART . 69 ( 2 ))

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS - RETENTION OF ENTITLEMENT TO BENEFITS DURING STAY IN ANOTHER MEMBER STATE - PERIOD OF THREE MONTHS - EXTENSION - DISCRETION OF NATIONAL AUTHORITIES

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 69 ( 2 ))

1 . AN EXTENSION OF THE PERIOD REFERRED TO IN ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 IS PERMISSIBLE EVEN WHEN THE REQUEST IS MADE AFTER THE EXPIRATION OF THAT PERIOD .

2 . ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 DOES NOT RESTRICT THE FREEDOM OF THE COMPETENT SERVICES AND INSTITUTIONS OF THE MEMBER STATES TO TAKE INTO CONSIDERATION , WITH A VIEW TO DECIDING UPON ANY EXTENSION OF THE PERIOD LAID DOWN BY THAT REGULATION , ALL FACTORS WHICH THEY REGARD AS RELEVANT AND WHICH ARE INHERENT BOTH IN THE INDIVIDUAL SITUATION OF THE WORKERS CONCERNED AND IN THE EXERCISE OF EFFECTIVE CONTROL .

IN CASE 139/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SOZIALGERICHT ( SOCIAL COURT ) HILDESHEIM FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

GIOVANNI COCCIOLI

AND

BUNDESANSTALT FUR ARBEIT ( FEDERAL EMPLOYMENT BUREAU )

ON THE INTERPRETATION OF ARTICLE 69 ( 2 ) OF REGULATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1BY ORDER OF 8 JUNE 1978 , LODGED AT THE COURT REGISTRY ON 14 JUNE , THE SOZIALGERICHT HILDESHEIM REFERRED TO THE COURT , IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY , TWO QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 69 ( 2 ) OF REGULATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2THESE QUESTIONS WERE RAISED IN THE CONTEXT OF PROCEEDINGS BETWEEN THE APPLICANT IN THE MAIN ACTION , AN ITALIAN NATIONAL DOMICILED IN THE FEDERAL REPUBLIC OF GERMANY , AND THE BUNDESANSTALT FUR ARBEIT ( FEDERAL EMPLOYMENT BUREAU ) IN WHICH THE APPLICANT SEEKS TO ESTABLISH HIS RIGHT TO THE CONTINUANCE OF UNEMPLOYMENT BENEFITS INVOLVING AN EXCEPTIONAL EXTENSION OF THE THREE-MONTH PERIOD LAID DOWN BY ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 .

3THE FIRST OF THE TWO QUESTIONS PUT BY THE SOZIALGERICHT IS WHETHER AN EXTENSION OF THE PERIOD IN PURSUANCE OF ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 IS PERMISSIBLE WHEN THE REQUEST FOR AN EXTENSION WAS PUT FORWARD ONLY AFTER THE EXPIRATION OF THE PERIOD ; THE SECOND QUESTION IS WHETHER , IN THE EVENT OF AN AFFIRMATIVE REPLY TO THE FIRST QUESTION , THE COMPETENT EMPLOYMENT SERVICES ARE ACTING WITHIN THE LIMITS OF THEIR DISCRETION IN REFUSING TO AGREE THAT THERE IS AN EXCEPTIONAL CASE FOR EXTENSION OF THE PERIOD BECAUSE :

' ' ( A ) THERE WAS NO LIKELIHOOD OF PLACEMENT FOR THE UNEMPLOYED PERSON IN THE OTHER MEMBER STATE TO WHICH HE HAD GONE SEEKING WORK ; AND

( B ) RETURN WITHIN THE PRESCRIBED PERIOD WAS IMPOSSIBLE AS A RESULT OF SUDDEN ILLNESS ' ' .

FIRST QUESTION

4ARTICLE 69 ( 1 ) ( C ) OF REGULATION NO 1408/71 PERMITS A WORKER WHO IS WHOLLY UNEMPLOYED AND WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF A MEMBER STATE FOR ENTITLEMENT TO UNEMPLOYMENT BENEFITS TO GO TO ONE OR MORE OTHER MEMBER STATES IN ORDER TO SEEK EMPLOYMENT AND TO RETAIN HIS ENTITLEMENT TO BENEFITS DURING A MAXIMUM PERIOD OF THREE MONTHS FROM THE DATE WHEN HE CEASED TO BE AVAILABLE TO THE EMPLOYMENT SERVICES OF THE STATE WHICH HE HAS LEFT .

IN THE WORDS OF PARAGRAPH ( 2 ) OF THAT ARTICLE

' ' IF THE PERSON CONCERNED RETURNS TO THE COMPETENT STATE BEFORE THE EXPIRY OF THE PERIOD DURING WHICH HE IS ENTITLED TO BENEFITS UNDER PARAGRAPH ( 1 ) ( C ), HE SHALL CONTINUE TO BE ENTITLED TO BENEFITS UNDER THE LEGISLATION OF THAT STATE ; HE SHALL LOSE ALL ENTITLEMENT TO BENEFITS UNDER THE LEGISLATION OF THE COMPETENT STATE IF HE DOES NOT RETURN THERE BEFORE THE EXPIRY OF THAT PERIOD . IN EXCEPTIONAL CASES , THIS TIME-LIMIT MAY BE EXTENDED BY THE COMPETENT SERVICES OR INSTITUTIONS . ' '

HENCE , THE SECOND SENTENCE OF ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 PERMITS THE COMPETENT EMPLOYMENT SERVICES ' ' IN EXCEPTIONAL CASES ' ' TO EXTEND THE PERIOD OF THREE MONTHS TO WHICH CONTINUANCE OF BENEFITS REFERRED TO IN THIS PROVISION IS LIMITED .

5IN THIS RESPECT IT MUST BE OBSERVED THAT ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 DOES NOT PROVIDE THAT A REQUEST FOR EXTENSION MUST NECESSARILY BE MADE BEFORE THE EXPIRATION OF THE PERIOD .

IN FACT , AMONGST THE ' ' EXCEPTIONAL CASES ' ' CAPABLE OF JUSTIFYING AN EXTENSION OF THE PERIOD SOME MAY BE OF SUCH A NATURE THAT THEY PREVENT NOT ONLY THE RETURN OF THE UNEMPLOYED PERSON TO THE COMPETENT STATE WITHIN THE PERIOD PRESCRIBED , BUT EQUALLY THE LODGING OF A REQUEST FOR EXTENSION , BEFORE THE EXPIRATION OF THAT PERIOD .

6THE ANSWER TO BE GIVEN TO THE FIRST QUESTION MUST THEREFORE BE THAT AN EXTENSION OF THE PERIOD REFERRED TO IN ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 IS PERMISSIBLE EVEN WHEN THE REQUEST IS MADE AFTER THE EXPIRATION OF THAT PERIOD .

SECOND QUESTION

7ARTICLE 69 OF REGULATION NO 1408/71 , IN GIVING A WORKER THE RIGHT TO GO TO ANOTHER MEMBER STATE TO SEEK EMPLOYMENT , CONFERS ON A PERSON WHO AVAILS HIMSELF OF THAT PROVISION AN ADVANTAGE AS COMPARED WITH A PERSON WHO REMAINS IN THE COMPETENT STATE INASMUCH AS , BY THE EFFECT OF ARTICLE 69 , HE IS FREED FOR A PERIOD OF THREE MONTHS OF THE DUTY , WHICH IS THE COUNTERPART OF THE GRANT OF UNEMPLOYMENT BENEFITS , TO KEEP HIMSELF AVAILABLE TO THE EMPLOYMENT SERVICES OF THE COMPETENT STATE AND TO BE SUBJECT TO THE CONTROL PROCEDURE ORGANIZED THEREIN , EVEN THOUGH HE MUST REGISTER WITH THE EMPLOYMENT SERVICES OF THE MEMBER STATE TO WHICH HE GOES .

8IT IS FOR THE AUTHORITIES CONCERNED TO CHECK WHETHER THE USE MADE BY THE WORKER OF THE RIGHT CONFERRED UPON HIM BY ARTICLE 69 OF REGULATION NO 1408/71 WAS IN CONFORMITY WITH THE OBJECTIVE FOR WHICH IT WAS INSTITUTED .

CONSEQUENTLY IT IS FOR THE COMPETENT SERVICES AND INSTITUTIONS OF THE MEMBER STATES TO ASSESS IN EACH SPECIFIC CASE THE FACTUAL CIRCUMSTANCES CONSTITUTING AN ' ' EXCEPTIONAL CASE ' ' AS RELIED ON IN SUPPORT OF A REQUEST FOR EXTENSION OF THE PERIOD REFERRED TO IN ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 .

9THE ANSWER TO BE GIVEN TO THE SECOND QUESTION SHOULD THEREFORE BE THAT THAT PROVISION DOES NOT RESTRICT THE FREEDOM OF THE COMPETENT SERVICES AND INSTITUTIONS OF THE MEMBER STATES TO TAKE INTO CONSIDERATION , WITH A VIEW TO DECIDING UPON ANY EXTENSION OF THE PERIOD LAID DOWN BY THE REGULATION , ALL FACTORS WHICH THEY REGARD AS RELEVANT AND WHICH ARE INHERENT BOTH IN THE INDIVIDUAL SITUATION OF THE WORKERS CONCERNED AND IN THE EXERCISE OF EFFECTIVE CONTROL .

COSTS

10THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE SOZIALGERICHT HILDESHEIM BY ORDER OF 8 JUNE 1978 ,

HEREBY RULES :

1 . AN EXTENSION OF THE PERIOD REFERRED TO IN ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 IS PERMISSIBLE EVEN WHEN THE REQUEST IS MADE AFTER THE EXPIRATION OF THAT PERIOD .

2 . THAT PROVISION DOES NOT RESTRICT THE FREEDOM OF THE COMPETENT SERVICES AND INSTITUTIONS OF THE MEMBER STATES TO TAKE INTO CONSIDERATION , WITH A VIEW TO DECIDING UPON ANY EXTENSION OF THE PERIOD LAID DOWN BY THE REGULATION , ALL FACTORS WHICH THEY REGARD AS RELEVANT AND WHICH ARE INHERENT BOTH IN THE INDIVIDUAL SITUATION OF THE WORKERS CONCERNED AND IN THE EXERCISE OF EFFECTIVE CONTROL .