61985J0375

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SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - UNEMPLOYMENT BENEFITS - CONCEPT - ASSISTANCE FOR VOCATIONAL TRAINING - INCLUSION - CONDITIONS

( REGULATION NO 1408/71 OF THE COUNCIL, ART . 4*(1)*(G )*)

ASSISTANCE FOR VOCATIONAL TRAINING WHICH CONCERNS EITHER PERSONS WHO ARE ALREADY UNEMPLOYED OR PERSONS WHO ARE STILL IN EMPLOYMENT BUT ARE ACTUALLY THREATENED BY UNEMPLOYMENT IS TO BE REGARDED AS AN "UNEMPLOYMENT BENEFIT" FOR THE PURPOSE OF ARTICLE 4*(1)*(G ) OF REGULATION NO 1408/71 .

IN CASE 375/85

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

ANGELO CAMPANA

AND

BUNDESANSTALT FUER ARBEIT ( FEDERAL EMPLOYMENT OFFICE ), NUREMBERG

ON THE INTERPRETATION OF ARTICLE 4*(1)*(G ) IN CONJUNCTION WITH ARTICLE 67*(1 ) 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 ),

THE COURT ( FIFTH CHAMBER )

COMPOSED OF : Y . GALMOT, PRESIDENT OF CHAMBER, G . BOSCO, U . EVERLING, R . JOLIET AND J . C . MOITINHO DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : C . O . LENZ

REGISTRAR : B . PASTOR, ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF :

ANGELO CAMPANA BY JUERGEN STAHLBERG, RECHTSANWALT, MUNICH,

THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY BY MARTIN SEIDEL, ACTING AS AGENT,

THE GOVERNMENT OF THE ITALIAN REPUBLIC BY PIER GIORGIO FERRI, AVVOCATO DELLO STATO, ACTING AS AGENT,

THE COMMISSION OF THE EUROPEAN COMMUNITIES BY JUERGEN GRUNWALD, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 3 FEBRUARY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 1 APRIL 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN ORDER OF 15 OCTOBER 1985, WHICH WAS RECEIVED AT THE COURT ON 27 NOVEMBER 1985, THE BUNDESSOZIALGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 4*(1 ) AND ARTICLE 67 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 ).

2 THE QUESTION WAS RAISED IN THE CONTEXT OF PROCEEDINGS CONCERNING THE REFUSAL OF THE BUNDESANSTALT FUER ARBEIT TO GRANT MR CAMPANA, AN ITALIAN WORKER LIVING IN THE FEDERAL REPUBLIC OF GERMANY, ASSISTANCE FOR VOCATIONAL TRAINING .

3 THE REFUSAL OF THE BUNDESANSTALT FUER ARBEIT WAS BASED ON THE FACT THAT MR CAMPANA DID NOT SATISFY ONE OF THE CONDITIONS LAID DOWN IN ARTICLE 46*(1 ) OF THE ARBEITSFOERDERUNGSGESETZ ( LAW ON THE PROMOTION OF EMPLOYMENT OPPORTUNITIES, HEREINAFTER REFERRED TO AS "THE EMPLOYMENT LAW ") FOR THE GRANT OF THE ASSISTANCE IN QUESTION, NAMELY THAT IN THE LAST THREE OR FIVE YEARS PRIOR TO THE COMMENCEMENT OF HIS COURSE AT THE INSTITUTION PROVIDING THE VOCATIONAL TRAINING MR CAMPANA HAD NOT CARRIED ON AN ACTIVITY SUBJECT TO COMPULSORY CONTRIBUTIONS WITHIN THE MEANING OF THE EMPLOYMENT LAW FOR A MINIMUM OF TWO YEARS OR RECEIVED UNEMPLOYMENT BENEFIT OR BENEFITS UNDER AN UNEMPLOYMENT ASSISTANCE SCHEME .

4 AFTER HIS ACTION BEFORE THE SOZIALGERICHT ( SOCIAL COURT ) AND HIS APPEAL TO THE LANDESSOZIALGERICHT ( HIGHER SOCIAL COURT ) AGAINST THE JUDGMENT OF THAT COURT WERE DISMISSED, MR CAMPANA BROUGHT AN APPEAL ON A POINT OF LAW BEFORE THE BUNDESSOZIALGERICHT . THE BUNDESSOZIALGERICHT REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

"DOES ARTICLE 67*(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, IN CONJUNCTION WITH ARTICLE 4*(1)*(G ) OF THAT REGULATION, ALSO APPLY TO BENEFITS WHICH ARE ACCORDED BY A MEMBER STATE NOT IN RESPECT OF PRESENT UNEMPLOYMENT BUT WITH A VIEW TO PREVENTING FUTURE UNEMPLOYMENT, SO THAT FOR THE PURPOSES OF VOCATIONAL TRAINING ASSISTANCE UNDER ARTICLE 46*(1 ) OF THE ARBEITSFOERDERUNGSGESETZ ( LAW ON THE PROMOTION OF EMPLOYMENT OPPORTUNITIES ) INSURANCE PERIODS COMPLETED IN OTHER MEMBER STATES ARE ALSO TO BE REGARDED AS PERIODS OF 'ACTIVITY SUBJECT TO COMPULSORY CONTRIBUTIONS' ?"

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A MORE DETAILED ACCOUNT OF THE FACTS OF THE MAIN PROCEEDINGS, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

6 ACCORDING TO ARTICLE 4*(1 ) OF REGULATION NO 1408/71 THE REGULATION "SHALL APPLY TO ALL LEGISLATION CONCERNING THE FOLLOWING BRANCHES OF SOCIAL SECURITY", THE LIST OF WHICH INCLUDES, IN SUBPARAGRAPH ( G ), "UNEMPLOYMENT BENEFITS ". ARTICLE 4*(1 ) DOES NOT STATE WHETHER THE EXPRESSION "UNEMPLOYMENT BENEFITS" RELATES EXCLUSIVELY TO BENEFITS WHICH ARE ACCORDED IN RESPECT OF PRESENT UNEMPLOYMENT OR WHETHER IT ALSO COVERS BENEFITS INTENDED TO PREVENT FUTURE UNEMPLOYMENT . IT MUST ALSO BE POINTED OUT THAT BENEFITS INTENDED TO PREVENT UNEMPLOYMENT DO NOT FALL WITHIN THE SCHEMES EXPRESSLY EXCLUDED FROM THE SCOPE RATIONE MATERIAE OF REGULATION NO 1408/71 UNDER ARTICLE 4*(4 ).

7 MOREOVER, ARTICLE 67 OF REGULATION NO 1408/71, REFERRED TO BY THE BUNDESSOZIALGERICHT, WHICH LAYS DOWN THE MANNER IN WHICH UNEMPLOYMENT BENEFITS ARE TO BE CALCULATED, DOES NOT EXCLUDE PREVENTIVE MEASURES BUT MERELY REFERS IN A VERY GENERAL MANNER TO "THE RIGHT TO BENEFITS ".

8 IN ORDER TO INTERPRET ARTICLE 4*(1)*(G ) IN CONJUNCTION WITH ARTICLE 67*(1 ) OF REGULATION NO 1408/71 OF THE COUNCIL IT IS THEREFORE NECESSARY TO HAVE REGARD TO THE FUNDAMENTAL AIM OF ARTICLE 51 OF THE EEC TREATY, WHICH IS TO ESTABLISH THE MOST FAVOURABLE CONDITIONS FOR ACHIEVING FREEDOM OF MOVEMENT AND EMPLOYMENT FOR COMMUNITY WORKERS WITHIN THE TERRITORY OF EACH MEMBER STATE .

9 IN THAT CONNECTION IT MUST BE OBSERVED THAT IN THE LIGHT OF THE PRESENT ECONOMIC SITUATION THE MEMBER STATES HAVE ESTABLISHED ASSISTANCE FOR VOCATIONAL TRAINING INTENDED BOTH TO ENABLE PERSONS IN EMPLOYMENT TO IMPROVE THEIR QUALIFICATIONS TO AVOID THE THREAT OF UNEMPLOYMENT AND TO ENABLE UNEMPLOYED PERSONS TO RETRAIN AND FIND NEW EMPLOYMENT . BOTH TYPES OF BENEFIT ARE INTENDED TO COMBAT UNEMPLOYMENT .

10 CONSEQUENTLY, IT WOULD BE CONTRARY TO THE AIM OF ARTICLE 51 OF THE EEC TREATY TO EXCLUDE FROM THE SCOPE OF ARTICLE 4*(1)*(G ) AND ARTICLE 67*(1 ) OF REGULATION NO 1408/71, AS A MATTER OF PRINCIPLE, BENEFITS INTENDED TO PREVENT FUTURE UNEMPLOYMENT .

11 HOWEVER, THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY HAS RIGHTLY POINTED OUT THAT BENEFITS INTENDED TO ENCOURAGE VOCATIONAL TRAINING MAY ALSO BE DIRECTED AT OBJECTIVES OTHER THAN THE FIGHT AGAINST UNEMPLOYMENT, SUCH AS IMPROVING THE PERSONAL CIRCUMSTANCES OF RECIPIENTS OR SATISFYING CERTAIN SPECIAL NEEDS OF THE ECONOMY .

12 CONSEQUENTLY, THE EXPRESSION "UNEMPLOYMENT BENEFITS" AS USED IN ARTICLE 4*(1)*(G ) OF REGULATION NO 1408/71 MUST BE RESTRICTED TO ASSISTANCE FOR VOCATIONAL TRAINING WHICH CONCERNS EITHER PERSONS WHO ARE ALREADY UNEMPLOYED OR PERSONS WHO ARE STILL IN EMPLOYMENT BUT ARE ACTUALLY THREATENED BY UNEMPLOYMENT .

13 IT IS FOR THE NATIONAL AUTHORITIES, SUBJECT TO SUPERVISION BY THE COMPETENT COURTS, TO ASSESS IN EACH INDIVIDUAL CASE WHETHER A PERSON IN EMPLOYMENT WHO APPLIES FOR ASSISTANCE FOR VOCATIONAL TRAINING MAY BE DEEMED TO BE ACTUALLY THREATENED BY UNEMPLOYMENT .

14 THE REPLY TO THE QUESTION SUBMITTED BY THE BUNDESSOZIALGERICHT MUST THEREFORE BE THAT ARTICLE 67*(1 ) READ IN CONJUNCTION WITH ARTICLE 4*(1)*(G ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 MUST BE INTERPRETED AS INCLUDING ASSISTANCE FOR VOCATIONAL TRAINING GRANTED TO A PERSON IN EMPLOYMENT WHEN THAT PERSON IS ACTUALLY THREATENED BY UNEMPLOYMENT .

COSTS

15 THE COSTS INCURRED BY THE GOVERNMENTS OF THE FEDERAL REPUBLIC OF GERMANY AND OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

On those grounds,

THE COURT ( Fifth Chamber )

hereby rules :

Article 67*(1 ) read in conjunction with Article 4*(1)*(g ) of Regulation No 1408/71 of the Council of 14 June 1971 must be interpreted as including assistance for vocational training granted to a person in employment when that person is actually threatened by unemployment .