62000O0175

1. Preliminary rulings - Answer admitting of no reasonable doubt - Application of Article 104(3) of the Rules of Procedure

(Rules of Procedure of the Court of Justice, Art. 104(3))

2. Social security for migrant workers - Unemployment - Legislation making the grant of benefits subject to completion of periods of insurance or employment - Aggregation of periods of insurance or employment - Taking account of periods of insurance or employment completed under the legislation of another Member State - Conditions - Periods of employment or insurance to be completed lastly in accordance with the legislation under which the benefits are claimed

(Council Regulation No 1408/71, Art. 67(3))

In Case C-175/00,

REFERENCE to the Court under Article 234 EC by the Arbeidshof te Antwerpen (Belgium) for a preliminary ruling in the proceedings pending before that court between

Marie-Josée Verwayen-Boelen

and

Rijksdienst voor Arbeidsvoorziening,

on the interpretation of Article 4(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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1),

THE COURT (Fifth Chamber),

composed of: P. Jann, President of the Chamber, S. von Bahr, D.A.O. Edward, A. La Pergola (Rapporteur) and C.W.A. Timmermans, Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

the national court having been informed that the Court proposes to give its decision by reasoned order pursuant to Article 104(3) of its Rules of Procedure,

the persons referred to in Article 20 of the Statute of the Court of Justice of the EC having been invited to submit any observations they may have on that proposal,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By judgment of 4 May 2000, received at the Court on 10 May 2000, the Arbeidshof te Antwerpen (Higher Labour Court, Antwerp) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Article 4(1) 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 Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1, hereinafter Regulation No 1408/71).

2 The question was raised in proceedings between Mrs Verwayen-Boelen and the Rijksdienst voor Arbeidsvoorziening (Department of Employment, hereinafter the RVA) concerning the RVA's refusal to take into consideration the period during which she had received benefits under Netherlands legislation in determining whether she may claim unemployment benefits under Belgian legislation.

The Community legislation

3 Article 4 of Regulation No 1408/71 provides as follows:

1. This Regulation shall apply to all legislation concerning the following branches of social security:

...

(g) unemployment benefits;

...

4. This Regulation shall not apply to social ... assistance ...

4 Article 67(1), (2) and (3) of Regulation No 1408/71, entitled Aggregation of periods of insurance or employment, which is in Chapter 6 (Unemployment) of Title III, provides as follows:

1. The competent institution of a Member State whose legislation makes the acquisition, 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 any other Member State, as though they were periods of insurance completed under the legislation which it administers, provided, however, that the periods of employment would have been counted as periods of insurance had they been completed under that legislation.

2. The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits subject to the completion of periods of employment shall take into account, to the extent necessary, periods of insurance or employment completed as an employed person under the legislation of any other Member State, as though they were periods of employment completed under the legislation which it administers.

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 the case of paragraph 1, periods of insurance,

- in the case of paragraph 2, periods of employment,

in accordance with the provisions of the legislation under which the benefits are claimed.

5 Article 80(1) and (2) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71 as amended and updated by Regulation No 118/97 (hereinafter Regulation No 574/72) provides as follows:

Certified statement of periods of insurance or employment

1. In order to invoke the provisions of Article 67(1), (2) or (4) of [Regulation No 1408/71], the claimant shall submit to the competent institution a certified statement specifying the periods of insurance or employment completed previously under the legislation to which he was last subject, together with any further information required by the legislation administered by that institution.

2. This certified statement shall be issued, at the request of the person concerned, either by the institution competent in matters of unemployment of the Member State to whose legislation he was last subject, or by another institution designated by the competent authority of the said Member State. If he does not submit the said certified statement, the competent institution shall obtain it from one or other of the aforementioned institutions.

6 The certified statement referred to in Article 80 of Regulation No 574/72 (Form E 301) is issued following an application on a model form laid down in Decision No 154 (94/605/EC) of the Administrative Commission of the European Communities on Social Security for Migrant Workers, of 8 February 1994, on the model forms necessary for the application of Regulations No 1408/71 and No 574/72 (E 301, E 302, E 303) (OJ 1994 L 244, p. 123).

The Belgian legislation

7 In Belgium, unemployment insurance is governed by the Royal Decree of 25 November 1991 concerning rules on unemployment (Moniteur belge, 31 December 1991, p. 29888). Article 30(1) of that decree provides as follows:

To receive unemployment benefits, a full-time worker must complete a probationary period consisting of the number of working days set out below:

1. 312 during the first 18 months preceding the claim for benefits, if he is under 36 years of age;

2. 468 during the 27 months preceding the claim, if he is between 36 and 50 years of age;

3. 624 during the 36 months preceding the claim, if he is aged 50 or above.

A full-time worker who satisfies the condition laid down for a higher age category is also entitled to unemployment benefits.

...

8 Article 32 of the Royal Decree of 25 November 1991 also provides that a full-time worker of at least 36 years of age who does not fulfil the conditions laid down in Article 30(1) of that decree may nevertheless be eligible for unemployment benefits if he proves that he has completed half of the working days required by the latter provision during the reference period to which it refers and has completed 1560 working days during the 10-year period preceding that reference period.

9 Article 38(1) of the Royal Decree of 25 November 1991 provides:

The following are treated as working days for the purposes of the application of Articles 30 to 36:

Days which have given rise to payment of an allowance under legislation relating to unemployment insurance;

...

The Netherlands legislation

10 The Rijksgroepsregeling werkloze werknemers (National block regulation for unemployed workers) of 13 December 1984 (Staatsblad 1984, No 626, hereinafter the RWW) establishes a national aid scheme to combat unemployment and to ensure that recipients of benefits are economically independent. The scheme is intended for all persons who do not have or who no longer have an entitlement to benefits under the Werkloosheidswet (Law on unemployment) of 6 November 1986 (Staatsblad No 566), or the Wet werkloosheidsvoorziening (Law on unemployment insurance) of 10 December 1964, or the Wet inkomensvoorziening oudere en gedeeltelijk arbeidsongeschikte werkloze werknemers (Law guaranteeing an income for aged unemployed workers with partial incapacity) of 6 November 1986 (Staatsblad No 565).

The main proceedings and the national court's question

11 Mrs Verwayen-Boelen, who was born in 1951 and has dual Belgian and Netherlands nationality, was resident in Belgium until 1987. She was self-employed there from 31 October 1977 until 21 October 1986.

12 In 1987 she took up residence in the Netherlands. She received benefits there under the RWW between 1 October 1987 and 31 October 1995 and did not work there.

13 When she returned to Belgium in November 1995 to take up residence there, Mrs Verwayen-Boelen lodged a claim, on 17 July 1997, for unemployment benefits under the Royal Decree of 25 November 1991 with effect from 1 April 1997. She included with her application a Form E 301 issued by the Netherlands authorities which indicated the period during which Mrs Verwayen-Boelen had received benefits under the RWW.

14 Following a query by the RVA, the authority responsible for dealing with that application, the competent Netherlands authorities stated that the Form E 301 had been issued in error and stated in that regard that the receipt of an RWW benefit does not imply any insurance obligations in the Netherlands and there can be no question of its being treated as equivalent.

15 On the 13 August 1997, the RVA rejected Mrs Verwayen-Boelen's claim on the grounds that she could not be considered to have completed, in the Netherlands, periods of insurance or periods treated as such for the purposes of Article 30 of the Royal Decree of 25 November 1991 and that she had not completed any working days or days treated as such in Belgium during the reference period.

16 Mrs Verwayen-Boelen's action challenging the RVA's decision was dismissed by the Arbeidsrechtbank te Hasselt (Labour Court, Hasselt), Belgium, by judgment of 2 June 1999, whereupon she appealed to the Arbeidshof te Antwerpen. She submits that she can rely on Article 67 of Regulation No 1408/71 in order to have taken into account, under Belgian unemployment insurance, periods during which she received benefits under the RWW.

17 The national court, analysing the RWW in the light of the case-law of the Court of Justice, is uncertain whether that legislation must be regarded as an unemployment benefits scheme for the purposes of Article 4(1)(g) of Regulation No 1408/71 and whether it therefore falls within the scope of application of that regulation. According to the national court, Mrs Verwayen-Boelen may rely on Article 67 of Regulation 1408/71 only if the latter condition is fulfilled.

18 In those circumstances, the Arbeidshof te Antwerpen decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

Must Article 4(1) of Regulation (EEC) No 1408/71, according to which that regulation applies to branches of social security, be interpreted as meaning that a scheme such as the RWW scheme, which has characteristics both of social security and of social assistance, falls within the scope of that regulation, so that the period during which an employed person receives benefits under that scheme can qualify as an insurance period which is to be taken into account when assessing whether that person can have entitlement to unemployment benefits in Belgium?

19 In reply to a request from the Court of Justice for clarification under Article 104(5) of its Rules of Procedure, the national court stated that Mrs Verwayen-Boelen had not completed lastly periods of insurance and/or employment in accordance with the provisions of the Belgian legislation.

The national court's question

20 It is apparent from the judgment making the reference and from the wording of the national court's question that, although the national court is seeking to ascertain how the RWW is to be characterised in the light of Article 4(1) of Regulation No 1408/71 and whether the RWW may fall within the scope of application ratione materiae of that regulation, it is doing so in order to determine whether it is necessary to apply the rules on the aggregation of periods of insurance or employment laid down in Article 67 of Regulation 1408/71.

21 In those circumstances, it must be found that the reply to the national court leaves no room for reasonable doubt and it is therefore appropriate to give a decision by reasoned order in accordance with Article 104(3) of the Rules of Procedure.

22 As is clear from the explanations provided by the national court, it is common ground that Mrs Verwayen-Boelen has not completed lastly either periods of insurance or periods of employment in accordance with the provisions of the Belgian legislation.

23 It follows from the clear terms of Article 67(3) of Regulation No 1408/71 that, except in the cases expressly referred to in that provision, there can be no aggregation of periods of insurance or employment under Article 67(1) or (2) of that regulation where the person concerned has not completed lastly periods of insurance or of employment in accordance with the provisions of the legislation under which the benefits are claimed (see Joined Cases C-88/95, C-102/95 and C-103/95 Martinez Losada and Others [1997] ECR I-869, paragraphs 36 and 38, and Case C-320/95 Ferreiro Alvite [1999] ECR I-951, paragraphs 16 to 18).

24 It must also be noted that the Court has previously held that, under Regulation No 1408/71, the taking into account by a Member State of periods of insurance or employment completed by the person concerned in accordance with the provisions of the legislation of another Member State for the purposes of the award of unemployment benefit is governed solely by Article 67 of Regulation No 1408/71 (Martinez Losada and Others, paragraph 27).

25 In those circumstances it therefore suffices to state that Article 67(1) and (2) of Regulation No 1408/71 is not applicable to a situation such as that at issue in the main proceedings and that it is not necessary to ascertain whether the other conditions for the application of that provision, to which the national court's question refers more specifically, are fulfilled.

26 Having regard to the considerations set out above, the answer to the national court's question must be that under Article 67(3) of Regulation No 1408/71 the application of the rules on the aggregation of periods of insurance or employment laid down in Article 67(1) and (2) is, except in the cases expressly referred to in Article 67(3), subject to the condition that the person concerned has completed lastly periods of insurance or employment in accordance with the provisions of the legislation under which the unemployment benefits are claimed.

Costs

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

On those grounds,

THE COURT (Fifth Chamber),

hereby orders:

Under Article 67(3) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, the application of the rules on the aggregation of periods of insurance or employment laid down in Article 67(1) and (2) is, except in the cases expressly referred to in Article 67(3), subject to the condition that the person concerned has completed lastly periods of insurance or employment in accordance with the provisions of the legislation under which the unemployment benefits are claimed.