61987J0192

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SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - UNEMPLOYED PERSON GOING TO ANOTHER MEMBER STATE - HOLDING OF EMPLOYMENT - CONSEQUENCE - CHANGE OF COMPETENT STATE WITHIN THE MEANING OF ARTICLE 69 OF REGULATION NO1408/71 - PROVISIONS CONCERNING ENTITLEMENT TO BENEFITS IN THE EVENT OF AN UNEMPLOYED PERSON' S RETURN NOT APPLICABLE TO THE PERSON CONCERNED

( COUNCIL REGULATION NO 1408/71, ART . 69 ( 2 ) AND ( 4 ) )

WHEN AN UNEMPLOYED PERSON LEAVES A MEMBER STATE WHERE HIS ENTITLEMENT TO UNEMPLOYMENT BENEFIT HAS BEEN RECOGNIZED AND FINDS EMPLOYMENT IN ANOTHER MEMBER STATE, THAT STATE IS THE STATE WHERE THAT PERSON WAS LAST EMPLOYED AND CONSEQUENTLY BECOMES THE COMPETENT STATE WITHIN THE MEANING OF ARTICLE 69 OF REGULATION NO 1408/71 . IT FOLLOWS THAT, IN THE FIRST MEMBER STATE, PARAGRAPHS ( 2 ) AND ( 4 ) OF THAT ARTICLE, CONCERNING THE ENTITLEMENT TO BENEFITS OF AN UNEMPLOYED PERSON WHO RETURNS TO THE COMPETENT STATE AFTER HAVING SOUGHT WORK IN ANOTHER MEMBER STATE, ARE NO LONGER APPLICABLE TO THE PERSON CONCERNED IF HE RETURNS TO THE FIRST MEMBER STATE .

IN CASE 192/87

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARBEIDSRECHTBANK ( LABOUR TRIBUNAL ) FOR THE DISTRICT OF TONGEREN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MARIE-JEANNE VANHAEREN

AND

RIJKSDIENST VOOR ARBEIDSVOORZIENING ( NATIONAL EMPLOYMENT OFFICE ), BRUSSELS,

ON THE INTERPRETATION OF ARTICLE 69 OF COUNCIL REGULATION ( EEC ) NO 1408/71 OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS, SELF-EMPLOYED PERSONS AND TO MEMBERS OF THEIR FAMILY MOVING WITHIN THE COMMUNITY, AS CONSOLIDATED BY COUNCIL REGULATION ( EEC ) NO 2001/83 ( OFFICIAL JOURNAL L 230 OF 2 JUNE 1983, P . 6 ),

THE COURT ( THIRD CHAMBER )

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

ADVOCATE GENERAL : J . MISCHO,

REGISTRAR : H.A . ROEHL, PRINCIPAL ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

THE RIJKSDIENST VOOR ARBEIDSVOORZIENING, BY A . BINON, INSPECTOR AND CHIEF DIRECTOR,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY D . GOULOUSSIS, LEGAL ADVISER, ASSISTED BY F . HERBERT, OF THE BRUSSELS BAR, ACTING AS AGENTS,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 9 MARCH 1988,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 9 MARCH 1988

GIVES THE FOLLOWING

JUDGMENT

BY JUDGMENT OF 10 MARCH 1987, WHICH WAS RECEIVED AT THE COURT ON 18 JUNE 1987, THE ARBEIDSRECHTBANK ( LABOUR TRIBUNAL ) FOR THE DISTRICT OF TONGEREN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 69 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 FAMILY MOVING WITHIN THE COMMUNITY, AS CONSOLIDATED BY COUNCIL REGULATION ( EEC ) NO 2001/83 ( OFFICIAL JOURNAL L 230 OF 2 JUNE 1983, P . 6 ).

THE QUESTION WAS RAISED IN PROCEEDINGS BETWEEN MRS VANHAEREN AND THE RIJKSDIENST VOOR ARBEIDSVOORZIENING ( HEREINAFTER REFERRED TO AS "THE EMPLOYMENT OFFICE ") FOLLOWING THE REFUSAL BY THE EMPLOYMENT OFFICE TO GRANT HER UNEMPLOYMENT BENEFIT IN BELGIUM .

MRS VANHAEREN WAS UNEMPLOYED IN BELGIUM WHERE SHE RECEIVED UNEMPLOYMENT BENEFITS UNTIL 27 JULY 1983 . ON THAT DATE SHE SETTLED IN THE FEDERAL REPUBLIC OF GERMANY WHERE SHE RECEIVED UNEMPLOYMENT BENEFIT IN ACCORDANCE WITH ARTICLE 69 ( 1 ) OF REGULATION NO 1408/71, THAT IS TO SAY FOR A PERIOD OF THREE MONTHS FOLLOWING HER MOVE FROM BELGIUM .

FOR A TIME MRS VANHAEREN WAS EMPLOYED IN THE FEDERAL REPUBLIC OF GERMANY AND LATER RETURNED TO BELGIUM ON 13 MAY 1986 WHERE SHE APPLIED ONCE AGAIN FOR UNEMPLOYMENT BENEFIT .

THE EMPLOYMENT OFFICE REFUSED TO GRANT HER BENEFIT ON THE BASIS OF ARTICLE 69 ( 4 ) OF REGULATION NO 1408/71, WHICH PROVIDES THAT : "WHERE THE COMPETENT STATE IS BELGIUM, AN UNEMPLOYED PERSON WHO RETURNS THERE AFTER THE EXPIRY OF THE THREE-MONTH PERIOD LAID DOWN IN PARAGRAPH 1 ( C ), SHALL NOT REQUALIFY FOR BENEFITS IN THAT COUNTRY UNTIL HE HAS BEEN EMPLOYED THERE FOR AT LEAST THREE MONTHS ".

MRS VANHAEREN APPEALED TO THE ARBEIDSRECHTBANK, TONGEREN, WHICH DECIDED TO REFER TO THE COURT FOR A PRELIMINARY RULING "THE QUESTION WHETHER ARTICLE 69 IS APPLICABLE" IN A SITUATION SUCH AS THAT DESCRIBED ABOVE .

REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE MAIN PROCEEDINGS, THE RELEVANT PROVISIONS OF COMMUNITY LAW 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 .

IT IS APPARENT FROM THE FACTS OF THE MAIN PROCEEDINGS THAT THE NATIONAL COURT' S QUESTION IS IN ESSENCE WHETHER, IN A MEMBER STATE WHERE AN UNEMPLOYED PERSON' S RIGHT TO UNEMPLOYMENT BENEFIT HAS BEEN RECOGNIZED, PARAGRAPHS ( 2 ) AND ( 4 ) OF ARTICLE 69 OF REGULATION NO 1408/71 REMAIN APPLICABLE TO THAT UNEMPLOYED PERSON WHEN HE RETURNS TO THAT STATE AFTER HAVING BEEN EMPLOYED IN ANOTHER MEMBER STATE .

BOTH THE HEADING OF SECTION 2 OF CHAPTER 6 OF TITLE III OF REGULATION NO 1408/71 AND THE WORDING OF ARTICLE 69 ( 2 ) AND ( 4 ) INDICATE THAT THOSE PROVISIONS ARE DEFINING THE RIGHTS OF A MIGRANT WORKER WHO RETURNS TO THE COMPETENT STATE AFTER SEEKING WORK IN ANOTHER MEMBER STATE . THE REPLY TO THE QUESTION SUBMITTED THEREFORE DEPENDS ON WHETHER THE MEMBER STATE TO WHICH THE WORKER WHO HAS BECOME UNEMPLOYED RETURNS AFTER HAVING BEEN EMPLOYED IN ANOTHER MEMBER STATE MUST BE CONSIDERED TO BE "THE COMPETENT STATE" WITHIN THE MEANING OF ARTICLE 69 .

IT FOLLOWS FROM THE GENERAL RULE SET OUT IN ARTICLE 13 OF TITLE II OF REGULATION NO 1408/71 THAT THE COMPETENT STATE FOR THE PURPOSES OF SOCIAL SECURITY BENEFITS IS THE STATE OF EMPLOYMENT .

AS THE COURT HELD IN ITS JUDGMENT OF 7 MARCH 1985 IN CASE 145/84 ( COCHET V BESTUUR VAN DE BEDRIJFSVERENIGING VOOR DE GEZONDHEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN (( 1985 )) ECR 801 ), THAT GENERAL RULE IS DEFINED MORE PRECISELY BY PROVISIONS OF THE REGULATION WHICH ARE CONCERNED WITH UNEMPLOYMENT BENEFITS; FROM THOSE PROVISIONS IT IS CLEAR THAT "THE COMPETENT STATE" IN THAT CONNECTION IS THE STATE WHERE THE UNEMPLOYED PERSON WAS LAST EMPLOYED .

IT IS CLEAR FROM THE FOREGOING THAT, ONCE AN UNEMPLOYED PERSON HAS FOUND WORK IN ANOTHER MEMBER STATE, THAT STATE IS THE STATE WHERE HE WAS LAST EMPLOYED AND CONSEQUENTLY BECOMES THE COMPETENT STATE WITHIN THE MEANING OF ARTICLE 69 OF REGULATION NO 1408/71 .

THE ANSWER TO BE GIVEN TO THE NATIONAL COURT MUST THEREFORE BE THAT IN THE MEMBER STATE WHERE AN UNEMPLOYED PERSON' S ENTITLEMENT TO UNEMPLOYMENT BENEFIT HAS BEEN RECOGNIZED, PARAGRAPHS ( 2 ) AND ( 4 ) OF ARTICLE 69 OF REGULATION NO 1408/71 ARE NOT APPLICABLE TO THAT UNEMPLOYED PERSON WHEN HE RETURNS TO THAT STATE AFTER HAVING BEEN EMPLOYED IN ANOTHER MEMBER STATE .

COSTS

THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE 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 ( THIRD CHAMBER )

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE ARBEIDSRECHTBANK FOR THE DISTRICT OF TONGEREN BY JUDGMENT OF 10 MARCH 1987, HEREBY RULES :

IN THE MEMBER STATE WHERE AN UNEMPLOYED PERSON' S ENTITLEMENT TO UNEMPLOYMENT BENEFIT HAS BEEN RECOGNIZED, PARAGRAPHS ( 2 ) AND ( 4 ) OF ARTICLE 69 OF REGULATION NO 1408/71 ARE NOT APPLICABLE TO THAT UNEMPLOYED PERSON WHEN HE RETURNS TO THAT STATE AFTER HAVING BEEN EMPLOYED IN ANOTHER MEMBER STATE .