61977J0035

SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - FIELD OF APPLICATION - NATIONAL LAW OR REGULATION SPECIFIED OR NOT SPECIFIED BY A MEMBER STATE IN THE DECLARATIONS REFERRED TO IN ARTICLE 5 OF REGULATION NO 1408/71 - CONSEQUENCES

THE FACT THAT A NATIONAL LAW OR REGULATION HAS NOT BEEN SPECIFIED IN THE DECLARATIONS REFERRED TO IN ARTICLE 5 OF THE REGULATION IS NOT OF ITSELF PROOF THAT THAT LAW OR REGULATION DOES NOT FALL WITHIN THE FIELD OF APPLICATION OF THE SAID REGULATION ; ON THE OTHER HAND , THE FACT THAT A MEMBER STATE HAS SPECIFIED A LAW IN ITS DECLARATION MUST BE ACCEPTED AS PROOF THAT THE BENEFITS GRANTED ON THE BASIS OF THAT LAW ARE SOCIAL SECURITY BENEFITS WITHIN THE MEANING OF REGULATION NO 1408/71 .

IN CASE 35/77

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

ELISABETH BEERENS

AND

RIJKSDIENST VOOR ARBEIDSVOORZIENING

ON THE INTERPRETATION OF ARTICLE 69 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 ( OJ ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1 BY A JUDGMENT OF 16 MARCH 1977 , WHICH REACHED THE COURT ON 25 MARCH 1977 , THE ARBEIDSRECHTBANK ( LABOUR COURT ) OF HASSELT REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY FOR A PRELIMINARY RULING A QUESTION ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL .

2 THE QUESTION HAS ARISEN IN A DISPUTE BETWEEN MRS ELISABETH ERMIN , NEE BEERENS AND THE BELGIAN NATIONAL DEPARTMENT OF EMPLOYMENT CONCERNING THE PLAINTIFF ' S ENTITLEMENT TO UNEMPLOYMENT BENEFITS .

3 THE PLAINTIFF LEFT THE NETHERLANDS AND TOOK UP RESIDENCE IN BELGIUM IN 1976 ON THE OCCASION OF HER MARRIAGE AND APPLIED FOR UNEMPLOYMENT BENEFITS , RELYING ON ARTICLE 69 OF REGULATION NO 1408/71 AND THE FACT THAT IN THE NETHERLANDS SHE RECEIVED UNEMPLOYMENT BENEFITS UNDER THE ' WET WERKLOOSHEIDSVOORZIENING ' ( LAW RELATING TO UNEMPLOYMENT ALLOWANCES ).

4 IN THE NETHERLANDS THE RULES RELATING TO UNEMPLOYMENT ARE MADE UP OF THREE LAWS , THE ' WERKLOOSHEIDSWET ' , THE LAW ON THE COMPULSORY INSURANCE OF WORKERS AGAINST THE FINANCIAL CONSEQUENCES OF INVOLUNTARY UNEMPLOYMENT , THE ' WET WERKLOOSHEIDSVOORZIENING ' , THE LAW LAYING DOWN RULES FOR PUBLIC ALLOWANCES FOR UNEMPLOYED WORKERS , AND THE ' RIJKSGROEPSREGELING WERKLOZE WERKNEMERS ' , A REGULATION ADOPTED PURSUANT TO THE ' ALGEMENE BIJSTANDSWET ' ( THE GENERAL LAW RELATING TO SOCIAL ASSISTANCE ); THE NATIONAL COURT WAS OF THE OPINION THAT THE LAST TWO LAWS ARE NOT SOCIAL SECURITY LEGISLATION BUT SOCIAL ASSISTANCE LEGISLATION , THE ADMINISTRATION WHEREOF IS ENTRUSTED TO THE LOCAL AUTHORITIES AND NOT TO THE SOCIAL SECURITY INSTITUTIONS .

5 IT HAS THEREFORE ASKED WHETHER THE NETHERLANDS LAWS RELATING TO SOCIAL ASSISTANCE WHICH APPLY TO WORKERS WHO ARE UNEMPLOYED ALLOW OF RELIANCE ON ARTICLE 69 OF REGULATION NO 1408/71 AND WHETHER PERSONS SUCH AS THE PLAINTIFF SATISFY ' THE CONDITIONS OF THE LEGISLATION OF A MEMBER STATE ( THE NETHERLANDS ) FOR ENTITLEMENT TO UNEMPLOYMENT BENEFITS WITHIN THE MEANING OF THE REGULATION RELIED ON , REGULATION NO 1408/71 , WITH ALL ENSUING CONSEQUENCES FOR THE TRANSFERABILITY OF HER ENTITLEMENT TO UNEMPLOYMENT BENEFITS TO ANOTHER MEMBER STATE ( BELGIUM ) WHERE SUCH BENEFITS ARE INDEED SOCIAL SECURITY BENEFITS ' .

6 ARTICLE 4 ( 1 ) OF REGULATION NO 1408/71 PROVIDES THAT ' THIS REGULATION SHALL APPLY TO ALL LEGISLATION CONCERNING THE FOLLOWING BRANCHES OF SOCIAL SECURITY : . . . ( G ) UNEMPLOYMENT BENEFITS ' , WHILST THE FOURTH PARAGRAPH THEREOF EXCLUDES SOCIAL AND MEDICAL ASSISTANCE FROM ITS FIELD OF APPLICATION .

7 ARTICLE 5 OF THAT REGULATION PROVIDES THAT : ' THE MEMBER STATES SHALL SPECIFY THE LEGISLATION AND SCHEMES REFERRED TO IN ARTICLE 4 ( 1 ) AND ( 2 ) . . . . IN DECLARATIONS TO BE NOTIFIED AND PUBLISHED IN ACCORDANCE WITH ARTICLE 96 ' .

8 IN THE NETHERLANDS DECLARATION OJ C 12 OF 24 . 3 . 1973 ) THE ' WET WERKLOOSHEIDSVOORZIENING ' AS WELL AS THE ' WERKLOOSHEIDSWET ' ARE LISTED UNDER HEADING ' ( D ) UNEMPLOYMENT BENEFITS ' .

9 THE FACT THAT A NATIONAL LAW OR REGULATION HAS NOT BEEN SPECIFIED IN THE DECLARATIONS REFERRED TO IN ARTICLE 5 OF THE REGULATION IS NOT OF ITSELF PROOF THAT LAW OR REGULATION DOES NOT FALL WITHIN THE FIELD OF APPLICATION OF THE SAID REGULATION ; ON THE OTHER HAND , THE FACT THAT A MEMBER STATE HAS SPECIFIED A LAW IN ITS DECLARATION MUST BE ACCEPTED AS PROOF THAT THE BENEFITS GRANTED ON THE BASIS OF THAT LAW ARE SOCIAL SECURITY BENEFITS WITHIN THE MEANING OF REGULATION NO 1408/71 .

10 THIS MUST THEREFORE BE THE ANSWER TO THE QUESTION REFERRED .

COSTS

11 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND BY THE COMMISSION , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

12 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 , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE ARBEIDSRECHTBANK ( LABOUR COURT ) OF HASSELT BY JUDGMENT OF 16 MARCH 1977 , HEREBY RULES :

THE FACT THAT A MEMBER STATE HAS SPECIFIED A LAW IN ITS DECLARATION UNDER ARTICLE 5 OF REGULATION NO 1408/71 MUST BE ACCEPTED AS PROOF THAT THE BENEFITS GRANTED ON THE BASIS OF THAT LAW ARE SOCIAL SECURITY BENEFITS WITHIN THE MEANING OF THE SAID REGULATION .