61976J0076

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT OF A WORKER , OTHER THAN A FRONTIER WORKER , OCCUPIED IN ANOTHER MEMBER STATE - BENEFITS - CLAIM IN THE MEMBER STATE OF RESIDENCE - CONCEPT OF RESIDENCE

( REGULATION NO 1408/71 , ARTICLE 71 ( 1 ) ( B ) ( II )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT OF A WORKER , OTHER THAN A FRONTIER WORKER , OCCUPIED IN ANOTHER MEMBER STATE - BENEFITS - CLAIM IN THE MEMBER STATE OF RESIDENCE - GRANT - CONDITIONS

( REGULATION NO 1408/71 , ARTICLE 71 ( 1 ) ( B ) ( II )

1 . THE CONCEPT OF THE MEMBER STATE IN WHICH THE WORKER RESIDES , APPEARING IN ARTICLE 71 ( 1 ) ( B ) ( II ) OF REGULATION NO 1408/71 , MUST BE LIMITED TO THE STATE WHERE THE WORKER , ALTHOUGH OCCUPIED IN ANOTHER MEMBER STATE , CONTINUES HABITUALLY TO RESIDE AND WHERE THE HABITUAL CENTRE OF HIS INTERESTS IS ALSO SITUATED .

THE ADDITION OF THE WORDS ' OR WHO RETURNS TO THAT TERRITORY ' IMPLIES MERELY THAT THE CONCEPT OF RESIDENCE IN A STATE DOES NOT NECESSARILY EXCLUDE NON-HABITUAL RESIDENCE IN ANOTHER MEMBER STATE .

2 . FOR THE PURPOSES OF APPLYING ARTICLE 71 ( 1 ) ( B ) ( II ), ACCOUNT SHOULD BE TAKEN OF THE LENGTH AND CONTINUITY OF RESIDENCE BEFORE THE PERSON CONCERNED MOVED , THE LENGTH AND PURPOSE OF HIS ABSENCE , THE NATURE OF THE OCCUPATION FOUND IN THE OTHER MEMBER STATE AND THE INTENTION OF THE PERSON CONCERNED AS IT APPEARS FROM ALL THE CIRCUM- STANCES .

IN CASE 76/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DE CASSATION OF BELGIUM FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SILVANA DI PAOLO

AND

OFFICE NATIONAL DE L ' EMPLOI ( NATIONAL EMPLOYMENT OFFICE )

ON THE INTERPRETATION OF ARTICLE 71 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY

1 BY ORDER OF 16 JUNE 1976 , WHICH REACHED THE COURT ON THE FOLLOWING 28 JULY , THE BELGIAN COUR DE CASSATION HAS REFERRED A QUESTION , UNDER ARTICLE 177 OF THE EEC TREATY , ON THE INTERPRETATION OF ARTICLE 71 ( 1 ) ( B ) ( II ) OF REGULATION ( EEC ) NO 1408/71 ( OJ ENGLISH SPECIAL EDITION , 1971 ( II ), P . 416 ).

2 THE QUESTION HAS ARISEN IN RESPECT OF A DISPUTE AS TO WHETHER AN ITALIAN NATIONAL ( THE APPELLANT IN THE MAIN ACTION ), WHO LAST WORKED IN THE UNITED KINGDOM AND THEN RETURNED TO HER FAMILY IN BELGIUM , IS ENTITLED TO UNEMPLOYMENT BENEFITS UNDER BELGIAN LAW .

3 SINCE THE APPELLANT HAS NOT WORKED IN BELGIUM AND SINCE BELGIAN LAW REQUIRES THAT A CERTAIN NUMBER OF DAYS OF WORK MUST BE PERFORMED OVER A REFERENCE PERIOD OF 10 MONTHS PRECEDING THE CLAIM IN ORDER THAT ENTITLEMENT TO UNEMPLOYMENT BENEFITS MAY BE ACQUIRED , THE APPELLANT IN THE MAIN ACTION HAS RELIED ON ARTICLE 67 ( 1 ) OF REGULATION NO 1408/71 .

4 ARTICLE 67 ( 1 ) OF THE SAID REGULATION PROVIDES THAT AS REGARDS THE ACQUISITION , RETENTION OR RECOVERY OF THE RIGHT TO UNEMPLOYMENT BENEFITS , ACCOUNT SHALL BE TAKEN , TO THE EXTENT NECESSARY , OF PERIODS OF INSURANCE OR EMPLOYMENT COMPLETED UNDER THE LEGISLATION OF ANY OTHER MEMBER STATE .

5 HOWEVER , PARAGRAPH ( 3 ) OF THAT ARTICLE PROVIDES THAT , EXCEPT IN THE CASES REFERRED TO IN ARTICLE 71 ( 1 ) ( A ) ( II ) AND ( B ) ( II ), APPLICATION OF THE PROVISIONS OF PARAGRAPH ( 1 ) SHALL BE SUBJECT TO THE CONDITION THAT THE PERSON CONCERNED SHOULD HAVE COMPLETED LASTLY PERIODS OF INSURANCE IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION UNDER WHICH THE BENEFITS ARE CLAIMED .

6 ARTICLE 71 ( 1 ) ( B ) ( II ) COVERS THE CASE OF A ' WORKER , OTHER THAN A FRONTIER WORKER , WHO IS WHOLLY UNEMPLOYED AND WHO MAKES HIMSELF AVAILABLE FOR WORK TO THE EMPLOYMENT SERVICES IN THE TERRITORY OF THE MEMBER STATE IN WHICH HE RESIDES , OR WHO RETURNS TO THAT TERRITORY ' , AND PROVIDES THAT HE ' SHALL RECEIVE BENEFITS IN ACCORDANCE WITH THE LEGISLATION OF THAT STATE AS IF HE HAD LAST BEEN EMPLOYED THERE . . . ' .

7 THE APPELLANT IN THE MAIN ACTION , WHO HAS EXPLAINED THAT SHE STAYED IN THE UNITED KINGDOM MERELY IN ORDER TO IMPROVE HER KNOWLEDGE OF THE ENGLISH LANGUAGE , IS OF THE OPINION THAT SHE MAINTAINED HER RESIDENCE IN BELGIUM AND THAT SHE MAY THEREFORE BENEFIT FROM THE EXCEPTION CONTAINED IN ARTICLE 71 ( 1 ) ( B ) ( II ) OF REGULATION NO 1408/71 .

8 THE COURT IS REQUESTED TO INTERPRET THE WORDS ' . . . IN WHICH HE RESIDES OR WHO RETURNS TO THAT TERRITORY ' , IN PARTICULAR AS REGARDS THE CONCEPTS OF RESIDENCE AND RETURN TO THE TERRITORY , TO EXPLAIN WHICH CRITERIA ARE APPLICABLE AND TO STATE WHEN THE CONDITIONS OF RESIDENCE AND RETURN MUST BE FULFILLED .

9 ARTICLE 67 ( 3 ) OF REGULATION NO 1408/71 LAYS DOWN THE RULE THAT , EXCEPT WHERE OTHERWISE PROVIDED , AN UNEMPLOYED PERSON MAY CLAIM UNEMPLOYMENT BENEFITS ONLY IF HE HAS COMPLETED LASTLY PERIODS OF INSURANCE OR OF EMPLOYMENT IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION UNDER WHICH THE BENEFITS ARE CLAIMED .

10 SUBJECT TO CERTAIN CONDITIONS , ARTICLE 71 ( 1 ) OF THE SAID REGULATION MAKES EXCEPTIONS TO THIS REQUIREMENT AT SUBPARAGRAPH ( A ) ( II ) IN FAVOUR OF FRONTIER WORKERS , AND AT SUBPARAGRAPH ( B ) ( II ) IN FAVOUR OF CERTAIN MIGRANT WORKERS OTHER THAN FRONTIER WORKERS .

11 THE DECISIVE ELEMENT IN APPLYING ARTICLE 71 , AS A WHOLE , IS THE RESIDENCE OF THE PERSON CONCERNED IN A MEMBER STATE OTHER THAN THE STATE TO WHOSE LEGISLATION HE WAS SUBJECT DURING HIS LAST EMPLOYMENT .

12 THE TRANSFER OF LIABILITY FOR PAYMENT OF UNEMPLOYMENT BENEFITS FROM THE MEMBER STATE OF LAST EMPLOYMENT TO THE MEMBER STATE OF RESIDENCE IS JUSTIFIED FOR CERTAIN CATEGORIES OF WORKERS WHO RETAIN CLOSE TIES WITH THE COUNTRY WHERE THEY HAVE SETTLED AND HABITUALLY RESIDE , BUT IT WOULD NO LONGER BE JUSTIFIED IF , BY AN EXCESSIVELY WIDE INTERPRETATION OF THE CONCEPT OF RESIDENCE , THE POINT WERE TO BE REACHED AT WHICH ALL MIGRANT WORKERS WHO PURSUE AN ACTIVITY IN ONE MEMBER STATE WHILE THEIR FAMILIES CONTINUE HABITUALLY TO RESIDE IN ANOTHER MEMBER STATE WERE GIVEN THE BENEFIT OF THE EXCEPTION CONTAINED IN ARTICLE 71 OF REGULATION NO 1408/71 .

13 IT FOLLOWS FROM THESE CONSIDERATIONS THAT THE PROVISIONS OF ARTICLE 71 ( 1 ) ( B ) ( II ) MUST BE INTERPRETED STRICTLY .

14 THESE CONSIDERATIONS LED THE ADMINISTRATIVE COMMISSION ( ON SOCIAL SECURITY FOR MIGRANT WORKERS ) ESTABLISHED UNDER ARTICLE 80 OF REGULATION NO 1408/71 , IN ITS OPINION NO 94 OF 24 JANUARY 1974 OJ C 126 1974 , P . 22 ), TO HOLD THAT ARTICLE 71 ( 1 ) ( B ) ( II ) APPLIES ONLY TO SEASONAL WORKERS AND , IN ADDITION , TO THE WORKERS REFERRED TO IN ARTICLE 14 ( 1 ) ( B ), ( C ) AND ( D ) OF REGULATION NO 1408/71 .

15 HOWEVER , THAT DECISION , THOUGH CLARIFYING THE MATTER TO A CERTAIN EXTENT , CANNOT BE CONSIDERED TO HAVE ENUMERATED EXHAUSTIVELY THE CATEGORIES OF WORKERS WHO MAY COME WITHIN THE PROVISION , NOR TO HAVE EXCLUDED CERTAIN OTHER CATEGORIES WHO HAVE MAINTAINED SIMILARLY CLOSE TIES WITH THEIR COUNTRY OF HABITUAL RESIDENCE .

16 BY VIRTUE OF THE WORDS ' IN WHICH HE RESIDES , OR WHO RETURNS TO THAT TERRITORY ' , ARTICLE 71 ( 1 ) ( B ) ( II ) COVERS TWO CATEGORIES OF WORKERS WHOSE SITUATION IS SUBSTANTIALLY THE SAME .

17 THE CONCEPT OF ' THE MEMBER STATE IN WHICH HE RESIDES ' MUST BE LIMITED TO THE STATE WHERE THE WORKER , ALTHOUGH OCCUPIED IN ANOTHER MEMBER STATE , CONTINUES HABITUALLY TO RESIDE AND WHERE THE HABITUAL CENTRE OF HIS INTERESTS IS ALSO SITUATED .

18 IN THIS RESPECT , THE FACT THAT THE WORKER HAS LEFT HIS FAMILY IN THE SAID STATE CONSTITUTES EVIDENCE THAT HE HAS RETAINED HIS RESIDENCE THERE , BUT IS NOT OF ITSELF SUFFICIENT TO ALLOW HIM THE BENEFIT OF THE EXCEPTION LAID DOWN IN ARTICLE 71 ( 1 ) ( B ) ( II ).

19 IN FACT , WHENEVER A WORKER HAS A STABLE EMPLOYMENT IN A MEMBER STATE THERE IS A PRESUMPTION THAT HE RESIDES THERE , EVEN IF HE HAS LEFT HIS FAMILY IN ANOTHER STATE .

20 ACCORDINGLY IT IS NOT ONLY THE FAMILY SITUATION OF THE WORKER THAT SHOULD BE TAKEN INTO ACCOUNT , BUT ALSO THE REASONS WHICH HAVE LED HIM TO MOVE , AND THE NATURE OF THE WORK .

21 THE ADDITION OF THE WORDS ' OR WHO RETURNS TO THAT TERRITORY ' IMPLIES MERELY THAT THE CONCEPT OF RESIDENCE , SUCH AS DEFINED ABOVE , DOES NOT NECESSARILY EXCLUDE NON-HABITUAL RESIDENCE IN ANOTHER MEMBER STATE .

22 THUS FOR THE PURPOSES OF APPLYING ARTICLE 71 ( 1 ) ( B ) ( II ) OF REGULATION NO 1408/71 , ACCOUNT SHOULD BE TAKEN OF THE LENGTH AND CONTINUITY OF RESIDENCE BEFORE THE PERSON CONCERNED MOVED , THE LENGTH AND PURPOSE OF HIS ABSENCE , THE NATURE OF THE OCCUPATION FOUND IN THE OTHER MEMBER STATE AND THE INTENTION OF THE PERSON CONCERNED AS IT APPEARS FROM ALL THE CIRCUMSTANCES .

COSTS

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

24 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE BELGIAN COUR DE CASSATION , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BELGIAN COUR DE CASSATION BY ORDER OF 16 JUNE 1976 , HEREBY RULES :

1 . THE CONCEPT OF THE MEMBER STATE WHERE THE WORKER RESIDES , APPEARING IN ARTICLE 71 ( 1 ) ( B ) ( II ) OF REGULATION NO 1408/71 , MUST BE LIMITED TO THE STATE WHERE THE WORKER , ALTHOUGH OCCUPIED IN ANOTHER MEMBER STATE , CONTINUES HABITUALLY TO RESIDE AND WHERE THE HABITUAL CENTRE OF HIS INTERESTS IS ALSO SITUATED ;

2 . THE ADDITION TO THAT PROVISION OF THE WORDS ' OR WHO RETURNS TO THAT TERRITORY ' IMPLIES MERELY THAT THE CONCEPT OF RESIDENCE IN ONE STATE DOES NOT NECESSARILY EXCLUDE NON-HABITUAL RESIDENCE IN ANOTHER MEMBER STATE ;

3 . FOR THE PURPOSES OF APPLYING ARTICLE 71 ( 1 ) ( B ) ( II ), ACCOUNT SHOULD BE TAKEN OF THE LENGTH AND CONTINUITY OF RESIDENCE BEFORE THE PERSON CONCERNED MOVED , THE LENGTH AND PURPOSE OF HIS ABSENCE , THE NATURE OF THE OCCUPATION FOUND IN THE OTHER MEMBER STATE AND THE INTENTION OF THE PERSON CONCERNED AS IT APPEARS FROM ALL THE CIRCUMSTANCES .