Avis juridique important

Judgment of the Court (First Chamber) of 10 May 1990. - Office national de l'emploi v Antonio Di Conti. - Reference for a preliminary ruling: Cour du travail de Liège - Belgium. - Social security - Unemployment benefit. - Case C-163/89. European Court reports 1990 Page I-01829

Summary Parties Grounds Decision on costs Operative part

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Social security of migrant workers - Unemployment - Unemployed person going to another Member State - Retention of right to benefit - Special provision applicable to unemployed persons coming under Belgian legislation - Requalification for benefits - Conditions

( Council Regulation No 1408/71, Art . 69(1)(c ) and ( 4 ) )

Article 69 of Regulation No 1408/71 is intended to encourage the mobility of persons looking for employment . Article 69(4 ) contains a special provision applicable to unemployed persons for whom the competent State is Belgium . Where such an unemployed person goes to another Member State in order to seek employment there, in accordance with the provisions of Article 69, and returns to Belgium only after the expiry of the period of three months laid down in Article 69(1)(c ), he requalifies for benefits under the Belgian unemployment benefit scheme, pursuant to Article 69(4 ), on condition only that he has retained the status of an entitled person under Belgian legislation and that he has been employed for at least three months since his return to Belgium .

In Case C-163/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the cour du travail ( Fifth Chamber ) de Liège ( Labour Court, Liège ), Belgium, for a preliminary ruling in the proceedings pending before that court between

Office national de l' emploi ( National Employment Office )

and

Antonio Di Conti

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 families moving within the Community, as amended by Council Regulation ( EEC ) No 2001/83 of 2 June 1983 ( Official Journal 1983, L 230, p . 6 ).

THE COURT ( First Chamber )

composed of : R . Joliet, Judge, acting as President of Chamber, G . C . Rodríguez Iglesias and F . Grévisse, Judges,

Advocate General : C . O . Lenz

Registrar : J.-G . Giraud

after considering the observations submitted on behalf of

the Office national de l' emploi, the appellant in the main proceedings, by Georges Lewalle, of the Liège Bar,

Antonio Di Conti, the respondent in the main proceedings, by René Jamar, Agent within the meaning of Article 728 of the Belgian code judiciaire,

the Commission of the European Communities, by Dimitrios Gouloussis, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Di Conti, represented by M . Baiwir, Agent within the meaning of Article 728 of the Belgian code judiciaire, the Office national de l' emploi and the Commission, represented by Jean-Claude Séché, Legal Adviser, acting as Agent, at the hearing on 8 February 1990,

after hearing the opinion of the Advocate General delivered at the sitting on 7 March 1990,

gives the following

Judgment

1 By judgment of 28 April 1989, which was received at the Court on 9 May 1989, the cour du travail de Liège 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 families moving within the Community as amended by Regulation ( EEC ) No 2001/83 of 2 June 1983 ( Official Journal 1983, L 230, p . 6 ).

2 That question was raised in proceedings between the Office national de l' emploi and Mr Di Conti in relation to the refusal of unemployment benefit .

3 On 27 April 1984 Mr Di Conti, an Italian national in receipt of unemployment benefit in Belgium, requested that Article 69 of Regulation No 1408/71 should be applied to him in order that he might continue to receive benefit in Italy whither he had decided to go to seek employment . A document E 303 was then issued to him certifying that he was entitled to benefit for a period of three months beginning on 27 April 1984 .

4 Mr Di Conti returned to Belgium after the expiry of the prescribed period . He resumed work on 23 September 1985 and claimed partial unemployment benefit . The Office national de l' emploi refused him benefits on the ground that, although he had been employed in Belgium for more than three months as required by Article 69(4 ) of Regulation No 1408/71 in order to requalify for benefits in Belgium, he did not satisfy the conditions regarding qualifying periods laid down by Belgian law ( Articles 118 to 122 of the Royal Decree of 20 December 1963 on employment and unemployment ).

5 Mr Di Conti appealed against that decision to the tribunal du travail de Liège which held his action admissible and well founded on the ground that he satisfied the conditions laid down by Article 69(4 ) of Regulation No 1408/71 . The Office national de l' emploi appealed against that judgment to the cour du travail de Liège which stayed the proceedings and referred the following question to the Court for a preliminary ruling :

"Does an unemployed person in relation to whom the competent State is Belgium, who has returned to Belgium after the expiry of the period of three months laid down in Article 69(1)(c ) of Regulation No 1408/71 and who has as a result lost all entitlement to benefits payable by Belgium, by virtue of Article 69(2 ), requalify for benefits payable by that country by satisfying the sole condition of having previously been employed there for at least three months or, on the contrary, must Article 69(4 ) be taken to mean in addition that such an unemployed person must again satisfy the conditions regarding qualifying periods laid down by Belgian law, in this case the Royal Decree of 20 December 1963?"

6 Reference is made to the Report for the Hearing for the facts of the case, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

7 It should be pointed out at the outset that Article 69 of Regulation No 1408/71 allows for an unemployed worker to be exempt for a set period from the obligation imposed by the law of the competent Member State to make himself available to the employment services of that State without thereby losing his entitlement to unemployment benefits in order to enable him to seek employment in another Member State . According to Article 69(1 ) the possibility thus afforded to the worker is limited to a period of three months from the date on which he ceased to be available to the employment services of the competent State .

8 In the judgment of 19 June 1980 in Joined Cases 41, 121 and 796/79 Testa v Bundesanstalt fuer Arbeit (( 1980 )) ECR 1979, the Court held that a worker who returns to the competent State after the three-month period referred to in Article 69(1)(c ) of Regulation 1408/71 has expired may no longer claim entitlement, by virtue of the first sentence of Article 69(2 ), to benefits as against the competent State unless the said period is extended pursuant to the second sentence of Article 69(2 ).

9 Article 69(4 ), the interpretation of which is requested by the national court, is a special provision regarding the requalification for entitlement benefit by an unemployed person who returns to the competent State after the expiry of the three-month period where that State is Belgium .

10 The Office national de l' emploi maintains that the condition in Article 69(4 ), according to which in order to requalify for benefits in Belgium the worker must have been employed there for at least three months after returning there, is in addition to those to which Belgian legislation generally subjects the acquisition of entitlement to unemployment benefit .

11 Such an interpretation cannot be accepted .

12 In the first place there is no foundation for it in the wording of Article 69(4 ) which merely requires that an unemployed person who returns to Belgium must again be employed there for three months in order to requalify for benefits in Belgium and thus concerns requalification for benefits and not acquisition of entitlement thereto .

13 In the second place, whereas the object of Article 69 of Regulation No 1408/71 is to encourage the mobility of persons seeking employment, the result of the interpretation advocated by the Office national de l' emploi would be to discourage it by making it more difficult for a worker who has exercised the right given to him by Article 69(1 ) to retain his entitlement to unemployment benefit than for workers in Belgium as a whole .

14 It must be stressed that Article 69(4 ) cannot be interpreted without regard to the particular nature of the Belgian legislation .

15 Under Article 123(1)(1 ) of the Royal Decree of 20 December 1963 ( as amended by Article 2(1 ) of the Royal Decree of 12 April 1983 ) a worker who has become unemployed retains his status as a person entitled to unemployment benefit if the benefit has been interrupted for a period which may not generally exceed three years .

16 It is in return for the unemployed persons' retention of their rights to benefit for quite a long period while not remaining available to the Belgian employment services that they are required, under Article 69(4 ), to be employed again for at least three months in order to requalify for benefit when they return to Belgium .

17 It follows from the foregoing that Article 69(4 ) of Regulation No 1408/71 must be interpreted as meaning that an unemployed person for whom the competent State, within the meaning of that article, is Belgium and who goes to another Member State in order to seek employment there, in accordance with the provisions of Article 69, and returns to Belgium only after the expiry of the period of three months laid down in Article 69(1)(c ) requalifies for benefits under the Belgian unemployment benefits scheme, pursuant to Article 69(4 ), on condition only that he has retained the status of an entitled person under Belgian legislation and that he has been employed for at least three months since his return to Belgium .

Costs

18 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings 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 ( First Chamber ),

in answer to the question referred to it by judgment of 28 April 1989 of the cour du travail, Liège, hereby rules :

Article 69(4 ) 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 by Regulation ( EEC ) No 2001/83 of 2 June 1983, is to be interpreted as meaning that an unemployed person for whom the competent State, within the meaning of that article, is Belgium and who goes to another Member State in order to seek employment there, in accordance with the provisions of Article 69, and returns to Belgium only after the expiry of the period of three months laid down in Article 69(1)(c ) requalifies for benefits under the Belgian unemployment benefits scheme, pursuant to Article 69(4 ), on condition only that he has retained the status of an entitled person under Belgian legislation and that he has been employed for at least three months since his return to Belgium .