Avis juridique important

Judgment of the Court of 10 July 1975. - Gaetano Bonaffini and others v Istituto Nazionale della Previdenza Sociale (INPS). - Reference for a preliminary ruling: Pretura di Enna - Italy. - Case 27-75. European Court reports 1975 Page 00971 Greek special edition Page 00297 Portuguese special edition Page 00337

Summary Parties Subject of the case Grounds Decision on costs Operative part

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SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS UNDER THE LEGISLATION OF THE COMPETENT STATE - LIMITED AND CONDITIONAL PRESERVATION - DEPARTURE OF THE PERSON CONCERNED TO ANOTHER MEMBER STATE - BENEFITS UNDER THE LEGISLATION OF THAT STATE - REFUSAL BASED ON FAILURE TO FULFIL THE CONDITIONS LAID DOWN BY ARTICLE 69 OF REGULATION ( EEC ) NO 1408/71 - NOT PERMISSIBLE

ARTICLE 69 OF REGULATION ( EEC ) NO 1408/71 IS INTENDED SOLELY TO ENSURE FOR THE MIGRANT WORKER THE LIMITED AND CONDITIONAL PRESERVATION OF THE UNEMPLOYMENT BENEFITS OF THE COMPETENT STATE EVEN IF HE GOES TO ANOTHER MEMBER STATE AND THIS OTHER MEMBER STATE CANNOT, THEREFORE, RELY ON MERE FAILURE TO COMPLY WITH THE CONDITIONS PRESCRIBED UNDER THAT ARTICLE TO DENY THE WORKER ENTITLEMENT TO THE BENEFIT WHICH HE MAY CLAIM UNDER THE NATIONAL LEGISLATION OF THAT STATE .

IN CASE 27/75

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETORE OF ENNA FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE HIM BETWEEN

GAETANO BONAFFINI AND OTHERS

AND

INSTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE ( INPS )

ON THE INTERPRETATION OF ARTICLES 69 AND 71 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 ORDER OF 17 DECEMBER 1974, RECEIVED AT THE COURT REGISTRY ON 11 MARCH 1975, THE PRETORE OF ENNA REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY QUESTIONS ON THE INTERPRETATION OF ARTICLES 69 AND 71 OF REGULATION ( EEC ) NO 1408/71 ( OJ ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THE QUESTIONS ARE CONCERNED WITH WORKERS OF ITALIAN NATIONALITY WHO, AFTER HAVING WORKED IN THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY AND LOST THEIR EMPLOYMENT, RETURNED TO ITALY AND, BEING WITHOUT WORK, APPLIED FOR UNEMPLOYMENT BENEFIT UNDER THE ITALIAN LEGISLATION IN FORCE .

3 THEIR APPLICATION WAS REJECTED ON THE GROUND THAT THEY HAD NOT COMPLIED WITH THE PROVISIONS OF ARTICLE 69 OF REGULATION NO 1408/71, IN THAT INTER ALIA THEY RETURNED TO ITALY BEFORE THE EXPIRY OF THE PERIOD OF FOUR WEEKS THEREIN PRESCRIBED, AND THE QUESTION IS ASKED WHETHER THIS FAILURE IS SUCH AS TO PREVENT THE ITALIAN LEGISLATION FROM BEING APPLIED TO THEM .

4 IF THE ANSWER IS IN THE AFFIRMATIVE, IT IS ASKED WHETHER OR NOT THE PROVISIONS OF ARTICLE 71 OF REGULATION NO 1408/71 GOVERN THE SITUATION OF THE WORKERS CONCERNED .

5 ARTICLE 69 OF REGULATION NO 1408/71 COVERS THE CASE OF AN UNEMPLOYED MIGRANT WORKER WHO IS IN RECEIPT OF UNEMPLOYMENT BENEFIT IN THE COMPETENT STATE AND GOES TO ONE OR MORE OF THE OTHER MEMBER STATES IN ORDER TO SEEK EMPLOYMENT THERE .

6 THIS PROVISION IS DESIGNED TO ENSURE THAT THE WORKER RETAINS THE RIGHT TO THE BENEFITS OF THE COMPETENT STATE UNDER THE CONDITIONS AND WITHIN THE LIMITS SET OUT UNDER THAT ARTICLE .

7 IT FOLLOWS THAT THE PROVISION DOES NOT AFFECT ANY RIGHTS WHICH THE WORKER MAY POSSIBLY CLAIM UNDER THE LEGISLATION OF THE MEMBER STATE TO WHICH HE HAS GONE .

8 NOTWITHSTANDING THAT IN ADMINISTERING THE BENEFITS TO WHICH THE WORKER IS ENTITLED UNDER THEIR LEGISLATION, THERE IS NOTHING TO PREVENT THE AUTHORITIES OF THAT MEMBER STATE FROM TAKING ACCOUNT OF THE FACT THAT, BY VIRTUE OF ARTICLE 69, THE WORKER IS ALSO IN RECEIPT OF UNEMPLOYMENT BENEFIT FROM THE COMPETENT STATE, THESE AUTHORITIES CANNOT CLAIM THAT THE WORKER HAS LOST THE BENEFIT OF ARTICLE 69 BECAUSE OF FAILURE TO FULFIL THE CONDITIONS WHICH IT PRESCRIBES AND, ON THAT ACCOUNT, REFUSE TO APPLY TO HIM THEIR NATIONAL LEGISLATION IN THE PROPER AND NORMAL WAY .

10 IT FOLLOWS BOTH FROM THE WORDING OF THE ORDER MAKING THE REFERENCE AND FROM THE FILE ON THE CASE THAT THE ANSWER TO BE GIVEN TO THE QUESTION CONCERNING ARTICLE 69 MAKES IT UNNECESSARY TO ANSWER THE ONE CONCERNING ARTICLE 71 OF REGULATION NO 1408/71 .

11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS 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, A STEP IN THE ACTION PENDING BEFORE THE PRETORE OF ENNA, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETORE OF ENNA BY ORDER OF 17 DECEMBER 1974, HEREBY RULES :

ARTICLE 69 OF REGULATION ( EEC ) NO 1408/71 IS INTENDED SOLELY TO ENSURE FOR THE MIGRANT WORKER THE LIMITED AND CONDITIONAL PRESERVATION OF THE UNEMPLOYMENT BENEFITS OF THE COMPETENT STATE EVEN IF HE GOES TO ANOTHER MEMBER STATE AND THIS OTHER MEMBER STATE CANNOT, THEREFORE, RELY ON MERE FAILURE TO COMPLY WITH THE CONDITIONS PRESCRIBED UNDER THAT ARTICLE TO DENY THE WORKER ENTITLEMENT TO THE BENEFIT WHICH HE MAY CLAIM UNDER THE NATIONAL LEGISLATION OF THAT STATE .