Judgment of the Court (Third Chamber), 11 April 2013

European Union law

Netherlands law

10 According to the documents before the Court, Article 19(1)(f) of the WW makes a worker’s right to receive unemployment benefit conditional on his residence in the Netherlands.

The first question

18 By its first question, the referring court wishes to ascertain, in essence, whether the judgment in Miethe remains relevant, following the entry into force of Regulation No 883/2004, for the purposes of the interpretation of Article 65(2) of that regulation, with the result that a worker who has maintained personal and business links with the State where he was last employed of such a kind that his prospects of reintegration into working life are greatest there, may choose to make himself available to the employment services of that Member State, not only in order to receive assistance from that Member State in seeking new employment, but also to obtain unemployment benefit.

19 In order to answer that question, reference must be made to the provisions of Article 71 of Regulation No 1408/71 and to the interpretation which the Court gave to those provisions in Miethe, before examining the substance of Article 65(2) of Regulation No 883/2004.

20 Article 71 of Regulation No 1408/71 contains specific provisions applicable to unemployed persons who, while last employed, resided in a Member State other than the competent State. Those provisions can be distinguished from the general rule provided for in Article 13(2) of that regulation, according to which a worker employed in the territory of one Member State shall be subject to the legislation of that State.

21 According to Article 71(1)(a)(ii) of Regulation No 1408/71, a frontier worker who is wholly unemployed is subject to the legislation of the Member State in whose territory he resides. The Court has held that that provision is based on the assumption that such a worker would find in that State the conditions most favourable to the search for new employment (Miethe, paragraph 17).

22 Under Article 71(1)(b) of Regulation No 1408/71, an employed person other than a frontier worker, that is a person who, contrary to frontier workers, does not return daily or at least once a week to his State of residence, can choose, if he is wholly unemployed, either to remain available to the employment services in the territory of the competent Member State or to make himself available to the employment services in the territory of the Member State where he resides. In the first case, he is to receive benefit from the Member State where he was last employed, in the second case from the Member State where he resides. The benefits concerned are not only of a monetary nature but also include assistance in finding new employment (see, to that effect, Miethe, paragraph 16).

23 The Court held, in paragraph 18 of Miethe, that the objective pursued by Article 71(1)(a)(ii) of Regulation No 1408/71, concerning frontier workers who are wholly unemployed, that is to ensure that migrant workers receive unemployment benefit under the most favourable conditions, cannot however be attained where a wholly unemployed frontier worker has in exceptional circumstances maintained in the Member State in which he was last employed personal and business links of such a nature as to give him a better chance of finding new employment there. Such a worker must therefore be regarded as a ‘worker other than a frontier worker’ within the meaning of Article 71 of that regulation and is consequently covered by Article 71(1)(b). The worker may accordingly choose to make himself available to the employment services of the Member State where he was last employed and receive aid from that State, in the form both of assistance in finding employment and of payment of benefit.

24 According to recital 3 in the preamble to Regulation No 883/2004, the legislature wished to modernise and simplify the provisions of Regulation No 1408/71, which had been made more complex and dense following numerous amendments and updates.

25 Article 65 of Regulation No 883/2004 thus replaced Article 71 of Regulation No 1408/71 by partially amending its content.

26 According to Article 65(2) of Regulation No 883/2004, a frontier worker who is wholly unemployed, who resided in a Member State other than the competent Member State and who continues to reside in that Member State, the Member State of residence, is to make himself available to the employment services of that State. That provision states that he may, as a supplementary step, make himself available to the employment services of the Member State in which he pursued his last activity as an employed or self-employed person.

27 With regard to a worker other than a wholly unemployed frontier worker, he is to make himself available either to the employment services of his State of residence, if he returns to that State, or to those of the Member State of his last employment, if he does not return to that State.

28 The possibility, provided for in Article 65(2) of Regulation No 883/2004, for the wholly unemployed frontier worker to make himself available, as a supplementary step, to the employment services of the Member State where he was last employed, is new compared to the content of Article 71(1)(a)(ii) of Regulation No 1408/71. The worker concerned, whatever links he has maintained in that State and, in particular, if his chances of reintegration into working life are best there, may thus also receive assistance in looking for new employment in that State. In making such provision, the legislature partially took the judgment in Miethe into account.

29 However, according to that judgment, a worker whose links with the State where he was last employed were such as to give him a better chance of finding new employment there and who, therefore, was to be regarded as a worker other than a frontier worker, was entitled not only to assistance from that State in seeking employment but also to receive unemployment benefit from it.

30 The question therefore arises whether the right of such a worker to obtain unemployment benefit from the Member State where he has been last employed was maintained by Regulation No 883/2004.

31 In that regard, it must be observed that this right is not apparent from the wording of Article 65(2) of Regulation 883/2004. The provision lays down that a wholly unemployed frontier worker must make himself available to the employment services of his State of residence. That is an obligation, not a right. According to Article 65(5)(a) of that regulation, that worker is to receive benefits, and thus unemployment benefit, in accordance with the legislation of the Member State of residence as if he had been subject to that legislation during his last activity as an employed or self-employed person. Only as a supplementary step may he register with the employment services of the Member State of his last employment. In accordance with Article 56(1) of the Implementing Regulation, which refers to Article 65(2) of Regulation No 883/2004, that registration concerns only the seeking of employment.

32 Since Regulation No 883/2004 postdates Miethe, the legislature could have drafted Article 65 of that regulation, had it wished to do so, given its desire to modernise and simplify the existing rules, in such a way as to integrate fully and clearly the interpretation of Article 71 of Regulation No 1408/71 given by the Court in that judgment. However, it did not do so. In those circumstances, it must be held that the absence of express mention, in Article 65(2) of Regulation No 883/2004, of a right to obtain unemployment benefit from the Member State of last employment indicates that the legislature deliberately intended to restrict the taking into account of Miethe, by providing only a supplementary possibility for the worker concerned to register as a person seeking employment with the services of that Member State in order to obtain additional assistance in finding new employment.

33 That interpretation is moreover corroborated by the travaux préparatoires relating to Regulation No 883/2004 and the Implementing Regulation.

34 With regard to Regulation No 883/2004, the European Commission had proposed to end the existing system, whereby the unemployed frontier worker receives unemployment benefit from the State of residence rather than the State where he was last employed. However, the Commission noted in a communication of 27 January 2004 that, in the Common Position (EC) No 18/2004 adopted by the Council on 26 January 2004, with a view to adopting Regulation No 883/2004 (OJ 2004 C 79 E, p. 15), the Council had failed to reach agreement on that proposal and had maintained the responsibility of the State of residence for payment of the benefit.

35 With regard to the Implementing Regulation, the European Parliament had proposed, in a report of 10 June 2008, to specify in a recital in the preamble to that regulation that the right of the worker to register with the employment services of the State where he was last employed was intended to promote the mobility of employees and unemployed persons but that the worker was entitled to only one benefit, in the Member State of residence. The Parliament had explained that its amendment was intended to remove any ambiguity concerning whether the judgment in Miethe did or did not apply. Thus, recital 13 in the preamble to Regulation No 987/2009 adopts the amendment in almost identical terms.

36 The answer to the first question is therefore that, after the entry into force of Regulation No 883/2004, the provisions of Article 65 of that regulation are not to be interpreted in the light of the judgment in Miethe. With regard to a wholly unemployed frontier worker who has maintained close personal and business links with the Member State where he was last employed of such a kind that his prospects of reintegration into working life are greatest in that State, Article 65 of Regulation No 883/2004 must be understood as allowing such a worker to make himself available as a supplementary step to the employment services of that State, not with a view to obtaining unemployment benefit in that State but only in order to receive assistance there in finding new employment.

Second question

37 By its second question, the referring court asks, in essence, whether the rules on the freedom of movement for workers, in particular those in Article 45 TFEU, must be interpreted as precluding the Member State where the person was last employed from refusing, under its national law, to award unemployment benefit to a wholly unemployed frontier worker who has the best prospects of reintegration into working life in that Member State, on the ground that that worker does not reside in its territory.

38 That question should be examined in the light of situations such as that of Mr Jeltes. The situation of workers such as Ms Peeters and Mr Arnold has special characteristics which will be examined when replying to the third and fourth questions.

39 In the light of the coordination required by Regulation No 883/2004, the imposition of a residence condition provided for by national law does not lead, in a situation such as that of Mr Jeltes, to a result different from that entailed by the application of the rules in Article 65(2) and (5)(a) of Regulation No 883/2004, according to which a wholly unemployed frontier worker is to receive benefits in accordance with the legislation of the Member State of residence as if he had been subject to that legislation during his last activity as an employed or self-employed person, and the benefits are to be provided by the institution of the place of residence. In addition, according to Article 11(3)(c) of Regulation 883/2004, a person receiving unemployment benefits in accordance with Article 65 of that regulation under the legislation of the Member State of residence is to be subject to the legislation of that Member State. It is apparent from the order for reference that the national authorities relied on Article 65 of Regulation 883/2004 in order to refuse to grant the applications to obtain or to continue to receive unemployment benefit payments submitted by the applicants in the main proceedings and to suggest to them that they approach the authorities of their State of residence.

40 It follows from the case-law of the Court relating to Regulation No 1408/71 that, by adopting Regulation No 883/2004, the legislature of the European Union, bearing in mind the wide discretion that it enjoys with regard to the choice of the most appropriate measures for achieving the result envisaged in Article 42 EC, has in principle fulfilled the obligation arising from the task entrusted to it by that Article of setting up a system allowing workers to overcome any obstacles which may arise for them from national rules in the field of social security (see, by analogy, inter alia, Case C-208/07 von Chamier-Glisczinski [2009] ECR I-6095, paragraph 64 and case-law cited).

41 That said, the finding that the application, in a specific case, of a national measure may be consistent with a provision of secondary legislation, in the present case Regulation No 883/2004, does not necessarily have the effect of removing the application of that measure from the scope of the FEU Treaty’s provisions (see, to that effect, inter alia, von Chamier-Glisczinski, paragraph 66, and, with regard to unemployment benefit, Case C-406/04 Cuyper [2006] ECR I-6947 and Case C-228/07 Petersen [2008] ECR I-6989).

42 In that regard, according to the documents before the Court, the unemployment benefit paid by the Netherlands authorities is higher than that paid by the Belgian authorities but the Belgian benefit is paid over a longer period.

43 It should however be recalled that since Article 48 TFEU provides for the coordination, not the harmonisation, of the legislation of the Member States, substantive and procedural differences between the social security systems of individual Member States and, hence, in the rights of persons insured under those schemes, are unaffected by that provision (see von Chamier-Glisczinski, paragraph 84 and case-law cited).

44 In those circumstances, the Treaty rules on freedom of movement cannot guarantee to an insured person that a move to another Member State will be neutral as regards social security. In view of the disparities existing between the schemes and legislation of the Member States in this field, such a move may, depending on the case, be more or less financially advantageous or disadvantageous for the person concerned (see von Chamier-Glisczinski paragraph 85, and Case C-562/10 Commission v Germany [2012] ECR, paragraph 57).

45 Thus, the fact that a person such as Mr Feltes receives his unemployment benefit from the competent institution of the Member State of residence, in the present case the Kingdom of Belgium, results from the application, in accordance with Regulation No 883/2004, of the law of that State on unemployment benefit. A difference between the benefit provided for in the legislation of the Member State of last employment and that granted pursuant to the legislation of the Member State of residence cannot, in those circumstances, be considered as a restriction on the freedom of movement for workers, since it results from the lack of harmonisation of European Union law in the matter (see, by analogy, Case C-345/09 van Delft and Others [2010] ECR I-9879, paragraph 106).

46 The answer to the second question is therefore that the rules on the freedom of movement for workers, contained in particular in Article 45 TFEU, must be interpreted as not precluding the Member State where the person was last employed from refusing, in accordance with its national law, to grant unemployment benefit to a wholly unemployed frontier worker whose prospects of reintegration into working life are best in that Member State, on the ground that he does not reside in its territory, since, in accordance with the provisions of Article 65 of Regulation No 883/2004, the applicable legislation is that of the Member State of residence.

The third and fourth questions

47 The third and fourth questions relate to the situation of persons such as Ms Peeters and Mr Arnold who, in view of the proximity of the two periods of unemployment they experienced, requested, on the basis of national law, resumption of payment of the benefit which they initially received, but whose requests for such resumption were rejected on the ground of the entry into force, in the meantime, of Regulation No 883/2004.

48 The referring court asks whether, in such a situation, in order to avoid a restriction on the freedom of movement for workers, the transitional provisions of Article 87(8) of Regulation No 883/2004, Article 17 of the Charter of Fundamental Rights of the European Union concerning the right of property and the principles of legal certainty or of the protection of legitimate expectations must be interpreted as meaning that the workers concerned may continue to receive unemployment benefit from the State where they were last employed.

49 In that regard, it should be recalled that Article 87(8) of Regulation No 883/2004 provides, in favour of a person who, as a result of that regulation, is subject to the legislation of a Member State other than that to whose legislation he was subject under Title II of Regulation No 1408/71, for the continued application of the latter legislation for a certain period, provided that the relevant situation remains unchanged.

50 That provision thus applies, first, on condition that the applicable legislation is covered by Title II of Regulation No 1408/71 and, second, on condition that the relevant situation remained unchanged.

51 With regard to the first of those two conditions, it is not in dispute that Ms Peeters and Mr Arnold obtained unemployment benefit from the Netherlands authorities, pursuant to Netherlands legislation, in accordance with Article 71 of Regulation No 1408/71. However, that article does not fall under Title II of that regulation, concerning the general rules for the determining the legislation applicable, but under Title III of that regulation, concerning the specific provisions for determining that legislation with regard, inter alia, to unemployment benefit.

52 Accordingly, Article 87(8) of Regulation No 883/2004 cannot be regarded as directly applicable, as such, to the main proceedings.

53 The question arises, therefore, whether that fact precludes the continuation of the legislation which applied pursuant to Regulation No 1408/71.

54 According to all the observations submitted to the Court, that fact should not, alone, preclude such continuation.

55 In that regard, as stated, in essence, by the Advocate General in point 68 of his Opinion, the lack of any reference, in Regulation No 883/2004, to a transitional provision applicable to the situation of the workers concerned can be regarded as attributable to a lacuna which arose during the legislative process leading to the adoption of Regulation No 883/2004 and does not reflect the legislature’s deliberate intention to make those workers directly subject to other legislation.

56 In those circumstances, the transitional provision laid down in Article 87(8) of Regulation No 883/2004 must be interpreted as applying, by analogy, to wholly unemployed frontier workers who, taking into account the links they have maintained in the Member State where they were last employed, receive unemployment benefit from it on the basis of the legislation of that Member State, pursuant to Article 71 of Regulation No 1408/71. The fact that the latter article falls under Title III of Regulation No 1408/71 does not preclude, in such a case, that application.

57 With regard, in the context of such an application of Article 87(8) of Regulation No 883/2004, to the question whether ‘the relevant situation has remained unchanged’, the observations submitted to the Court concerning the meaning to be given to that wording diverge.

58 From the point of view of the Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen and of the Netherlands and Danish Goverments, since the workers concerned were exercising a professional activity at the date of the entry into force of Regulation No 883/2004 and became unemployed only after that date, their situation must be considered as having changed, for the purposes of Article 87(8) of that regulation. In the opinion of Ms Peeters, the German Government and the Commission, those circumstances are not decisive and do not necessarily preclude the continued application of the law which was applicable pursuant to Regulation No 1408/71.

59 In that regard, it should be noted that the concept of ‘unchanged situation’ is not defined by Regulation No 883/2004. However, as the regulation is not a measure harmonising national social security systems but an enactment intended to coordinate those systems, each Member State retains the power to determine in its legislation, in compliance with European Union law, the conditions pursuant to which benefits may be granted under a social security scheme (see, to that effect, Joined Cases C-611/10 and C-612/10 Hudzinski and Wawrrzyniak [2012] ECR, paragraph 42). The concept of ‘unchanged situation’ within the meaning of Article 87(8) of that regulation must, consequently, be interpreted by reference to the definition given by national social security legislation (see, by analogy, with regard to the term ‘employment’ within the meaning of Article 71(1) of Regulation No 1408/71, Case C-372/02 Adanez-Vega [2004] ECR I-10761, paragraph 33).

60 With regard to workers such as Ms Peeters and Mr Arnold, it is thus for the referring court to establish whether, under Netherlands law, on the date on which those workers found employment again after a first period of unemployment or, respectively, in the course of the months of April 2010 and March 2009, they were entitled to resumption of the payment of unemployment benefit if they found themselves unemployed again following expiry of a certain period. Reference by the Netherlands authorities to the term ‘resumption’ may suggest that such an entitlement exists under Netherlands legislation. If that is so, it is for that court to determine whether, taking into account in particular the duration of the period during which the persons concerned worked again, they fulfil the conditions provided for under national legislation for entitlement to such resumption of the payment of that benefit, irrespective of the entry into force of Regulation No 883/2004.

61 It follows that the concept of ‘unchanged situation’ within the meaning of Article 87(8) of Regulation No 883/2004 must be assessed in the light of national social security legislation and that it is for the national court to establish whether workers such as Ms Peeters and Mr Arnold satisfy the conditions provided for in that legislation which would entitle them to claim resumption of payment of the unemployment benefit which was paid to them under that legislation in accordance with Article 71 of Regulation No 1408/71.

62 It follows from the above considerations that the answer to the third and fourth questions is:

• the provisions of Article 87(8) of Regulation No 883/2004 should be applied to wholly unemployed frontier workers who, taking into account the links they have maintained in the Member State where they were last employed, receive unemployment benefit from that Member State on the basis of its legislation, pursuant to Article 71 of Regulation No 1408/71;

• the concept of ‘unchanged situation’ within the meaning of Article 87(8) of Regulation No 883/2004 must be assessed in the light of national social security legislation. It is for the national court to establish whether workers such as Ms Peeters and Mr Arnold satisfy the conditions provided for in that legislation in order to be able to claim resumption of payment of the unemployment benefit which was paid to them under that legislation, in accordance with Article 71 of Regulation No 1408/71.