Judgment of the Court (Third Chamber) of 11 April 2013 (request for a preliminary ruling from the Rechtbank Amsterdam - Netherlands) - F.P. Jeltes, M.A. Peeters, J.G.J. Arnold v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen
(Case C-443/11)
(Social security for migrant workers - Article 45 TFEU - Regulation (EEC) No 1408/71 - Article 71 - Wholly unemployed atypical frontier workers who have maintained personal and business links in the Member State of last employment - Regulation (EC) No 883/2004 - Article 65 - Right to benefit in the Member State of residence - Refusal to pay by the Member State of last employment - Admissibility - Relevance of the judgment of the Court of 12 June 1986 in Case 1/85 Miethe - Transitional provisions - Article 87(8) - Concept of 'unchanged situation')
Language of the case: Dutch
Referring court
Rechtbank Amsterdam
Parties to the main proceedings
Applicants: F.P. Jeltes, M.A. Peeters, J.G.J. Arnold
Defendant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen
Re:
Request for a preliminary ruling - Rechtbank Amsterdam - Interpretation of Article 45 TFUE, Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968, on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), Article 71 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 (OJ, English Special Edition 1971 (II), p. 416) and Articles 65 and 87(8) of European Parliament and Council Regulation (EC) No 883/2004 of 29 April 2004, on the coordination of social security systems (OJ 2004 L 166, p. 1) - Wholly unemployed frontier worker - Right to benefit from the Member State of residence - Worker who has maintained personal and business links in the Member State of last employment and whose prospects of re-integration into working life are greatest there - Member State which refuses, on the basis of its national legislation and on the ground only of residence in the territory of another Member State, to grant unemployment benefit to that worker
Operative part of the judgment
1. After the entry into force of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, the provisions of Article 65 of Regulation No 883/2004 are not to be interpreted in the light of the judgment of the Court of Justice of 12 June 1986 in Case 1/85 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.
2. 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 Article 65 of Regulation No 883/2004, as amended by Regulation No 988/2009, the applicable legislation is that of the Member State of residence.
3. The provisions of Article 87(8) of Regulation No 883/2004, as amended by Regulation No 988/2009, 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 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 and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 592/2008 of the European Parliament and of the Council of 17 June 2008.
The concept of 'unchanged situation' within the meaning of Article 87(8) of Regulation No 883/2004 as amended by Regulation No 988/2009 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 as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008.
____________1 - OJ C 355, 3.12.2011.