JUDGMENT OF 23. 11. 1976 — CASE 40/76 KERMASCHEK v BUNDESANSTALT FÜR ARBEIT

In Case 40/76 Reference to the Court under Article 177 of the Treaty establishing the European Economic Community by the Sozialgericht of Gelsenkirchen for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Serensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts of the case, the course of the procedure, and the observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and procedure

Mrs Slavica Kermaschek is a national of the Socialist Federal Republic of Yugoslavia. She worked in her country of origin before taking posts abroad as an attendant on sick persons, a senior attendant or an assistant nurse, as follows:

from 22 November 1971 to 1 August 1973 at The Hague (The Netherlands)

from 1 August 1973 to 1 January 1974 at Dordrecht (The Netherlands)

from 15 January 1974 to 15 June 1974 at Montreux (Switzerland)

from 7 July 1974 to 1 October 1975 at Dordrecht (The Netherlands)

She resigned from her last post by reason of her marriage on 19 September 1975 to Max Kermaschek, a German national, and she therefore left her residence in the Netherlands to go and live with her husband in the Federal Republic of Germany.

On 7 October 1975 Mrs Kermaschek registered as unemployed at the labour office at Gelsenkirchen, which was the appropriate office by reason of her new residence, and applied for unemployment benefit.

By notice of 11 November 1975, and, since Mrs Kermaschek lodged an objection on 28 November 1975, by a subsequent confirmatory notice of 28 January 1976, the benefit was refused on the ground that the periods of employment did not fulfil the conditions for the acquisition of a potential right to that benefit. The periods of employment completed in the Netherlands and in Switzerland could not be taken into account as a condition for the acquisition of the right to unemployment benefit either under the convention between Germany and Yugoslavia on insurance against unemployment or on the basis of EEC law.

For this reason Mrs Kermaschek commenced judicial proceedings before the Sozialgericht Gelsenkirchen on 10 February 1976. She argued that she should be assimilated to German employed persons particularly since she had given up her former employment for a valid reason, namely in order to live with her husband after her marriage.

After finding that neither the German Law on the promotion of employment (Arbeitsförderungsgesetz), nor the conventions between the Federal Republic of Germany and Yugoslavia, Switzerland or the Netherlands could give rise to entitlement to unemployment benefit, the Sozialgericht takes the view that the only conceivable basis might be Regulation No 1408/71 of the Council.

By order of 25 March 1976, the Sozialgericht Gelsenkirchen suspended the proceedings and referred the following questions to the Court of Justice of the European Communities for a preliminary ruling under Article 177 of the EEC Treaty:

1) Are rights under Article 67 et seq. of Regulation (EEC) No 1408/71 of the Council allowed for the spouse of a national of a Member State, even if the spouse is not a national of a Member State and the right to the benefit was acquired before marriage?

2) If the answer to the first question is in the affirmative: Is the rule under Article 67 et seq. of Regulation (EEC) No 1408/71 — whereby a claim by a worker, who is wholly unemployed, for benefit, must have arisen in the country where he was employed and have been transferred to the country where he is temporarily resident — compatible with the legal concept of the protection of marriage and the family, as expressed in Article 6 of the Basic Law of the Federal Republic of Germany, in a case where a person who has hitherto been insured in one Member State ceases to be employed by reason of marriage and joins his or her spouse in another Member State? The order of the Sozialgericht Gelsenkirchen was registered at the Court Registry on 12 May 1976. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged by Mrs Kermaschek and by the Commission of the European Communities, represented by its Legal Adviser, Norbert Koch, acting as Agent. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Summary of the written observations lodged with the Court

Mrs Kermaschek asserts that despite all her efforts, she has not yet found work in Germany.

It is impossible for her to believe that she cannot receive any unemployment benefit because in the Netherlands — a Member State of the EEC — she paid social security contributions over a period of five years.

She had been assured that in Germany she had the same rights as a German. Mrs Kermaschek considers, however, that a German in the same situation would have been receiving unemployment benefit for a long time. With regard to her resignation from her post in the Netherlands after her marriage, she points out that the distance between Dordrecht and Bottrop is about 300 kilometres.

Should it not be possible to give judgment in her favour in the present case, Mrs Kermaschek asks the Court to examine whether she may claim any possible rights in the Netherlands.

On the first question referred to the Court of Justice, the Commission points out that Regulation No 1408/71 applies, according to Article 2 (1) thereof, to members of the families of migrant workers who are nationals of one of the Member States. That provision does not mention the nationality of the members of the family. In order to define the term ‘member of the family’, Article 1 (f) of the regulation in question refers to the national legislation under which benefits are provided. It should however be noted that Article 2 (1) of the regulation only covers members of the family of a migrant worker. Nothing in the principal action admits of the supposition that the husband of the plaintiff is a migrant worker within the meaning of Regulation No 1408/71, and this alone renders it impossible to describe the plaintiff in the main action as a member of the family for the purposes of the regulation.

The Commission also stresses that the main action is not an action based on the German Law on the promotion of employment claiming that periods of employment in the Netherlands should be taken into account pursuant to Article 67 and 68 of Regulation No 1408/71, but that it is an action for the retention of entitlement to benefits payable by the Netherlands pursuant to Article 69 of the said regulation. Thus it is on the basis of provisions of the law of the Netherlands that the question whether a wife is a member of the family must be determined.

The fact that Regulation No 1408/71 states in terms that its applicability extends to the ‘members of the family’ of workers who are nationals of a Member State is no ground for automatically concluding that members of the family occupying a post — whatever their nationality — should be given the status of migrant workers for the purposes of the regulation.

The Commission is of the opinion that Article 2 (1) of Regulation No 1408/71 should be understood as meaning that it confers on those persons derived rights arising from their position as members of the family of a migrant worker of the Community.

The actual wording of the said provision, particularly the last phrase (‘… as also to the members of their families and their survivors’), which distinguishes between the members of the family and the worker, suggests that for the purposes of the regulation the expression ‘workers’ only covers nationals of a Member State (or stateless persons or refugees residing within the territory of one of the Member States), and that the members of the family and the survivors are only included within the scope of the regulation in their capacity as recipients of family benefits. Since the regulation does not provide otherwise, the nationality of the members of the family (and of survivors) does not matter.

Moreover Article 2 (2) provides that workers who are not nationals of a Member State are expressly assimilated to nationals of Member States, as regards the rights of their survivors, where the survivors are nationals of one of the Member States or stateless persons or refugees residing within the territory of one of the Member States. Thus the authors of the regulation judged it necessary to include an express provision for those workers in the interest of their survivors where the latter possessed the nationality of one of the Member States. From this it can be concluded that in general those workers are not included in the field of application of the regulation even where their survivors — who are presumed to have been members of the family — possess the nationality of one of the Member States.

This fact also shows that the members/of the family are not included within the field of application of the regulation as being migrant workers possessing rights of their own.

Finally, this interpretation is confirmed by Article 1 (f) of Regulation No 1408/71 which, instead of supplying a definition of the expression ‘member of the family’ for the purposes of the regulation, refers to national legislation. For if the regulation had intended to give to a national of a third country who is a member of the family of a migrant worker, himself a national of a Member State, the same status as that of the migrant worker himself, it would have had to provide a Community definition.

The argument put forward above is equally valid when the matter is considered by reference to the purpose of Regulation No 1408/71, such as it is defined in Articles 48 to 51 of the EEC Treaty. The starting point of the analysis must logically be freedom of movement for a Community worker (being a national of one of the Member States). The Treaty does not give the members of the family as such any right to freedom of movement on their own account, but only a right to be admitted to the territory of the State where the worker occupies a post — a right which is derived from the right of that worker.

In fact, without the latter right, freedom of movement for migrant workers within the Community would be seriously undermined. However, the said freedom of movement is not prejudiced by the mere fact that members of the family who are nationals of a third country and who reside with the migrant worker do not equally enjoy, supposing them to be workers, the advantages for which Regulation No 1408/71 provides. The extension of the said regulation to nationals of third countries would not even be justified. Articles 48 to 51 of the EEC Treaty limit the powers of the Community in bringing about freedom of movement to measures concerning the nationals of Member States.

In the light of the foregoing, the fact that prior to her marriage the plaintiff acquired a potential right to benefit from the Netherlands institution is no longer relevant in this case.

Nevertheless, the Commission examines this part of the question referred to the Court on the supposition that Regulation No 1408/71 assimilates the spouse who is engaged in an occupation and who is a national of a third country to a migrant worker. It considers that to take into account retroactively periods of employment or of insurance completed before becoming a member of the family would be incompatible with the system established by Regulation No 1408/71.

It would be wrong to see in the provision in Article 94 (2) of the regulation — which provides that all insurance periods and periods of employment or residence completed before the entry into force of the regulation shall be taken into consideration — a general principle which also applies to the situation of the plaintiff. The purpose of that provision is to render it possible for Regulation No 1408/71 to take into account the conventions on social security made between two or more Member States or between at least two Member States and one or more third countries concerning the relations between the institutions of the Member States.

Therefore the periods of employment in the Netherlands completed by the plaintiff should be taken into consideration only to the extent required by the bilateral agreements concluded between the Netherlands and the Socialist Republic of Yugoslavia.

Although the negative answer proposed for the first question referred to the Court renders it unnecessary to consider the second, the Commission continues its examination, accepting for this purpose the hypothesis that the plaintiff obtained the status of a migrant worker by her marriage.

Having regard to a possible infringement of a basic right of the kind indicated by the Sozialgericht, the Commission examines the ‘strict limits’ laid down by Article 69 for the transfer to another Member State of the entitlement to benefit (1. the registration formalities and time-limits relating thereto 2. the limitation to three months of the period during which the entitlement is granted and the loss of other rights' in the case of failure to return to the State of last employment). The Commission also examines the general principle behind the provisions of Article 67 et seq. as a whole, namely that benefits are only provided on the basis of the national legislation to which the worker has been subject.

As regards this latter principle, it should be noted that the national laws of the Member States concerning unemployment benefit only apply when the worker has followed an occupation within the territorial field of application of the said laws. This principle, which Regulation No 1408/71 adopts, means that for the aggregation of the periods mentioned in Article 67 the worker must in any event have completed a minimum period of employment in a Member State in order to be in a position to claim benefits provided under the legislation of that State. Moreover, it cannot be deduced from Articles 48 to 51 of the EEC Treaty that the Community legislature is empowered to impose upon Member States criteria for the granting of unemployment benefit other than that of an occupation previously pursued on national territory. If this is to be regarded as an infringement of a basic right the fault should be ascribed to the national legislature.

The detailed rules set out in Article 69 of Regulation No 1408/71 are rules falling within the powers of the Community legislature and are not, therefore, of a nature such as to infringe a fundamental right.

For, first, compliance with formalities and time-limits can be expected and required even of a person who leaves the State where he is employed in order to get married and not because of an insufficient number of posts at the place of work.

Secondly, it should be stressed that any possible fundamental right to the protection of marriage and family can only concern the substance, the fundamental structure, of marriage and family. It would appear that the fact of rendering it economically advantageous for married migrant workers to live under the same roof goes beyond the normal scope of the protection of the substance of marriage and family.

Moreover, the loss of entitlement to unemployment benefit does not result from the marriage, but from the fact that the person concerned ceased to reside in the State where she was employed.

Article 69 renders it possible to ‘retain’ entitlement to unemployment benefit. That possibility is laid down in the interest of freedom of movement for workers. The guarantee of freedom of movement for workers laid down by the EEC Treaty is in the economic interests of the Community and of its citizens; its purposes do not include the facilitating of marriages between nationals of different States.

The purpose of Regulation No 1408/71 cannot therefore be to provide economic advantages within the Community in respect of such marriages.

The Commission suggests that the following answer should be given to the two questions referred to the Court:

The purpose of Article 67 et seq. of Regulation No 1408/71 is to coordinate rights to benefit for workers who are wholly unemployed provided by virtue of the national legislation of the Member States for migrant workers who are nationals of a Member State. The members of the family of such migrant workers are entitled as such to the benefit in so far as the national legislation of the competent Member State provides for family benefits for members of the families of unemployed workers. In such circumstances, the nationality of members of the family is of no importance.

III — Oral procedure

The Commission of the European Communities submitted oral observations at the hearing on 18 October 1976.

The Advocate-General delivered his opinion at the hearing on 11 November 1976.

Law

1. By order of 25 March 1976, which reached the Court Registry on 12 May 1976, the Sozialgericht Gelsenkirchen has referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 67 to 70 of Regulation 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).

2. The first question asks whether the spouse of a national of a Member State may claim the rights under Article 67 et seq. of that regulation, if the spouse is not a national of a Member State and has acquired the right to the benefit before marriage. This question is raised in a case concerning the entitlement to unemployment benefit of the plaintiff in the main action, who is a national of the Socialist Federal Republic of Yugoslavia, married to a German national, and who, in order to live with her husband, left her last residence in the Netherlands and the post which she had held there. The defendant in the main action refused to grant unemployment benefit to her on the ground that the periods of employment completed in the Netherlands could not be taken into account as a condition for the acquisition of the right to that benefit.

3. Article 69 (1) of the regulation provides:

‘(1) A worker who is wholly unemployed who satisfies the conditions of the legislation of a Member State for entitlement to benefits and who goes to one or more other Member States in order to seek employment there shall retain his entitlement to such benefits under the conditions and within the limits hereinafter indicated:

a) …

b) …

c) …’

4. Therefore an employed person within the meaning of the regulation may, in the circumstances envisaged, claim the ‘exportation’ from one Member State to another of rights to benefit acquired in the first Member State. However, it is not disputed that the present case concerns a person who, although a member of the family of a national of a Member State, is not such a national herself.

5. Therefore the question arises whether and to what extent the members of the family of a national of a Member State are; in applying Regulation No 1408/71, and in particular Articles 67 to 70 thereof, to be assimilated to those nationals themselves.

6. Article 2 (1) of the regulation provides that it: ‘shall apply to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as also to the members of their families and their survivors.’

7. It is evident from the juxtaposition indicated by the use of the words ‘as also’ that this provision refers to two clearly distinct categories: workers on the one hand, and the members of their family and their survivors on the other. Only the nationals of one of the Member States, stateless persons and refugees who are or have been subject to the social security scheme of one or more Member States are covered in their capacity as workers. Whereas the persons belonging to the first category can claim the rights to benefits covered by the regulation as rights of their own, the persons belonging to the second category can only claim derived rights, acquired through their status as a member of the family or a survivor of a worker, that is to say of a person belonging to the first category.

8. This interpretation is confirmed by the text of Article 2 (2), which provides that workers who are not nationals of a Member State shall nevertheless be assimilated to those nationals as regards the rights of their survivors, provided that the latter are nationals of one of the Member States, or stateless persons or refugees residing within the territory of one of the Member States. The said interpretation receives added confirmation from the fact that Article 1 of the regulation also makes a clear distinction between workers on the one hand and members of their family on the other, inasmuch as it defines, at subparagraphs (a), (b) and (c), the concepts of ‘worker’, ‘frontier worker’ and ‘seasonal worker’, but refers back, at subparagraphs (f) and (g), to the national legislation indicated for the definition of the terms ‘member of the family’ and ‘survivor’.

9. It follows that Articles 67 to 70 of Regulation No 1408/71 have only one main purpose, namely the coordination of the rights to unemployment benefits provided by virtue of the national legislation of the Member States for employed persons who are nationals of a Member State. The members of the family of such workers are entitled only to the benefits provided by such legislation for the members of the family of unemployed workers, and it is to be understood that the nationality of those members of the family does not matter for this purpose.

10. Since the national court has put the second question only in case the answer to the first question might be in the affirmative, there is no need to answer it or to examine it.

Costs

11. 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 action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Sozialgericht Gelsenkirchen by order of 25 March 1976 hereby rules: