Report for the Hearing delivered in Case 388/87

I — Facts and written procedure

1. Mrs W. F. J. M. Warmerdam-Steggerda, a Netherlands national, worked as a pottery maker in Scotland from 17 March to 8 August 1975.

2. She carried on that activity as an employed person and was insured, under United Kingdom law, against the risk of industrial accident. However, because of her low earnings, she was not insured against other risks covered by the British social security system and, in particular, against the financial consequences of unemployment. In particular, from 17 March to 6 April 1975 Mrs Warmerdam was insured as an employed earner against the risk of industrial accident under the National Insurance (Industrial Injuries) Acts 1965-74 and she paid contributions for that purpose. After the entry into force on 6 April 1975 of the Social Security Act 1975, Mrs Warmerdam continued to be insured against the risk of industrial accident but, according to section 4 of that act, she was no longer required to pay contributions thereunder owing to her low income. According to a declaration by the United Kingdom (Official Journal C 245, 25.10.1975, p. 1), the Social Security Act 1975 constitutes a scheme within the meaning of Article 4(1) and (2) 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 (Official Journal, English Special Edition 1971 (II), p. 416).

3. The reason for Mrs Warmerdam's stay in Scotland was that at the time her husband was undergoing a period of training there. When that training was over, she resigned from her position and, after touring through Scotland, the couple returned to the Netherlands on 30 August 1975.

4. On 1 September 1975 Mrs Warmerdam registered with the Gewestelijk Arbeidsbureau as a person seeking work and applied for the grant of unemployment benefits under the Werkloosheidswet (Unemployment Law).

5. By decision of 3 March 1977, the Bestuur van de Nieuwe Algemene Bedrijfsvereniging (Board of the New General Professional and Trade Association, hereinafter referred to as ‘the Board’) rejected her application on the ground that, during her period of employment in the United Kingdom, she had not been insured against the financial consequences of unemployment and could not therefore be regarded as a worker within the meaning of Articles 1(a) and 71 of Regulation No 1408/71 and that, consequently, she had no right to benefit under the Werkloosheidswet.

6. Mrs Warmerdam brought an action challenging that decision before the Raad van Beroep, Arnhem, which, by judgment of 8 September 1977, found in her favour on the ground that, first of all, for a person to have the status of worker, Article 1(a) of the regulation simply required the person concerned to be insured against one or more of the contingencies mentioned therein and, secondly, that Article 71(1)(b)(ii) of the regulation simply required the status of worker in general and not the status of worker insured against unemployment, so that Mrs Warmerdam, who was insured against the risk of industrial accident in another Member State, had to be regarded as a worker within the meaning of that regulation and was entitled in the Netherlands to unemployment benefits in accordance with Article 71(1)(b)(ii) of the regulation.

7. On 18 April 1978 the Board lodged an appeal against that judgment with the Centrale Raad van Beroep, Utrecht. In its appeal, the Board, contends, in the first place, that a person who is insured only for one branch of social security cannot be regarded as a worker within the meaning of the regulation as regards all the other branches of social security and, secondly, that Mrs Warmerdam, who has not completed any insurance periods in the United Kingdom, does not satisfy the conditions laid down by the combined provisions of Article 71(1)(b)(ii), 67 and 1(r) and (s) of the regulation, according to which periods of employment completed in another Member State can be aggregated only in so far as they are regarded in that State as insurance periods.

8. Taking the view that the dispute raised a question of interpretation of Community law, the Centrale Raad van Beroep, Utrecht, decided, by order of 8 December 1977, pursuant to Article 177 of the EEC Treaty, to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:

‘(1) Does the fact that a person is only insured, within the meaning of Regulation No 1408/71 as then worded, for one or more contingencies belonging to only one branch of a social security scheme (in this case, the branch mentioned in Article 4(1)(e)) also confer on that person the status of worker which is required in order for a person to enjoy the advantages afforded by Regulation No 1408/71 with regard to another branch of social security (in this case, the branch mentioned in Article 4(1)(g))?

2) May the competent institution of a Member State, as referred to in Article 67(1) of Regulation No 1408/71, as that regulation was then worded, only take into account, for the purposes of applying the legislation of that Member State “periods of employment” completed under the legislation of another Member State (which satisfy the condition that they would have been counted as periods of insurance had they been completed under the first-mentioned legislation) if those periods of employment are also defined or recognized by the legislation under which they were completed as periods of insurance for the purposes of the same branch of social security?’

9. The order of the Centrale Raad van Beroep, Utrecht, was lodged at the Court Registry on 30 December 1987.

10. In accordance with Article 20 of the Protocol on the Court of Justice of the European Communities, written observations were submitted on 28 March 1988 by Mrs Warmerdam, the respondent in the main proceedings, represented by M. Voets, Advokaat and Prokureur in Arnhem, on 29 March 1988 by the Government of the Kingdom of the Netherlands, represented by E. F. Jacobs, Secretary-General at the Ministry of Foreign Affairs, on 30 March 1988 by the Commission of the European Communities, represented by its Legal Adviser, Dimitrios Gouloussis, assisted by F. Herbert, of the Brussels Bar, and on 5 April 1988 by the Board, the appellant in the main proceedings, represented by W. M. Levelt-Overmars, Head of the Department for Legal Affairs and Social Insurance of the Gemeenschappelijk Administratiekantoor.

11. 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.

12. By decision of 23 November 1988, the Court assigned the case to the Sixth Chamber pursuant to Article 95(1) and (2) of the Rules of Procedure.

II — Written observations submitted to the Court

1. The Board makes two preliminary remarks by way of introduction to its observations. First of all, it points out that at the time of the adoption of the contested decision it was considered an established fact that during her stay in Scotland Mrs Warmerdam retained her Netherlands residence. If that were not the case, it would follow from the wording of Article 71 of the regulation and from the heading preceding that provision that Article 71 is inapplicable in this case. In its second preliminary remark, the Board states that Article 67 of the regulation, concerning the aggregation of periods taken into account for the purposes of unemployment benefits, specifically distinguishes between the legislation of Member States which make entitlement to those benefits conditional on the completion of insurance periods (Article 67(1)) and those which make such entitlement conditional on the completion of periods of employment (Article 67(2)). Like the national court, the Board takes the view that the Werkloosheidswet must be regarded as a system which makes the acquisition and maintenance of entitlement to unemployment benefits conditional on the completion of insurance periods. With regard to the first question, the Board, whilst acknowledging that the wording of Article 1(a) of the regulation, viewed on its own, could be interpreted as recognizing the indivisibility of the concept of ‘worker’, maintains that this conclusion is contrary both to the rationale of that provision and to the case-law of the Court. Thus, the wording of Article 1 of Regulation No 3 on social security for migrant workers (Journal officiel 30, 16.12.1958) was amended solely in order to draw a distinction between employed and self-employed persons in keeping with the case-law of the Court on that point. However, the statement of the reasons for the new Article 1 does not provide any indication which makes it possible to interpret that provision as meaning that a person who is to be regarded as a worker within the meaning of that regulation for one of the branches of the social security system can rely on that status for another branch of social security. On the contrary, it is clear from the Court's case-law (judgment of 29 September 1976 in Case 17/76 Brack [1976] ECR 1429) that it is appropriate to determine, for each branch of social security, whether or not a person is a ‘worker’ within the meaning of that regulation. That judgment is particularly significant since in that case it was argued before the Court that the question as to the persons covered by the regulation should be answered in general terms and should not relate solely to individual cases. The Board therefore suggests that the first question should be answered in the negative; otherwise there may be a risk of going beyond the coordination of social security schemes envisaged by the authors of the regulation and encouraging workers to take out insurance in a Member State only against a single risk, whilst still qualifying for the advantages resulting from the application of the regulation to all the other branches of social security. That conclusion is confirmed by the fact that it follows from the system established by the regulation that the aggregation of periods taken into account is regulated separately according to each branch of insurance. With regard to the second question, the Board contends that the definitions of ‘periods of insurance’ in Article 1(r) and of ‘periods of employment’ in Article 1(s) entail that the question whether a given period may be treated as a period of insurance or as a period of employment must be assessed in the light of the criteria laid down by the legislation under which the period was completed. In support of its contention the Board refers to the Court's judgment of 15 March 1978 in Case 126/77 Frangiamore v Office national de l'emploi [1978] ECR 725, paragraph 6 of the decision, in which the Court held that Article 67(1) of the regulation permits the aggregation of ordinary periods of employment defined or recognized as such in a Member State other than that in which the competent institution is established. According to the Board, it follows that, where the legislation of the competent Member State is based on an insurance scheme (such as, in this case, the Werkloosheidswet) and periods of employment have been completed in another Member State (in this case the United Kingdom), those periods of employment can be aggregated only on condition that they are recognized as periods of employment by the legislation under which they were completed and secondly that they would be treated as periods of insurance if they had been completed under the legislation of the competent Member State. That reasoning is also supported by the wording of Article 33(2) of Regulation No 3, on which the final part of Article 67(1) of Regulation No 1408/71 is based. The Board therefore suggests that the second question should be answered as follows:

‘The competent institution of a Member State, referred to in Article 67(1) of Regulation No 1408/71, may not take into account, for the purposes of applying the statutory scheme of that Member State, any periods of employment completed under the legislation of another Member State (which satisfy the condition that they would have been counted as periods of insurance had they been completed under the first-mentioned statutory scheme) unless those periods of employment are also defined or recognized by the legislation under which they were completed as periods of insurance for the purposes of the same branch of social security. That can be the case only if the last-mentioned statutory scheme is not a scheme based on the payment of contributions.’

2. Mrs Warmerdam-Steggerda states, on the first question, that, in order to define the concept of ‘worker’ in Community law, it is necessary to take into consideration Article 51 of the EEC Treaty and Article 1(a) of Regulation No 1408/71. Furthermore, it follows from the case-law of the Court (judgment of 19 March 1964 in Case 75/63 Hoekstra [1964] ECR 177) that the term ‘worker’ has a Community meaning and does not depend on the national law of each Member State. That concept refers to all those who, as such and under whatever description, are covered by the different national systems of social security (judgment in Hoekstra). Mrs Warmerdam accordingly concludes that the term ‘worker’ should be given a wide interpretation, that, according to the wording of Article 1(a)(i) of the regulation, it is sufficient to be insured for one or more of the contingencies covered by the branches of a social security scheme in order to be regarded as a worker within the meaning of the regulation for all the branches of social security covered thereby and, finally, that according to the wording of Article 71(1)(b)(ii) of the regulation, only the general status of worker is required and not that of a worker insured against unemployment. Mrs Warmerdam therefore considers that the first question should be answered in the affirmative. With regard to the second question, she contends that, according to Article 67(1) of the regulation, the periods of employment completed under the legislation of another Member State are to be aggregated only if they would have counted as insurance periods had they been completed under the legislation of the competent State. That point is confirmed by the case-law of the Court (Frangiamore, paragraph 7 of the decision). On the other hand, neither the wording of Article 67 of the regulation nor the case-law of the Court lay down any further conditions. Mrs Warmerdam contends, in particular, that, in the circumstances, there is no condition to the effect that periods of employment must be regarded, by the legislation under which they have been completed, as periods of insurance for the branch of social security in which a benefit is sought in the competent State. She accordingly concludes that in the present case the period of employment which she completed in Scotland should be assessed exclusively on the basis of Netherlands legislation. In the Netherlands, the activities in question are regarded as insurance periods and the question whether those periods of employment are regarded in the United Kingdom as periods of insurance against unemployment is irrelevant. Mrs Warmerdam therefore suggests that the answer to the second question should be answered in the negative.

3. The Government of the United Kingdom of the Netherlands considers the first question should be answered as follows: With regard to the second question, the Netherlands Government considers that it is irrelevant in this case. It submits that paragraph (2) and not paragraph (1) of Article 67 of the regulation should be applied. Entitlement to unemployment benefits is subject to the condition that the person concerned has worked a number of days within a given period before he became unemployed. Furthermore, it is necessary to take account of Article 67(3). In that regard, the Netherlands Government points out that, in this case, Article 71(1)(a)(ii) or (b)(ii) are inapplicable since the condition laid down at the beginning of paragraph of Article 71 has not been fulfilled. During her most recent employment, Mrs Warmerdam was not resident in the territory of a Member State other than the competent State.

‘It is clear from the wording of Article 1(a)(i) of Regulation No 1408/71 that a person who is insured for only one of the contingencies covered by a branch of a social security scheme for workers is a “worker” within the meaning of that regulation. That concept of “worker” is a Community concept. All the provisions of the regulation which are applicable to “workers” apply regardless of the branch of insurance. Chapter 6 of Title III of Regulation No 1408/71 can therefore apply in this case.’

4. The Commission states that there are a number of arguments in favour of an affirmative answer to the first question. In that regard, it refers to Article 2(1) of the regulation, which defines the persons covered by the regulation as a whole, the wording of Article 1(a)(i) of the regulation, in which the definition of the concept of ‘employed person’ suggests that it is sufficient to be insured for a single contingency covered by the branches of a social security scheme applicable to employed persons in order to be regarded as a worker for the purposes of the application of the entire regulation and Article 4(1) of the regulation, which specifies that benefits in respect of accidents at work and occupational diseases constitute one of the branches of social security to which the regulation applies. Since Mrs Warmerdam was compulsorily insured in the United Kingdom against the risk of accidents at work, under a scheme applicable to employed earners, she can be regarded as a worker within the meaning of the regulation, all of whose provisions are therefore applicable to her in their entirety. Furthermore, there is nothing to suggest that Article 71 of the regulation either restricts or defines the concept of ‘employed person’. Accordingly, it is by reference to the provisions of Title I (General Provisions) of the regulation that it is necessary to ascertain whether or not the person concerned is one of the persons covered for the purposes of the application of the regulation in its entirety. The Commission maintains, however, that are also arguments in favour of a negative answer to that question. The provisions of Article 1(a)(ii) of the regulation, as amended by Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 (Official Journal 1981, L 143, p. 1), are incompatible with its first argument. Furthermore, it follows from Annex I, Section C, of Regulation No 1408/71, as amended by Regulation No 1390/81, that the draftsmen of the regulation took the view that it was necessary to determine for each risk whether or not the person concerned was a ‘worker’ within the meaning of the regulation. Finally, that point of view is confirmed by the case-law of the Court, which in its judgment in the Brack case merely considered whether the person concerned was to be regarded as an employed person within the meaning of the regulation for the purposes of the application of the first sentence of Article 22(1)(ii) of that regulation; that provision alone was at issue in that case. The Commission considers that the arguments in favour of a negative answer to the question prevail over those in favour of an affirmative answer, particularly since the meaning of the term ‘employed person’ in Article 1(a) of the regulation cannot vary according to whether subparagraph (i) or subparagraph (ii) is concerned. The Commission therefore suggests that the first question should be answered in the negative. According to the Commission, the answer to the first question means that there is no need to answer the second question. None the less, the Commission finds it necessary to consider the second question in the event of the Court giving a different answer to the first question. According to the Commission, the second question submitted by the national court should be answered in the negative. Whilst paragraph (3) of Article 67 of the regulation makes the application of paragraphs (1) and (2) of that provision conditional on the person concerned having last completed periods of insurance (in the case of paragraph (1)) or periods of employment (in the case of paragraph (2)) under the provisions of the legislation on the basis of which benefits were applied for, that rule does not apply, according to the actual wording of Article 67(3), in the cases referred to in Article 71(1)(a)(ü) and (b)(ii). In the present case, the answer to the question how the competent Netherlands institution should assess the periods completed by Mrs Warmerdam in the United Kingdom is to be found in Article 71(1)(b)(ii) itself. According to that provision, a worker covered by it qualifies for unemployment benefits in accordance with the legislation of the State within whose territory he resides or to which he returns and in which he made himself available for work to the employment services, as though he had last been employed there. That point of view is confirmed by the case-law of the Court (judgment of 15 December 1976 in Case 39/76 Mouthaan [1976] ECR 1901, in particular paragraphs 12 to 15). In summary, the Commission suggests that the questions submitted by the national court should be answered as follows:

‘Article 71(1)(b)(ii) of Regulation No 1408/71 must be interpreted as meaning that for the purposes of its application only a person who is insured for the contingencies covered by the branch of a social security scheme referred to in that provision, that is to say the branch referred to in Article 4(1)(g) (unemployment), can be regarded as an employed person so that a person who, when he was last employed within the territory of the competent Member State, did not fulfil the substantive conditions objectively laid down by that Member State for membership of an unemployment insurance scheme is not an employed person for the purposes of that article’.

F. A. Schockweiler

Judge-Rapporteur

1 Language of the case: Dutch.