This request for a preliminary ruling concerns the interpretation of Articles 65 and 87(8) of Regulation 883/2004 and of Article 45 TFEU and Article 7(2) of Regulation 1612/68 on freedom of movement for workers within the Community. The request has been made in proceedings between Mr Jeltes, Ms Peeters and Mr Arnold, on the one hand, and the Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, on the other hand, concerning its rejection of their applications to obtain or maintain benefits under the Law on unemployment (Werkloosheidswet; ‘the WW’).
Mr Jeltes and Ms Peeters are frontier workers of Netherlands nationality who worked in the Netherlands while resident in Belgium and Mr Arnold is a frontier worker of Netherlands nationality who worked in the Netherlands while resident in Germany. All three had submitted a claim for unemployment benefits in the Netherlands, which was refused. The Netherlands authorities based their refusal on Article 65 of Regulation No 883/2004, under which the Member State of residence, that is to say the Kingdom of Belgium for the first two applicants and the Federal Republic of Germany for the third applicant, is the Member State responsible for paying unemployment benefit. It is not contested that those persons are atypical frontier workers, within the meaning of Case 1/85 Miethe, in so far as they have retained particularly close personal and business links in the Member State in which they were last employed.
Given that it still has doubts, following the entry into force of Regulation No 883/2004, as to the continuing relevance of Miethe, the Rechtbank Amsterdam decided to stay the proceedings and to refer some questions to the Court for a preliminary ruling.
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 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, 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.
Article 65 of Regulation 883/2004 replaced Article 71 of Regulation 1408/71 by partially amending its content. The possibility, provided for in Article 65(2) of Regulation 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 1408/71. In making such provision, the legislature partially took the judgment in Miethe into account. However, in accordance with Article 56(1) of the Implementing Regulation, which refers to Article 65(2) of Regulation 883/2004, that registration concerns only the seeking of employment.
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. The answer to the first question is therefore that, after the entry into force of Regulation 883/2004, the provisions of Article 65 of that regulation are not to be interpreted in the light of the judgment in Miethe.
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.
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. However, 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. 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.
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. 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.
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.. However, Article 71 of Regulation 1408/7 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.
In that regard, 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. 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 concept of ‘unchanged situation’ within the meaning of Article 87(8) of Regulation 883/2004 must be interpreted by reference to the definition given by national social security legislation.