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A wholly unemployed frontier worker can obtain unemployment benefit only
in his Member State of residence
That rule applies even where the worker has maintained
particularly close links with the State where he was last employed
A 2004 Regulation coordinates the national social security systems in
the EU with regard inter alia to frontier workers.
It replaces the former 1971 Regulation and provides that wholly
unemployed frontier workers are to make themselves available to the employment
service of their country of residence.
They may, as a supplementary step, make themselves available to the
employment services of the country of their last employment.
The new Regulation also provides for a transitional clause concerning
the general rules for determining the applicable legislation which does not
however explicitly concern the specific provisions relating to unemployment
benefit.
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.
They have all maintained particularly close links with the Netherlands.
Mr Jeltes became unemployed in 2010, that is to say, after the entry
into force of the Regulation.
He submitted a claim for unemployment benefit to the Netherlands
authorities but they rejected his claim, relying on the Regulation.
Ms Peeters and Mr Arnold each became unemployed before the entry into
force of the new Regulation and received unemployment benefit from the
Netherlands authorities.
They each found new employment after the entry into force of that
Regulation, before again becoming unemployed.
The Netherlands authorities refused to resume payment of the benefit,
relying on the entry into force of that regulation.
Those three individuals brought actions against those decisions before
the Rechtbank Amsterdam (District Court, Amsterdam) which seeks an
interpretation from the Court of Justice of the new Regulation.
Under the system which applied pursuant to the former Regulation, the
Court held that an atypical frontier worker – atypical in the sense that he has
maintained particularly close personal and business links with the State where
he was last employed – has better chances of reintegration into working life in
that State.
Thus, he may choose the Member State in which he makes himself
available to the employment services and from which he receives unemployment
benefit.
In today’s judgment, the Court states that the provisions of the new
Regulation are not to be interpreted in the light of its earlier case-law.
It holds that the lack of express mention of the right to obtain
unemployment benefit from the Member State of last employment reflects the
legislature’s deliberate intention to limit the taking into account of the
Court’s earlier case-law.
It considers, therefore, that the rule regarding the grant of
unemployment benefit by the Member State of residence applies even in relation
to wholly unemployed frontier workers who have maintained particularly close
links with the State of their last employment.
The possibility of making themselves available as a supplementary step
to the employment services of that State does not cover the receipt of
unemployment benefit from the latter State but only the use of those services in
order to find new employment.
With regard to the freedom of movement for workers, the Court points
out that the FEU Treaty provides for the coordination, not the harmonisation, of
national social security systems.
In that regard, the Court holds that the rules on the freedom of
movement for workers must be interpreted as not precluding the Member State of
last employment 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 the Regulation, the applicable legislation is that of the Member
State of residence.
However, the Court holds that the lack of a transitional provision
applicable to workers, such as Ms Peeters and Mr Arnold, constitutes a lacuna
which occurred during the legislative process.
The transitional provision laid down in the regulation must therefore
also apply 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 while the relevant situation remains unchanged.
The concept of ‘unchanged situation’ within the meaning of the
transitional provision of the Regulation 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 by that legislation in
order to be able to claim resumption of payment of unemployment benefit.
Thus, the Court holds that a wholly unemployed frontier worker can
claim unemployment benefit only in his State of residence, except where the
transitional regime laid down by the Regulation of 2004 applies to him.
NOTE:
A reference for a preliminary ruling allows the courts and tribunals of
the Member States, in disputes which have been brought before them, to refer
questions to the Court of Justice about the interpretation of European Union law
or the validity of a European Union act.
The Court of Justice does not decide the dispute itself.
It is for the national court or tribunal to dispose of the case in
accordance with the Court’s decision, which is similarly binding on other
national courts or tribunals before which a similar issue is raised.
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