Petrus Kuyken v Rijksdienst voor Arbeidsvoorziening (66/77)

Contents

In Case 66/77Reference to the Court under Article 177 of the EEC Treaty by the Arbeidsrechtbank (Labour Tribunal), Hasselt, for a preliminary ruling in the action pending before that court betweenPETRUS KUYKENandRIJKSDIENST VOOR ARBEIDSVOORZIENING (National Department of Employment)THE COURTcomposed of: H. Kutscher, President, M. Sørensen, G. Bosco, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore and A. O'Keeffe, Judges,Advocate-General: F. CapotortiRegistrar: A. Van Houttegives the following

Judgment

Facts and issues

The facts of the case, the course of the procedure and the written observations submitted under Article 20 of the Statute of the Court of Justice of the EEC may be summarized as follows:

I —Facts and procedure

The plaintiff in the main action, a Belgian national, attended a secondary school at Hasselt in Belgium and after obtaining his school-leaving certificate on 30 June 1971 he attended a course at the Hogere Technische School (College of Advanced Technology) in Apeldoorn, the Netherlands, where, on 24 June 1974, he obtained the diploma which carries a right to the title of Technical Academy engineer.It appears that, on completion of his studies, he returned to Belgium to seek employment there. On 28 October 1976, having failed to find a post, he submitted an application under Article 124 of the Arrêté Royal (Royal Decree) of 20 December 1963 to the competent Belgian institution for unemployment benefits, namely, the Rijksdienst voor Arbeidsvoorziening in order to obtain unemployment benefit.Article 124 (1) of the said Royal Decree provides, inter alia, as follows:‘A young worker who has completed a full course of study in an educational establishment provided, recognized or subsidized by the State, or who has obtained a diploma or a school-leaving certificate from the central board … may qualify for unemployment benefits provided that:1. …2. The period which has elapsed between the completion of studies, the grant of a school-leaving diploma or a certificate from the central board or the completion of apprenticeship and the application for benefit does not exceed one year.’He was refused unemployment benefits by decision of the Rijkdienst voor Arbeidsvoorziening of 20 January 1977 because more than a year had elapsed between the date on which he had completed the studies which entitled him to payment of those benefits (30 June 1971) and the date on which he made his application (28 October 1976). The studies completed by him at the Hogere Technische School in Apeldoorn were not regarded as preventing this period from running since they had not been completed, ‘in an educational establishment provided, recognized or subsidized by the Belgian State’.He lodged an appeal against this decision before the Arbeidsrechtbank, Hasselt. The court found that, whilst, in the light of Article 124 of the Arrêté Royal alone, his application was unfounded, the position might not be the same if consideration is given to the question whether this provision is compatible with Community law, and, by judgment of 18 May 1977, it decided to suspend judgment on the substance of the case and to refer the following question to the Court of Justice of the European Communities for a preliminary ruling under Article 177 of the EEC Treaty:“Can the provisions of Article 124 of the Royal Decree of 20 December 1963 on the unemployment benefit rules in Belgium be regarded as being compatible with the letter and the spirit of the relevant Community law which seeks to ensure free movement of workers within the Community:— with regard to Belgian subjects who have studied in one of the Member States; or— with regard to persons who are not Belgian subjects but who possess the nationality of one of the Member States; orDo the provisions of Article 124 of the Royal Decree of 20 December 1963 constitute, directly or indirectly, an obstacle to the free movement of workers within the Community?”The judgment making the reference reached the Court on 31 May 1977.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 submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Observations of the Belgian Government

The Minister for Labour and Employment, acting in the name of the Belgian Government, contends that Article 124 of the Arrèté Royal of 20 December 1963 relating to employment and unemployment does not constitute an obstacle to the free movement of workers who are citizens of the Common Market. Its objective is to ensure that courses followed are in preparation for the pursuit of a career in Belgium. A Belgian national who follows a course of study in an establishment which is not provided, recognized or subsidized by the Belgian State is not presumed to be preparing to enter the Belgian labour market: the establishment can provide no such guarantee. The same would apply to a foreign national. On the other hand, all other things being equal, a foreign national who, like a Belgian national, follows a course of study in an establishment provided, recognized or subsidized by the Belgian State fulfils this condition.There is accordingly no difference of treatment or obstacle to the free movement of workers since establishments provided, recognized or subsidized by the Belgian State are open to all regardless of nationality.

Observations of the Commission

In the Commission's view, the question arises whether it is within the Court's jurisdiction to give a preliminary ruling on the question referred to it by the national court. The question refers expressly neither to the interpretation nor to the validity of specific provisions of Community law but, in addition, it asks the Court to give a ruling on the compatibility of the law of a Member State with Community law.However, in order to avoid a formalism which the Court has felt to be contrary to the very nature of the procedure established by Article 177 of the Treaty, in particular in its judgment of 1 December 1965 in Case 16/65 Schwarze v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1965] ECR 886 the Commission believes it is possible for the Court to be considered as dealing with a question which has been badly worded and that an attempt should be made to identify both from the wording of the question and from the whole of the judgment making the reference the provisions of Community law which the Court is being asked to interpret.After describing the nature of the question which arises in the case and concluding that the only measures likely to be involved in this matter are Regulation (EEC) No 1408/71 and No 574/72 of the Council on the application of social security schemes to employed persons and their families moving within the Community, the Commission states that the grounds of the judgment expressly refer to Regulation (EEC) No 1408/71 and quote two recitals from the preamble thereto one of which refers to the provisions of the regulation which are specifically concerned with unemployment benefits. Consequently, the question referred to the Court is the following:“Are the provisions of Regulation (EEC) No 1408/71 of the Council, in particular, those relating to the coordination of the laws of the Member States concerning unemployment benefits, to be interpreted as meaning that periods of study completed by a national of a Member State in an educational establishment which is not provided, recognized or subsidized by the State under whose legislation unemployment benefits are applied for must, for the purposes of the award of such benefits, be treated as though they were periods of study completed in an establishment provided, recognized or subsidized by the Member State concerned?”Going on to examine the substance of the issue raised in the case, the Commission states that it largely depends on educational policy in Belgium whether periods of study completed by a young unemployed person who has never worked in Belgium are to be taken into account so as to enable him to receive unemployment benefit. Generally speaking, therefore, the question arises whether it is possible in this case to rely on a regulation such as Regulation (EEC) No 1408/71, the object of which is, pursuant to Article 51 of the Treaty, to institute a system whereby, for the acquisition and retention of the right to benefits, migrant workers may aggregate all the periods which count under the different national laws.In any event it is difficult to see how the provisions of Regulation (EEC) No 1408/71 concerning unemployment, that is to say, Articles 67 to 71 inclusive, can apply in the plaintiff's case.Article 67, which repeats the general rule on aggregation, refers only to periods of insurance or employment and cannot therefore apply to the circumstances of the plaintiff in view of the fact that students are not, in the Netherlands, subject to the legislation applicable to salaried workers, including that on unemployment.Article 68 is concerned only with the calculation of benefits.It is clear both from the wording of Article 69 (1) and from the preamble to the regulation that, under certain conditions, that provision makes it possible for an unemployed worker who has acquired a right to benefits in one Member State and goes to another Member State in order to seek employment, to continue to receive such benefits. But the article cannot apply in the case of the plaintiff, who acquired no right to unemployment benefits in the Netherlands.Article 70 is concerned only with the provision of benefits and reimbursements in the cases referred to in Article 69 (1).Finally Article 71 governs the position of an unemployed worker who resides in a Member State other than that in which he was last employed. That provision is applicable only when the unemployed worker has been employed in a Member State, which does not apply to the person concerned in this case.To sum up, and on the assumption that Mr Kuyken could validly claim the application of Regulation (EEC) No 1408/71, there is no provision in the regulation enabling him to have the periods of study completed in the Netherlands treated as though they were periods of study completed in an establishment provided, recognized or subsidized by the Belgian State in order to receive unemployment benefits in Belgium.Consequently, the Commission considers that the reply which the Court should give to the question referred to it might be the following:“The provisions of Regulation (EEC) No 1408/71 of the Council on the subject of unemployment, do not enable periods of study completed in an establishment which is not provided, recognized or subsidized by a Member State to be treated as though they were periods of study completed in an establishment which is so provided, recognized or subsidized.’

III —Oral procedure

The Commission of the European Communities, represented by its Agent, M. J. Jonczy and assisted by A. Haagsma, of its Legal Department, submitted oral observations at the hearing on 12 October 1977.The Advocate-General delivered his opinion at the hearing on 10 November 1977.

Decision

1By judgment of 18 May 1977, which reached the Court on 31 May 1975, the Arbeidsrechtbank (Labour Tribunal), Hasselt, Belgium, referred to the Court a question under Article 177 of the EEC Treaty concerning the compatibility of certain provisions of the Belgian Arrêté Royal of 20 December 1963 relating to labour and unemployment with the relevant rules of Community law in this field, which seek to ensure the free movement of workers within the Community.

2The subject of the main action is an application for the payment of unemployment benefit submitted by a young unemployed Belgian, the plaintiff in the main action, under Article 125 of the said Arrêté Royal before the Rijksdienst voor Arbeidsvoorziening (National Department of Employment), the competent Belgian institution in respect of unemployment benefits and the defendant in the main action.

3Article 124 (1) of the Arrêté Royal provides inter alia as follows:‘A young worker who has completed a full course of study in an educational establishment provided, recognized or subsidized by the State, and who has obtained a diploma or a school-leaving certificate from the central board … may qualify for unemployment benefits provided that:1. …2. The period which has elapsed between the completion of studies, the grant of a diploma or a school-leaving certificate from the central board or the completion of apprenticeship and the application for benefit does not exceed one year.’

4The file indicates that, after obtaining his school-leaving certificate in Belgium on 30 June 1971, the plaintiff in the main action followed a course of study at the Hogere Technische School (College of Advanced Technology) at Apeldoorn, the Netherlands, until 24 June 1976.

5On completion of his studies in the Netherlands he returned to Belgium where, after failing to find employment, he submitted the aforesaid application on 28 October 1976.

6By decision of 20 January 1977 the Rijksdienst voor Arbeidsvoorziening refused the application, relying on the provisions of Article 124 (1) of the Arrêté Royal, because more than a year had elapsed between the date on which the applicant had finished the studies which gave him the right to receive such payments (30 June 1971) and the date on which he had submitted his application (28 October 1976).

7The institution did not regard the period of study completed by the person concerned in the Netherlands as preventing that period from running because it had not been completed ‘in an educational establishment provided, recognized or subsidized by the Belgian State’.

8The plaintiff brought an action against that decision before the Arbeidsrechtbank, Hasselt, which referred the following question to the Court for a preliminary ruling:‘Can the provisions of Article 124 of the Royal Decree of 20 December 1963 on the unemployment benefit rules in Belgium be regarded as being compatible with the text and the spirit of the relevant Community law, which seeks to ensure free movement of workers within the Community:— with regard to Belgian subjects who have studied in one of the Member States; or— with regard to persons who are not Belgian subjects but who possess the nationality of one of the Member States; orDo the provisions of Article 124 of the Royal Decree of 20 December 1963 constitute, directly or indirectly, an obstacle to the free movement of workers within the Community?’

9The national court points out, inter alia, that the question which it has to consider is whether Article 124 of the aforesaid Arrêté Royal is compatible with the Treaties establishing the European Communities and also with the provisions of Community rules including those of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 (OJ 1971 L 149, p. 2).

10Although the Court has no jurisdiction within the framework of the application of Article 177 of the Treaty to decide upon the compatibility of a national provision with Community law, it may nevertheless extract from the wording of the question formulated by the national court, having regard to the facts stated by the latter, those elements which come within the interpretation of Community law.

11It is clear from the wording of the question submitted, in conjunction with the information supplied by the national court, that this question is concerned with the field of application, both of the provisions of Regulation (EEC) No 1408/71 concerning, inter alia, the coordination of the laws of the Member States on the question of unemployment benefits and, more generally, of the rules of the Treaty relating to the free movement of workers within the Community and, possibly, those relating to the prohibition of discrimination.

12In consequence the question is whether, for the purposes of the award of unemployment benefits, Community law requires that studies completed in another Member State must be treated as though they were studies completed in an establishment provided, recognized or subsidized by the Belgian State.

13The question must be resolved in the light of the special provisions of the regulation on the subject of unemployment contained in Chapter 6, in particular, Articles 67, 69 and 71, which alone are capable of having a bearing on this case.

14It is clear from the wording of those provisions that they have no application in the case of an unemployed person who has never been in employment and has never been treated as an employed person under national legislation applicable to employed persons, particularly that relating to unemployment.

15Indeed the application of the general rule on aggregation set out in Article 67 of the regulation assumes the completion of periods of insurance or employment, as may be seen from the wording of the article.

16Furthermore, subject to certain conditions, Article 69 makes it possible for a wholly unemployed worker who has acquired a right to benefits in one Member State and who goes to another Member State in order to seek employment there to retain his entitlement to those benefits.

17A worker who does not satisfy the conditions laid down by the legislation of a Member State cannot take advantage of the provisions of Article 69 if he moves into another Member State.

18Finally, Article 71, which derogates from the provisions of Article 67 (3), under which, subject to the completion lastly of periods of insurance or of employment in accordance with the provisions of the legislation under which the benefits are claimed, the application of the rule on aggregation makes it possible, under certain conditions, for an umemployed worker who, during his last employment, resided in a Member State other than the competent State, to claim the benefits from that State rather than from the one in which he completed the aforementioned periods.

19That article cannot apply to the case of an unemployed person who has not pursued any activity as an employed person or any activity treated as such and who, in consequence, has not yet acquired any entitlement to unemployment benefit.

20It remains to be considered whether national rules, to the extent to which, for the purposes of the award to young unemployed workers who have never been employed of unemployment benefits, they impose conditions similar to those described in the judgment referring the matter to the Court, may be regarded as incompatible with the rules on non-discrimination and on the free movement of workers within the Community.

21The file shows that the condition of completion of a period of study in an educational establishment provided, recognized or subsidized by the Belgian State applies without distinction to Belgian nationals and to the nationals of other Member States.

22Furthermore, the position of a person who has gone to another Member State in order to follow a course of study and who, during that period, was not insured under a social security scheme set up for the benefit of employed persons does not come within the scope of the provisions of Articles 48 to 51 of the Treaty, which are intended to facilitate the free movement of workers.

23The answer to the question submitted must therefore be that neither the Treaty establishing the EEC nor the provisions of Regulation (EEC) No 1408/71 of the Council relating to unemployment require a competent institution in one Member State, for the purposes of the award of unemployment benefits for former students who have never been employed, to treat studies completed in another Member State as though they had been completed in an establishment provided, recognized or subsidized by the competent State.

Costs

24The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

25As 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.

Operative part

On those grounds,THE COURT,in answer to the question referred to it by the Arbeidsrechtbank, Hasselt, by judgment of 18 May 1977 hereby rules: Neither the Treaty establishing the EEC nor the provisions of Regulation (EEC) No 1408/71 of the Council relating to unemployment require a competent institution in one Member State, for the purposes of the award of unemployment benefits to former students who have never been employed, to treat studies completed in another Member State as though they had been completed in an establishment provided, recognized or subsidized by the competent State.

Delivered in open court in Luxembourg on 1 December 1977.