Freedom of Movement for the Unemployed and Co-Ordination of Unemployment Benefit Schemes

AuthorAnne Pieter van der Mei
DOI10.1177/138826270300500303
Published date01 September 2003
Date01 September 2003
Subject MatterArticle
01 187..190 FREEDOM OF MOVEMENT FOR THE UNEMPLOYED
AND CO-ORDINATION OF UNEMPLOYMENT
BENEFIT SCHEMES
Anne Pieter van der Mei*
Abstract
This article provides an analytical overview of the most recent case law of the
European Court of Justice in the field of the co-ordination of unemployment
benefits. More specifically, it addresses judgments involving work-seekers’ right to
export unemployment benefits (Ryderga˚rd), the concepts of ‘wholly’ and ‘partially’
unemployed for the purposes of Article 71 of Regulation 1408/71 (De Laat), the
calculation of benefits (Stallone), family members’ right to benefits and the
significance of international conventions for the right to unemployment benefits.
1.
INTRODUCTION
Chapter 6 of Title III of Regulation No 1408/71 contains provisions, which
aim to coordinate Member States’ unemployment benefit schemes in such a
way that EU citizens are not discouraged from exercising their free
movement rights because of a possible loss of entitlement to unemployment
benefit. Although the main principles on which these provisions are based
are well established, the European Court of Justice (ECJ) continues to be
faced with cases involving factual situations and new questions not
considered by the EC legislature. This article provides an overview of the
most recent ECJ judgments.1
*
Department of International and European Law, University of Maastricht, The Netherlands.
E-mail: AP.vanderMei@IR.unimaas.nl.
1
This article includes only those judgments on unemployment benefits decided under
Regulation No 1408/71. Case C-224/98 D’Hoop [2002] ECR I-6191, in which the ECJ
concluded that Belgium had violated Article 18 EC by refusing to grant a specific
unemployment benefit (the so-called ‘tideover allowance’) to a young Belgian national
seeking her first employment on the sole ground that she had completed her secondary
education in another Member State, is also worth noting.
214
Intersentia

Freedom of Movement for the Unemployed
2.
EXPORT OF UNEMPLOYMENT BENEFITS: RYDERGA
˚ RD2
All EU citizens enjoy the right to look for work in other Member States and
to stay there for a ‘reasonable period of time’ during which they can follow
up offers of employment and take the necessary steps to find work.3 Article
69 of Regulation No 1408/71 facilitates this right to seek employment in
another Member State by allowing EU citizens to export their unemploy-
ment benefit. This right to export is subject to strict conditions. The person
in question must (i) be wholly unemployed, (ii) satisfy the conditions in the
legislation of the competent State of entitlement to benefit, (iii) before his
departure, have been registered as a person seeking work and have been
available to the employment services of the competent State for at least four
weeks after becoming unemployed, (iv) within a period of seven days,
register as a person seeking work with the unemployment services of the
Member State to which he goes and be subject to the control procedure in
that State and (v) submit to the institution of the place to which he has gone
form E 303 in which the competent institution certifies that he is still
entitled to benefit.4 Upon fulfillment of these conditions, the unemployed
work-seeker retains his right to unemployment benefits for a maximum
period of three months from the date he ceased to be available to the
employment services in the competent State. Benefits are provided by the
institution of the Member State in which the unemployed person seeks work
and, following from Article 70 of the Regulation, this institution must be
reimbursed by the institution of the competent State. The unemployed
person must return before the expiry of the three-month period; otherwise,
entitlement to any remaining benefit in the competent State will be lost.
This penalty may seem harsh but is explained by the fact that the right to
export unemployment benefits is granted by the Regulation itself. On the
basis of national law, unemployment benefits are not exportable. In other
words, by inserting Article 69 in the Regulation the EC legislature has only
contributed to ensuring freedom of movement and it is, as the ECJ held in
Testa, therefore free to attach conditions to the right to export unemploy-
ment benefits.5
2
Case C-215/00 Ryderga˚rd [2002] ECR I-1817.
3
Case C-292/89 Antonissen [1991] ECR I-745, paragraph 21.
4
The first four conditions are laid down in Article 69 of Regulation No 1408/71; the fifth
condition is laid down in Article 83(1) of Regulation No 574/72.
5
Joined Cases 41, 121 and 796/79 Testa [1980] ECR 1979, paragraph 14.
European Journal of Social Security, Volume 5 (2003), No. 3
215

Anne Pieter van der Mei
In Ryderga˚rd, the ECJ was asked to provide legal clarification on the third of
the above-mentioned conditions. The case involved a wholly unemployed
Swedish national who wished to export her unemployment benefit to France
where she intended to look for work. The competent Swedish institution
refused to award Ms. Ryderga˚rd an E 303 form on the ground that, in the
four weeks prior to her intended departure to France, she had received
temporary parents’ benefit for the care of her sick child for a total of five
days. For these five days Ms. Ryderga˚rd did not receive unemployment
benefit with the result that, in the view of the competent institution, she had
not been available for new employment and did not meet the requirement
of having received unemployment benefit for the entire period of four
weeks prior to her departure. The court responsible for the dispute stayed
proceedings with a view to asking the ECJ whether (i) the requirement, laid
down in Article 69 of Regulation No 1408/71, of having remained available
to the employment services in the competent State must be examined on the
basis of EC law or national law, and whether (ii) that requirement implies
that an unemployed person must have been available for work for an
uninterrupted period of four weeks.
In answering the first question, the ECJ affirmed Testa’s holding that Article
69 establishes an independent body of rules in favour of workers which
constitutes an exception to national legal rules on unemployment benefits;
the article must be interpreted uniformly in all Member States irrespective
of national rules regarding continuance and loss of entitlement to
unemployment benefits. Therefore, the conditions set out in Article 69
must be construed as being exhaustive; the competent authorities are not
entitled to impose any additional conditions.6 However, according to the
ECJ, this does not imply that there is no need to refer to the national law of
the Member State the unemployed person has left or the State to which he
moves in order to determine whether the conditions imposed by Article 69
are satisfied. To verify that those conditions have indeed been met, it is
necessary to apply, first, the rules governing the monitoring of unemployed
persons by the employment services in the State to which the work seeker
moves and, second, the rules governing the duration for entitlement to
unemployment benefits of the State from which he has come. Those rules,
the ECJ held, may differ from one Member State to another without
constituting an obstacle to the uniform application of Article 69.7 The
condition that an unemployed person must have been registered for four
weeks as a work seeker, and have remained available to the employment
services in the competent State, must be read in the same context. Uniform
application of this condition does not require that the detailed arrange-
ments for registration of an unemployed person as a work seeker and the
6
Case C-215/00 Ryderga˚rd [2002] ECR I-1817, paragraphs 17-19.
7
Ibid., paragraphs 20-23.
216
Intersentia

Freedom of Movement for the Unemployed
conditions under which he may be regarded as having remained available
to the employment services be regulated in a uniform manner in all
Member States. The ECJ therefore concluded that the question of whether
a person has remained available to the employment services of the
competent State must be examined on the basis of the relevant national
legislation. The ECJ entrusted the referring Swedish court to consider
whether, under Swedish legislation, a person such as Ms. Ryderga˚rd can be
regarded as having been available to the Swedish employment services for
the period that she was receiving temporary parents’ benefit rather than
unemployment benefit.8
Regarding the second preliminary question, i.e. whether an unemployed
person must have been available to the employment services in the
competent State for an uninterrupted period of four weeks preceding
departure to another Member State, the ECJ observed that Article 69 merely
requires a four-week period. That condition is meant to ensure that the
authorities in the competent State are able, first, to verify that the person in
question is in fact unemployed and, second, to offer him work. For that
purpose, the ECJ held, it is not necessary that the period of four weeks be
unbroken. On the contrary, it is sufficient if after becoming unemployed the
work seeker remained available to the employment services of the
competent State for a total period of four weeks.9
The judgement in Ryderga˚rd is rather remarkable. The question, under
which conditions, and for how long, unemployed persons are entitled to
unemployment benefits must necessarily be answered on the basis of
national legislation. However, because the right to export unemployment
benefits is based on Regulation No 1408/71 alone, one might expect that
the conditions under which that right...

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