New Decision of the Administrative Commission: Criteria for Applying the De Laat Judgment
| Author | Frans Pennings |
| DOI | 10.1177/138826270600800204 |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
| Subject Matter | News and Cases |
NEWS AND CASES
NEW DECISION OF THE ADMINISTRATIVE COMMISSION: CRITERIA
FOR APPLYING THE
DE LAAT
JUDGMENT
An issue which has led to long-lasting discussions is how to interpret the terms ‘partial
unemployment’ and ‘full unemployment in Article 71 of Regulation 1408/71. Article
71 provides that the partially unemployed frontier worker is paid unemployment
benefit according to the rules and the account of the ‘State of employment’, whereas
the fully unemployed person has to rely on unemployment benefits of the ‘State of
residence’. The meaning of partial and full unemployment is crucial since, if an
unemployed frontier worker is considered fully unemployed, the Member State in
which this person is living is responsible for the unemployment benefits payable to this
person. The Court of Justice gave an interpretation of the terms fully and partially
unemployment in the De Laat judgment.
1
The Court considered that, by establishing the rule that a wholly unemployed
frontier worker is entitled to benefits solely in the Member State in which he resides,
Article 71(1)(a)(ii) assumed that such a worker would find in that State the conditions
most favourable to the search for new employment; see for instance the Miethe
judgment.
2
However, the protection of workers – which is the aim pursued by
Article 71 – would be enfeebled if a worker who, in a Member State other than the
State of residence, remains employed by the same undertaking, but part-time, while
remaining available for work on a full-time basis, was obliged to apply to an institutio n
in his State of residence for help in finding additional work. The fact that he has passed
from full-time employment to part-time employment by virtue of a new contract is in
this respect irrelevant.
More specifically, the employment office in the State of residence would be
considerably less well placed – compared with its counterpart in the competent State –
to assist the worker in finding additional employment on terms and conditions
compatible with his part-time job since, in all likelihood, such employment would
have to be in the territory of the competent Member State. It is only when a worker no
longer has any link with the competent Member State and is wholly unemployed that
European Journal of Social Security, Volume 8 (2006), No. 2 179
1
Case 444/98 [2001], ECR I-2229
2
Case 1/85, [1986] ECR 1837.
180 Intersentia
he must apply to the institution of his State of residence for assistance in finding
employment.
Although the judgment of the Court was well informed and consistent in its
conclusion, the actual criteria it introduced are not very easy to apply in practice: when
and how is it to be decided that a person does not have ‘any link with the competent
State’. Are the prospect of a job, continuing job search activities, promises by the
former employer of a job, promises of a third person of a job etc. sufficient to
constitute a link with the competent State? Since the State of employment and the
State of residence have conflicting interests it was important that more precise criteria
be made. Such criteria are now laid down in Decision No 205 of 17 October 2005 on
the scope of the notion of ‘partial unemployment’ with regard to frontier workers by
the Administrative Commission, published in OJ L 2006, 130, p. 37.
The Administrative Commission established in this decision that the determina-
tion of partial or full unemployment depends on whether or not any contractual
employment link exists or is maintained between the parties, and not on the duration
of any temporary suspension of the worker’s activity. If a frontier worker remains
employed by an undertaking in a Member State other than that in whose territory he
resides, but his activity is suspended – although he can return to his post at any time –
the said worker is to be regarded as partially unemployed. If a frontier worker, in the
absence of any contractual employment link, no longer has any link with the Member
State of employment (for example because the employment contract link has been
terminated or has expired), he is to be regarded as wholly unemployed.
It follows that the contractual link is now decisive. The new criterion is not the
same as the one used by the Court and this may mean that the Court disagrees with it.
However, it is also a more precise criterion than that developed by the Court and it may
lead to fewer disputes than under the previous rules. For this reason it may very well be
acceptable.
A main risk caused by the new criterion is that enterprises may more easily cut the
contractual link with their employees on lay-off, in order to escape the unemployment
charges for their country. It remains to be seen whether such effects will occur.
THE
WATTS
JUDGMENT
The Watts judgment concerns health care expenses which incurred in a another
country and which are claimed in a National Health system funded by the State
Judgment
COURT OF JUSTICE 16 May 2006, Case C-372/04, The Queen, on the application of
Yvonne Watts v Bedford Primary Care Trust, Secretary of State for Health.
News and Cases
The Court was composed of V. Skouris, President, P. Jann, C. W. A. Timmermans and
A. Rosas, Presidents of Chambers, R. Schintgen, N. Colneric, K. Lenaerts
(Rapporteur), J. Klue
`ka, U. Lo
˜hmus, E. Levits and A. O
´Caoimh, Judges.
...
Legal context
Community law
3. Article 22 of Regulation No 1408/71, entitled ‘Stay outside the competent State
– Return to or transfer of residence to another Member State during sickness
or maternity – Need to go to another Member State in order to receive
appropriate treatment’, states:
1. ‘An employed or self-employed person who satisfies the conditions of the
legislation of the competent State for entitlement to benefits, taking
account where appropriate of the provisions of Article 18, and:
...
(c) who is authorised by the competent institution to go to the territory of
another Member State to receive there the treatment appropriate to his
condition,
shall be entitled:
(i) to benefits in kind provided on behalf of the competent institution by the
institution of the place of stay...in accordance with the provisions of the
legislation which it administers, as though he were insured with it; the length
of the period during which benefits are provided shall be governed, however,
by the legislation of the competent State;
...
2. ...
The authorisation required under paragraph 1(c) may not be refused
where the treatment in question is among the benefits provided for by the
legislation of the Member State on whose territory the person resides and
where he cannot be given such treatment within the time normally
necessary for obtaining the treatment in question in the Member State of
residence taking account of his current state of health and the probable
course of his disease
...’
4. As is apparent from Decision No 153 (94/604/EC) of the Administrative
Commission of the European Communities on Social Security for Migrant
Workers of 7 October 1993 on the model forms necessary for the application
of Council Regulations (EEC) No 1408/71 and (EEC) No 574/72 (E 001, E 103
to E 127) (OJ 1994 L 244, p. 22), Form E 112 is the certificate necessary for the
application of Article 22(1)(c)(i) of Regulation No 1408/71.
News and Cases
European Journal of Social Security, Volume 8 (2006), No. 2 181
To continue reading
Request your trial