Salvatore Stallone v Office national de l'emploi (ONEM).

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Gulmann
• ECLI: ECLI:EU:C:2001:320
• Docket Number: C-212/00
• Date: 07 June 2001
• Procedure Type: Reference for a preliminary ruling

Important legal notice

|

62000C0212

Opinion of Mr Advocate General Tizzano delivered on 7 June 2001. - Salvatore Stallone v Office national de l'emploi (ONEM). - Reference for a preliminary ruling: Tribunal du travail de Mons - Belgium. - Social security for migrant workers - Regulation (EEC) No 1408/71 - Unemployment benefit - Condition of living together with the dependent members of the family. - Case C-212/00.

European Court reports 2001 Page I-07625

Opinion of the Advocate-General

I - Introduction

1. Is the legislation of a Member State which makes payment of the highest (head of household) rate of unemployment benefit subject to the condition that the unemployed person lives with other members of the family (without therefore taking into account those residing in another Member State) compatible with Community law? This, in substance, is the question for a preliminary ruling referred pursuant to Article 234 EC by the Tribunal du travail (Labour Court), Mons (Belgium), concerning, in particular, the interpretation of Articles 1(f) and 68(2) of Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416; hereinafter Regulation No 1408/71), both in the version in force on 1 December 1990 and in the subsequent version resulting from amendments to and updating of Regulation No 1408/71 pursuant to Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1; hereinafter Regulation No 118/97) which entered into force on 1 February 1997.

II - Relevant provisions

A - Community legislation

2. The provision primarily applicable in this case is Article 1(f)(i) of Regulation No 1408/71 as amended by Regulation No 118/97. That provision is identical in substance to Article 1(f) previously in force as amended by Article 1(2)(c) of Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1981 L 143, p. 1; hereinafter Regulation No 1390/81). In order to avoid confusion in this text, references to Article 1(f), the original numbering of the provision in issue, should be understood as referring only to Article 1(f)(i).

3. Article 1(f)(i) provides:

"member of the family" means any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Article 22(1)(a) and Article 31, by the legislation of the Member State in whose territory such person resides; where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the worker, this condition shall be considered satisfied if the person in question is mainly dependent on that worker ... .

4. Article 3(1) of Regulation No 1408/71 (not subsequently amended) provides:

Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.

5. On the question of calculating unemployment benefits, Article 68(2) of Regulation No 1408/71 (also not subsequently amended) provides:

The competent institution of a Member State whose legislation provides that the amount of benefits varies with the number of members of the family, shall take into account also members of the family of the person concerned who are residing in the territory of another Member State, as though they were residing in the territory of the competent State. This provision shall not apply if, in the country of residence of the members of the family, another person is entitled to unemployment benefits for the calculation of which the members of the family are taken into consideration.

6. To be borne in mind, finally, although it refers to family benefits, is Article 74 of Regulation No 1408/71 in the version of Regulation No 118/97 (which is identical in substance to the former Article 74(1) of Regulation No 1408/71, as amended by Regulation No 1390/81), which provides:

An unemployed person who was formerly employed or self-employed and who draws unemployment benefits under the legislation of a Member State shall be entitled, in respect of the members of his family residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State ... .

B - National legislation

7. Under Article 66 of the Royal Decree of 25 November 1991 on unemployment (Moniteur belge 31 December 1991, p. 29888; hereinafter the Royal Decree), unemployment benefit is issued exclusively to unemployed persons actually residing in Belgium. Those with dependent family members, furthermore, receive benefits at a higher rate, known as the head of household rate. To that end, Article 110(1) of the Royal Decree provides:

"Worker with a dependent family" means a worker who:

(1) lives with a spouse who has neither income from a trade or profession nor other income; in such a case no account shall be taken of the existence of any income of other persons with whom the worker lives;

(2) does not live with a spouse but lives exclusively with:

(a) one or more children, provided that he can claim family allowances for at least one of them, or that none of them has income from a trade or profession or other income;

(b) one or more children and other relatives by blood or marriage, to the third degree inclusive, provided that he can claim family allowances for at least one of those children and that the other relatives by blood or marriage have neither income from a trade or profession nor other income;

(c) one or more relatives by blood or marriage, to the third degree inclusive, who have neither income from a trade or profession nor other income.

(3) lives alone and who has been ordered to pay maintenance by a court or pursuant to a legal document in the context of divorce proceedings or separation by mutual consent.

8. Article 114(3) of the Royal Decree provides, furthermore, that:

For a worker with a dependent family, the daily basic amount of unemployment benefits shall be increased throughout the period of unemployment by a single complement for loss of income fixed at 5% of the average daily remuneration.

9. Regarding the concept of living together referred to in Article 110 of the Royal Decree, Article 59 of the Ministerial Decree of 26 November 1991 setting out enforcement provisions of the Royal Decree (Moniteur belge of 25 January 1992, p. 1593; hereinafter the Ministerial Decree) provides that:

Living together means the fact that two or more persons live together under the same roof and principally decide household questions jointly.

Members of the household are also deemed to live together if:

(1) they are called up for military service or serve as conscientious objectors;

(2) they are imprisoned, interned or placed in an establishment for mental patients during the first 12 months;

(3) they are temporarily resident elsewhere for professional reasons.

III - Facts and the question for preliminary ruling

10. Mr Stallone, of Italian origin, obtained unemployment benefit for the first time in Belgium on 20 February 1978, after working from 16 May 1977 until 19 February 1978. From the documents in this case it emerges that, having received benefit at the rate for persons without dependent family members during the period 1991-1993, Mr Stallone applied on 20 September 1993 to the Office National de l'Emploi (National Employment Office (ONEM)) for the benefit to be paid at the head of household rate, stating that, although they had returned to Italy and resided there since 1991, his wife and children were still dependent on him. The National Employment Office, defendant in the main proceedings, rejected the application, relying on the national provisions mentioned above, in particular Article 110 of the Royal Decree. Mr Stallone was informed that the application had been refused on 1 December 1993 when he went in person to the offices of the competent authority for payment.

11. As a result, Mr Stallone challenged the rejection of his application on 2 December...