1 BY ORDERS OF 15 FEBRUARY , 19 JUNE AND 30 AUGUST 1979 , WHICH WERE RECEIVED AT THE REGISTRY OF THE COURT ON 12 MARCH , 31 JULY AND 8 NOVEMBER 1979 RESPECTIVELY , THE BAYERISCHES LANDESSOZIALGERICHT ( CASE 41/79 ), THE BUNDESSOZIALGERICHT ( CASE 121/79 ) AND THE HESSISCHES LANDESSOZIALGERICHT ( CASE 796/79 ) REFERRED QUESTIONS TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION AND THE VALIDITY OF ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THOSE QUESTIONS ARISE OUT OF DISPUTES BETWEEN THE BUNDESANSTALT FUR ARBEIT ( FEDERAL EMPLOYMENT OFFICE ), OF NUREMBERG , AND CERTAIN UNEMPLOYED WORKERS WHO , HAVING AVAILED THEMSELVES OF THE OPPORTUNITY OFFERED BY ARTICLE 69 ( 1 ) OF REGULATION NO 1408/71 TO GO TO ITALY TO SEEK EMPLOYMENT , DID NOT RETURN TO THE FEDERAL REPUBLIC OF GERMANY WITHIN THE PERIOD OF THREE MONTHS LAID DOWN BY THAT PROVISION .
THE BUNDESANSTALT FUR ARBEIT REFUSED TO CONTINUE TO PAY UNEMPLOYMENT BENEFIT TO THE WORKERS CONCERNED ON THE BASIS OF ARTICLE 69 ( 2 ) OF THE SAID REGULATION , WHICH PROVIDES THAT A WORKER LOSES ALL ENTITLEMENT TO BENEFITS UNDER THE LEGISLATION OF THE COMPETENT STATE IF HE DOES NOT RETURN THERE BEFORE THE SAID THREE MONTH PERIOD HAS EXPIRED . IT LIKEWISE REFUSED TO APPLY IN THEIR FAVOUR THE PROVISION OF THE SECOND SENTENCE OF ARTICLE 69 ( 2 ) OF THE SAID REGULATION WHICH , IN EXCEPTIONAL CASES , ALLOWS THE COMPETENT SERVICES OR INSTITUTIONS TO EXTEND THE PERIOD OF THREE MONTHS TO WHICH THE CONTINUANCE OF BENEFIT IS SUBJECT . THE WORKERS CONCERNED THEN BROUGHT ACTIONS BEFORE THE GERMAN COURTS SEEKING A DECLARATION THAT THEY WERE ENTITLED TO CONTINUE TO RECEIVE UNEMPLOYMENT BENEFITS .
3 THE QUESTIONS REFERRED BY THE NATIONAL COURTS ARE BASICALLY INTENDED TO ESTABLISH WHETHER ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 DEPRIVES AN UNEMPLOYED WORKER WHO RETURNS TO THE COMPETENT STATE AFTER THE THREE MONTH PERIOD LAID DOWN BY ARTICLE 69 ( 1 ) ( C ) HAS EXPIRED OF ALL ENTITLEMENT TO UNEMPLOYMENT BENEFIT AS AGAINST THAT STATE EVEN WHERE THE SAID WORKER WOULD RETAIN A RESIDUAL ENTITLEMENT TO BENEFITS BY VIRTUE OF THE LEGISLATION OF THAT STATE . IN THE EVENT OF THAT QUESTION ' S BEING ANSWERED IN THE AFFIRMATIVE , DOUBTS AS TO THE COMPATIBILITY OF ARTICLE 69 ( 2 ) WITH ARTICLES 48 TO 51 OF THE TREATY AND WITH THE REQUIREMENTS OF THE PROTECTION OF FUNDAMENTAL RIGHTS HAVE BEEN EXPRESSED BY THE NATIONAL COURTS IN THE GROUNDS FOR THEIR ORDERS , BY THE PLAINTIFF IN THE MAIN ACTION IN CASE 41/79 AND BY THE GOVERNMENT OF THE ITALIAN REPUBLIC IN THEIR OBSERVATIONS SUBMITTED TO THE COURT .
AS TO THE INTERPRETATION OF ARTICLE 69 ( 2 )
4 ARTICLE 69 OF REGULATION NO 1408/71 ENABLES AN UNEMPLOYED WORKER TO BE EXEMPT FOR A SPECIFIC PERIOD , FOR THE PURPOSE OF SEEKING EMPLOYMENT IN ANOTHER MEMBER STATE , FROM THE OBLIGATION IMPOSED BY THE VARIOUS NATIONAL LAWS TO MAKE HIMSELF AVAILABLE TO THE EMPLOYMENT SERVICES OF THE COMPETENT STATE WITHOUT THEREBY LOSING HIS ENTITLEMENT TO UNEMPLOYMENT BENEFITS AS AGAINST THE COMPETENT STATE .
5 THAT PROVISION IS NOT SIMPLY A MEASURE TO CO-ORDINATE NATIONAL LAWS ON SOCIAL SECURITY . IT ESTABLISHES AN INDEPENDENT BODY OF RULES IN FAVOUR OF WORKERS CLAIMING THE BENEFIT THEREOF WHICH CONSTITUTE AN EXCEPTION TO NATIONAL LEGAL RULES AND WHICH MUST BE INTERPRETED UNIFORMLY IN ALL THE MEMBER STATES IRRESPECTIVE OF THE RULES LAID DOWN IN NATIONAL LAW REGARDING THE CONTINUANCE AND LOSS OF ENTITLEMENT TO BENEFITS .
6 UNDER PARAGRAPH ( 1 ) THE RIGHT GIVEN TO THE WORKER BY ARTICLE 69 IS RESTRICTED TO A PERIOD OF THREE MONTHS FROM THE DATE ON WHICH HE CEASES TO BE AVAILABLE TO THE EMPLOYMENT SERVICES OF THE COMPETENT STATE .
7 PARAGRAPH ( 2 ) OF ARTICLE 69 PROVIDES THAT :
' ' IF THE PERSON CONCERNED RETURNS TO THE COMPETENT STATE BEFORE THE EXPIRY OF THE PERIOD DURING WHICH HE IS ENTITLED TO BENEFITS UNDER PARAGRAPH ( 1 ) ( C ), HE SHALL CONTINUE TO BE ENTITLED TO BENEFITS UNDER THE LEGISLATION OF THAT STATE ; HE SHALL LOSE ALL ENTITLEMENT TO BENEFITS UNDER THE LEGISLATION OF THE COMPETENT STATE IF HE DOES NOT RETURN THERE BEFORE THE EXPIRY OF THAT PERIOD . IN EXCEPTIONAL CASES , THIS TIME-LIMIT MAY BE EXTENDED BY THE COMPETENT SERVICES OR INSTITUTIONS . ' '
8 IT FOLLOWS FROM THE EXPRESS TERMS OF THAT PROVISION THAT CONTINUED ENTITLEMENT TO BENEFITS AS AGAINST THE COMPETENT STATE BEYOND THE THREE-MONTH PERIOD DEPENDS ON THE WORKER ' S RETURNING TO THAT STATE BEFORE THAT PERIOD HAS EXPIRED AND THAT HE ' ' SHALL LOSE ALL ENTITLEMENT TO BENEFITS UNDER THE LEGISLATION OF THE COMPETENT STATE ' ' IN THE EVENT OF HIS LATE RETURN . THE ONLY EVENTUALITY IN WHICH A WORKER MAY RETAIN HIS ENTITLEMENT TO BENEFITS AS AGAINST THE COMPETENT STATE SHOULD HE RETURN AFTER THE THREE MONTH PERIOD HAS EXPIRED IS THAT ENVISAGED BY THE SECOND SENTENCE OF ARTICLE 69 ( 2 ) WHICH , IN CERTAIN CASES , ALLOWS THE COMPETENT SERVICES OR INSTITUTIONS TO EXTEND THAT PERIOD .
9 CONTRARY TO WHAT THE PLAINTIFFS IN THE MAIN ACTIONS ALLEGE , THE LOSS OF ENTITLEMENT TO BENEFITS LAID DOWN BY ARTICLE 69 ( 2 ) IS NOT RESTRICTED TO THE TIME BETWEEN THE EXPIRY OF THE PERIOD AND THE MOMENT WHEN A WORKER MAKES HIMSELF AVAILABLE AGAIN TO THE EMPLOYMENT SERVICES OF THE COMPETENT STATE . IF THAT WERE THE EFFECT OF ARTICLE 69 ( 2 ), THAT PROVISION WOULD NOT REQUIRE THE WORKER TO RETURN WITHIN THE THREE MONTH PERIOD AND WOULD NOT REFER TO THE LOSS OF ' ' ALL ENTITLEMENT ' ' IN THE EVENT OF HIS RETURNING LATE .
10 NOR IS IT POSSIBLE TO ACCEPT THE ARGUMENT THAT THE PHRASE ' ' UNDER THE LEGISLATION OF THE COMPETENT STATE ' ' OCCURRING IN ARTICLE 69 ( 2 ) MUST BE TAKEN AS REFERRING TO NATIONAL LAW FOR THE DETERMINATION OF THE CIRCUMSTANCES IN WHICH ENTITLEMENT TO BENEFIT IS LOST . THAT PHRASE , WHICH FOLLOWS THE WORDS ' ' HE SHALL LOSE ALL ENTITLEMENT TO BENEFITS ' ' , IS MERELY INTENDED TO EXPLAIN THAT A WORKER SHALL LOSE , IN THE EVENT OF HIS RETURNING LATE , ALL ENTITLEMENT TO BENEFITS AS AGAINST THE COMPETENT STATE , IRRESPECTIVE OF ANY ENTITLEMENT TO BENEFITS WHICH HE MAY HAVE AS AGAINST OTHER MEMBER STATES .
11 THERE ARE THEREFORE GROUNDS FOR REPLYING TO THE QUESTIONS REFERRED TO THE COURT THAT A WORKER WHO RETURNS TO THE COMPETENT STATE AFTER THE THREE MONTH PERIOD REFERRED TO IN ARTICLE 69 ( 1 ) ( C ) HAS EXPIRED MAY NO LONGER CLAIM ENTITLEMENT , BY VIRTUE OF THE FIRST SENTENCE OF ARTICLE 69 ( 2 ), TO BENEFITS AS AGAINST THE COMPETENT STATE UNLESS THE SAID PERIOD IS EXTENDED PURSUANT TO THE SECOND SENTENCE OF ARTICLE 69 ( 2 ).
AS TO THE COMPATIBILITY OF ARTICLE 69 ( 2 ) WITH ARTICLES 48 TO 51 OF THE TREATY
12 IT HAS BEEN ALLEGED THAT IF ARTICLE 69 ( 2 ) MUST BE INTERPRETED IN THE MANNER SET OUT ABOVE IT IS INVALID IN THAT IT IS INCOMPATIBLE WITH THE PROVISIONS OF THE TREATY ON FREEDOM OF MOVEMENT FOR WORKERS AND , IN PARTICULAR , WITH ARTICLE 51 WHICH OBLIGES THE COUNCIL TO ADOPT SUCH MEASURES IN THE FIELD OF SOCIAL SECURITY AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS .
13 AS THE COURT HAS ALREADY OBSERVED IN ITS JUDGMENT OF 20 MARCH 1979 IN CASE 139/78 COCCIOLI V BUNDESANSTALT FUR ARBEIT ( 1979 ) ECR 991 , IN GIVING A WORKER THE RIGHT TO GO TO ANOTHER MEMBER STATE TO SEEK EMPLOYMENT THERE , ARTICLE 69 OF REGULATION NO 1408/71 CONFERS ON A PERSON AVAILING HIMSELF OF THAT PROVISION AN ADVANTAGE AS COMPARED WITH A PERSON WHO REMAINS IN THE COMPETENT STATE INASMUCH AS , BY THE EFFECT OF ARTICLE 69 , HE IS FREED FOR A PERIOD OF THREE MONTHS OF THE DUTY TO KEEP HIMSELF AVAILABLE TO THE EMPLOYMENT SERVICES OF THE COMPETENT STATE AND TO BE SUBJECT TO THE CONTROL PROCEDURE ORGANIZED THEREIN , EVEN THOUGH HE MUST REGISTER WITH THE EMPLOYMENT SERVICES OF THE MEMBER STATE TO WHICH HE GOES .
14 THE RIGHT TO RETAIN UNEMPLOYMENT BENEFITS CONFERRED BY ARTICLE 69 THEREFORE CONTRIBUTES TO ENSURING FREEDOM OF MOVEMENT FOR WORKERS IN ACCORDANCE WITH ARTICLE 51 OF THE TREATY . THE FACT THAT THAT ADVANTAGE IS LIMITED IN TIME AND SUBJECT TO THE OBSERVANCE OF CERTAIN CONDITIONS IS NOT SUCH AS TO BRING ARTICLE 69 ( 2 ) INTO CONFLICT WITH ARTICLE 51 . THE LATTER PROVISION DOES NOT PROHIBIT THE COMMUNITY LEGISLATURE FROM ATTACHING CONDITIONS TO THE RIGHTS AND ADVANTAGES WHICH IT ACCORDS IN ORDER TO ENSURE FREEDOM OF MOVEMENT FOR WORKERS OR FROM DETERMINING THE LIMITS THERETO .
15 AS PART OF A SPECIAL SYSTEM OF RULES WHICH GIVES RIGHTS TO WORKERS WHICH THEY WOULD NOT OTHERWISE HAVE , ARTICLE 69 ( 2 ) CANNOT THEREFORE BE EQUATED WITH THE PROVISIONS HELD INVALID BY THE COURT IN ITS JUDGMENTS OF 21 OCTOBER 1975 IN CASE 24/75 PETRONI ( 1975 ) ECR 1149 AND OF 13 OCTOBER 1977 IN CASE 112/76 MANZONI ( 1977 ) ECR 1647 , TO THE EXTENT TO WHICH THEIR EFFECT WAS TO CAUSE WORKERS TO LOSE ADVANTAGES IN THE FIELD OF SOCIAL SECURITY GUARANTEED TO THEM IN ANY EVENT BY THE LEGISLATION OF A SINGLE MEMBER STATE .
16 IT FOLLOWS THAT ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 IS NOT INCOMPATIBLE WITH THE RULES ON FREEDOM OF MOVEMENT FOR WORKERS IN THE COMMUNITY .
AS TO THE COMPATIBILITY OF ARTICLE 69 ( 2 ) WITH BASIC RIGHTS GUARANTEED UNDER COMMUNITY LAW
17 IN THE JUDGMENTS REFERRING THEIR QUESTIONS TO THE COURT THE BUNDESSOZIALGERICHT AND THE HESSISCHES LANDESSOZIALGERICHT STATE THAT IN THE EVENT THAT ARTICLE 69 ( 2 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED TO MEAN THAT IT DEPRIVES A WORKER WHO IS LATE IN RETURNING TO THE COMPETENT STATE OF ALL ENTITLEMENT TO UNEMPLOYMENT BENEFITS AS AGAINST THAT STATE , THAT PROVISION MIGHT BE REGARDED AS BEING INCOMPATIBLE WITH ARTICLE 14 OF THE GERMAN BASIC LAW IN REGARD TO THE PROTECTION OF THE RIGHT TO PROPERTY .
18 AS THE COURT HAS REPEATEDLY EMPHASIZED , THE QUESTION OF A POSSIBLE INFRINGEMENT OF FUNDAMENTAL RIGHTS BY A MEASURE OF THE COMMUNITY INSTITUTIONS CAN ONLY BE JUDGED IN THE LIGHT OF COMMUNITY LAW ITSELF , SINCE FUNDAMENTAL RIGHTS FORM AN INTEGRAL PART OF THE GENERAL PRINCIPLES OF THE LAW , THE OBSERVANCE OF WHICH IT ENSURES . ONE OF THE FUNDAMENTAL RIGHTS WHICH IS ACCORDINGLY PROTECTED UNDER COMMUNITY LAW IN ACCORDANCE WITH THE CONSTITUTIONAL CONCEPTS COMMON TO THE MEMBER STATES AND IN THE LIGHT OF INTERNATIONAL TREATIES FOR THE PROTECTION OF HUMAN RIGHTS ON WHICH MEMBER STATES HAVE COLLABORATED OR TO WHICH THEY ARE SIGNATORIES IS THE RIGHT TO PROPERTY , AS THE COURT HAS RECOGNIZED , NOTABLY IN ITS JUDGMENT OF 13 DECEMBER 1979 IN CASE 44/79 HAUER .
19 IN ORDER TO DETERMINE WHETHER ARTICLE 69 ( 2 ) MIGHT INFRINGE THE FUNDAMENTAL RIGHTS GUARANTEED IN THIS MANNER BY COMMUNITY LAW CONSIDERATION SHOULD FIRST BE GIVEN TO THE FACT THAT THE SYSTEM SET UP BY ARTICLE 69 IS AN OPTIONAL SYSTEM WHICH APPLIES ONLY TO THE EXTENT TO WHICH SUCH APPLICATION IS REQUESTED BY A WORKER , WHO THEREBY FOREGOES HIS RIGHT OF RECOURSE TO THE GENERAL SYSTEM APPLICABLE TO WORKERS IN THE STATE IN WHICH HE BECAME UNEMPLOYED . THE CONSEQUENCES LAID DOWN BY ARTICLE 69 OF FAILING TO RETURN IN GOOD TIME ARE MADE KNOWN TO THE WORKER , IN PARTICULAR BY MEANS OF THE EXPLANATORY SHEET E 303/5 WRITTEN IN HIS OWN LANGUAGE WHICH IS HANDED TO HIM BY THE COMPETENT EMPLOYMENT SERVICES , AND HIS DECISION TO OPT FOR THE SYSTEM UNDER ARTICLE 69 IS THEREFORE MADE FREELY AND WITH FULL KNOWLEDGE OF THE CONSEQUENCES .
20 THE PENALTY LAID DOWN BY ARTICLE 69 ( 2 ) IN THE EVENT OF LATE RETURN MUST LIKEWISE BE JUDGED IN THE LIGHT OF THE ADVANTAGE GRANTED TO A WORKER BY ARTICLE 69 ( 1 ), WHICH HAS NO EQUIVALENT IN NATIONAL LAW .
21 FINALLY , IT MUST BE EMPHASIZED THAT THE SECOND SENTENCE OF ARTICLE 69 ( 2 ), WHICH PROVIDES THAT IN EXCEPTIONAL CASES THE THREE MONTH PERIOD LAID DOWN BY ARTICLE 69 ( 1 ) ( C ) MAY BE EXTENDED , ENSURES THAT THE APPLICATION OF ARTICLE 69 ( 2 ) DOES NOT GIVE RISE TO DISPROPORTIONATE RESULTS . AS THE COURT RULED IN ITS JUDGMENT OF 20 MARCH 1979 , COCCIOLI , CITED ABOVE , AN EXTENSION OF THE PERIOD IS PERMISSIBLE EVEN WHEN THE REQUEST IS MADE AFTER THAT PERIOD HAS EXPIRED . WHILST , AS THE COURT HELD IN THE JUDGMENT CITED ABOVE , THE COMPETENT SERVICES AND INSTITUTIONS OF THE STATES ENJOY A WIDE DISCRETION IN DECIDING WHETHER TO EXTEND THE PERIOD LAID DOWN BY THE REGULATION , IN EXERCISING THAT DISCRETIONARY POWER THEY MUST TAKE ACCOUNT OF THE PRINCIPLE OF PROPORTIONALITY WHICH IS A GENERAL PRINCIPLE OF COMMUNITY LAW . IN ORDER CORRECTLY TO APPLY THAT PRINCIPLE IN CASES SUCH AS THIS , IN EACH INDIVIDUAL CASE THE COMPETENT SERVICES AND INSTITUTIONS MUST TAKE INTO CONSIDERATION THE EXTENT TO WHICH THE PERIOD IN QUESTION HAS BEEN EXCEEDED , THE REASON FOR THE DELAY IN RETURNING AND THE SERIOUSNESS OF THE LEGAL CONSEQUENCES ARISING FROM SUCH DELAY .
22 CONSEQUENTLY IT IS TO BE CONCLUDED THAT , EVEN SUPPOSING THAT THE ENTITLEMENT TO THE SOCIAL SECURITY BENEFITS IN QUESTIONS MAY BE HELD TO BE COVERED BY THE PROTECTION OF THE RIGHT TO PROPERTY , AS IT IS GUARANTEED BY COMMUNITY LAW - AN ISSUE WHICH IT DOES NOT SEEM NECESSARY TO SETTLE IN THE CONTEXT OF THESE PROCEEDINGS - THE RULES LAID DOWN BY ARTICLE 69 OF REGULATION NO 1408/71 , WHEN INTERPRETED IN THE MANNER INDICATED ABOVE , DO NOT INVOLVE ANY UNDUE RESTRICTION ON THE RETENTION OF ENTITLEMENT TO THE BENEFITS IN QUESTION .
23 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC , THE GOVERNMENT OF THE FEDERAL REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTIONS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTIONS PENDING BEFORE THE NATIONAL COURTS , THE DECISION AS TO COSTS IS A MATTER FOR THOSE COURTS .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY ORDERS OF 15 FEBRUARY , 19 JUNE AND 30 AUGUST 1979 BY THE BAYERISCHES LANDESSOZIALGERICHT , THE BUNDESSOZIALGERICHT AND THE HESSISCHES LANDESSOZIALGERICHT , HEREBY RULES :
A WORKER WHO RETURNS TO THE COMPETENT STATE AFTER THE THREE MONTH PERIOD REFERRED TO IN ARTICLE 69 ( 1 ) ( C ) OF REGULATION NO 1408/71 HAS EXPIRED MAY NO LONGER CLAIM ENTITLEMENT , BY VIRTUE OF THE FIRST SENTENCE OF ARTICLE 69 ( 2 ), TO BENEFITS AS AGAINST THE COMPETENT STATE UNLESS THE SAID PERIOD IS EXTENDED PURSUANT TO THE SECOND SENTENCE OF ARTICLE 69 ( 2 ).
