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Chief Adjudication Officer v. Twomey [1992] UKSSCSC CS_78_1989 (10 March 1992)

R(S) 3/92

Mr. M. H. Johnson CS/78/1989
23.7.93

Residence condition – claimant moving to the Republic of Ireland after working in the United Kingdom – whether claimant entitled to benefit by virtue of Article 19 of Council Regulation (EEC) 1408/71

The claimant, a British national, was employed in London from May 1986 to 3 July 1987. On 19 July 1987 she moved to the Republic of Ireland where she has since resided. She did not work in Ireland after moving there. On 22 January 1988 she was certified as unfit for work and on the same day she claimed Irish disability benefit. This claim was forwarded to the Department of Social Security in the United Kingdom and a claim for UK sickness benefit was made on 23 February 1988.

The claim for sickness benefit was referred by the adjudication officer to the social security appeal tribunal, who decided on 15 December 1988 that the claimant was not entitled to sickness benefit because she was absent from Great Britain. To clarify the law the adjudication officer appealed. On 21 June 1990 the Commissioner referred preliminary questions to the European Court of Justice. The Commissioner applied the ruling of that Court in deciding that the claimant was entitled to sickness benefit.

Held that:

the claimant was a worker for the purposes of Regulation 1408/71 EEC. This is because she was a person insured under United Kingdom legislation inasmuch as she would have been entitled to sickness benefit if she had resided in the United Kingdom (para. 4);

Article 19 of Regulation 1408/71 EEC applies to a national of a Member State who after being in paid employment in one Member State goes to live in another Member State where she falls ill, even though she has not worked there before falling ill (para. 4);

the tribunal decision disqualifying the claimant for receipt of sickness benefit from and including 22 January 1988 was erroneous in law and was set aside (para. 5);

the claimant was entitled to sickness benefit with effect from 22 January 1988 (para. 1(b)).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that:

(a) the unanimous decision of the Newcastle-upon-Tyne social security appeal tribunal given on 15 December 1988 is erroneous in point of law and is accordingly set aside;

(b) the claimant is entitled to sickness benefit with effect from 22 January 1988.

On 21 June 1990 I referred the case to the Court of Justice of the European Communities for a preliminary ruling, pursuant to Article 177 of the EEC Treaty. For the sake of clarity and completeness I set out paragraphs 2 to 7 inclusive of that reference:

"2. I held an oral hearing of this matter at Liverpool on 14 November 1989. The claimant did not attend and was not represented. The Chief Adjudication Officer was represented by Mr. Michael Kent of counsel, instructed by the solicitor to the Departments of Health and Social Security. Following the hearing I came to the conclusion that the appeal raised a question of construction which required determination by the Court of Justice of the European Communities before I could proceed further with this appeal. I so informed the parties, from whom I invited comments, and I am greatly indebted to Mr. Kent for his assistance in formulating the question for the court.

The claimant, who is a woman now aged 26 and of British nationality, was employed as a home-help in London from a date in May 1986 until 3 July 1987. On 19 July 1987, following separation from her husband, she moved to the Republic of Ireland, where she has resided ever since. The claimant has not worked, either in employment or self-employment, since 3 July 1987 and, on 22 January 1988, her doctor in Ireland certified her as being unfit for work due to low back pain. On the same day, 22 January 1988, the claimant applied to the Department of Social Welfare of the Republic of Ireland for disability benefit. The claim was referred by the Department of Social Welfare to the United Kingdom Department of Social Security, to whom the claimant formally applied for sickness benefit on 23 February 1988.

The claimant's United Kingdom application was referred by the adjudication officer to the Newcastle-upon-Tyne social security appeal tribunal who, on 15 December 1988, ruled that the provisions of section 82(5) of the Social Security Act 1975, as amended, precluded entitlement to such benefits as the claimant was absent from Great Britain and, moreover, that that statutory provision was not in conflict with the provisions of Regulation 1408/71 EEC. I note that the tribunal accepted the facts as set out in the preceding paragraph, and it is common ground that but for her absence from Great Britain the claimant would have been entitled to sickness benefit payable by the UK Department of Social Security.

In order, as I understand it, to clarify the law, the adjudication officer appealed against the tribunal's decision and, as I have set out in paragraph 2 above, the matter came before me on 14 November 1989. In summary Mr. Kent's submissions to me were confined to the effect of European Community Law and in particular Articles 10, 19 and 25 of Regulation 1408/71 EEC, read in conjunction with Article 51 of the Treaty Establishing the European Economic Community, and the effect of those provisions upon the relevant United Kingdom legislation, namely section 82(5) of the Social Security Act 1975 and regulation 2(1) of the Social Security Benefit (Persons Abroad) Regulations 1975 [SI 1975/563] ('the Persons Abroad Regulations').

Section 82(5) of the 1975 Act provides that:

"(5) Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit, and an increase of benefit shall not be payable in respect of any person as the beneficiary's wife or husband for any period during which the person -

(a) is absent from Great Britain; or

(b) is undergoing imprisonment or detention in legal custody".

Regulation 2(1) of the Persons Abroad Regulation sets out certain circumstances in which section 82(5) is not to apply, none of which is relevant to the instant case.

The preliminary ruling of the Court of Justice of the European Communities is accordingly requested on the following questions:

"Whether, upon the proper interpretation of Article 51 of the treaty establishing the European Economic Community and Article 19 of Regulation 1408/71 EEC, a national of a Member State resident in one Member State ('Member State A') who becomes unfit for work by reason of sickness while resident in that Member State (Member State A), who prior to becoming so unfit was unemployed and who was last employed (or self-employed) in another Member State ('Member State B'), where that person also then resided is entitled to sickness benefit payable by the competent institution of Member State B (assuming that all conditions, other than those relating to residence, of the legislation of Member State B are satisfied for the purposes of entitlement to such benefit), or whether such a person's entitlement is governed solely by Article 25 of Regulation 1408/71 EEC?"

The judgment of the European Court in case C-215/90 was delivered on 10 March 1992 and a copy thereof is annexed as an appendix to this decision.

The judgment of the European Court is, I believe, self-explanatory and in these circumstances I propose to deal with this matter shortly. Paragraph 7 of the judgment succinctly encapsulates the question as being:

" … whether Article 19 of Regulation No. 1408/71 must, in the light of Article 51 of the treaty, be interpreted as applying to a national of a Member State, who after being in paid employment in one Member State, went to live in another Member State where she fell ill, even though she had not worked there before falling ill."

Having noted in paragraph 13 the Court's consistent definition of "worker" as covering:

"... any person having the status of a person insured under the social security legislation of one or more Member States, whether or not pursuing a professional or trade activity ..."

and that the claimant in the instant case, Mrs. Twomey, plainly has:

"... the status of a person insured under the legislation of the United Kingdom, inasmuch as she would be entitled to sickness benefit if she resided in the United Kingdom",

the Court, in paragraph 18 of the judgment, answered the question in the affirmative.

In the light of the European Court's judgment the decision of the tribunal, that:

"The appellant is disqualified for receiving UK sickness benefit from and including 22 January 1988",

is plainly erroneous in point of law and accordingly must be set aside. I cannot leave this matter, however, without paying tribute to the exceptional thoroughness and care with which the tribunal considered this case, their reasons for their decision running to some five single-spaced typed pages. Nevertheless, while in my judgment they correctly interpreted the effect of Article 25, they clearly came to the wrong conclusion regarding the meaning of "an employed or self-employed person" in Articles 19 and 22 of Regulation 1408/71.

In all the circumstances of this case it has not been necessary for me to resume the oral hearing. It is plainly expedient that, pursuant to my powers under section 23(7)(a)(i) of the Social Security Administration Act 1992, I should give the decision which the tribunal should have given, and I do so in paragraph 1(b) above. For the sake of completeness I accept the submissions in the letter dated 2 April 1992 from Mrs. E. A. Saxon of the office of the Solicitor to the Departments of Health and Social Security, that Article 25 of Regulation 1408/71 does not assist Mrs. Twomey and that no point arises on Article 10.

The adjudication officer's appeal is allowed.

Date: 23 July 1993 (signed) Mr. M. H. Johnson
Commissioner

On 21 June 1990 the Commissioner referred preliminary questions to the European Court of Justice. The judgment of the court is produced as an appendix to this decision.

APPENDIX

JUDGMENT OF THE EUROPEAN COURT OF JUSTICE

10 March 1992

Michael Kent, barrister, instructed by P. K. J. Thompson, Solicitor for the Chief Adjudication Officer.

Karen Banks, a member of the Legal Department of the Commission of the European Communities, acting as agent.

By order of 21 June 1990, which was received at the court on 23 July 1990, a social security Commissioner, London, referred to the court for a preliminary ruling under Article 177 of the EEC Treaty a question concerning the interpretation of Article 51 of the EEC Treaty and Articles 19 and 25 of Council Regulation No. 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self employed persons and to members of their families moving within the community, as codified by Council Regulation No. 2001/83 of 2 June 1983.

That question was raised in a dispute between Anne Maria Twomey and the Chief Adjudication Officer.

Mrs. Twomey, a United Kingdom national, was employed as a home help in London from May 1986 to 3 July 1987. On 19 July 1987 she settled in Ireland and on 23 February 1988 she applied to the United Kingdom Department of Social Security for sickness benefit. Until the latter date, Mrs. Twomey had not engaged in any occupation in Ireland.

Her claim was referred to the social security appeal tribunal, Newcastle-upon-Tyne, which rejected it on the ground that United Kingdom law precludes payment of the benefits sought where the claimant does not reside in the United Kingdom.

In order to seek clarification on the applicable law, the Chief Adjudication Officer appealed against that decision to a social security Commissioner who decided to stay the proceedings in order to request the court to give a preliminary ruling on the question:

"Whether, upon the proper interpretation of Article 51 of the treaty establishing the European Economic Community and Article 19 of Regulation (EEC) No. 1408/71, a national of a Member State resident in one Member State ('Member State A') who becomes unfit for work by reason of sickness while resident in that Member State ('Member State A'), who prior to becoming so unfit was unemployed and who was last employed (or self-employed) in another Member State ('Member State B'), where that person also then resided is entitled to sickness benefit payable by the competent institution of Member State B (assuming that all conditions, other than those relating to residence, of the legislation of Member State B are satisfied for the purposes of entitlement to such benefit), or whether such a person's entitlement is governed solely by Article 25 of Regulation (EEC) No. 1408/71".

Reference is made to the report for the hearing for a fuller account of the facts of the case, the course of the procedure and the written observations submitted to the court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

By its question, the national court seeks in substance to ascertain whether Article 19 of Regulation No. 1408/71 must, in the light of Article 51 of the treaty, be interpreted as applying to a national of a Member State, who after being in paid employment in one Member State, went to live in another Member State where she fell ill, even though she had not worked there before falling ill.

Article 19(1) of the regulation provides as follows:

"1. An employed or self-employed person residing in the territory of a Member State other than the competent state, 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, shall receive in the state in which he is resident:

(a) benefits in kind provided on behalf of the competent institution by the institution of the place of residence in accordance with the provisions of the legislation administered by that institution as though he were insured with it;

(b) cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State."

It is necessary in the first place to consider the German Government's argument to the effect that Article 13 (2) (a) of Regulation No. 1408/71, which subjects persons employed in the territory of one Member State to the legislation of that state, does not apply to a person in Mrs. Twomey's position, since she is no longer employed in the United Kingdom. In its view, therefore, she is subject to the legislation of the Member State in which she resides, with the result that Article 19 is inapplicable because Mrs. Twomey resides within the territory of the competent Member State.

That argument cannot be upheld. As the court stated in its judgment of 12 June 1986 in case 302/84 (Ten Holder v. Nieuwe Algemene Bedrijfsvereniging [1986] ECR 1821, at paras. 14 and 15), a worker who has ceased to carry on an activity in the territory of a Member State continues to be subject to the legislation of that state if he has not taken up employment in another Member State. Only workers who have definitively ceased all professional or trade activity fall outside the scope of Article 13 (2) (a) of Regulation No. 1408/71 (see inter alia the Court's judgment of 21 February 1991 in Case C-140/88 Noij v. Staatsecretaris van Financien [1991] ECR I-387, at paras. 9 and 10).

The Chief Adjudication Officer considers that Article 19 applies only to persons who, at the time when they fell ill, were carrying on an activity as employed or self-employed persons in a Member State other than that of their residence. He points out that a wider interpretation of Article 19, bringing within the scope of that provision any persons falling ill at a time when they were not in any kind of employment, would jeopardize the cohesion of the system applicable to unemployed persons. An unemployed person seeking employment in the territory of a Member State other than the competent state is entitled to unemployment benefit for only three months (Article 69 of Regulation No. 1408/71), whereas sickness benefit would be paid to him without any limitation in time.

The Chief Adjudication Officer points out in this regard that if the objectives of Article 51 of the Treaty are achieved in relation to unemployment benefit by the aforesaid provisions, it cannot be argued that those objectives require more favourable provision in relation to sickness and maternity benefit.

It should be noted first of all that, as the court has consistently held, the definition of the concept of "worker" in Article 1(a) of Regulation No. 1408/71 has a general scope and covers any person having the status of a person insured under the social security legislation of one or more Member States, whether or not pursuing a professional or trade activity (see inter alia the judgment in case 182/87 Algemene Zickenfonds Drenthe-Platteland v. Pierik [1979] ECR 1977, at para. 4). Mrs. Twomey does have the status of a person insured under the legislation of the United Kingdom, inasmuch as she would be entitled to sickness benefit if she resided in the United Kingdom.

Next, it should be noted that if the intention of the community legislature had been to limit the scope of Article 19 of Regulation No. 1408/71 to persons falling ill whilst employed, it would have made express provision to that effect, as it did in Article 71(1) of that regulation.

To interpret article 19 as applying to all workers within the meaning of regulation No. 1408/71 does entail the difference of treatment referred to by the Chief Adjudication Officer. However, as the Commission has rightly pointed out, such a difference can be explained by the fact that the scope of Article 19 differs from that of Article 25. Whilst the latter provision is applicable to unemployed persons temporarily seeking employment in a Member State other than the competent state, Article 19 applies to workers who reside in a Member State other than the competent state, that is to say workers who have their "habitual residence" in that state (Article 1(h) of the regulation).

Finally, it should be noted that, as the court has consistently held (see the judgment in Pierik, cited above), the concept of "worker" in Article 22 of Regulation No. 1408/71 covers pensioners. Since that Article has been inserted in the same section of the regulation as Article 19, the same term used in the latter provision cannot be interpreted as referring only to workers in active employment.

It follows that a restrictive interpretation of the concept of "worker" for the purposes of Article 19, which would exclude a person in Mrs. Twomey's position from the scope of that provision, cannot be justified.

The answer to the national court's question must therefore be that Article 19 of Regulation No. 1408/71 applies to a national of a Member State, who after being in paid employment in one Member State went to live in another Member State where he fell ill, even though he had not worked there before falling ill.

Costs

The costs incurred by the German Government 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 proceedings are concerned, a step in the proceedings pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions submitted to it by a social security Commissioner, London, by order of 21 June 1990, hereby rules:

Article 19 of Council Regulation (EEC) No. 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as codified by Council Regulation (EEC) No. 2001/83 of 2 June 1983 (Official Journal L 230, p. 6), applies to a national of a Member State, who after being in paid employed in one Member State went to live in another Member State where he fell ill, even though he had not worked there before falling ill.

Report for the Hearing
in Case C-215/90

I. FACTS AND PROCEDURE

1. Legal background

Article 19(1) of Council Regulation (EEC) No. 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the community, as codified by Council Regulation (EEC) No. 2001/83 of 2 June 1983 (Official Journal 1983 No. L 230, p. 6) provides:

"1. An employed or self-employed person residing in the territory of a Member State other than the competent state, 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, shall receive in the state in which he is resident:

(a) benefits in kind provided on behalf of the competent institution by the institution of the place of residence in accordance with the provisions of the legislation administered by that institution as though he were insured with it;

(b) cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State."

Article 25(l) of the same regulation provides:

"1. An unemployed person who was formerly employed or self-employed, to whom the provisions of Article 69(1) or the second sentence of Article 71(1)(b)(ii) apply, and who satisfies the conditions of the legislation of the competent state for entitlement to benefits in kind and in cash, taking account where appropriate of the provisions of Article 18, shall receive for the period provided under Article 69(1)(c):

(a) benefits in kind provided on behalf of the competent institution by the institution of the Member State in which he seeks employment in accordance with the provisions of the legislation which the latter institution administers, as though he were insured with it;

(b) cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. However, by agreement between the competent institution and the institution of the Member State in which the unemployed person seeks employment, benefits may be provided by the latter institution on behalf of the former institution in accordance with the provisions of the legislation of the competent state. Unemployment benefits under Article 69(1) shall not be granted for the period during which cash benefits are received."

Section 82(5) of the Social Security Act 1975 as it applies to the facts in the main proceedings provides:

"(5) Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit, and an increase of benefit shall not be payable in respect of any person as the beneficiary's wife or husband, for any period during which the person-

(a) is absent from Great Britain; or

(b) is undergoing imprisonment or detention in legal custody."

2. The dispute in the main proceedings

Mrs. Anne Maria Twomey, a United Kingdom national, was employed as a home help in London from May 1986 to 3 July 1987. Since then, she has never been in employment or self-employment.

On 19 July 1987, following separation from her husband, she moved to live in Ireland.

On 22 January 1988 her doctor in Ireland certified her as being unfit for work due to low back pain. On the same day, she applied to the Department of Social Welfare in Ireland for disability benefit. Her claim was referred to the United Kingdom Department of Social Security, to which Mrs. Twomey formally applied for sickness benefit on 23 February 1988.

On 15 December 1988, the social security appeal tribunal, Newcastle-upon-Tyne, to which the claim had been referred by the adjudication officer, ruled that the provisions of Section 82(5) of the Social Security Act 1975, as amended, precluded entitlement to such benefits because Mrs. Twomey was absent from Great Britain and, moreover, that those provisions were not in conflict with the provisions of Regulation (EEC) No. 1408/71.

The adjudication officer subsequently appealed against that decision to a social security Commissioner who, by decision of 21 June 1990, stayed the proceedings and sought a preliminary ruling from the court on the question:

"Whether, upon the proper interpretation of Article 51 of the treaty establishing the European Economic Community and Article 19 of Regulation 1408/71 EEC, a national of a Member State resident in one Member State ('Member State A') who becomes unfit for work by reason of sickness while resident in that Member State ('Member State A'), who prior to becoming so unfit was unemployed and who was last employed (or self-employed) in another Member State ('Member State B'), where that person also then resided is entitled to sickness benefit payable by the competent institution of Member State B (assuming that all conditions, other than those relating to residence, of the legislation of Member State B are satisfied for the purposes of entitlement to such benefit), or whether such a person's entitlement is governed solely by Article 25 of Regulation 1408/71 EEC?"

3. Procedure before the Court

The order for reference was received at the court registry on 23 July 1990.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were submitted by the Chief Adjudication Officer, represented by Michael Kent, Barrister, instructed by P. K. J. Thompson, solicitor, and by the Commission of the European Communities, represented by Karen Banks, a member of its Legal Department, acting as agent.

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.

By decision of 15 May 1991, pursuant to Article 95(1) and (2) of the rules of procedure, the court assigned the case to the Fifth Chamber.

II WRITTEN OBSERVATION SUBMITTED TO THE COURT

The Chief Adjudication Officer, the appellant, considers that Article 25 of Regulation No. 1408/71 (hereinafter referred to as "the regulation") does not cover Mrs. Twomey's situation. She did not go to Ireland in order to seek work, and is thus not within Article 69(1) of the regulation. Nor was she resident in Ireland when last employed, so she is thus not within Article 71(1)(b)(ii) as interpreted by the court (see the judgment of 11 October 1984 in Case 128/83, Caisse Primaire d'Assurance Maladie de Rouen v. Guyot [1984] ECR 3507).

In the appellant's view, it is none the less arguable that Mrs. Twomey's case is covered by Article 19(1) because she is residing in the territory of a Member State (Ireland) other than the competent state (the United Kingdom) and she is covered by the phrase "an employed or self-employed person" as defined by Article 1(a) of the regulation.

The Chief Ajudication Officer's primary submission is that Article 19 is concerned only with the case of someone who was, when in work, residing in one Member State and, at the same time, working in another Member State. That Article, which encompasses frontier workers, cannot have any application to the case of someone who resides and works in a single Member State, and who then seeks sickness benefit when in the territory of another Member State where he is staying or residing. Such a person's entitlement to sickness benefit is catered for, if at all, by Articles 22 and 25 of the regulation.

That interpretation of Article 19, which, in the Chief Adjudication Officer's opinion, provides in relation to sickness and maternity benefit a rule similar to that provided by Article 71 in relation to unemployment benefit, is consistent with the scheme of the regulation as a whole.

Thus a person (not being a frontier worker as defined in Article 1(b) of the regulation) who, while residing in Member State A and working in Member State B, falls ill, receives benefits in kind from State A and cash benefits from State B under Article 19(1). If he becomes unemployed he receives unemployment benefit from the competent institution of State A (if he makes himself available to the employment services of that State) under the first sentence of Article 71(1)(b)(ii). If he falls ill having already earlier become wholly unemployed, he is entitled to sickness benefit from the competent institution of State A under Article 25(2).

The appellant points out that in each of the examples given in the preceding paragraph, the regulation imposes no restriction on the period for which such entitlement endures. However, in the case of a person whose last employment was in a Member State where he then also resided, entitlement to unemployment benefit under the regulation arises only where such person is seeking work in another Member State, and is governed not by Article 71 but by Article 69 of the regulation (see the judgment in Guyot, cited above). In the Chief Adjudication Officer's submission, such a person's entitlement to sickness benefit should be governed by Article 25(1) and not by Article 19.

If, on the other hand, Article 19 were held to apply to Mrs. Twomey's circumstances, the regulation would provide a more extensive right in the case of sickness and maternity benefit than in the case of unemployment benefit, which would be both anomalous and surprising.

The appellant submits therefore that the court should place the same interpretation upon Article 19 as was placed upon Article 71 in Guyot, especially since, if the objectives of Article 51 of the Treaty are achieved in relation to unemployment benefit by the provisions of Chapter 6 of Title III of the regulation, it cannot be said that such objectives require any wider provisions in relation to sickness and maternity benefit.

The interpretation to the effect that Article 19 is concerned only with the case of a person who is at present or was formerly in active employment or self-employment in one Member State while at the same time residing in another Member State is supported, in the Chief Adjudication Officer's view, by Council Regulation (EEC) No. 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No. 1408/71 (codified version of 2 June 1983, Official Journal 1983 No. L 230, p. 6), Articles 17 and 18 of which contain the provisions for the implementation of Article 19 of regulation No. 1408/71.

Article 17(1) of Regulation No. 574/72 provides:

"In order to receive benefits in kind under Article 19 of the Regulation, an employed or self-employed person must register himself and the members of his family with the institution of his place of residence by submitting a certified statement testifying that he and the members of his family are entitled to the said benefits. This certified statement, based upon information supplied by the employer, where appropriate, shall be issued by the competent institution. If the employed or self-employed person or the members of his family do not submit the said certified statement the institution of the place of residence shall obtain it from the competent institutions",

and Article 17(8) provides:

"The employed or self-employed person or the members of his family shall inform the institution of the place of residence of any change in their situation which is likely to alter their entitlement to benefits in kind, in particular any cessation or change of the employment or self-employment of the person concerned or any transfer of residence or stay of the employed or self-employed person or of a member of his family. Likewise, should the employed or self-employed person cease to be insured or cease to be entitled to benefits in kind, the competent institution shall inform the institution of the place of residence accordingly. The institution of the place of residence may, at any time, request the competent institution to supply it with any information relating to the employed or self-employed person's insurance or to his entitlement to benefits in kind."

In the appellant's submission, those provisions of Regulation No. 574/72 are consistent only with the case of someone who, while in active employment or self-employment in one Member State is at the same time residing in another Member State.

The Chief Adjudication Officer relies finally in support of his argument on the commission's commentary on Regulation No. 1408/71 (Compendium of Community Provisions on Social Security, third edition, 1988), in particular paragraph 4350 thereof:

"Those who benefit from this provision are:

- frontier workers, seasonal workers, commercial travellers, persons performing their work in the territory of two or more Member States, workers in embassies or consulates who have opted for the application of the legislation of their country of origin and workers in frontier undertakings subject to the legislation of the country where the undertaking has its registered office, but residing and working in the neighbouring State."

That categorization of persons intended to be covered by Article 19 would, in the appellant's submission, be both unnecessary and too restrictive if Article 19 were to cover cases such as Mrs. Twomey's.

In the alternative, the Chief Adjudication Officer submits that Article 19 has no application in a case such as Mrs. Twomey's, on the ground that it is concerned only with those who are in active employment or self-employment or have been so up to the moment when the sickness giving rise to the claim supervenes. Consequently, someone like Mrs. Twomey, who for reasons unconnected with sickness or maternity is already unemployed, is not covered by Article 19.

In the Chief Adjudication Officer's submission, at first sight, if the definition in Article 1(a) of the regulation is ignored, the provisions of Section 2 of Chapter 1 of Title III of the Regulation (which is headed "Employed persons or self-employed persons and members of their families" and includes Article 19) apply only to those who are in employment or self-employment at or up to the time when they claim sickness or maternity benefit, in contradistinction to the provisions of Section 3 of the same chapter (headed "Unemployed persons and members of their families" and including Article 25), which applies to those who, before the date when sickness or maternity benefit is claimed, were already unemployed.

However, if the definition of "employed person" in Article 1(a) of the regulation is applied, Mrs. Twomey appears to be covered by Article 19(1) because she falls within the category set out in a 1(a)(ii) as interpreted by the court (see the judgment of 29 September 1976 in Case 17/76, Brack v. Insurance Officer [1976] ECR 1429, and the judgment of 22 May 1980 in Case 143/79, Walsh v. National Insurance Officer [1980] ECR 1639).

The appellant adds that the court, in its judgment of 31 May 1979 in Case 182/78 (Algemeen Ziekenfonds Drenthe-Platteland v. Pierik [1979] ECR 1977), held that at least one of the provisions contained in Title III, Chapter 1, Section 2 (namely Article 22) was applicable to an inactive worker (namely a pensioner) who was not restricted to the provisions of section 5 of that chapter (headed "Pensioners and members of their families"). By parity of reasoning, an unemployed person would be within at least some of the provisions of Title III, Chapter 1, section 2, despite the apparent division of purpose indicated by the headings of the various sections.

The Chief Adjudication Officer nevertheless considers that the phrase "employed and self-employed person", which appears in a number of the provisions of the regulation does not invariably correspond to the definition in Article 1(a) but only if the context does not otherwise require.

He submits that, in order to avoid the restrictive conditions laid down in Article 25 for the receipt of sickness benefit in the case of unemployed persons and their families being circumvented by resort to Article 19, it is necessary to interpret the phrase "an employed or self-employed person" in Article 19(1) as a concept limited to those who are in active employment or self-employment at or up to the time when the sickness giving rise to the claim occurs.

The appellant also claims that on an examination of the purposes of Articles 19 and 25, it may be said that they provide for different circumstances.

That is true, in his view, in respect of the first limb of Article 25(1) which, unlike Article 19(1), covers the case of someone who, following Article 69(1), goes for the purpose of seeking employment to another Member State which may be a Member State with which he has no previous connexion, so that he could not be said to be resident there (within the definition of "residence" in Article 1(h)), but only staying there (within the definition of "stay" in Article 1(i) of the regulation).

But even if the first limb of Article 25(1) may cater for someone who does not necessarily also come within Article 19(1), someone who satisfies the second limb of Article 25(1) (which is based on the second sentence of Article 71(1)(b)(ii) of the regulation) or Article 25(2) would appear at the same time, in the appellant's submission, to satisfy Article 19(1) if that Article is held to cover the unemployed. Thus, if Article 19 applies to the unemployed, Article 25(1) would appear to cater for the same category of person at least in part.

The appellant considers that if the primary argument is not upheld, the interpretation proposed above would preserve consistency of approach as between sickness and maternity benefit on the one hand and unemployment benefit on the other.

The Chief Adjudication Officer further observes that it may be argued, in favour of Mrs. Twomey, that a wider interpretation of Article 19 is necessary to give effect to the objects and purposes of Article 51 of the treaty. Without such a wider interpretation, persons in Mrs. Twomey's position might be discouraged from moving their places of residence and work to another Member State for fear that, in the event of sickness, their entitlement to benefits on returning to their original place of residence might be limited, even though they had contributed to the insurance scheme of their place of last employment. He points out in that connexion that the Court tends towards a wide and liberal interpretation of community legislation where it has been necessary to avoid penalizing migrant workers within the community (see inter alia, the judgment of 8 April 1976 in Case 48/75, Royer [1976] ECR 497; the judgment of 23 March 1982 in Case 53/81, Levin v. Staats-secretaris van Justitie [1982] ECR 1035; and the judgment of 24 September 1987 in Case 43/86, Sociale Verzekeringsbank v. de Rijke [1987] ECR 3611).

The Chief Adjudication Officer points out that in relation to unemployment benefit, the ninth recital in the preamble to the regulation (in the original version) states:

"Whereas, in order to secure mobility of labour under improved conditions, it is necessary henceforth to ensure closer co-ordination between the unemployment insurance schemes and the unemployment assistance schemes of all the Member States; whereas it is therefore particularly appropriate, in order to facilitate search for employment in the various Member States, to grant to an unemployed worker, for a limited period, the unemployment benefits provided for by the legislation of the Member State to which he was last subject".

It appears significant, in the appellant's view, that a "limited period" is mentioned only in connexion with unemployment benefit.

Finally, the appellant observes that where freedom of movement is for the purpose of seeking work the regulation gives complementary entitlement to sickness benefits and secure mobility of labour; by means of Article 22 of the regulation benefit is available in other circumstances, namely where a person is staying in a Member State other than the competent state or where a person is authorized to return to the Member State of residence or to go for treatment to another Member State.

In conclusion, the Chief Adjudication Officer proposes that the court's answer to the request for a preliminary ruling should be that "in the circumstances set out in the question posed by the commissioner a person's entitlement to sickness benefit is governed by Article 25 of regulation No. 1408/71 and not by Article 19 thereof".

In the Commission's view, it is necessary first to determine the identity of "the competent institution" and "the competent State", concepts to which both Article 19 and Article 25 refer.

Article 1(q) of the regulation provides that "competent state" means "the Member State in whose territory the competent institution is situated" and according to Article 1(o) "competent institution" means inter alia "the institution from which the person concerned is entitled or would be entitled to benefits if he […] were resident in the territory of the Member State in which the institution is situated".

The social security Commissioner is proceeding on the assumption that, but for her absence from Great Britain, Mrs. Twomey would be entitled to receive sickness benefit from the United Kingdom Department of Social Security. In the Commission's opinion, it therefore seems that for present purposes the competent institution is the Department of Social Security and the competent State the United Kingdom.

The Commission then considers that it is necessary to examine the meaning of the terms "employed person" (in Article 19) and "unemployed person" or "totally unemployed person" (in Article 25), as the claimant's entitlement to a sickness benefit would appear to depend on whether she is to be viewed as employed or unemployed.

The Commission argues that if Mrs. Twomey is regarded as an "employed person" within the meaning of Article 19, then clearly she can receive sickness benefit from the United Kingdom Department of Social Security. She satisfies the conditions laid down in the legislation of the competent state for receipt of that benefit (apart from the condition as to residence in Great Britain) and she is residing in a Member State other than the United Kingdom.

If, on the other hand, the claimant's case can only be dealt with on the basis of Article 25 because she is to be regarded as an unemployed person, then she will not be able to receive the benefit. The Commission considers that Mrs. Twomey is not a person to whom Article 69(l) of the regulation applies, as she does not appear to have moved to Ireland to look for work. She did not apparently register with the United Kingdom authorities as a person seeking work before her departure and she did not remain available to the employment services of the United Kingdom for four weeks before leaving for Ireland. The Commission adds that it appears from information which it has obtained that Mrs. Twomey did register as a person seeking work with the employment services in Ireland.

In those circumstances, the claimant does not, in the Commission's opinion, meet the requirements of Article 69(1).

Nor, the Commission maintains, does Mrs. Twomey come within any of the provisions of Article 71 mentioned in Article 25, as all of Article 71 is limited to unemployed persons who were formerly employed and who, during their last employment, were residing in a Member State other than the competent state, whereas the claimant was residing in the competent state during that period. The Commission considers that the question to be decided, therefore, is whether an unemployed person who was formerly employed but who does not satisfy the requirements of Article 25 may nevertheless benefit from the provisions of Regulation No. 1408/71 due to the applicability of Article 19.

In that regard, the Commission agrees that Article 19 refers to "employed" persons but states that it is also clear that, for the purposes of the regulation, a person can be employed and unemployed at the same time, for the following reasons: Article 1(a)(i) defines the term "employed person" simply by reference to the circumstance of being insured for one or more of the contingencies covered by the branches of a social security scheme for employed persons; Article 26 refers to "an employed person" when it means to indicate a pensioner; Article 71(1)(b)(ii) speaks of "an employed person . . . who is wholly unemployed"; and the court itself clearly stated in its judgment in Pierik, cited above, that the term "worker" (formerly used in the regulation, before the expressions "employed person" and "self-employed person" were introduced by Council Regulation (EEC) No. 1390/81 of 12 May 1981, Official Journal 1981 No. L 143, p. 1) applied also to "inactive workers".

The Commission considers that the judgment in Pierik is an interesting precedent in relation to the present case, in that the court there allowed a case concerning a pensioner to be dealt with under Article 22, which is part of Title III, Chapter 1, Section 2 of the regulation, concerning employed or self employed persons. If the court considered in Pierik that the person concerned, who was not covered by Article 31 in the section concerning "pensioners", could have recourse to Article 22 concerning "workers", then there is nothing to prevent the same approach being followed in relation to Mrs. Twomey.

The Commission acknowledges, nevertheless, that it may seem strange that the framers of the regulation should have so carefully and restrictively constructed a specific article, namely Article 25, to cover certain categories of unemployed persons only to allow other unemployed persons who do not meet the conditions of Article 25 to benefit from Article 19. It may be asked why an unemployed person who satisfies the conditions laid down in Article 69(1), to which Article 25 refers, should be entitled to receive sickness benefit from the competent state, should he fall ill, for only three months after he left that state, whereas an unemployed person who goes to another Member State without satisfying those conditions may claim sickness benefit from the competent state without limit in point of time (save that the entitlement to the benefit will ultimately expire due to conditions imposed by national law).

In the Commission's view, the answer to that possible objection is twofold. In the first place, the concern of the authors of Article 25, as far as the references to Article 69(l) are concerned, was to establish a firm parallelism between the conditions under which an unemployed person who moves from one Member State to another in search of work can retain his entitlement to unemployment benefit from the competent state and the conditions under which such a person can receive sickness benefit should he fall ill before finding work. As is made clear by the last sentence of Article 25(1)(b), cash benefits in the nature of sickness benefit are seen as replacing unemployment benefit. In the Commission's view, it makes sense that an unemployed person who maintains his entitlement to unemployment benefit only if he returns to the competent State at the end of three months should be entitled to sickness benefit too, where appropriate, only for a period of three months.

Secondly, by no means all unemployed persons fall within the scope of Article 19. The Commission stresses that the unemployed persons covered by that article must "reside" in a Member State other than the competent state, the term "residence" being defined in Article 1(h) as "habitual residence". Consequently, Article 19 is not an easy alternative to Article 25, since it excludes unemployed persons going temporarily to a Member State other than the competent state.

Thus, in the Commission's view, there is nothing to preclude an unemployed person who does not fall within one of the specific categories of unemployed persons referred to in Article 25 from being covered by Article 19 if he meets the requirements thereof.

The Commission further claims that if Article 19 were not considered to be applicable to a person in Mrs. Twomey's circumstances, such a person would lose the benefit of the contributions he had made to the social security system in the competent state. Such a result, the Commission adds, would be contrary to the court's case law to the effect that acquired rights should be maintained.

In its judgment of 15 July 1964 in Case 100/63 (Kalsbeek v. Sociale Veerzekeringsbank [1964] ECR 565), for example, the court said:

"The aim of Articles 48 to 51 of the Treaty would not be attained but disregarded if the worker were obliged, in order to avail himself of the freedom of movement which is guaranteed to him, to find himself subjected to the loss of rights already acquired in one of the Member States without having them replaced by at least equivalent benefits".

Lastly, the Commission considers that Mrs. Twomey cannot have lost her status as a worker only because she ceased to work for a time, and if she had not become ill it is quite possible that she would have begun to work in Ireland. In any event, in the Commission's view, there is no reason why she should lose a right she had acquired only because she moved from one Member State to another.

The Commission therefore proposes that the question of the social security Commissioner be answered as follows:

"Article 19 of Council Regulation No. 1408/71 of 14 June 1971, as amended, on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the communities must be interpreted as meaning that a national of a Member State who becomes unfit for work by reason of sickness while resident in one Member State, who prior to becoming so unfit was unemployed and who was last employed in another Member State where that person also then resided is entitled to sickness benefit payable by the competent institution of the latter Member State, assuming that all conditions, other than those relating to residence, of the legislation of the said Member State governing entitlement to such benefit are satisfied".