Miss Knoch had rented a house in Bath but had not had her name removed from the population register in Bruchsal, where she was registered at her parents' address. She stayed in Bruchsal during the 1983 vacations and also in July 1984. At the beginning of August 1984 she left Bruchsal for three months in order to look for work in England, but was unsuccessful. In November or December 1984 she returned to Germany and in September 1985 commenced a period of practical training for secondary-school teachers, which she completed by passing the second State examination.

Following the termination of her employment, Miss Knoch registered in Bath as unemployed. She received a total of £139.76 in unemployment benefit between the beginning of July and 21 August 1984. After returning to Bruchsal, she registered as unemployed on 19 December 1984 with the employment office in Karlsruhe and applied for unemployment benefit. The employment office turned her application down, on the ground that she had not completed the qualifying period and that under Community law the period spent in the United Kingdom could not be taken into account.

By judgment of 28 January 1987 the Sozialgericht (Social Court) set aside that decision and ordered the employment office to pay Miss Knoch statutory unemployment benefit as from 19 December 1984. Subsequently, by judgment of 16 August 1988, the Landessozialgericht (Higher Social Court) dismissed the employment office's appeal. The reasons it gave were that the qualifying period required by the relevant German legislation had been satisfied by Miss Knoch's employment in the United Kingdom. The employment office was obliged under Article 71(1) (b) (ii) of Regulation No 1408/71 to take account of those periods of employment.

In its appeal on a point of law, the employment office contends that Articles 12 and 71 of Regulation No 1408/71 have been infringed. In its view, Article 71(1) (b) gives an employed person who is not a frontier worker a choice: he can claim unemployment benefit either in the State in which he last worked — as Miss Knoch did in the United Kingdom — or in the State in which he resides. It follows from the prohibition on the overlapping of benefits laid down in the first sentence of Article 12(1) of Regulation No 1408/71 that Miss Knoch forfeited her entitlement to German unemployment benefit by her receipt of unemployment benefit in the United Kingdom. In accordance with Article 69 of Regulation No 1408/71, she was able to exercise her claim only under United Kingdom law.

However, Miss Knoch relies on Article 67 of that regulation (see paragraph 6 below). She claims that the employment office must take account of the periods of insurance which she completed as an employed person under United Kingdom law as though they were periods of insurance completed under German law.

1.Is an employed person, other than a frontier worker, who is wholly unemployed and resided in the territory of a Member State other than the competent one during his last employment, entitled under Article 71(1) (b) (ii) and Article 67 of Regulation (EEC) No 1408/71 to receive benefits in accordance with the legislation of the Member State in which he resides or to which he returns, even if he has previously received unemployment insurance benefits from the institution of the competent Member State?2(a)Does the first sentence of Article 12(1) of Regulation No 1408/71 apply in the context of Article 71(1) (b) (ii) and Article 67 of that regulation with the result that a right to several similar benefits made on the basis of the same period of compulsory insurance can be neither conferred nor maintained under that regulation?(b)When do unemployment benefits constitute benefits of the same kind within the meaning of the first sentence of Article 12(1) of Regulation No 1408/71?(c)Must an institution of a Member State, under whose legislation the acquisition and duration of a right to unemployment benefit are contingent on the completion of insurance periods, in a situation under Article 71(1) (b) (ii) and Article 67 of Regulation No 1408/71, in accordance with the first sentence of Article 12(1) thereof,

take no account, with regard to the acquisition and duration of a right, of those periods of insurance which were completed as an employed person under the legislation of another Member State, in so far as such periods have already given rise to a benefit of the same kind in that other Member State,

or

must effect be given to the first sentence of Article 12(1) of Regulation No 1408/71 with regard to unemployment benefit in such a way that the periods of insurance are to be taken into account as a basis for the subsequent entitlement, without reference to the original claim, but the length of the period of entitlement subsequently acquired is reduced by the number of days for which the original benefits were received?

The last-mentioned objective is pursued by two general provisions, the first being the principle of equal treatment embodied in Article 3(1):

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.

The second is the general prohibition on the overlapping of benefits embodied in the first sentence of Article 12(1):

This regulation can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance.

The competent institution ... shall take into account, to the extent necessary, periods of insurance or employment completed as an employed person under the legislation of any other Member State, as though they were periods of insurance completed under the legislation which it administers, provided, however, that the periods of employment would have been counted as periods of insurance had they been completed under that legislation.

As a general rule, however, that obligation applies, according to Article 67(3), only to a State under whose legislation

the person concerned ... completed lastly ... periods of insurance ... in accordance with the provisions of the legislation under which the benefits are claimed.

Article 71 (1) (b) makes it possible to depart from that rule on certain conditions:

(i)An employed person, other than a frontier worker, who is partially, intermittently or wholly unemployed and who remains available to his employer or to the employment services in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State as though he were residing in its territory; these benefits shall be provided by the competent institution;(ii)An employed person, other than a frontier worker, who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he resides, or who returns to that territory, shall receive benefits in accordance with the legislation of that State as if he had last been employed there; the institution of the place of residence shall provide such benefits at its own expense. However, if such an employed person has become entitled to benefits at the expense of the competent institution of the Member State to whose legislation he was last subject, he shall receive benefits under the provisions of Article 69. Receipt of benefits under the legislation of the State in which he resides shall be suspended for any period during which the unemployed person may, under the provisions of Article 69, make a claim for benefits under the legislation to which he was last subject.

As the Court has already explained in its judgment in Miethe, that provision confers on wholly unemployed persons (other than frontier workers) an option regarding the applicable legislation on benefits. Such persons may

make a choice between the benefits offered by the Member State in which they were last employed and those offered by the Member State in which they reside. They exercise that option by making themselves available either to the employment services of the State in which they were last employed (Article 71(l)(b)(i)) or to those of the Member State in which they reside (Article 71(l)(b)(ii)).

Judgment of 12 June 1986 in Case 1/85 Miethe v Bundesanstalt für Arbeit [1986] ECR 1837, at paragraph 9; see also the judgment of 27 May 1982 in Case 227/81 Aubin v UNEDIC andASSEDIC [1982] ECR 1991, at paragraph 19.

The aim of that provision has already been explained by the Court — by reference to the ninth recital in the preamble to Regulation No 1408/71 — on several occasions, namely to ensure that migrant workers are able to claim unemployment benefit under the most favourable conditions for seeking new employment.

Judgment of 9 July 1975 in Case 20/75 D'Amico v Landesversicherungsanstalt Rheinland-Pfalz [1975] ECR 891, at paragraph 5; judgment of 15 December 1976 in Case 39/76 Metaalnijverheid v Mouthaan [1976] ECR 1901, at paragraph 13; judgment of 28 February 1980 in Case 67/79 Fellinger v Bundesanstalt für Arbeit [1980] ECR 535, at paragraph 7; judgment of 22 September 1988 in Case 236/87 Bergemann v Bundesanstalt für Arbeit [1988] ECR 5125, at paragraph 18; and judgment of 13 November 1990 in Case C-216/89 Reibold v Bundesanstalt für Arbeit [1990] ECR I-4163 (summary publication), at paragraph 10.

As the Commission has rightly pointed out in this case — and as the Court has already expressly confirmed

Judgment of 29 June 1988 in Case 58/87 Rebmann v Bundesversicherungsanstalt für Angestellte [1988] ECR 3467, at paragraph 13.

that the words the Member State in which he resides must be limited to the State in which the worker, even though he is employed in another Member State, continues to reside habitually and in which the normal centre of his interests is also situated ... that once a worker has a fixed employment in a Member State, there is a presumption that he resides there and ... that it is necessary to consider not only the worker's domestic situation but also the reasons which induced him to move and the nature of the work ....

Judgment in Reibold, cited above, at paragraph 15.

From that the Court infers that

for the purposes of applying Article 71(1) (b) (ii) of Regulation No 1408/71, account should be taken of the length and continuity of residence before the person concerned moved, the length and purpose of his absence, the nature of the occupation found in the other Member State and the intention of the person concerned as it appears from all the circumstances.

Judgment in Reibold, cited above, at paragraph 16; judgment in Di Paolo, cited above, at paragraph 22.

The French Government draws attention to certain factors which, in its view, point in this case to the conclusion that Miss Knoch did not (any longer) have her residence in Germany. Over a period of two years, she spent only four months in Germany and the centre of her interests was not exclusively in Germany since she sought (but did not find) employment in the United Kingdom on the strength of a diploma enabling her to teach in secondary schools and a Master's degree. Furthermore, the French Government goes on to state, there are no grounds at all for suggesting that there may be a legal vacuum with regard to Miss Knoch's position under Community law: her professional situation was fully covered by Article 3 of Regulation No 1408/71 which, as the Court decided in its judgment in Aline and Coonan, constitutes a specific expression of the prohibition of discrimination on grounds of nationality in relation to national social security schemes.

Judgment of 30 May 1989 in Case 33/88 Allué and Coonan v University of Venice [1989] ECR 1591, at paragraph 21.

Nor can the argument concerning the duration of Miss Knoch's absence from Germany be considered decisive. As the Court stated in Reibold, that criterion is not precisely defined anywhere, nor is it exclusive, and an excessively strict maximal provision concerning absence (for instance, four months, by analogy with the definition of frontier worker in Article 1(b) of Regulation No 1408/71) would deprive Article 71 of the regulation of part of its effectiveness:

A person other than a frontier worker may be employed for more than four months on the territory of another Member State whilst retaining the habitual centre of his interests in his country of origin. To exclude such a person would preclude, in breach of the aim pursued by those provisions, the possibility of guaranteeing him the best opportunities for reemployment. The criterion relating to the duration of absence must therefore be applied by reference to the facts of each individual case.

Judgment in Reibold, cited above, at paragraph 21 in fine.

Furthermore, in its judgment in Di Paolo the Court made it clear that the addition of the words or who returns to that territory in Article 71(l)(b)(ii)

implies merely that the concept of residence, such as defined above, does not necessarily exclude non-habitual residence in another Member State.

Judgment in Di Paolo, cited above, at paragraph 21.

Subsequently, it may be possible to infer from the reasons for her stay abroad and the nature of her occupation there that Miss Knoch was no longer residing in Germany. It is scarcely plausible for a temporary teaching post abroad under an academic exchange programme to lead of itself to a change of residence.

Finally, as regards the relationship between Miss Knoch's position and that of Miss Reibold in the judgment of the same name, I consider, unlike the French Government, that there are strong similarities between the two cases. As in the case of Miss Knoch, the DAAD arranged for Miss Reibold to spend two consecutive academic years as an assistant in the United Kingdom (totalling 21 months, that is to say the same number of months as Miss Knoch spent there); in addition, during the university vacations Miss Reibold also returned to Germany where she had retained rented premises. In my view, the fact that Miss Knoch drew unemployment benefit in the United Kingdom is not — at least so far as the assessment of the residence requirement is concerned — a crucial factor. Nor is the fact that she sought employment there, albeit unsuccessfully: this means merely that if she had found work in the United Kingdom, she might have transferred her residence there.

There is another point concerning the argument relating to the cohesion of Community law. The concept of habitual residence applied by the Court in its aforesaid decisions has a Community dimension. In my view it is desirable in that connection that the meaning of that concept should be as unequivocal as possible in the various areas covered by Community law. However, account must be taken of the purpose and scheme of the Community legislation in question (for instance, tax legislation or, as in this case, social legislation) which — as in Article 7 of Directive 83/182

An identical definition is given in Article 6 of Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of tne personal property of individuals (OJ 1983 L 105, p. 64).

The German Government endorses the reasoning of the national court. The latter considers that even if a wholly unemployed person first received unemployment benefit in the Member State to whose legislation he was last subject, this does not mean that once the benefit has been discontinued (for instance, after the duration of entitlement to benefits under the applicable national legislation has expired or the three-month period referred to in Article 69(1) (c) of Regulation No 1408/71 has elapsed) he is no longer entitled to draw benefits from the institution of the State in which he resides. Since the legal effect of the first sentence of Article 71(l)(b)(ii) is essentially to bring into operation Article 67 of that regulation, the second and third sentences relate, according to the national court, specifically to an unemployed person who acquires entitlement on the basis of Articles 71 and 67 as against the institution of the State in which he resides, even though he has also claimed benefits from the competent institution of the Member State to whose legislation he was last subject.

According to the Commission, there is nothing in Regulation No 1408/71 to suggest that once an unemployed person has made a choice, he is bound by it, that is to say after claiming benefits under the legislation of the State in which he was last employed, he no longer qualifies for unemployment benefit under the scheme of the Member State in which he resides. The Commission considers it possible to infer, on the other hand, from the favourable treatment accorded to such persons by the regulation that it is quite possible for an unemployed person first to claim benefits in the State of employment and subsequently — if it appears to be more advantageous for him to do so — to avail himself of the possibility offered to him by Article 71 of drawing unemployment benefit in the State in which he resides. According to the Commission, that follows from the third sentence of Article 71(1) (b) (ii). The fact that benefits may be suspended under that provision means, according to the Commission, that it is possible for an unemployed person first to apply for benefits in the State in which he was last employed and subsequently to do so in the State in which he resides.

The French Government, on the other hand, takes the view that Article 67 of Regulation No 1408/71 does not allow for that possibility of drawing consecutive benefits. In that regard, it relies on the rule laid down by Article 13(1) of Regulation No 1408/71 concerning the unity of the applicable legislation, which Article 67 is designed to strengthen, and on the general rule against the overlapping of benefits set out in Article 12 of the regulation (see paragraph 5 above). For the sake of clarity, Article 13(1) is set out below:

Subject to Article 14c, persons to whom this regulation applies shall be subject to the legislation of a single Member State only. The legislation shall be determined in accordance with the provisions of this title.

That the French Government's argument cannot be upheld is also apparent from the point made earlier (paragraph 6) to the effect that this constitutes an exception — which must admittedly be applied strictly — to the unity rule in Article 13 of Regulation No 1408/71.

According to the established case-law of the Court, social security benefits must be regarded, irrespective of characteristics peculiar to the various national laws, as being of the same kind when their purpose and object together with the basis on which they are calculated and the conditions for granting them are identical. On the other hand, characteristics which are purely formal must not be considered relevant criteria for the classification of the benefits.

Judgement of 5 July 1983 in Case 171/82 Valentini v ASSEDIC [1983] ECR 2157, at paragraph 13.

So far as the criteria relating to purpose and object are concerned, no problem arises in this case since they are in fact the same. The national court's doubts stem from the requirement that the basis on which the benefits are calculated and the conditions for granting them must be identical. On that point, there are differences between the German and the United Kingdom schemes, in particular as regards the length of the qualifying period and the duration and amount of the benefit.

One of the conditions for entitlement to unemployment benefit laid down by German law is that an unemployed person must be at the disposal of the employment services and have completed a qualifying period.

Paragraph 100(1) of the Arbeitsförderungsgesetz.

In this case as well, the differences between the two legislative systems affect the basis on which unemployment benefit is calculated and the conditions for granting it. However, the fact that the two procedures are not identical is not, as is apparent from the judgment in Valentini, an obstacle to the application of Article 12 in so far as the differences in question are connected with characteristics which are peculiar to the various national statutory schemes or are of a purely formal nature. It seems to me that this is a case of the former: we have just established that the peculiarity of the German statutory scheme as opposed to that of the United Kingdom with regard to unemployment benefit seems to lie primarily in the function of the qualifying period and the determination of the duration of the benefit which is connected therewith. Furthermore, I consider that in examining the particular features of the national systems in question it is impermissible to focus exclusively on a comparison between the two benefit schemes as such: instead, they must be viewed in the context of the general social security scheme that is in force in a given Member State. Thus, for instance, it is well known that classic contributory schemes, including unemployment benefit schemes, in the United Kingdom are increasingly supplemented by social assistance schemes based on the calculation of the financial means of those concerned (and known as means-tested schemes). On the basis of that analysis it should be possible to explain inter alia the differences between Germany and the United Kingdom with regard to the level of unemployment benefit.

In conclusion, therefore, I consider that unemployment benefits constitute benefits of the same kind within the meaning of Article 12(1) of Regulation No 1408/71 when they are intended, in order to provide for a person's maintenance, to make up for loss of earnings as a result of unemployment and the differences between those benefits, including differences concerning the basis on which they are calculated and the conditions for their grant, arise purely from structural differences between the national schemes in question or are of a purely formal nature.

In order to claim benefits under the provisions of Article 71(l)(b)(ii) of the regulation, an unemployed person who was formerly employed shall submit to the institution of his place of residence, in addition to the certified statement provided for in Article 80 of the implementing regulation, a certified statement from the institution of the Member State to whose legislation he was last subject, indicating that he has no right to benefits under Article 69 of the regulation.

The competent United Kingdom institution issued Miss Knoch with a certified statement to the effect that the conditions laid down by Article 69 of Regulation No 1408/71 were not fulfilled. Since the national court is uncertain whether the contents of that statement are correct, it wishes to ascertain whether it is binding on the institution and the courts of another Member State.

The national court is uncertain, above all, whether suspension occurs only where all the conditions in Article 69 are fulfilled or whether it is sufficient if the employed person could have fulfilled those conditions but did not do so. That would be the case, for example, if Miss Knoch, although continuing to look for work in the United Kingdom, had forfeited her entitlement to assistance there by failing to comply with registration requirements. In addition, the national court asks what the legal consequences are of the suspension pursuant to the third sentence of Article 71(l)(b)(ii) of the legislation of the Member State in whose territory the unemployed person resides.

Article 69 is intended only to ensure for the migrant worker the limited and conditional preservation of the unemployment benefits of the competent State, even if he goes to another Member State, and, consequently, that that other Member State cannot rely on mere failure to comply with the conditions prescribed by that article in order to deny the worker entidement to the benefits which he may claim under the national legislation of that State.

Judgment of 10 July 1975 in Case 27/75 Bonaffini v INPS [1975] ECR 971, at paragraph 9.

The same answer, based on the same reasons, is as appropriate here as it was in connection with the application of Article 12 of Regulation No 1408/71 (see paragraph 15 above). The benefits payable under the legislation of the Member State in which the person concerned resides must be reduced by the benefits actually received in the Member State to whose legislation he was last subject. The period in which an unemployed person actually received unemployment benefit under the legislation of the last-mentioned Member State and, consequently, during which the benefit was suspended under the legislation of the State in which he resides, must be deducted from the length of the period of entitlement to unemployment benefit under the last-mentioned legislation.

1.The right provided for in Article 71(l)(b)(ii) of Regulation No 1408/71 for a wholly unemployed person to receive benefits under the legislation of the Member State in which he resides or to which he returns does not preclude such a person — other than a frontier worker — who resided in the territory of a Member State other than the competent State during his last employment from having previously received unemployment insurance benefit from the competent institution of the Member State to whose legislation he was last subject.2.The prohibition on the overlapping of benefits imposed by Article 12(1) of Regulation No 1408/71 is applicable in the context of Article 71(l)(b)(ii) and Article 67 of Regulation No 1408/71.3.Unemployment benefits constitute benefits of the same kind within the meaning of the first sentence of Article 12(1) of Regulation No 1408/71 when they are intended, in order to provide for a person's maintenance, to make up for loss of earnings as a result of unemployment and the differences between those benefits, including differences concerning the basis on which they are calculated and the conditions for their grant, arise purely from structural differences between the national schemes in question or are of a purely formal nature.4.The institution of a Member State under whose legislation the acquisition and duration of entitlement to unemployment benefit are contingent on the completion of periods of insurance must, in a situation under Article 71(l)(b)(ii) and Article 67 of Regulation No 1408/71, in accordance with the first sentence of Article 12(1) of that regulation, take account in calculating the entitlement to unemployment benefit of the periods of insurance completed under the legislation to which the unemployed person was last subject. In that regard, however, it is necessary to deduct from the length of the period of entitlement acquired to unemployment benefit the number of days in respect of which unemployment benefit was received under the said legislation.5.The certified statement issued in accordance with Article 84(2) of Regulation No 1408/71 does not have exclusive probative value in relation to the competent institution for matters relating to unemployment or the courts of another Member State.6.The benefits payable under the legislation of the Member State in which the unemployed person resides or to which he returns must be suspended pursuant to the third sentence of Article 71(l)(b)(ii) of Regulation No 1408/71 in so far as the conditions laid down by Article 69 of that regulation have actually been fulfilled and the person concerned qualified for benefits on that basis in the Member State to whose legislation he was last subject.7.In the event of the suspension under the third sentence of Article 71(l)(b)(ii) of Regulation No 1408/71 of the grant of benefits under the legislation of the State in which the unemployed person resides, the competent institution of that Member State must reduce the benefits payable under the legislation of that State by the benefits actually received in the Member State to whose legislation that person was last subject. The period in which an unemployed person actually received unemployment benefit under the legislation of the last-mentioned Member State must be deducted from the length of the period of entitlement to unemployment benefit under the last-mentioned legislation.