Opinion of the Advocate General — ECLI:EU:C:2006:269
Date: 2006-04-27
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment Social security for migrant workers – Accidents at work and occupational disease – Calculation of benefit (Art. 42 EC; Council Regulation No 1408/71, Art. 58(1)) Article 58(1) of Regulation No 1408/71, according to which, where the legislation of a Member State provides that the calculation of cash benefits for occupational illness is to be based an average wage or salary, the latter is to be determined exclusively by reference to wages or salaries recorded during the periods completed under that legislation, must be interpreted in accordance with the objective set out in Article 42 EC, which requires in particular that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the EC Treaty. It follows that, in the case of an occupational sickness benefit whose amount is calculated by reference to average pay earned during the final months of working in national territory, calculation of that average pay must, in relation to a migrant worker, be made in such a way as to take into account the pay that the person concerned could reasonably have earned, given his subsequent employment record, had he continued to work in the Member State in which the competent institution is situated. (see paras 38, 43, operative part)