Judgment;Summary — ECLI:EU:C:2020:36
Date: 2020-01-23
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation  C-29/19 — 1 
Case C-29/19 
Request for a preliminary ruling 
Date lodged: 
16 January 2019 
Referring court: 
Bundessozialgericht (Germany) 
Date of the decision to refer: 
23 October 2018 
Applicant, respondent and appellant on a point of law: 
ZP 
Defendant, appellant and respondent on a point of law: 
Bundesagentur für Arbeit  
 
BUNDESSOZIALGERICHT 
(FEDERAL SOCIAL COURT) 
[...] 
Order 
in the case of 
[...] 
ZP, 
[...] 
applicant, respondent and appellant on a point of law, 
EN 
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[...], 
v 
Bundesagentur für Arbeit 
(Federal Employment Agency),  
[...] Nuremberg, 
defendant, appellant and respondent on a point of law. 
Further to the hearing of 23 October 2018 [...], the 11th Chamber of the Federal 
Social Court has 
made the following order: 
I. The proceedings are stayed. 
II. The following questions are referred to the Court of Justice of the 
European Union for interpretation of EU law under Article 267 TFEU: [Or. 2] 
1. Is Article 62(1), in conjunction with Article 62(2), of Regulation (EC) 
No 883/2004 to be interpreted as meaning that, when a worker becomes 
unemployed, the competent institution of the Member State of residence must 
base the calculation of the benefits on the ‘salary’ that the person concerned 
‘received’ in respect of his/her last activity as an employed person in the territory 
of that institution even in the case where, under the national legislation on 
unemployment benefits administered by the competent institution, that salary 
cannot be taken into account due to insufficient duration of receipt and a notional 
assessment of the benefits is provided for as an alternative? 
2. Is Article 62(1), in conjunction with Article 62(2), of Regulation (EC) 
No 883/2004 to be interpreted as meaning that, when a worker becomes 
unemployed, the competent institution of the Member State of residence must 
base the calculation of the benefits on the ‘salary’ that the person concerned 
‘received’ in respect of his/her last activity as an employed person in the territory 
of that institution even in the case where, under the national legislation 
administered by the competent institution, that salary may not be included as a 
basis for calculating the benefits in the reference period because it was not 
processed timeously and a notional assessment of the benefit is provided for as an 
alternative? 
Grounds: 
1 A. Subject matter and facts of the main proceedings 
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2 I. Subject matter of the dispute 
In dispute is the question whether the applicant can claim higher unemployment 
benefit for the period from 25 November 2014 to 30 June 2015. 
3 II. Facts 
The applicant, a German national residing in Germany, worked for a company in 
Switzerland from 1 July 1990 to 30 November 2014. His [Or. 3] earned income 
was CHF 80 645.45 in 2012, CHF 72 800 in 2013 and CHF 83 086.20 from 
1 January 2014 to 31 October 2014. During that period of employment, he 
commuted daily from his residence in Germany to his place of work in 
Switzerland. A position in Germany which started on 1 November 2014 was 
brought to an end by the employer by notice of termination on 10 November 2014 
with effect from 24 November 2014. The remuneration for November 2014 in the 
amount of EUR 2 232.77 was not processed and paid until 11 December 2014. 
4 The Federal Employment Agency (the defendant) granted employment benefit 
from 25 November 2014 to 24 November 2016 in the daily amount of EUR 29.48 
according to a rated remuneration of EUR 73.73 per day (decision of 2 January 
2015). It rejected the applicant’s opposition, by which he claimed that the pay for 
his employed activity in Switzerland should be used as a basis for calculating the 
unemployment benefit (opposition decision of 16 January 2015). According to the 
regulations on European social law coordination, an assessment should be made 
according to national law and, in accordance with Paragraph 152 of the Third 
Book of the Social Code — Employment Promotion — (SGB III), a notional 
assessment should be made according to Qualification Group 3 (employed 
activities requiring completed training in a skilled occupation). With effect from 
1 July 2015, employment benefit ceased to be granted on the ground that the 
applicant had resumed work activity. [Or. 4] 
5 The Sozialgericht Konstanz (Social Court, Constance), amending the contested 
decisions, ordered the defendant to calculate the employment benefit in 
accordance with a (higher) rated remuneration of EUR 93.03 and dismissed the 
action as to the remainder (judgment of 19 January 2016). The 
Landessozialgericht Baden-Württemberg (Regional Social Court, Baden-
Württemberg) (‘the LSG’) dismissed the appeals lodged by the defendant and the 
applicant (judgment of 16 March 2017). It held that, under Article 62(1), in 
conjunction with Article 62(2), of Regulation (EC) No 883/2004, the calculation 
of the employment benefit was to be based only on the remuneration earned in 
respect of the last employed activity in Germany, and not on that in respect of the 
activity in Switzerland. It is true that the remuneration for November 2014 could 
not be taken into account according to the national legislation, because it had not 
yet been processed when the employment relationship came to an end. A notional 
rated remuneration had to be used as a basis, because the assessment period did 
not include 150 days of entitlement to remuneration in respect of employed 
activity in Germany. However, these national provisions were ‘superseded’ by 
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Article 62(1), in conjunction with Article 62(2), of Regulation (EC) No 883/2004. 
According to the different language versions of this provision, it was sufficient if 
the party concerned had a legal right to the remuneration and this was only 
processed and received after entry into unemployment. A notional assessment 
should also not take place according to national law, because the exception 
provision of the second sentence of Article 68(1) of Regulation (EEC) No 1408/71 
had not been transferred into Regulation (EC) No 883/2004. [Or. 5] 
6 In the appeal on a point of law granted by the LSG, the defendant alleges a breach 
of Article 62(1), in conjunction with Article 62(2), of Regulation (EC) 
No 883/2004. Article 62 of Regulation (EC) No 883/2004 did not supersede the 
assessment under national law so far that, contrary to the assessment regulations 
applicable in Germany, unprocessed remuneration also had to be taken into 
account. The removal of the notional assessment under the coordinating social law 
did not exclude a notional assessment under national law. 
7 The defendant requests that 
the judgments of the Landessozialgericht Baden-Württemberg of 16 March 
2017 and of the Sozialgericht Konstanz of 19 January 2016 be annulled and 
the action and the applicant’s appeal on a point of law be dismissed. 
8 The applicant requests that 
the defendant’s appeal on a point of law against the judgment of the 
Landessozialgericht Baden-Württemberg of 16 March 2017 be dismissed 
and that, with partial annulment of the judgments of the Landessozialgericht 
Baden-Württemberg of 16 March 2017 and of the Sozialgericht Konstanz of 
19 January 2016 and with amendment of the decision of 2 January 2015 in 
the form of the opposition decision of 16 January 2015, the defendant be 
ordered to grant the applicant unemployment benefit for the period from 
25 November 2014 to 30 June 2015 on the basis of the income earned in 
Switzerland. 
9 The applicant also alleges a breach of Article 62 of Regulation (EC) No 883/2004, 
arguing that the restriction of the right to national reference values in the case of 
only brief employment discriminates against mobile workers in comparison with 
immobile workers. He claims that he was unjustifiably placed at a disadvantage in 
comparison with frontier workers. [Or. 6] 
10 B. Reasons for the decision 
11 The Chamber stays the proceedings pursuant to Paragraphs 165, 153(1) and 114 
of the Sozialgerichtsgesetz (Law on the Social Courts) and refers the questions set 
out in the operative part to the European Court of Justice (‘Court of Justice’) for a 
preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the 
European Union (TFEU). Following a preliminary examination, it assumes that 
the question of whether the applicant can claim higher unemployment benefit in 
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the relevant period of 25 November 2014 to 30 June 2015 depends on the correct 
interpretation of Article 62(1), in conjunction with Article 62(2), of Regulation 
(EC) No 883/2004. 
12 I. The relevant legal provisions 
13 1. National law 
The relevant provisions of national law on the quantum of unemployment benefit 
in Paragraph 149 et seq. SGB III (applicable here is the SGB III in the version of 
the Law of 20 December 2011, effective as from 1 April 2012, for improving the 
chances of integration in the labour market, BGBl I 2854 et seq.) read as follows 
in extract: 
Paragraph 149 SGB III - Principle 
The unemployment benefit is … 
2. for the remaining unemployed persons, 60 per cent (general benefit rate) of 
the flat-rate net pay (remuneration), which results from the gross pay earned 
by the unemployed person in the assessment period (rated remuneration). 
[Or. 7] 
Paragraph 150 SGB III - Assessment period and assessment framework 
(1) The assessment period covers the payroll accounting periods of the 
employed activity subject to insurance within the assessment framework 
which are settled when the respective employment relationship comes to an 
end. The assessment framework covers one year; it ends on the last day of 
the last compulsory insurance relationship before the claim arises. 
(2) When determining the assessment period, no account is taken of … 
3. periods in which unemployed persons received parental allowance or 
child benefit or did not receive such benefits only because of consideration 
of income, or cared for and raised a child under the age of three, if the 
remuneration or average weekly working hours were reduced due to caring 
for and raising the child, 
4. periods in which unemployed persons claimed caregiver leave under 
… and … if the remuneration or average weekly working hours were 
reduced due to the care; … 
(3) The assessment framework is extended to two years if 
1.  the assessment period includes fewer than 150 days of entitlement to 
remuneration, … 
Paragraph 151 SGB III - Rated remuneration 
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(1) Rated remuneration is the average daily remuneration subject to 
contributions which the employed person earned in the assessment period … 
(4) If unemployed persons received unemployment benefit within the last two 
years before the claim arises, rated remuneration is at least the remuneration 
on the basis of which the employment benefit was last assessed … 
Paragraph 152 SGB III - Notional assessment 
(1) If an assessment period of at least 150 days of entitlement to remuneration 
cannot be established within the assessment framework extended to two 
years, notional remuneration is to be used as a basis as rated remuneration. 
… 
(2) For the determination of the notional remuneration, the unemployed person 
is to be assigned to the qualification group corresponding to the professional 
qualification required for the employed activity to which the Employment 
Agency has primarily to extend the placement efforts for the unemployed 
person [Or. 8]. To be taken as a basis here in respect of employed activities 
which 
1. require higher education (Qualification Group 1) is remuneration equal 
to one three hundredth of the reference value, 
2. require a technical college qualification, proof of a completed 
qualification as a master craftsman or -woman or a qualification in a 
comparable establishment (Qualification Group 2) is remuneration equal to 
one three hundred and sixtieth of the reference value, 
3. require completed training in a skilled occupation (Qualification Group 
3) is remuneration equal to one four hundred and fiftieth of the reference 
value, 
4. do not require training (Qualification Group 4) is remuneration equal 
to one six hundredth of the reference value. 
14 2. EU law 
The relevant provision of EU law in the case at issue is Article 62 of Regulation 
(EC) No 883/2004. The applicability of Regulation (EC) No 883/2004 follows 
from Article 8 of, in conjunction with Section A(1) of Annex II to, the Agreement 
of 21 June 1999 between the European Community and its Member States, of the 
one part, and the Swiss Confederation, of the other, on the free movement of 
persons (OJ 2002 L 114, p. 6) in the version applicable through Decision 
No 1/2012 of the Joint Committee, established under the Agreement of 31 March 
2012 (OJ 2012 L 103, p. 51) (see Court of Justice judgment of 21 March 2018, 
J. Klein-Schiphorst, C-551/16, EU:C:2018:200, paragraphs 3, 4 and 28). 
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15 II. Acquisition of the right to unemployment benefit in consideration of EU 
law 
16 The defendant grants unemployment benefits as the competent institution of the 
Member State of residence in respect of the last activity as an employed person 
according to the national legislation (Article 11(3) of Regulation (EC) 
No 883/2004). During the period from 25 November 2014 to 30 June 2015, the 
applicant [Or. 9] met all of the conditions for entitlement to unemployment 
benefit, in the absence of which a claim for higher benefits cannot be successful 
from the outset [...]. The periods of employment completed under Swiss 
legislation were taken into account by the defendant in respect of the acquisition 
of the right to unemployment benefit (Article 61(1) of Regulation (EC) 
No 883/2004). Any rights arising from the bilateral convention between the Swiss 
Confederation and the Federal Republic of Germany on unemployment insurance 
of 20 October 1982 are irrelevant, because the basis for the applicant’s rights to 
unemployment benefit arose entirely after the entry into force of Regulation (EC) 
No 883/2004 (see Court of Justice judgment of 5 February 2002, Kaske, 
C-277/99, EU:C:2002:74, paragraph 33). 
17 III. Assessment of the amount of unemployment benefit under national law 
18 Under national law, the amount of the applicant’s unemployment benefit must be 
calculated on the basis of a notional assessment. This is based on Paragraph 
152(1) SGB III. Even within the assessment framework extended to two years 
(Paragraph 150(3), first sentence, No 1, SGB III), there was no assessment period 
(period of employed activity subject to insurance, Paragraph 150(1), first 
sentence, SGB III) of at least 150 days of entitlement to remuneration in Germany 
in the case of the applicant. The defendant also assumed that its placement efforts 
must be directed at comparable activities in accordance with the applicant’s many 
years of activity (Paragraph 152(2), first sentence, second sentence, No 3, SGB 
III) and, in consideration [Or. 10] of the reference value for 2014 (EUR 33 180), 
properly calculated a daily unemployment benefit of EUR 29.48. 
19 In the case of the notional assessment under Paragraph 152(1) SGB III, which is 
independent of the individually earned remuneration, remuneration dependent on 
the reference value in social insurance (Paragraph 18 of the Fourth Book of the 
Social Code — Common Rules for Social Insurance — <SGB IV>) is assigned at 
a flat rate. This is intended to simplify the benefits law [...]. The reference value 
within the meaning of the social insurance provisions is in principle determined 
according to the average remuneration from the statutory pension insurance in the 
calendar year before last (Paragraph 18(1) SGB IV). The development of the 
gross wages and salaries is decisive for this average remuneration (Paragraph 
69(2), first sentence, No 1, of the Sixth Book of the Social Code — Statutory 
Pension Insurance). 
20 The remuneration earned during the applicant’s brief employment in Germany 
from 1 November 2014 to 24 November 2014 was also not to be taken into 
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account under national law for a further reason. The condition under Paragraph 
150(1), first sentence, SGB III that the remuneration must already have been 
processed when the employment relationship came to an end was not met. The 
purpose of the rule is, with acceptance of simplified standards for benefits 
calculation, to allow rapid determination and payment of unemployment benefit 
without complex investigations of the ‘earned remuneration right’ by the [Or. 11] 
employment services. In this case, it is accepted that those parts of the earned 
income which were not yet processed at that time are left out of consideration [...]. 
21 IV. Assessment of the amount of unemployment benefit under EU law 
22 1. Applicable provisions of Regulation (EC) No 883/2004 
The applicant, who is entitled to receive unemployment benefit under the 
legislation of two Member States, comes within the scope ratione personae of 
Regulation (EC) No 883/2004 on account of his affiliation to a system of social 
security. The amount of his unemployment benefit is determined according to 
Article 62(1), in conjunction with Article 62(2), of Regulation (EC) No 883/2004. 
Article 62(3) of Regulation (EC) No 883/2004, which applies exclusively to 
frontier workers and according to which the remuneration received by the 
unemployed person in the State of employment is decisive, does not apply to the 
applicant. He lost the status of frontier worker when he began working in 
Germany. 
23 It is made clear under EU law that linking the calculation of unemployment 
benefit to the national rules of the Member States in the case of previous 
employment in the State of residence is compatible with higher-ranking EU law. It 
is true that Article 48, first paragraph, heading (a), TFEU stipulates that there 
should be aggregation, for the purpose of acquiring and retaining the right to 
benefit and of calculating the [Or. 12] amount of benefit, of all periods taken into 
account under the laws of several countries. However, the EU legislature enjoys 
wide discretion (see Court of Justice judgment of 31 May 2001, Leclere and 
Deaconescu, C-43/99, EU:C:2001:303, paragraph 29) in shaping the right to free 
movement. A difference between the benefit provided for in the legislation of the 
Member State of last employment and that which may be granted pursuant to the 
legislation of the Member State of residence cannot be regarded as a restriction on 
the freedom of movement for workers. The differences result, rather, from the 
lack of harmonisation of EU law (see Court of Justice judgment of 11 April 2013, 
Jeltes, C-443/11, EU:C:2013:224, paragraphs 45 and 46; [...]. 
24 2. Relevance of the questions referred to the decision in the proceedings 
Article 62(1) of Regulation (EC) No 883/2004 stipulates that the competent 
institution of a Member State whose legislation provides for the calculation of 
benefits on the basis of the amount of the previous salary or professional income 
is to take into account exclusively the salary or professional income received by 
the person concerned in respect of his/her last activity as an employed or self-
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employed person under that legislation. Under Article 62(2) of Regulation (EC) 
No 883/2004, Article 62(1) thereof is also to apply where the legislation 
administered by the competent institution provides for a specific reference period 
for the determination of the salary which serves as a basis for the calculation of 
benefits [Or. 13] and where, for all or part of that period, the person concerned 
was subject to the legislation of another Member State. 
25 In accordance with the case-law of the highest social courts, the lower courts have 
derived from the restriction, contained in Article 62(1) of Regulation (EC) 
No 883/2004, of the calculation of the unemployment benefit according to the 
national legislation to the remuneration ‘received’ ‘in respect of’ the last activity 
as an employed person that a notional assessment under Paragraph 152 SGB III 
was excluded. This should also apply if the last activity as an employed person in 
the Member State of residence comprises fewer than 150 days of entitlement to 
remuneration, such as just a few weeks or days [...]. It has not been decided 
whether an exclusion of the notional assessment according to national legislation 
also applies if the remuneration was not yet processed when the employment 
relationship came to an end within the meaning of Paragraph 150(1), first 
sentence, SGB III [...]. This raises the question of whether Article 62(1) of 
Regulation (EC) No 883/2004 amends or supersedes the national legislation not 
only with regard to a notional assessment provided for therein, but also further 
calculation systems. [Or. 14] 
26 If both questions referred were to be answered in the affirmative, the defendant’s 
appeal on a point of law would be unsuccessful and the judgments of the lower 
courts would have to be confirmed. However, the defendant’s appeal on a point of 
law would be successful if the first question referred were answered in the 
affirmative and the second question referred were answered in the negative. In this 
respect, the defendant rightly points out that the remuneration could not then be 
taken into account. In the view of the Chamber, the applicant’s unemployment 
benefit would then have to be based on a notional assessment for lack of any other 
calculation possibilities in national law. 
27 3. Decisions by the Court of Justice 
There is no clear decision by the Court of Justice on the interpretation of 
Article 62 of Regulation (EC) No 883/2004 from which an answer to the 
questions referred might be garnered. 
28 It is true that there is a judgment by the Court of Justice on Article 68(1) of 
Regulation (EEC) No 1408/71, the predecessor of Article 62 of Regulation (EC) 
No 883/2004. The second sentence of Article 68(1) of Regulation (EEC) 
No 1408/71 prescribed a notional assessment under the coordinating social law in 
the case of employment in the Member State of residence for less than four weeks. 
The unemployment benefit was then to be calculated on the basis of the ‘normal 
wage or salary corresponding, in the place where the unemployed person is 
residing or staying, to an equivalent or similar employment to his last employment 
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in the territory of another Member State’. In respect of the particular situation, not 
involved here, of a frontier worker, the Court of Justice has stated that, apart from 
the special case of the second sentence of Article 68(1) of Regulation (EEC) 
No 1408/71, the ‘previous’ wage or salary which normally constituted the basis of 
[Or. 15] calculation of unemployment benefit was, according to Regulation (EEC) 
No 1408/71, that wage or salary ‘received’ in the last employment of the worker. 
It was only by way of exception and derogation that the basis of calculation of 
those benefits had in certain cases to be the notional and not the actual wage or 
salary in the last employment (see Court of Justice judgment of 28 February 1980, 
Fellinger, 67/79, EU:C:1980:59). However, this decision concerns solely the 
relationship between an assessment according to the wage or salary for the last 
employment in the competent Member State of residence and the notional 
assessment, set out in the second sentence of Article 68(1) of Regulation (EEC) 
No 1408/71, at the level of EU law. A statement on the admissibility of resorting 
to a notional assessment prescribed according to the national legislation of the 
competent Member State is not connected therewith. 
29 In a further judgment of 1 October 1992 (Grisvard and Kreitz, C-201/91, 
EU:C:1992:368), the Court of Justice had to deal with the interpretation of 
Article 68(1), in conjunction with Article 71(1)(a)(ii), of Regulation (EEC) 
No 1408/71. The Court of Justice’s reasoning for its decision that account was to 
be taken of the frontier worker’s wage or salary last received in the State of 
employment without the limitation provisions, applicable during the last 
employment, of the State of employment (wage/salary ceilings of the German 
unemployment insurance system) was that the provisions of the Member State of 
residence were in principle to be applied. It also emphasised, with reference to the 
coordination of the national systems of social security, that ‘employment’ within 
the meaning of Article 71(1) of Regulation (EEC) No 1408/71 was that which 
[Or. 16] was regarded as such according to the legislation of the Member State in 
which it was carried on (see Court of Justice judgment of 11 November 2004, 
Adanez-Vega, C-372/02, EU:C:2004:705). These comments underline the 
significance of the legislation of the competent Member State for the calculation 
of unemployment benefit, but concern different factual circumstances. 
30 4. The questions referred 
It is true that a narrow interpretation of the wording of Article 62(1) of Regulation 
(EC) No 883/2004 (‘exclusively the salary’ — ‘received’) might argue in favour 
of the legal opinion of the lower courts, which is also agreed with in the national 
literature. However, Article 62(1) of Regulation (EC) No 883/2004 also contains a 
reference to the legislation of the competent Member State (‘whose legislation 
provides for the calculation of benefits ...’). However, in interpreting Article 62 of 
Regulation (EC) No 883/2004, it is necessary to consider not only the wording 
thereof, but also the context of the provision and the objectives pursued by the 
rules (see Court of Justice judgment of 21 March 2018, J. Klein-Schiphorst, 
C-551/16, EU:C:2018:200, paragraph 34). As Article 61 of Regulation (EC) 
No 883/2004 also provides for aggregation of the periods of employment and 
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insurance completed in various Member States in the case of only brief 
employment by the institution of a Member State which thus has competence 
under Article 61 of Regulation (EC) No 883/2004 to grant the benefits, Article 62 
of Regulation (EC) No 883/2004 should allow the recourse, intended by the EU 
legislature for reasons of simplified administration, of the Member States to the 
national assessment provisions even where there is not a [Or. 17] sufficiently long 
reference period for calculating the unemployment benefit. The Chamber is 
therefore inclined to take the view that Article 62(1) of Regulation (EC) 
No 883/2004 is intended to take up only the ‘usual case’ of assessment on the 
basis of a previous salary. This should not exclude other assessment systems and 
methods such as the sole use of the remuneration processed upon departure and an 
alternative notional assessment according to the national legislation. 
31 A notional assessment under national law should also not be precluded by the fact 
that the exception provision regarding the notional assessment in the second 
sentence of Article 68(1) of Regulation (EEC) No 1408/71 has not been 
transferred into Regulation (EC) No 883/2004. The reason for this was the 
difficulty in practically implementing this provision at the level of EU law [...]. 
However, in the view of the Chamber, this cannot lead to the total exclusion of a 
differently formulated (notional) assessment provided for in national law. 
32 Doubts regarding the previous interpretation of Article 62(1), in conjunction with 
Article 62(2), of Regulation (EC) No 883/2004 by the national courts also arise 
from the principles of European social law coordination. Article 48 TFEU 
provides only for the coordination, not the harmonisation, of the legal systems of 
the Member States. In accordance with recital 4 of Regulation (EC) No 883/2004 
(‘It is necessary to respect the special characteristics of national [Or. 18] social 
security legislation and to draw up only a system of coordination’), the Member 
States remain competent for establishing the national conditions for social security 
benefits. Substantive and procedural differences between the social security 
systems of individual Member States, and hence in the rights of persons who are 
insured persons there, are in principle unaffected by the provisions of the 
coordination law (see Court of Justice judgment of 16 July 2009, Chamier-
Glisczinski, C-208/07, EU:C:2009:455, paragraph 84; Court of Justice judgment 
of 11 April 2013, Jeltes, C-443/11, EU:C:2013:224, paragraph 43; Court of 
Justice judgment of 19 September 2013, Brey, C-140/12, EU:C:2013:565, 
paragraph 43; Court of Justice judgment of 14 June 2016, Commission v United 
Kingdom, C-308/14, EU:C:2016:436, paragraph 67; Court of Justice judgment of 
21 March 2018, J. Klein-Schiphorst, C-551/16, EU:C:2018:200, paragraph 44). It 
is inherent in such a system that the conditions for unemployment benefit are 
configured differently according to the legislation of the Member States.  
33 In the view of the Chamber, an interpretation of Article 62(1), in conjunction with 
Article 62(2), of Regulation (EC) No 883/2004 which understands the term ‘salary 
received’ only in the sense of a regular connection for social law coordination and 
leaves the respective calculation systems and methods of the Member States 
unaffected for the remainder is supported by the fact that the national organisation 
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of unemployment benefit would otherwise be intruded upon in several respects. If 
account were taken solely of the salary for the last employment, a salary reduced 
due to child raising or care during the last employment in the Member State of 
residence would for instance also have to be [Or. 19] taken into account. 
However, this is precisely supposed to be left out of consideration under national 
law (Paragraph 150(2), first sentence, No 3, 4, SGB III). It could also be 
questionable whether a higher grandfathered rated remuneration under Paragraph 
151(4) SGB III from a previous, not yet exhausted, right to unemployment benefit 
could form the basis of the assessment. However, [EU] law does not preclude 
more favourable provisions of national law as long as they are compatible 
therewith (see Court of Justice judgment of 5 February 2002, Kaske, C-277/99, 
EU:C:2002:74, paragraph 33). In addition, an amendment of the national 
legislation is expressly prescribed in Article 62(1) of Regulation (EC) 
No 883/2004 only in relation to the ‘reference period’. 
34 For the reasons set out, the present Chamber takes the view that an interpretation 
of Article 62(1), in conjunction with Article 62(2), of Regulation (EC) 
No 883/2004 according to which any salary in respect of the last activity as an 
employed person is to serve as a basis for calculation regardless of the (further) 
national conditions and a notional assessment is not possible is not free from 
doubt and identifies the need for clarification formulated in the questions referred. 
[...]