Opinion of the Advocate-General



Opinion of the Advocate-General

I – Introduction

1. The Tribunal des affaires de sécurité sociale de Longwy (Social Security Tribunal, Longwy), France, (hereinafter also: ‘the referring court’) is seeking to obtain from the Court of Justice an interpretation of Regulation (EEC) No 1408/71 of the Council 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 (2) in the light of Articles 39 EC and 42 EC.

2. The question referred by that Court has arisen in the course of proceedings between Mr Nemec and the Caisse Régionale d’Assurance Maladie du Nord-Est (Regional Health Insurance Fund of the North-East; hereinafter: ‘CRAM’). The CRAM established that Mr Nemec was entitled to receive cash benefits under a French law compensating former asbestos workers. It calculated the benefits to be awarded in accordance with an administrative circular on the basis of the last French pay earned by Mr Nemec in 1993/94. In Mr Nemec’s view, the basis for the calculation should be his last – substantially higher – Belgian pay from 2003/04.

3. The referring court questions whether the failure to take account of Mr Nemec’s last Belgian pay in calculating his entitlements is compatible with Regulation No 1408/71 and with the principle of freedom of movement for workers within the meaning of Article 39 et seq. EC.

II – Relevant legislation

A – Community law

1. Primary law

4. The provisions of Article 39(1) and (2) EC read:

‘Freedom of movement for workers shall be secured within the Community.

Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.’

5. Article 42 EC provides:

‘The Council shall, acting in accordance with the procedure referred to in Article 251, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:

(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;

(b) payment of benefits to persons resident in the territories of Member States.

The Council shall act unanimously throughout the procedure referred to in Article 251.’

2. Regulation No 1408/71

6. Article 1 of Regulation No 1408/71 includes the following definitions:

‘…

(a) employed person and self-employed person mean respectively:

(i) any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons or by a special scheme for civil servants;

…

(j) legislation means in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4(1) and (2) or those special non-contributory benefits covered by Article 4(2a).

…

(o) competent institution means:

(i) the institution with which the person concerned is insured at the time of the application for benefit;

or

(ii) the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of his family were resident in the territory of the Member State in which the institution is situated; or

…

(t) benefits and pensions mean all benefits and pensions, including all elements thereof payable out of public funds, revalorisation increases and supplementary allowances, subject to the provisions of Title III, as also lump-sum benefits which may be paid in lieu of pensions, and payments made by way of reimbursement of contributions’.

7. Under the heading ‘Persons covered’, Article 2(1) of the Regulation provides:

‘This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.’

8. Article 4 defines the matters covered by the Regulation inter alia as follows:

‘1. This Regulation shall apply to all legislation concerning the following branches of social security:

…

(c) old-age benefits;

…

(e) benefits in respect of accidents at work and occupational diseases;

…’

9. As regards determining the legislation applicable, Article 13 of the Regulation provides inter alia:

‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

2. Subject to Articles 14 to 17:

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

…

(f) a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.’

10. Under the heading ‘Award of benefits’, Article 46(2) provides inter alia:

‘Where the conditions required by the legislation of a Member State for entitlement to benefits are satisfied only after application of Article 45 and/or Article 40(3), the following rules shall apply:

(a) the competent institution shall calculate the theoretical amount of the benefit to which the person concerned could lay claim provided all periods of insurance and/or of residence, which have been completed under the legislation of the Member States to which the employed person or self-employed person was subject, have been completed in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of the benefit is independent of the duration of the periods completed, the amount shall be regarded as being the theoretical amount referred to in this paragraph’.

11. Under the heading ‘Additional provisions for the calculation of benefits’, Article 47(1) provides more specifically inter alia:

‘For the calculation of the theoretical and pro rata amounts referred to in Article 46(2), the following rules shall apply:

…

(g) where, under the legislation of a Member State, benefits are calculated on the basis of average contributions, the competent institution shall determine that average by reference only to those periods of insurance completed under the legislation of the said State.’

12. Article 57(1) of the Regulation provides:

‘When a person who has contracted an occupational disease has, under the legislation of two or more Member States, pursued an activity which by its nature is likely to cause that disease, the benefits that he or his survivors may claim shall be awarded exclusively under the legislation of the last of those States whose conditions are satisfied, taking into account, where appropriate, paragraphs 2 to 5.’

13. Under the heading ‘Calculation of cash benefits’, Article 58(1) of the Regulation provides:

‘The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on average earnings shall determine such average earnings exclusively by reference to earnings confirmed as having been paid during the periods completed under the said legislation.’

14. Under the similar heading ‘Calculation of benefits’, Article 68(1) of the Regulation provides:

‘The competent institution of a Member State whose legislation provides that the calculation of benefits should be based on the amount of the previous wage or salary shall take into account exclusively the wage or salary received by the person concerned in respect of his last employment in the territory of that State. However, if the person concerned had been in his last employment in that territory for less than four weeks, the benefits shall 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 in the territory of another Member State.’

3. Regulation No 574/72

15. Article 15 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (3) contains general rules on the aggregation of periods (of insurance or residence) under Articles 18(1), 38, 45(1) to (3), 64 and 67(1) and (2) of Regulation No 1408/71.

4. Regulation No 883/2004

16. Article 87(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (4) provides inter alia:

‘No rights shall be acquired under this Regulation for the period before its date of application.’

17. Under Article 90(1) of the Regulation,

‘Council Regulation (EEC) No 1408/71 shall be repealed from the date of application of this Regulation.

...’

18. Lastly, Article 91 of the Regulation states:

‘This Regulation shall enter into force on the twentieth day after its publication in the Official Journal of the European Union.

It shall apply from the date of entry into force of the Implementing Regulation.

…’

B – National law

19. Law No 98-1194 of 23 December 1998 on the financing of social security for 1999 (5) introduced rules on the early cessation of occupational activity for employed persons who were exposed to asbestos during their employment. Article 41 of the Law, in the version material to this case, (6) provides for the award of cash benefits to (former) employed persons, on the condition that they

– worked at an asbestos processing plant included on a ministerial list when asbestos was being handled there;

– have reached a specified age of at least 50 years, and

– cease all occupational activity.

20. Entitlement to such benefits arises from the age of 50 if it is established and acknowledged that the person concerned has contracted an occupational disease caused by asbestos and included on a ministerial list.

21. The amount of cash benefits awarded is calculated by reference to the average gross earnings of the beneficiary in the last twelve months of his employment. Implementing Decree No 99-247 of 29 March 1999 on cash benefits awarded on the early cessation of occupational activity for employed persons exposed to asbestos (7) defines the method of calculation. (8)

22. Cash benefits continue to be disbursed until the beneficiary satisfies the conditions required for receipt of the full old-age pension. A fund made up from a fixed percentage of the revenue from excise duties and from social security allocations for accidents at work and occupational diseases was set up to finance the benefits in question. The latter contribution is set annually by the Law on the financing of social security.

23. Circular No DSS/4B/99/332 of 9 June 1999 (9) applying the Law and the Implementing Decree contains administrative instructions with regard to the award, calculation and disbursement of cash benefits by the regional health insurance funds. With regard to calculating the amount of entitlement due where periods of employment have been completed abroad, the Circular provides that pay earned abroad is taken into account in calculating the cash benefits only if it has been subject to French social security contributions. In all other cases reference must be had to the last pay earned in France for the purpose of the calculation.

24. Lastly, the allowance in question may not overlap with other benefits, including sickness, old-age, invalidity and early retirement benefits or benefits in relation to the cessation of occupational activity.

III – Facts, question referred and proceedings before the Court of Justice

25. Mr Nemec was born in 1954, is a French national and is resident in France. In the course of his occupational activity he worked for a number of years in an undertaking in France, where he was exposed to asbestos. In 1995 it was established and acknowledged that he had contracted an occupational disease attributable to asbestos.

26. When, in 1994, that asbestos-processing undertaking was closed down, Mr Nemec found new employment in Belgium, at an undertaking with premises located some ten kilometres from his place of residence in France. He continues to work there today. For the entire duration of his activity in Belgium, Mr Nemec has lived in France and has paid his taxes there.

27. In March 2004 Mr Nemec submitted a claim to the CRAM for an allowance for asbestos workers pursuant to Article 41 of Law No 98-1194. By letter of 13 May 2004 the CRAM determined his entitlements under the relevant provisions. As required by Circular No DSS/4B/99/332, only those payslips that he had received when he had been working in France up to 1994 had been taken into account in determining the amount of allowance to be awarded.

28. Lodging a complaint with a conciliation committee, which was subsequently rejected, Mr Nemec objected to the failure to take account of his Belgian earnings. Stating the reasons for its rejection of 7 September 2004, the committee also referred to the requirements of the Circular.

29. Mr Nemec then brought an action before the referring court, claiming that the CRAM had failed to observe the principle of equal treatment, as laid down in Regulation No 1408/71 and now in Regulation No 883/2004, and had thereby infringed his right as a worker to freedom of movement.

30. In the context of those proceedings reference has been made to the Court of Justice of the European Communities by decision of the Tribunal des affaires de sécurité sociale de Longwy of 14 April 2005, received at the Court Registry on 11 May 2005, for a preliminary ruling on the following question:

In refusing to take the pay earned by Mr Nemec in Belgium into account when calculating the amount of the allowance for asbestos workers awarded to him pursuant to Article 41 of Law No 98-1194 of 23 December 1998, on the basis of Article 2 of Implementing Decree No 99-247 of 29 March 1999 and Circular DSS/4B/99/332 of 9 June 1999, because that pay did not give rise to the payment of social security contributions in accordance with Article L 242-1 of the French Social Security Code, did the CRAM take in his regard, a wrongful decision constituting an impediment to freedom of movement as laid down in Article 39 EC, an infringement of Regulation (EC) No 883/2004 or an infringement of Article 15 of Regulation (EEC) No 574/72?

31. In the proceedings before the Court of Justice Mr Nemec, the CRAM, the French Government and the Commission submitted written and oral observations. The Government of the United Kingdom of Great Britain and Northern Ireland presented oral observations at the hearing.

IV – Legal assessment

A – Admissibility of the reference for a preliminary ruling

32. The French Government considers the reference for a preliminary ruling to be inadmissible.

33. It maintains that insufficient information is provided about the facts of the case. For instance, the decision by the referring court did not indicate whether Mr Nemec had been exposed to asbestos during his employment in France or in other countries. Thus the very facts on which the question referred for a preliminary ruling is based were not provided. Furthermore, only an incomplete and ambiguous reference to the relevant national law was made in the order for reference.

34. It further argues that the referring court failed to state the reasons for its uncertainty as to the interpretation of Community law. Lastly, the referring court had also failed to make clear the links that it had established between provisions of Community and national law.

35. It is settled case-law that an interpretation of Community law which will be of use to the national court can be provided only if the order for reference defines the factual and legislative context of the questions it is asking. (10) That definition is intended not least to give the Governments of the Member States, and the other interested parties to whom only the decision making the reference is notified, (11) the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. (12) A further prerequisite for an interpretation of Community law that will be of use to the national court is a statement of the reasons which caused the referring court to have doubts as to the interpretation of the Community provisions to which its questions referred for a preliminary ruling relate. (13)

36. The French Government is right to consider that the reference made by the national court for a preliminary ruling has been kept extremely brief and almost verges on the inadmissible. Nevertheless, it still contains a sufficient degree of the information required.

37. Thus, it is apparent from the reference for a preliminary ruling that Mr Nemec worked in France and Belgium, that he was recognised as being entitled to cash benefits on account of an asbestos-related activity and that those entitlements were calculated without taking his Belgian earnings into account. Whether Mr Nemec had been exposed to asbestos during his employment in France or in other countries is irrelevant since, according to the information contained in the reference for a preliminary ruling, the preconditions for receiving the allowance for former asbestos workers were satisfied and the question raised concerns only the calculation of the allowance.

38. Both in the grounds of its reference and in the actual question referred the national court refers in particular to Circular No DSS/4B/99/332 of 9 June 1999, (14) which gives the method relevant in this instance for calculating Mr Nemec’s entitlements. The court also refers to the legal basis for the entitlements (15) and to the Implementing Decree. (16)

39. Lastly, it is clear from the reference for a preliminary ruling that the referring court not only has doubts as to the Circular’s compatibility with secondary and primary Community law, having regard to the CRAM’s calculations, but also explains that, in view of the principle of equal treatment for workers in the Union, it is uncertain as to the applicability and interpretation of those Community provisions to which it refers.

40. The Court of Justice thus has sufficient factual and legislative information at its disposal to give a useful answer to the question referred. Therefore, the reference for a preliminary ruling is admissible.

B – The question referred

41. It should first be noted that Regulation No 883/2004 of 29 April 2004 on the coordination of social security systems is irrelevant for the purpose of answering the question referred. That is clear from Articles 87(1) and 91 of the Regulation, (17) under which the Regulation is to apply only from the date of entry into force of the Implementing Regulation – which has not yet been adopted – and no rights can be acquired for the period before its date of application.

42. Under Article 90(1) of Regulation No 883/2004, Regulation No 1408/71 is to be superseded by that Regulation when it becomes applicable. (18) The question referred must therefore be construed as seeking to ascertain whether Regulation No 1408/71 precludes a decision such as that taken by the CRAM.

43. The subject-matter in question falls within the scope ratione personae of Regulation No 1408/71. Mr Nemec was an employed person, within the meaning of Article 2(1) and Article 1(a)(i) of the Regulation, (19) in France and is currently an employed person in Belgium, according to the information available.

44. According to settled case-law, the subject-matter of a case falls within the scope ratione materiae of Regulation No 1408/71 if a benefit is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. (20)(21)

45. Cash benefits are awarded to former asbestos workers subject to conditions which are laid down in legislation (22) and do not call for any individual assessment of personal needs. (23)

46. The types of benefit listed in Article 4(1) of Regulation No 1408/71 include old-age benefits (under (c)) and benefits in respect of accidents at work and occupational diseases (under (e)). (24)

47. Initial thoughts might be to classification as an old-age benefit, because cessation of the occupational activity is the prerequisite for receiving the cash benefits, and the benefits are intended to bridge the gap until beneficiaries become entitled to payment from pension funds. According to the French Government, account should in that case be taken in particular of the shortened life expectancy of former asbestos workers.

48. However, this matter in fact has nothing to do with an age-related early retirement arrangement; on the contrary, it involves benefits in respect of occupational diseases. Reduced life expectancy thus follows from the increased risk of contracting an occupational disease through contact with asbestos. As argued inter alia (25) by the French Government, enabling the person concerned to take early retirement is not the true purpose of the benefits; their purpose is in fact to prevent or delay the onset or aggravation of asbestos-related occupational diseases and to alleviate their development. Eliminating the stresses and strains associated with working life by giving up employment early is supposed to contribute to that end.

49. In addition, the benefits are connected with an employed person’s handling of asbestos as part of his occupational activity and are predominantly financed by funds allocated under the social security heading of accidents at work and occupational diseases. The subject-matter in question therefore falls within the material scope of Regulation No 1408/71 under Article 4(1)(e) (benefits in respect of occupational diseases).

50. In determining the national legislation applicable pursuant to Article 13 et seq. of Regulation No 1408/71, the following must be established as fact:

51. Although Mr Nemec did in fact apply for assessment of the benefits due to him under the Law on cash benefits for former asbestos workers, he himself concedes that he has not claimed those benefits thus far because of the shortfall in income that would arise, based on the CRAM’s benefit calculations, if he gave up his occupational activity, and instead he continues to work in Belgium.

52. Under Article 13(1) and (2)(a) of Regulation No 1408/71, (26) Belgian law is, therefore, currently applicable to Mr Nemec. Accordingly, responsibility for cash benefits in the event of occupational diseases would in fact fall to Belgium. Under Article 58(1) of Regulation No 1408/71, (27) Mr Nemec’s last Belgian earnings alone would be taken into account to calculate those cash benefits.

53. However, cessation of the occupational activity is one of the conditions for receipt of the French allowance for former asbestos workers. In order to assess Mr Nemec’s entitlements, it is th erefore necessary to proceed as if he had already given up his work in Belgium and was now receiving only the French allowance. Since Mr Nemec is resident in France, French legislation is applicable to him under Article 13(1) and (2)(f) of Regulation No 1408/71. (28)

54. Article 58(1) of Regulation No 1408/71 (29) indeed seems to imply that the allowance for former asbestos workers must be calculated exclusively on the basis of the last income earned by Mr Nemec in France. The Court has already held accordingly in its judgment in Pennartz, in relation to earlier rules, that Article 58 of Regulation No 1408/71 does not merely determine the legislation applicable – the provisions of Article 13 et seq. of that Regulation (30) do specifically that; rather that provision pre‑determines the remuneration to be taken into consideration in the calculation. (31) Accordingly, the basis for the calculation is exclusively the wages paid in the relevant period in the territory of the competent Member State. (32)

55. In the light of the above considerations, the CRAM’s calculations are prima facie in accordance with the requirements of Regulation No 1408/71, as claimed by the CRAM, the French Government and the United Kingdom Government.

56. The above conclusion also appears to be borne out in the Court’s more recent case-law in the similar cases of Lafuente Nieto , Naranjo Arjona and Grajera Rodríguez . (33) In those judgments the Court concluded that the calculation of old-age or invalidity pensions for migrant workers in their State of origin based on the last pay earned in that State – and not on the last pay earned in the Member State in which they had most recently worked – does not discriminate against migrant workers as compared with workers who remained in the State of origin, provided that provision is made for updating the earlier pay to the current level of earnings. (34)

57. However, in those cases, unlike in this case, pension entitlements arose in the Member State of last employment as well as in the country of origin. (35) The last employment of the migrant workers was consequently taken into consideration in calculating the actual entitlements to pension benefits.

58. It is also worth bearing in mind that, in view of the range of eventualities that could arise over that lengthy period, it is virtually impossible to make a hypothetical projection of the last French income without some degree of arbitrariness. Had Mr Nemec remained in France, the possible scenarios range from permanent unemployment to employment resulting in a final, substantially higher income in another sector.

59. In view of those circumstances the Commission rightly points out that an application of Article 58(1) of Regulation No 1408/71 as defined by the above case-law does not meet the objectives of Article 39 et seq. EC.

60. The Court has consistently held that the aim of Article 39 et seq. EC would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State. (36) Therefore, differences in treatment as between nationals of a Member State who have not exercised their right to freedom of movement for workers and nationals of the same Member State who have availed themselves of that right are contrary to Article 39 et seq. EC. (37)

61. If Mr Nemec had looked around exclusively on the national employment market for new employment after his previous place of employment in France, an asbestos-processing plant, had closed down, and taken up a new occupational activity there like the activity he is currently pursuing in Belgium, his current pay would be relevant to calculating his entitlements. The fact that Mr Nemec availed himself of his right to free movement therefore results in his losing social security advantages to which he is entitled under French legislation. Exercising the right to free movement is, therefore, the less attractive option.

62. The Commission therefore considers it necessary either to apply Article 39 et seq. EC directly or at least to give an interpretation of Article 58 of Regulation No 1408/71 that reflects the spirit and purpose of Article 39 et seq. EC.

63. Hitherto the Court has had direct recourse to Article 39 et seq. EC in two sets of circumstances, first when – unlike in this case (38) – the subject-matter concerned fell outside the scope of Regulation No 1408/71, (39) and secondly when it fell within the scope of the Regulation but the specific circumstances of the case were not governed by its provisions. (40)

64. In addition, Article 39 et seq. EC would be directly applicable if Article 58(1) of Regulation No 1408/71 was invalid because it was contrary to Article 39 et seq. EC. (41) However, such a solution would be possible only if Regulation No 1408/71 could not be applied in accordance with Article 39 et seq. EC. Where an act of Community law is open to several interpretations, preference must be given to that interpretation which does not detract from its validity. (42)

65. The Court has itself emphasised in consistent case-law that Regulation No 1408/71 must be interpreted in the light of the objectives of Article 39 et seq. EC. (43) In similar cases, the Court has in particular interpreted comparable provisions in the light of the objectives of Article 39 et seq. EC.

66. In Fellinger, as regards unemployment benefits under Article 68 of the Regulation, the Court established that the ‘rule/exception’ relationship in that provision places frontier workers in an unfavourable situation in which the exception is the rule. (44) It therefore held that the provision must be interpreted in the light of current Article 42 EC as meaning that the last pay earned must be taken into account for the calculation of the benefit. (45)

67. In Reichling the Court was asked whether an invalidity pension that was to be calculated in the State of origin of a migrant worker by reference to the last pay received there could, where pay was no longer received there, be determined on the basis of the minimum remuneration in that State. (46) Likewise in that case the Court concluded that freedom of movement for workers would be impeded if the last pay earned in another country was not taken as the basis for the calculation. (47) It therefore interpreted Article 46(2)(a) of Regulation No 1408/71 as meaning that, in the case of a migrant worker, the last remuneration received in the other Member State must be taken as the basis for the calculation. (48)

68. The above case-law would suggest applying Regulation No 1408/71, in a case such as this, in the light of Article 39 et seq. EC so that here too, the last Belgian remuneration received by migrant worker Mr Nemec is the relevant basis.

69. However, Article 58(1) of Regulation No 1408/71 expressly provides that only the pay earned in the relevant period in the competent Member State is the basis for the calculation. That was confirmed by the Court in its judgment in Pennartz . (49) As the CRAM, the French Government and the United Kingdom Government rightly submit, the clear wording of the provision sets limits on a teleological interpretation.

70. Therefore, the Regulation can be interpreted by analogy in the light of Article 39 et seq. EC only as meaning that Article 58(1) of Regulation No 1408/71 does not govern circumstances such as those arising in this case. (50) Indeed, the circumstances at issue here appear untypical in several respects, bearing in mind that under Article 58(1) of Regulation No 1408/71 it is usually the most recent pay that is relevant:

– if Mr Nemec was partially or completely incapacitated for work today because of an occupational disease, Belgium would be the competent Member State (51) for the purposes of Article 13(1) and (2)(a) of Regulation No 1408/71, and under Article 58(1) the most recent Belgian pay only would have to be taken into account in making the relevant calculation;

– if Mr Nemec had been exposed to the same risk of asbestos in a number of Member States and if an asbestos-related occupational disease had now made it necessary for him to claim benefits under Article 52 et seq. of Regulation No 1408/71, the most recent Belgian pay only would, again, have to be taken as the basis for the calculation in accordance with Article 57 in conjunction with Article 13(1) and (2)(a) and Article 58(1) of Regulation No 1408/71; (52)

– if Mr Nemec had already become incapacitated for work because of his occupational disease in 1994 or 1995, his most recent pay – that is to say, the pay he earned from his last employment at the French asbestos-processing plant – would likewise have been relevant;

– if Mr Nemec had remained in France for work purposes – working in a different job or even unemployed – in that case too his most recent pay – that is to say, the pay he earned from his last employment in a French firm – would have been relevant.

71. Applying Article 58(1) of Regulation No 1408/71 therefore usually achieves results that are appropriate to and in compliance with the objective of Article 39 et seq. EC, that is to say, it results in reference being had to the most recent pay. The Court also came to that conclusion in Pennartz . (53)

72. Only the specific rules under the French law give rise in this case to an untypical set of circumstances which cannot be brought under Regulation No 1408/71 in a way that meets the objectives of Article 39 et seq. EC and of the Regulation itself. That unusual situation is created by the particular configuration of the conditions for entitlement under the French law:

– the prescribed minimum age of 50 years (54) means that Mr Nemec could lay claim to his entitlements only some ten years after his occupational disease had been established. Usually, however, entitlements arise as soon as an occupational disease is established or once its effects become apparent;

– entitlement presupposes the cessation of all employment. (55) Usually, however, the person concerned may continue his activity, to the extent of his capabilities, if he is only partially incapacitated for work, and in addition receive an income adjustment;

– the recipient may not receive any other benefits. (56) Usually, other benefits may be received alongside benefits received on account of an occupational disease. That condition distinguishes the circumstances of this case from those in the cases of Lafuente Nieto , Naranjo Arjona and Grajera Rodríguez , in which other benefits were also received. (57)

73. Although, therefore, that is no reason to call into question the validity of Article 58(1) of Regulation No 1408/71, that provision – interpreted teleologically – does not cover the untypical circumstances of this case; consequently, Article 39 et seq. EC must be applied directly.

74. As already established above, the French Circular on calculating the allowance for asbestos workers results in unequal treatment as between employed persons who have not exercised their right to free movement and employed persons who have availed themselves of that right. (58)

75. Neither the CRAM nor the French Government has provided any justification for such unequal treatment, which would go beyond what is laid down in Article 58(1) of Regulation No 1408/71. Nor do the documents in the case contain anything that could objectively justify the unequal treatment.

76. In particular the fact that the most recent pay earned in Belgium might have been lower than the earlier, last pay in France cannot provide any justification. As the Court has already held, the fact that other migrant workers, in other circumstances, may derive an advantage from a discriminatory national arrangement can neither eliminate nor compensate for any disadvantageous unequal treatment. (59)

77. Moreover, the most recent pay earned will typically be the highest. It can also usually be assumed that the last, current pay will be the point of reference for sickness benefit. Therefore, if an employed person accepts a lower paid job abroad, he can reasonably expect to see some worrying losses also in respect of his health insurance cover.

78. It must therefore be concluded that, in circumstances such as those in the main proceedings, Article 39 et seq. EC precludes national rules under which the last pay earned by a migrant worker in his Member State of origin, as opposed to his most recent pay, is to be taken as the basis for calculating cash benefits for former asbestos workers.

79. Moreover, that reasoning cannot be countered, as the United Kingdom claims, with the argument that a method of calculation cannot be inferred directly from Article 39 et seq. EC but that technical coordination for that purpose by the Council is necessary. First, only the method of calculation specifically laid down in the French legislation and its compatibility with the provisions of Article 39 et seq. EC are in question. Secondly, Regulation No 1408/71 contains, in Articles 47(1)(g), 58(1) and 68(1) for example, the Council’s considered decisions in respect of such methods of calculation. Those decisions give concrete form to the objectives of Article 39 et seq. EC and must also apply to untypical circumstances. France is, moreover, at liberty to replace the calculation method at issue here with an entirely different one.

80. There could, of course, be significant differences between the Member States as regards level of pay and cost of living. Because the matter is confined to an untypical, exceptional situation, an overburdening of the social security schemes is not something that has to be taken into account. It appears appropriate none the less, where by way of exception Article 39 et seq. EC applies directly to untypical circumstances, to take account of the provision in Article 58(1) of Regulation No 1408/71, whereby earnings in the competent Member State are to be taken as the point of reference. In such untypical circumstances, adjustment, as required, to the level of pay in the place of residence should therefore be possible.

81. The basis for the calculation must therefore be the last Belgian income, adjusted as required to the level of income in the place of residence (France) if there are significant differences in the respective level of income and cost of living in the two countries.

82. It should finally be noted that the extent to which Article 15 of Regulation No 574/72 might be relevant here is not clear. There is, moreover, no need, in the light of the foregoing considerations, to look further at that part of the question referred.

V – Conclusion

83. On the foregoing grounds I propose that the Court should answer the question referred by the Tribunal des affaires de sécurité sociale de Longwy as follows:

In circumstances such as those arising in the main proceedings, Article 39 et seq. EC precludes rules of a Member State under which the last pay earned by a migrant worker in his Member State of origin, as opposed to his most recent pay, is to be taken as the basis for calculating cash benefits for a former asbestos worker; in such a case significant differences in level of income and cost of living between the paying State and the Member State in which the migrant worker was last employed could give grounds for adjusting the most recent pay earned to the level of pay in the place of residence.

(1) .

(2) – OJ, English Special Edition 1971(II), p. 416, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) and most recently amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 1).

(3) – OJ, English Special Edition 1972(1), p. 159, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) and most recently amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 1).

(4) – OJ 2004 L 166, p. 1.

(5) – Published in JORF, 27 December 1998.

(6) – The 1998 Law was amended by Law No 2001- 1246 of 21 December 2001, Law No 2002-1487 of 20 December 2002 and Law No 2004-1370 of 20 December 2004.

(7) – Published in JORF , 31 March 1999, p. 471.

(8) – See Article 2 of the Implementing Decree, as amended by Decree No 2000-638 of 7 July 2000, published in JORF, 9 July 2000.

(9) – Not published in JORF .

(10) – See Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I‑393, paragraph 6, and Case C-134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22.

(11) – See Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6, and Order in Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 14.

(12) – See Joined Cases C‑480/00, C‑481/00, C-482/00, C-484/00, C-489/00, C‑490/00, C‑491/00, C‑497/00, C‑498/00 and C‑499/00 Ribaldi [2004] ECR I-2943, paragraph 73, and Telemarsicabruzzo and Others (cited in footnote 10), at paragraph 6.

(13) – See order in Laguillaumie (cited in footnote 11), at paragraph 16, and Case C-72/03 Carbonati Apuani [2004] ECR I-8027, paragraph 11.

(14) – See point 23 of this Opinion.

(15) – See point 19 et seq. of this Opinion.

(16) – See point 22 of this Opinion.

(17) – See points 16 and 18 of this Opinion.

(18) – See point 17 of this Opinion.

(19) – See points 6 and 7 of this Opinion.

(20) – See point 8 of this Opinion.

(21) – See Case C-286/03 Hosse [2006] ECR I-1771, paragraph 37, and Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14.

(22) – See Article 1(j) of Regulation No 1408/71 at point 6 of this Opinion, and Case 87/76 Bozzone [1977] ECR 687, paragraphs 9 to 11.

(23) – See points 19 to 23 of this Opinion.

(24) – See point 8 of this Opinion.

(25) – The defendant and the United Kingdom express the same view. The Commission likewise considers such an analysis possible. Mr Nemec has not commented on the matter.

(26) – See point 9 of this Opinion.

(27) – See point 13 of this Opinion.

(28) – See point 9 of this Opinion.

(29) – See point 13 of this Opinion.

(30) – See points 50 to 53 of this Opinion.

(31) – See Case 268/78 Pennartz [1979] ECR 2411, paragraph 8.

(32) – See Pennartz (cited in footnote 31), at paragraph 10.

(33) – Case C-251/94 Lafuente Nieto [1996] ECR I-4187, paragraph 33, Case C-153/97 Grajera Rodríguez [1998] ECR I-8645, paragraph 17, and Joined Cases C-31/96, C‑32/96 and C-33/96 Naranjo Arjona [1997], ECR I-5501, paragraph 20.

(34) – Lafuente Nieto paragraphs 5, 30, 31, 40 to 41 and 43, Grajera Rodríguez (at paragraphs 6, 14 and 19 to 21) and Naranjo Arjona (at paragraphs 4 to 7, 14, 22, 23 and 30), each of which is cited in footnote 33.

(35) – See, for example, Grajera Rodríguez (cited in footnote 33), at paragraph 23.

(36) – See, most recently, Hosse (cited in footnote 21), at paragraph 24.

(37) – Joined Cases C-4/95 and C-5/95 Stöber and Pereira [1997] ECR I-511, paragraphs 37 to 39, and Case C-322/95 Iurlaro [1997] ECR I-4881, paragraphs 29 and 30.

(38) – See points 43 to 49 of this Opinion.

(39) – Case C-443/93 Vougioukas [1995] ECR I-4033, paragraph 31 et seq., Case C-266/95 Merino García [1997] ECR I-3279, paragraphs 23 to 26, and Stöber and Pereira (cited in footnote 37), at paragraphs 31 to 36.

(40) – Case 349/87 Paraschi [1991] ECR I‑4501, paragraph 21 et seq., and Case C-158/96 Kohll [1998] ECR I-1931, paragraphs 25 to 27.

(41) – See Case 20/85 Roviello [1988] ECR 2805, paragraphs 17 and 18, Case 24/75 Petroni [1975] ECR 1149, paragraphs 21 and 22, and Case 41/84 Pinna [1986] ECR 1, paragraphs 23 to 25.

(42) – See Case C-174/05 Stichting Zuid-Hollandse Milieufederatie and Stichting Natuur en Milieu [2006] ECR I-2443, paragraph 20.

(43) – See Case C-406/93 Reichling [1994] ECR I-4061, paragraph 21, Case 67/79 Fellinger [1980] ECR 535, paragraph 9, Lafuente Nieto (cited in footnote 33), at paragraph 33, Grajera Rodríguez (cited in footnote 33), at paragraph 17, and Naranjo Arjona (cited in footnote 33), at paragraph 20.

(44) – See Fellinger (cited in footnote 43), at paragraph 6.

(45) – See Fellinger (cited in footnote 43), at paragraphs 7 to 9.

(46) – See Reichling (cited in footnote 43), at paragraphs 12 to 15.

(47) – See Reichling (cited in footnote 43), at paragraphs 22 to 25.

(48) – See Reichling (cited in footnote 43), at paragraphs 26 to 32.

(49) – See Pennartz (cited in footnote 31), at paragraph 10.

(50) – See point 63 of this Opinion.

(51) – See point 52 of this Opinion.

(52) – See points 9, 12 and 13 of this Opinion.

(53) – See Pennartz (cited in footnote 31), at paragraph 11.

(54) – See point 19 of this Opinion.

(55) – See point 19 of this Opinion.

(56) – See point 24 of this Opinion.

(57) – See point 56 of this Opinion.

(58) – See point 59 et seq. of this Opinion.

(59) – See Roviello (cited in footnote 41), at paragraph 16.