Judgment of the Court (First Chamber) of 28 February 1980. - Waldemar Fellinger v Bundesanstalt für Arbeit, Nuremberg. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Social security - Unemployment benefits for frontier workers. - Case 67/79.



European Court reports 1980 Page 00535

Greek special edition Page 00275



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - COMMUNITY RULES - OBJECTS

( REGULATION NO 1408/71 OF THE COUNCIL )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS - CALCULATION - PREVIOUS WAGE OR SALARY - CONCEPT - ACTUAL OR NOTIONAL WAGE OR SALARY IN THE LAST EMPLOYMENT

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 68 ( 1 ))

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - BENEFITS - CALCULATION - PREVIOUS WAGE OR SALARY - FRONTIER WORKERS - WAGE OR SALARY RECEIVED IN THE EMPLOYMENT HELD IMMEDIATELY PRIOR TO THE UNEMPLOYMENT

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 68 ( 1 ))

Summary

1 . AS APPEARS FROM THE NINTH RECITAL IN THE PREAMBLE THERETO , REGULATION NO 1408/71 ' ' IN ORDER TO SECURE MOBILITY OF LABOUR UNDER IMPROVED CONDITIONS ' ' , SEEKS TO ENSURE THE WORKER WITHOUT EMPLOYMENT OF ' ' THE UNEMPLOYMENT BENEFIT PROVIDED FOR BY THE LEGISLATION OF THE MEMBER STATE TO WHICH HE WAS LAST SUBJECT ' ' . SUCH AN OBJECTIVE CLEARLY IMPLIES THAT IN REGULATION NO 1408/71 UNEMPLOYMENT BENEFIT IS REGARDED IN SUCH A MANNER AS NOT TO IMPEDE THE MOBILITY OF WORKERS , INCLUDING FRONTIER WORKERS , AND TO THAT END SEEKS TO ENSURE THAT THE PERSONS CONCERNED RECEIVE BENEFITS WHICH TAKE ACCOUNT , SO FAR AS POSSIBLE , OF CONDITIONS OF EMPLOYMENT AND IN PARTICULAR OF THE REMUNERATION , WHICH THEY ENJOYED UNDER THE LEGISLATION OF THE MEMBER STATE OF LAST EMPLOYMENT .

2 . IT APPEARS FROM THE FIRST SENTENCE OF ARTICLE 68 ( 1 ) THAT , APART FROM THE SPECIAL CASE CONTEMPLATED IN THE SECOND SENTENCE , THE ' ' PREVIOUS ' ' WAGE OR SALARY WHICH NORMALLY CONSTITUTES THE BASIS OF CALCULATION OF UNEMPLOYMENT BENEFIT , IS , ACCORDING TO THAT REGULATION , THE WAGE OR SALARY ' ' RECEIVED ' ' IN THE LAST EMPLOYMENT OF THE WORKER AND THAT IT IS ONLY BY WAY OF EXCEPTION AND DEROGATION THAT THE BASIS OF CALCULATION OF THOSE BENEFITS MAY IN CERTAIN CASES BE THE NOTIONAL AND NOT THE ACTUAL WAGE OR SALARY IN THE LAST EMPLOYMENT .

3 . ARTICLE 68 ( 1 ) OF REGULATION NO 1408/71 , VIEWED IN THE LIGHT OF ARTICLE 51 OF THE TREATY AND THE OBJECTIVES WHICH IT PURSUES , MUST BE INTERPRETED AS MEANING THAT , IN THE CASE OF A FRONTIER WORKER , WITHIN THE MEANING OF ARTICLE 1 ( B ) OF THAT REGULATION , WHO IS WHOLLY UNEMPLOYED , THE COMPETENT INSTITUTION OF THE MEMBER STATE OF RESIDENCE , WHOSE NATIONAL LEGISLATION PROVIDES THAT THE CALCULATION OF BENEFITS SHOULD BE BASED ON THE AMOUNT OF THE PREVIOUS WAGE OR SALARY , SHALL CALCULATE THOSE BENEFITS TAKING INTO ACCOUNT THE WAGE OR SALARY RECEIVED BY THE WORKER IN THE LAST EMPLOYMENT HELD BY HIM IN THE MEMBER STATE IN WHICH HE WAS ENGAGED IMMEDIATELY PRIOR TO HIS BECOMING UNEMPLOYED .

Parties

IN CASE 67/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

WALDEMAR FELLINGER , REHLINGEN ,

AND

BUNDESANSTALT FUR ARBEIT ( FEDERAL LABOUR OFFICE ), NUREMBERG ,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 68 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ,

Grounds

1 BY AN ORDER OF 15 FEBRUARY 1979 , WHICH WAS RECEIVED AT THE COURT ON 25 APRIL 1979 , THE BUNDESSOZIALGERICHT PUT CERTAIN QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1971 ( II ) P . 416 ) AND , IN PARTICULAR , THE PROVISIONS OF ARTICLE 68 OF THAT REGULATION .

2 THOSE QUESTIONS HAVE ARISEN IN THE CONTEXT OF A DISPUTE BETWEEN AN EMPLOYED PERSON OF GERMAN NATIONALITY AND RESIDENT IN THE FEDERAL REPUBLIC OF GERMANY AND THE FEDERAL LABOUR OFFICE ( BUNDESANSTALT FUR ARBEIT ), NUREMBERG , RELATING TO THE CLASSIFICATION OF UNEMPLOYMENT BENEFIT DUE TO THAT PERSON BY THE EMPLOYMENT OFFICE ( ARBEITSAMT ), SAARLOUIS . IT APPEARS FROM THE ORDER MAKING THE REFERENCE TO THE COURT THAT THE WORKER IN QUESTION WORKED IN THE FEDERAL REPUBLIC OF GERMANY UNTIL 10 OCTOBER 1974 AFTER WHICH DATE HE WAS UNEMPLOYED AND RECEIVED FROM THE EMPLOYMENT OFFICE , SAARLOUIS , UNEMPLOYMENT BENEFIT CALCULATED ON THE BASIS OF THE WAGE PAID IN HIS LAST EMPLOYMENT IN THE FEDERAL REPUBLIC OF GERMANY . HAVING THEREAFTER WORKED , WITH THE STATUS OF A FRONTIER WORKER , IN THE GRAND DUCHY OF LUXEMBOURG AND HAVING BECOME TWICE UNEMPLOYED HE WAS AWARDED BY THE ABOVE-MENTIONED EMPLOYMENT OFFICE UNEMPLOYMENT BENEFIT CALCULATED ON THE BASIS OF THE WAGE WHICH HE WOULD HAVE RECEIVED IN THE FEDERAL REPUBLIC OF GERMANY IN AN EMPLOYMENT EQUIVALENT TO THAT WHICH HE LAST HAD IN LUXEMBOURG . THE CLAIMANT DISPUTES THE CALCULATION APPLIED BY THE GERMAN EMPLOYMENT OFFICE TO THOSE UNEMPLOYMENT BENEFITS AND CONTENDS THAT BENEFITS OUGHT TO BE PAID TO HIM ON THE BASIS OF THE WAGE RECEIVED IN HIS LAST EMPLOYMENT IN THE FEDERAL REPUBLIC WHEREAS THE EMPLOYMENT OFFICE CONSIDERS THAT THE SAID CALCULATION IS IN ACCORDANCE WITH ARTICLE 68 ( 1 ) OF REGULATION NO 1408/71 .

3 WITH A VIEW TO DECIDING THE DISPUTE ON THIS MATTER , THE NATIONAL COURT HAS REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :

' ' ( 1 ) IN THE CASE OF AN UNEMPLOYED FRONTIER WORKER MUST THE COMPETENT INSTITUTION OF THE PLACE OF RESIDENCE UNDER THE FIRST SENTENCE OF ARTICLE 68 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 TAKE INTO ACCOUNT THE WAGE OR SALARY IN RESPECT OF HIS ' LAST EMPLOYMENT ' IN THE TERRITORY OF THAT INSTITUTION ONLY IF THAT EMPLOYMENT WAS THE LAST EMPLOYMENT BEFORE HE REGISTERED AS UNEMPLOYED?

( 2)IF QUESTION 1 IS ANSWERED IN THE NEGATIVE : MUST THE WAGE OR SALARY IN RESPECT OF THE ' LAST EMPLOYMENT ' IN THE STATE OF RESIDENCE BE TAKEN INTO ACCOUNT EVEN IF , AS HERE , THAT EMPLOYMENT TERMINATED 14 MONTHS BEFORE HE LAST REGISTERED AS UNEMPLOYED?

( 3)HAS A PERSON ( STILL ) BEEN IN EMPLOYMENT OF LESS THAN FOUR WEEKS WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 68 ( 1 ) EVEN IF , IN THE TERRITORY OF THE STATE OF RESIDENCE , HE HAS NO EMPLOYMENT AT ALL OR , IN ANY EVENT , NO EMPLOYMENT SUCH AS MAY BE TAKEN INTO ACCOUNT IN THE LIGHT OF THE ANSWERS TO QUESTIONS 1 OR 2?

' '

4 SINCE THESE QUESTIONS ARE CLOSELY RELATED IT IS CONVENIENT TO CONSIDER THEM TOGETHER .

5 IT APPEARS FROM THE ORDER MAKING THE REFERENCE TO THE COURT THAT THESE QUESTIONS HAVE BEEN PUT IN REGARD TO A FRONTIER WORKER , THAT IS TO SAY , A WORKER WHO , IN ACCORDANCE WITH THE DEFINITION GIVEN TO THAT TERM BY ARTICLE 1 ( B ) OF REGULATION NO 1408/71 , IS ' ' EMPLOYED IN THE TERRITORY OF A MEMBER STATE AND RESIDING IN THE TERRITORY OF ANOTHER MEMBER STATE ' ' AND FOR WHOM THE COMPETENT INSTITUTION FOR THE PROVISION OF UNEMPLOYMENT BENEFIT IS , BY VIRTUE OF ARTICLE 71 ( 1 ) ( A ) ( II ) OF THAT REGULATION , THAT OF THE MEMBER STATE IN THE TERRITORY OF WHICH THE WORKER RESIDES . IT IS THEREFORE WITH REGARD TO THE SPECIAL POSITION OF SUCH A WORKER THAT THERE FALL TO BE INTERPRETED IN THIS CASE THE PROVISIONS OF ARTICLE 68 ( 1 ) OF THE SAID REGULATION WHICH READS :

' ' 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 IN THE TERRITORY OF ANOTHER MEMBER STATE . ' '

6 THESE PROVISIONS OCCUR AMONGST THE ' ' COMMON PROVISIONS ' ' OF CHAPTER 6 OF TITLE III OF THE REGULATION , RELATING TO ' ' UNEMPLOYMENT ' ' , AND ARE OF GENERAL APPLICATION AND DO NOT RELATE TO PARTICULAR SITUATIONS PECULIAR TO CERTAIN CATEGORIES OF WORKER . THEY CLEARLY REFER TO THE ORDINARY CASE OF THE WORKER WHO IS NORMALLY EMPLOYED IN THE TERRITORY OF THE COMPETENT STATE IN WHICH HE IS RESIDING OR STAYING AND THEY PROVIDE , IN THE SECOND SENTENCE , THE SPECIAL RULE THERE LAID DOWN ONLY FOR THE EXCEPTIONAL CASE IN WHICH THAT WORKER HAS BEEN IN HIS LAST EMPLOYMENT IN THE TERRITORY OF THE SAID STATE ' ' FOR LESS THAN FOUR WEEKS ' ' . IN THE FORM IN WHICH THEY ARE DRAWN UP THESE PROVISIONS DO NOT THEREFORE ALLOW OF A DEFINITION OF THE CRITERIA OF CALCULATION APPLICABLE TO UNEMPLOYMENT BENEFIT DUE TO A FRONTIER WORKER WHO , SINCE HE RESIDES IN A MEMBER STATE DIFFERENT FROM THAT IN WHICH HE IS EMPLOYED , CAN NEVER , BY VERY REASON OF HIS STATUS AS A FRONTIER WORKER , BE EMPLOYED IN THE TERRITORY OF THE STATE WHICH PROVIDES HIS UNEMPLOYMENT BENEFIT . THE APPLICATION OF THE SAID PROVISIONS TO SUCH A WORKER WOULD PRODUCE THE RESULT THAT , SINCE BY DEFINITION HE IS IN THE POSITION CONTEMPLATED BY THE SECOND SENTENCE OF ARTICLE 68 ( 1 ), THE RULES WHICH THAT PROVISION LAYS DOWN BY WAY OF AN EXCEPTION WOULD NORMALLY BE APPLIED TO HIM AND HE WOULD NEVER BE ABLE TO RECEIVE UNEMPLOYMENT BENEFIT BASED ON THE WAGE OR SALARY ACTUALLY RECEIVED IN HIS LAST EMPLOYMENT . SUCH TREATMENT IN REGARD TO UNEMPLOYMENT BENEFIT WOULD PLACE HIM IN AN UNFAVOURABLE SITUATION COMPARED WITH WORKERS IN GENERAL , FOR WHOM THE STATE OF EMPLOYMENT WHERE THEY RESIDE OR STAY IS NORMALLY THE COMPETENT STATE AND WOULD , MOREOVER , CONFLICT WITH THE REQUIREMENTS OF THE FREE MOVEMENT OF WORKERS . SINCE DAILY MOVEMENTS OFTEN TAKE PLACE FROM COUNTRIES WITH LOW WAGES TO COUNTRIES WITH HIGHER WAGES THE FACT THAT UNEMPLOYMENT BENEFIT PAID TO FRONTIER WORKERS COULD NEVER BE CALCULATED ON THE BASIS OF THE HIGHER WAGES WOULD IN FACT BE SUCH AS TO DISCOURAGE THOSE MOVEMENTS AND THUS THE MOBILITY OF WORKERS WITHIN THE COMMUNITY .

7 IN THESE CIRCUMSTANCES , THE SYSTEM OF RULES APPLICABLE TO FRONTIER WORKERS WHERE THE LEGISLATION OF THE COMPETENT MEMBER STATE PROVIDES THAT UNEMPLOYMENT BENEFIT IS TO BE CALCULATED ON THE BASIS OF THE PREVIOUS WAGE OR SALARY MUST BE ELICITED FROM ARTICLE 68 ( 1 ) OF REGULATION NO 1408/71 IN THE LIGHT OF THE GENERAL PRINCIPLE UNDERLYING BOTH THAT PROVISION AND THE REGULATION AS A WHOLE . IN THAT REGARD , IT IS APPROPRIATE TO EMPHASIZE , FIRST , THAT , AS APPEARS FROM THE NINTH RECITAL IN THE PREAMBLE THERETO , REGULATION NO 1408/71 ' ' IN ORDER TO SECURE MOBILITY OF LABOUR UNDER IMPROVED CONDITIONS ' ' , SEEKS TO ENSURE THE WORKER WITHOUT EMPLOYMENT OF ' ' THE UNEMPLOYMENT BENEFIT PROVIDED FOR BY THE LEGISLATION OF THE MEMBER STATE TO WHICH HE WAS LAST SUBJECT ' ' . SUCH AN OBJECTIVE CLEARLY IMPLIES THAT IN REGULATION NO 1408/71 UNEMPLOYMENT BENEFIT IS REGARDED IN SUCH A MANNER AS NOT TO IMPEDE THE MOBILITY OF WORKERS , INCLUDING FRONTIER WORKERS , AND TO THAT END SEEKS TO ENSURE THAT THE PERSONS CONCERNED RECEIVE BENEFITS WHICH TAKE ACCOUNT SO FAR AS POSSIBLE OF THE CONDITIONS OF EMPLOYMENT , AND IN PARTICULAR OF THE REMUNERATION , WHICH THEY ENJOYED UNDER THE LEGISLATION OF THE MEMBER STATE OF LAST EMPLOYMENT . MOREOVER IT APPEARS FROM THE FIRST SENTENCE OF ARTICLE 68 ( 1 ) THAT , APART FROM THE SPECIAL CASE CONTEMPLATED IN THE SECOND SENTENCE , THE ' ' PREVIOUS ' ' WAGE OR SALARY WHICH NORMALLY CONSTITUTES THE BASIS OF CALCULATION OF UNEMPLOYMENT BENEFIT , IS , ACCORDING TO THAT REGULATION , THE WAGE OR SALARY ' ' RECEIVED ' ' IN THE LAST EMPLOYMENT OF THE WORKER AND THAT IT IS ONLY BY WAY OF EXCEPTION AND DEROGATION THAT THE BASIS OF CALCULATION OF THOSE BENEFITS MAY IN CERTAIN CASES BE THE NOTIONAL AND NOT THE ACTUAL WAGE OR SALARY IN THE LAST EMPLOYMENT .

8 HAVING REGARD TO ALL THESE FACTORS , IT FOLLOWS THAT ARTICLE 68 ( 1 ) OF REGULATION NO 1408/71 IS FOUNDED ON THE GENERAL PRINCIPLE THAT THE PREVIOUS WAGE OR SALARY TO BE USED IN CALCULATING UNEMPLOYMENT BENEFIT IS NORMALLY THE WAGE OR SALARY ACTUALLY RECEIVED BY THE WORKER IN THE LAST EMPLOYMENT HELD BY HIM IMMEDIATELY BEFORE HIS BECOMING UNEMPLOYED . SUCH A PRINCIPLE ACCORDS NOT ONLY WITH THE DEMANDS OF FREE MOVEMENT OF WORKERS LAID DOWN IN ARTICLE 51 OF THE TREATY BUT ALSO WITH THE REQUIREMENT UNDERLYING REGULATION NO 1408/71 OF GRANTING WORKERS UNEMPLOYMENT BENEFIT PROPORTIONAL TO THE CONDITIONS OF REMUNERATION WHICH THEY ENJOYED AT THE TIME OF THEIR BECOMING UNEMPLOYED .

9 FOR THESE REASONS , THE APPROPRIATE ANSWER TO THE QUESTIONS PUT IS THAT ARTICLE 68 ( 1 ) OF REGULATION NO 1408/71 , VIEWED IN THE LIGHT OF ARTICLE 51 OF THE TREATY AND THE OBJECTIVES WHICH IT PURSUES , MUST BE INTERPRETED AS MEANING THAT , IN THE CASE OF A FRONTIER WORKER , WITHIN THE MEANING OF ARTICLE 1 ( B ) OF THAT REGULATION , WHO IS WHOLLY UNEMPLOYED , THE COMPETENT INSTITUTION OF THE MEMBER STATE OF RESIDENCE , WHOSE NATIONAL LEGISLATION PROVIDES THAT THE CALCULATION OF BENEFITS SHOULD BE BASED ON THE AMOUNT OF THE PREVIOUS WAGE OR SALARY , SHALL CALCULATE THOSE BENEFITS TAKING INTO ACCOUNT THE WAGE OR SALARY RECEIVED BY THE WORKER IN THE LAST EMPLOYMENT HELD BY HIM IN THE MEMBER STATE IN WHICH HE WAS ENGAGED IMMEDIATELY PRIOR TO HIS BECOMING UNEMPLOYED .

Decision on costs

COSTS

THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESSOZIALGERICHT BY ORDER OF 15 FEBRUARY 1979 , HEREBY RULES :

ARTICLE 68 ( 1 ) OF REGULATION NO 1408/71 , VIEWED IN THE LIGHT OF ARTICLE 51 OF THE TREATY AND THE OBJECTIVES WHICH IT PURSUES , MUST BE INTERPRETED AS MEANING THAT , IN THE CASE OF A FRONTIER WORKER , WITHIN THE MEANING OF ARTICLE 1 ( B ) OF THAT REGULATION , WHO IS WHOLLY UNEMPLOYED , THE COMPETENT INSTITUTION OF THE MEMBER STATE OF RESIDENCE , WHOSE NATIONAL LEGISLATION PROVIDES THAT THE CALCULATION OF BENEFITS SHOULD BE BASED ON THE AMOUNT OF THE PREVIOUS WAGE OR SALARY , SHALL CALCULATE THOSE BENEFITS TAKING INTO ACCOUNT THE WAGE OR SALARY RECEIVED BY THE WORKER IN THE LAST EMPLOYMENT HELD BY HIM IN THE MEMBER STATE IN WHICH HE WAS ENGAGED IMMEDIATELY PRIOR TO HIS BECOMING UNEMPLOYED .