CELEX: 61991CC0201
Language: en
Date: 1992-07-08 00:00:00
Title: Opinion of Mr Advocate General Lenz delivered on 8 July 1992. # Bernard Grisvard and Georges Kreitz v Association pour l'emploi dans l'industrie et le commerce de la Moselle. # Reference for a preliminary ruling: Tribunal de grande instance de Metz - France. # Social security - Frontier workers - Unemployment benefits - Basis for calculation. # Case C-201/91.

OPINION OF ADVOCATE GENERAL
      LENZ
      delivered on 8 July 1992 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      A — Facts
      
               1.
            
            
               This request for a preliminary ruling relates to Articles 68 and 71 of Regulation (EEC) No 1408/71 (
                     1
                  )and Article 197 of Regulation (EEC) No 574/72 (
                     2
                  ) implementing Regulation No 1408/71.
            
         
               2.
            
            
               The national court's questions arose in proceedings before the Tribunal de Grande Instance (Regional Court), Metz. The plaintiffs in those proceedings, Mr Grisvard and Mr Kreitz are French nationals who had long been employed by the American armed forces in the Federal Republic of Germany (Mr Grisvard from 1967 until 31 December 1988 and Mr Kreitz from 1953 until 30 September 1987). When their jobs came to an end, the two plaintiffs, who had lived in France throughout the period when they worked in Germany, became unemployed. They therefore turned to the competent bodies for granting unemployment benefits in France.
            
         
               3.
            
            
               Association pour l'emploi dans l'industrie et le commerce de la Moselle (hereinafter ‘Assedie’), which was responsible for the area in question, granted the plaintiffs benefits on the basis of the last remuneration which they had received in Germany. However, their remuneration was taken into account only in so far as it did not exceed the ceiling in force for contributions to the German unemployment insurance scheme. In so doing, Assedie relied upon Directive 62-87 of its association, Union national interprofessionnelle pour l'emploi dans l'industrie et le commerce (hereinafter ‘Unedic’), which laid down that calculation method.
            
         
               4.
            
            
               In converting the salaries received by the plaintiffs in Germany, Assedie applied the conversion rate laid down in Article 107(1) and (2) of Regulation No 574/72.
            
         
               5.
            
            
               In their application, the plaintiffs take issue with Assedic's application of the German ceiling for contributions, which, they maintain, is contrary to Article 71(l)(a)(ii) of Regulation No 1408/71. That provision reads as follows:
               
                        ‘(ii)
                     
                     
                        a frontier worker who is wholly unemployed shall receive benefits in accordance with the provisions of the legislation of the Member State in whose territory he resides as though he had been subject to that legislation while last employed; these benefits shall be provided by the institution of the place of residence at its own expense;
                        ....’
                     
                  
         
               6.
            
            
               The plaintiffs also objected to the rate of exchange used by Assedie.
            
         
               7.
            
            
               Accordingly, the national court has referred the following questions to the Court for a preliminary ruling:
               
                        ‘1.
                     
                     
                        With regard to the determination of the legislation applicable to the contribution ceiling to be applied when calculating unemployment benefit for frontier workers:
                        Is Unedic Directive No 62-87 of 7 August 1987 compatible with Community law?
                        Is the determination of that ceiling governed by Article 68(1) or Article 71(l)(a)(ii) of Regulation (EEC) No 1408/71?
                     
                  
                        2.
                     
                     
                        With regard to the currency conversion rules applicable in respect of frontier workers:
                        What rules should be applied by the institution of the place of residence of a frontier worker who is unemployed for the conversion of the amount of the wage or salary received by that worker in the last employment he pursued in the Member State in which he was employed immediately prior to his becoming unemployed?
                        Must the rate of conversion referred to in Article 107(1) of Regulation (EEC) No 574/72 be applied in such a case?’
                     
                  
         B — Opinion
      The first question
      
               8.
            
            
               In its first question, the national court seeks to establish whether the aforesaid Unedic directive is compatible with Community law. It should be observed in that connection that the Court has consistently held that, in proceedings under Article 177 of the EEC Treaty, it is not called upon to decide whether a national provision is compatible with Community law. The Court nevertheless is competent to provide the national court with ‘all the elements of interpretation under Community law to enable it to assess that compatibility for the purpose of deciding the case before it’. (
                     3
                  )
            
         
               9.
            
            
               It can, however, readily be inferred from the facts set out in the request for a preliminary ruling and from its grounds what information the national court seeks to elicit by means of the first of its two questions. Consequently, the first question is to be construed as asking whether the said provisions of Regulation No 1408/71 are to be interpreted as meaning that, in granting benefits to wholly unemployed frontier workers, the competent institution is to apply the contribution ceilings of the State in which the workers were employed or those of the State in which they are resident.
            
         
               10.
            
            
               To my mind, the answer to that question can readily be derived from Article 71(l)(a)(ii) of Regulation No 1408/71. According to that provision, a frontier worker who is wholly unemployed is to receive benefits in accordance with the provisions of the legislation of the Member State in whose territory he resides as though he had been subject to that legislation while last employed. Accordingly, in that respect frontier workers must be treated in exactly the same way as workers who reside and work in the same State. It follows that frontier workers are also subject to the legal provisions laying down contribution ceilings of the State in which they reside. Accordingly, the State in which the frontier workers reside should, in granting benefits to frontier workers who are wholly unemployed, apply the contribution ceilings laid down in its own law and not those in force in the State in which the workers were employed.
            
         
               11.
            
            
               In contrast, Article 68(1) of Regulation No 1408/71, to which the national court also refers in this connection, is concerned with a different question, namely what wage or salary is to be used as the basis for calculating the benefits payable:
               
                        ‘1.
                     
                     
                        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.’
                     
                  
         
               12.
            
            
               Some years ago, in the case of Fellinger the Court had to rule on the interpretation of that provision. It decided that, in the case of a frontier worker 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, should 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’. (
                     4
                  )
            
         
               13.
            
            
               The defendant in the main proceedings and Unedic, which intervened on its side, do not take issue directly with the interpretation of Article 71(l)(a)(ii) of Regulation No 1408/71 set out above, which corresponds to the view taken by the plaintiffs in the main proceedings, the Commission and also the Government of the Federal Republic of Germany. However, they point to the — in their view — serious consequences of that interpretation in conjunction with Article 68(1) of Regulation 1408/71 as it has been interpreted by the Court. Consequently, Assedie and Unedic's criticisms are in reality directed against the interpretation given to Article 68(1) in Fellinger and, in the final analysis, against Article 71(l)(a)(ii) of Regulation No 1408/71 itself, which they regard as a barrier to achieving free movement.
            
         
               14.
            
            
               Although Assedie and Unedic's arguments do not relate directly to the preliminary question which the Court has to answer in this case, I consider that it is necessary to examine them.
            
         
               15.
            
            
               In any event, I can deal with some of those arguments briefly. This is true in the first place of Assedie and Unedic's fear that the calculation method advocated by the Court in Fellinger will result in the benefits granted reaching a level essentially corresponding to wages and salaries in the State of residence, with the result that there will be no incentive for the workers concerned to look for employment in that State. In this connection, it should be observed that such consequences — should they materialize — are attributable in the final analysis to the legislation of the State in which the wholly unemployed frontier worker resides. In that respect, the frontier worker is in the same position as an employee who both resides and works in that State and would be entitled to the same benefits in the event that he should lose his job. It should further be observed that such a problem can, in any event, arise only where a State calculates the unemployment benefits which it grants on the basis of the last wage or salary received by the unemployed person.
            
         
               16.
            
            
               In so far as Assedie and Unedic argue that the grant of benefits within the meaning of Article l(t) of Regulation No 1408/71 assumes — as appears from Article l(r) — the previous payment of contributions, I am also unable to go along with their view. In the first place, it should be observed that Regulation No 1408/71 applies irrespective as to whether the relevant social security system is contributory or noncontributory (Article 4(2)). In addition, it deliberately severs the link between contributions and benefits in so far as it refers the unemployed frontier worker to the country in which he resides and in which, precisely, he has paid no contributions. Next, there is the fact that the plaintiffs in the main proceedings have indeed paid contributions, albeit in the State in which they were employed. Admittedly, they did not pay contributions in respect of amounts exceeding the contribution ceilings in force in that country and that gives a certain advantage to the plaintiffs. As I have already observed, that advantage is a consequence of the provisions in force in the State of residence which provide for a higher ceiling for contributions (or none at all) and cannot be laid at the door of the provisions of Regulation No 1408/71.
            
         
               17.
            
            
               The argument that the above interpretation results in the introduction into the legal provisions of the State of residence of components of a completely alien legal system is also untenable. Where the competent authorities of the State of residence are required when calculating benefits within the meaning of Article 68 to take account of the frontier worker's last wage or salary in the State of employment, this is merely a factual aspect to which the authorities have to have regard when applying their national provisions. I would observe purely incidentally that in this case Assedie (in accordance with Unedic's directive) applied the German legislation on contribution ceilings when it determined the benefits to be granted to the plaintiffs in accordance with the French provisions and accordingly did exactly that which they maintain they wish to avoid.
            
         
               18.
            
            
               A more weighty objection, in my view, is the one to the effect that the fact that Article 71(l)(a)(ii) refers frontier workers who are wholly unemployed to the authorities of the State in which they reside makes it more difficult for them to find employment in the State in which they last worked. It is true that under that provision only the authorities in the State of residence are obliged to pay benefits. But that does not necessarily prevent the authorities in the State in which the frontier workers were employed from also assisting them in their search for new jobs. In this connection, I might perhaps point out that in proceedings which came before the Court some years ago the Bundesanstalt für Arbeit (Federal Employment Office) gave an assurance that the employment services were prepared to help in the search for work even though the worker might not be entitled to benefits. (
                     5
                  ) However, it should observed above all that the provision contained in Article 71(l)(a)(ii) means only that a frontier worker who is wholly unemployed finds himself in the same position in the State in which he resides as a worker who has hitherto resided and worked in that State and is now seeking for the first time employment in another Member State. Such a worker would also receive unemployment benefit in accordance with the provisions of his State of residence, and not in accordance with those of his future State of employment. Also the further criticism that Article 71(l)(a)(ii), unlike Article 71(l)(b), prevents the person concerned from electing between the competent authorities of the State of residence and those of the State of employment cannot alter that assessment. In the judgment in Miethe the Court has already held that such a right of choice is precluded in the case of Article 71(l)(a)(ii), without taking exception to this. (
                     6
                  ) In addition, regard is to be had to the fact that even if such a right of election existed, a frontier worker who was wholly unemployed would not be precluded from applying to the authorities in the State in which he resided.
            
         
               19.
            
            
               Assedie and Unedic also express doubts about the basic justification for the rule laid down in Article 71. They argue that Regulation No 1408/71 aims to subject the employees which it covers to the legislation of only one Member State, that is to say, according to the general provision set out in Article 13, to the provisions of the Member State of employment.
            
         
               20.
            
            
               In fact, as the Court has consistently held, the aim of the provisions set out in Title II of Regulation No 1408/71 (which includes Article 13) is to ‘ensure that the persons concerned shall be subject to the social security scheme of only one Member State, in order to prevent more than one national legislative system from being applicable and to avoid the complications which may result from that situation’. (
                     7
                  ) However, this does not mean that specific provisions of Title III of Regulation No 1408/71 (which includes Article 71) cannot provide for exceptions to that principle. As the Court held in the judgment in Rebmann, the rule laid down in Article 71(l)(a)(ii) of attachment to the State in which the frontier worker resides is appropriate and in conformity with the interests of frontier workers. (
                     8
                  )
            
         
               21.
            
            
               The Court held in particular that the worker's obligation to make and keep himself available to the employment services may be performed more easily in the State of residence. Moreover, in the Court's view, the authorities of that State are in a better position to pay unemployment benefit, by ensuring that the person concerned satisfies the conditions for the receipt of benefit, at the same time facilitating his return to employment. (
                     9
                  )
            
         
               22.
            
            
               However, there are cases in which the assumption on which the abovementioned provision is based, that is to say that it is in the State in which the frontier worker resides that the most favourable conditions exist for him to look for a job, does not hold good. As the Court held in Miethe, the objective of Article 71(l)(a)(ii) of Regulation No 1408/71, which is intended to ensure that migrant workers receive unemployment benefit in the conditions most favourable to the search for new employment, cannot be achieved where a wholly unemployed worker has in exceptional circumstances ‘maintained in the Member State in which he was last employed personal and business links of such a nature as to give him a better chance of finding new employment there’. (
                     10
                  ) The Court held that Article 71(l)(b) of Regulation No 1408/71 should apply to workers in such a situation. (
                     11
                  ) Such workers may therefore chose to make themselves available to the employment services in the State in which they reside or try to find a new job in the State in which they had hitherto worked.
            
         
               23.
            
            
               As the Court has held, it is for the national court alone to decide whether a worker is in such a situation. I would therefore not dwell on the details of the dispute on which these proceedings are based, so as not to prejudge the national court's decision. However, I should like briefly to set forth an argument which — although not directly pertinent to the decision in the main proceedings — may be relevant for the purposes of the interpretation of Article 71(l)(a)(ii) of Regulation No 1408/71 and hence for the purposes of determining frontier workers' rights. That provision constitutes, as we know, an exception which does not detract from the principle that the competent State is the State where the person was last employed. (
                     12
                  ) As I have already mentioned, that exception is intended to ensure that unemployment benefits are granted to frontier workers in the most favourable conditions for finding a job. For such a worker, the most favourable conditions for finding a job generally exist in the Member State in which he resides. That principle is manifestly based on the implicit assumption that it is at least possible for the unemployed frontier worker to get back to work in the Member State in question. Yet it is possible to conceive of cases in which that assumption does not apply. Take, for instance, the — admittedly unusual — case of a frontier worker who performed a job in the Member State of employment for which no demand exists in the Member State in which he resides on account of its nature or its specific characteristics (for example, an extreme specialization) and who has reached an age when it is no longer possible or reasonable for him to retrain. In such a case, the application of the principle of the State of residence in accordance with Article 71(l)(a)(ii) also seems to me to be hard to square with the rationale of the judgment in Miethe and the application of Article 71(l)(b) appears more appropriate. Consequently, such a worker could choose between making himself available to the employment authorities of the Member State in which he resides and trying to find a new job in the Member State in which he had hitherto been employed.
            
         
               24.
            
            
               In conclusion, it can be held that consideration of Assedie and Unedic's arguments has disclosed no factor such as to call in question the Court's interpretation of Article 68(1) of Regulation No 1408/71 in Fellinger or indeed the rule enshrined in Article 71(l)(a)(ii). On the contrary, this case brings out very clearly the potentially absurd consequences of a iiteral interpretation of Article 68 in the case of frontier workers. If the benefits were to be calculated, in accordance with the first sentence of Article 68(1), on the basis of the wage or salary received by the person concerned in respect of his last employment ‘in the territory of that State’ — that is to say, the State of residence — it would be necessary in the case of Mr Grisvard to go back at least to 1967 and in the case of Mr Kreitz as long ago as 1953 or even earlier. On the other hand, if, in accordance with the second sentence of Article 68(1), the relevant wage or salary was the normal wage or salary in the State of residence for an equivalent or similar employment to those workers' last employment, the problem would arise that for the quite obvious reason there is no direct equivalent in France to employment with the American armed forces.
            
         
               25.
            
            
               In sum, it may be held that Article 71(l)(a)(ii) of Regulation (EEC) No 1408/71 should be interpreted as meaning that, for the purposes of calculating the benefits payable to frontier workers who are wholly unemployed, the provisions of the Member State in which they reside should be applied, including the provisions relating to contribution ceilings.
            
         The second question
      
               26.
            
            
               As regards the second question, the plaintiffs in the main proceedings maintain that, in order to convert the wage or salary received in the State in which they were employed, the method laid down in Article 107(6) of Regulation (EEC) No 574/72 should be used and not that laid down in paragraphs 1 and 2 of Article 107, whereas Assedie, Unedic, the Commission and the German Government take the opposite view. According to the plaintiffs in the main proceedings, the competent institution should therefore when granting the benefits convert the last wage or salary received in each case by applying the official rate of exchange on the day of payment of the unemployment benefits. Assuming that the benefits are paid monthly, the wage or salary should be converted afresh every month. According to the other parties, the wage or salary last received should be converted once only at the rate fixed by the Commission for the month in which the wage or salary was paid.
            
         
               27.
            
            
               Article 107(1) of Regulation No 574/72 provides that, for the purpose of implementing the provisions enumerated therein, the rate of conversion into a national currency of amounts expressed in another national currency is to be the rate calculated by the Commission and published for each reference month in the Official Journal. Since Regulation (EEC) No 1249/92 of 30 April 1992 (
                     13
                  ) has amended Article 107(1), Article 71(l)(a)(ii) is included among the provisions listed therein to which that method of calculation is applicable.
            
         
               28.
            
            
               If, in the first place, the wording of Article 107 of Regulation No 574/72 before it was amended by Regulation No 1249/92 is taken — I shall be considering the consequences of that amendment later, it supports the view taken by the plaintiffs in the main proceedings. Since Article 107(6) of Regulation No 574/72 requires a specific conversion rate to be applied in ‘cases not covered by paragraph 1’, this should apply to Article 71(l)(a)(ii). A different conclusion could be reached only if Article 107(1) of Regulation No 574/72 were interpreted so as to extend its scope also to cover that case.
            
         
               29.
            
            
               The Commission argues that Article 107(1) should be interpreted in that way on the basis of Decision No 140 of 17 October 1989 of the Administrative Commission of the European Communities on Social Security for Migrant Workers. That decision is worded as follows:
               
                        ‘1.
                     
                     
                        For the combined application of the provisions of Articles 68(1) and 71(l)(a)(ii) of Regulation (EEC) No 1408/71 the institution of the place of residence of a frontier worker who is wholly unemployed shall convert into its currency the amount of the wage or salary received by the worker in the last employment he pursued in the competent State immediately prior to his becoming unemployed, by using the rate of conversion referred to in Article 107(1) of Regulation (EEC) No 574/72 applicable during the month in which the last wage or salary was received.’ (
                              14
                           )
                     
                  
         
               30.
            
            
               It should be observed in that connection that under Article 81(a) of Regulation No 1408/71 the Administrative Committee has the task of dealing with all administrative questions and questions of interpretation arising out of that regulation and related regulations. Consequently, decisions of the Administrative Commission may be used for the purposes of interpreting those provisions. (
                     15
                  )
            
         
               31.
            
            
               However, a body such as the Administrative Commission cannot be empowered to adopt acts having the force of law. (
                     16
                  ) Yet what is involved here is such a normative measure, since — as I have already mentioned — until 1992 Article 71(l)(a)(ii) was not among the provisions listed in Article 107(1) of Regulation No 574/72. The argument that Article 107(1) also applies to Article 71(l)(a)(ii) cannot therefore be based on Decision No 140 of the Administrative Commission. I therefore do not need to consider whether that decision is vitiated by any error of law — as the plaintiffs in the main proceedings maintain — or what consequences it might have as regards the period preceding its entry into force. (
                     17
                  )
            
         
               32.
            
            
               It would of course be possible to consider whether the provision set out in Article 107(1) might not be applied by analogy to this case. The German Government contends that the fact that that measure is sufficiently known as a result of its publication in the Official Journal and that the duration of its validity enables unemployment benefits to be calculated and paid out quickly militates in favour of that solution. Of course, taken in isolation, such considerations do not justify an application by analogy. The basic requirement for any application by analogy is the existence of a lacuna in the provision in question. The Commission rightly points out that the need to determine a conversion rate for the purposes of Article 71(l)(a)(ii) in conjunction with Article 68(1) of Regulation No 1408/71 did not emerge until after the Court's judgment of 28 February 1980 in Fellinger and hence could not have been taken into account by the legislator when it adopted Regulation No 574/72. However, the answer to that argument is that Regulation No 574/72 embodies — in the form of Article 107(6) — a residual provision which is applicable to cases which, for whatever reason, are not caught by Article 107(1). It should also be noted that since the Court gave judgment in Fellinger in 1980, both Regulation No 1408/71 and Regulation No 574/72 have been amended on several occasions, yet the legislator did not take those opportunities to amend Article 107 accordingly.
            
         
               33.
            
            
               However, the fact that a literal application of the conversion method provided for in Article 107(6) does not, in my view, yield appropriate results in cases such as the present one might argue in favour of applying Article 107(1) by analogy. The calculation method provided for in Article 107(6), according to which, when calculating benefits (manifestly, a refund, the other possibility mentioned in the provision, is not involved here), conversion is to be carried out at the official rate of exchange on the day of payment, would have the remarkable result in the case of frontier workers that the institution would have to recalculate each month the last wage or salary received — possibly for years — without any obvious plausible reason for doing so. Perusal of the cases in which Article 107(6) is applied shows that that provision was designed to cover situations in which benefits are paid by the competent institution in one Member State to a beneficiary in another (see, for example, Article 65(2) and (3) of Regulation No 1408/71). In such cases, it is in the interest of the beneficiary that the benefit payable should be converted at the official exchange rate on the day of payment. In this way, the beneficiary is placed in the situation in which he would have been had he received the benefit in the State of the competent institution (and then converted it into the currency of the other Member State).
            
         
               34.
            
            
               In the instant case, however, it is not a question of converting such benefits, but of determining the basis for granting the benefits in question. Article 71(l)(a)(ii) clearly provides that a frontier worker who is wholly unemployed should be treated as if he had been subject to the legislation of the Member State in whose territory he resides as though he had been subject to that legislation while last employed. As regards the amount of the benefits to be granted, Article 68(1) refers to the last wage or salary received. With the exception of that — necessary — change, the frontier worker is to be treated in exactly the same way as a worker who lives and works in the State in which the frontier worker resides. It follows, in my view, that the authorities in that State must, for the purposes of calculating the benefits payable, convert the last wage or salary received by the frontier worker in the State of employment and take the amount so calculated — unaltered — as the basis for applying its legal provisions. No reasonable ground can be seen for which the competent institution of the Member State in which the frontier worker resides should, for example in the case of benefits paid monthly, calculate each month the benefits due on the basis of the official exchange rate ruling at that time. Such a method would mean that the frontier worker would be exposed to both the advantages and risks of exchange-rate movements.
            
         
               35.
            
            
               Application by analogy of Article 107(1) would, however, be justified only if that provision were more suitable than Article 107(6) for dealing with cases such as the one at issue and no appropriate outcome could be derived from Article 107(6), not even by means of interpretation. It should be observed first that the conversion method prescribed by Article 107(1) is also designed — as the provisions referred to in that article show — for cases involving the payment (or the refunding) of amounts which are due in one currency and have to be paid out in another. Furthermore, it should be observed that it cannot be inferred directly from Article 107(1) what time should be taken for conversion to be carried out in cases such as the one at issue; neither does the reference period laid down in Article 107(2) fix the relevant period for conversion, but, on the contrary, assumes it. Application by analogy of Article 107(1) to cases such as the one at issue would therefore mean that it would be necessary first to establish the relevant time for conversion by interpretation (possibly by having regard to Decision No 140 of the Administrative Commission).
            
         
               36.
            
            
               However, in my view, this is unnecessary, since interpretation of Article 107(6) has already yielded an appropriate result. As has been seen, that provision refers to the date on which the benefit is paid. As I have already mentioned, cases such as this one are not about the payment of the benefit itself, but about the wage or salary which is used as the basis for calculating the benefit. As I have already explained, the legislator probably did not envisage the possibility of such a scenario arising when the provision in question was adopted. In my view, to take account, also in cases of this type, of the time at which the amount in question was paid is consistent with the logic of Article 107(6). This means that, in cases such as the one at issue, it is the time when the last wage or salary received by the frontier worker was paid which is decisive.
            
         
               37.
            
            
               The difference between the solution which I have put forward (according to which the time when the last wage or salary was paid should be taken) and the approach taken by the Commission and the German Government (according to which the rate of conversion calculated by the Commission for the month in which the last wage or salary was paid is decisive) will probably not be particularly great. It may therefore be assumed that the interpretation which I have advocated will not have far-reaching consequences for the practice adopted by the competent institutions in the Member States — in so far as they formerly followed the Commission's approach.
            
         
               38.
            
            
               In comparison with the view taken by the plaintiffs in the main proceedings, my interpretation also has the practical advantage that the authorities in the Member States will not have continually to recalculate the amount on which their benefits are based, but can carry out the conversion once only.
            
         
               39.
            
            
               Lastly, I would also consider Article 107(1) of Regulation No 574/72 as amended by Regulation No 1249/92. (
                     18
                  ) The detailed arguments set out above militate against the interpretation advocated by the Commission of the new version of Article 107 as a purely declaratory confirmation of a preexisting legal situation. If, on the contrary, it is a normative measure — and, inter alia, the fourteenth recital in the preamble to the regulation (
                     19
                  ) bears this view out —, it must be observed that, according to Article 3(1) thereof, it entered into force on 1 June 1992. It cannot be seen why this new provision should possibly be applied to cases which arose before that date. (
                     20
                  )
            
         C — Conclusion
      
               40.
            
            
               I therefore propose that the Court should answer the questions referred by the Tribunal de Grande Instance, Metz, as follows:
               
                        (1)
                     
                     
                        Article 71(l)(a)(ii) of Regulation (EEC) No 1408/71 should be interpreted as meaning that, for the purposes of calculating the benefits payable to frontier workers who are wholly unemployed, the provisions of the Member State in which they reside should be applied, including the provisions relating to contribution ceilings.
                     
                  
                        (2)
                     
                     
                        For the purposes of the application of Article 71(l)(a)(ii) in conjunction with Article 68(1) of Regulation (EEC) No 1408/71, the requisite conversion is to be carried out until Regulation (EEC) No 1249/92 comes into force in accordance with Article 107(6) of Regulation (EEC) No 574/72. The time to be taken into account for the conversion is the time when 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 was paid.
                     
                  
         (
            *1
         )	Original language: German.
      (
            1
         )	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 (OJ, English Special Edition 1971(11), p. 416, in the version of Regulation (EEC) No 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6).
      (
            2
         )	Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) 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 (OJ 1972 L 74, p. 1, in the version of Regulation (EEC) No 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6).
      (
            3
         )	See the judgments in Case C-369/89 Piagane [1991] ECR I-2971, paragraph 7, and in Case C-373/89 Integrity [1990] ECR I-4243, paragraph 9.
      (
            4
         )	Judgment in Case 67/79 Fellinger v Bundesanstalt für Arbeit [1980] ECR 535, paragraph 9.
      (
            5
         )	See my Opinion in Case 1/85 Miethe v Bundesanstalt für Arbeit [1986] ECR 1838, at 1843.
      (
            6
         )	Judgment in Case 1/85 Miethe v Bundesanstalt für Arbeit [1986] ECR 1837, paragraphs 8 to 12.
      (
            7
         )	Judgment in Case 302/84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging [1986] ECR 1821, paragraph 19.
      (
            8
         )	Judgment in Case 58/87 Rebmann v Bundesversicherungsanstalt für Angestelke [1988] ECR 3467, paragraph 15.
      (
            9
         )	Ibid., paragraph 14.
      (
            10
         )	Cited in footnote 6, paragraphs 16 and 18.
      (
            11
         )	Ibid., paragraph 20.
      (
            12
         )	Judgment in Case 145/84 Cochet v Bedrifisvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen [1985] ECR 801, paragraph 15.
      (
            13
         )	OJ 1992 L 136, p. 28.
      (
            14
         )	OJ 1990 C 94, p. 4.
      (
            15
         )	See the judgment in Case 238/81 Raad van Arbeid v Van der Bunt-Craig [1983] ECR 1385, paragraph 24.
      (
            16
         )	Judgment in Case 98/80 Romano v INAMI [1981] ECR 1241, paragraph 20.
      (
            17
         )	For the sake of accuracy, I would point out though that, according to the wording of the decision, which was published on 12 April 1990, it entered into force on the first day of the month following its publication, that is to say, on 1 May 1990 (and not on 1 April 1990, as the Commission mistakenly stated).
      (
            18
         )	Cited in footnote 13.
      (
            19
         )	‘Whereas it is necessary to provide for a rate of conversion for the amounts used for the calculation of indemnities for unemployed frontier workers under the terms of Article 71(l)(a)(ii) and Article 68 of Regulation (EEC) No 1408/71 ....’
      (
            20
         )	Paragraphs 2 to 8 of Article 8 of Regulation No 1249/92 provide for the retroactive application of some of its provisions. The relevant provision in this case (Article 2(3)) is not covered.