Fabien Nemec v Caisse régionale d'assurance maladie du Nord-Est.
Date: 2006-11-09
25. In that connection, it must be recalled that, according to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Joined Cases C-320/90 to C‑322/90 Telemarsicabruzzo and Others  [1993] ECR I-393, paragraph 6; Case C-9/98 Agostini  [1998] ECR I-4261, paragraph 4; Case C-72/03 Carbonati Apuani  [2004] ECR I-8027, paragraph 10; and Case C‑237/04 Enirisorse  [2006] ECR I-2843, paragraph 17).
26. The Court has likewise held that it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute (order in Case C-116/00 Laguillaumie  [2000] ECR I-4979, paragraph 16, and the judgments in Carbonati Apuani , paragraph 11, and Enirisorse , paragraph 21).
36. The Court has already held, as regards a provision drafted in terms essentially identical to those in Article 58, that such a provision does not merely determine the legislation applicable for fixing the reference period for average pay, but that its purpose is also to determine the remuneration which the competent institution must take into account in order to determine the average pay over a given period, which, according to the applicable national legislation, serves as a basis for the calculation of cash benefits (see, to that effect, Case 268/78 Pennartz  [1979] ECR 2411, paragraphs 8 and 9).
37. However, Article 58 of Regulation No 1408/71, as indeed all the provisions of that regulation, must be interpreted in the light of Article 42 EC (see, to that effect, Case C-406/93 Reichling [1994] ECR I-4061, paragraph 21, and Case C‑251/94 Lafuente Nieto  [1996] ECR I-4187, paragraphs 33 and 38).
38. The objective pursued by that provision, which aims to facilitate freedom of movement for workers, entails in particular that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the EC Treaty (see Reichling , paragraph 24; Lafuente Nieto , paragraphs 33 and 38; Joined Cases C-31/96 to C-33/96 Naranjo Arjona and Others  [1997] ECR I‑5501, paragraph 20; and Case C-153/97 Grajera Rodríguez  [1998] ECR I-8645, paragraph 17).
41. The obligation not to put migrant workers who have availed themselves of their right to free movement at a disadvantage does not mean, however, that Article 58(1) of Regulation No 1408/71, by not allowing the pay earned in another Member State to be taken into account for the calculation of cash benefits, must be regarded as contrary to the objective set down in Article 42 EC. That obligation merely implies that those benefits must be the same for the migrant worker as they would have been if he had not availed himself of his right to free movement (see, to that effect, Lafuente Nieto , paragraph 39; Naranjo Arjona and Others,  paragraph 21; and Grajera Rodriguez , paragraph 18).
42. Therefore, in circumstances such as those at issue in the main proceedings, although account is to be taken, under Article 58(1) of Regulation No 1408/71, only of the pay earned in the Member State in which the competent institution is situated, the amount of that pay must be updated and revalorised so as to correspond to the pay the person concerned might reasonably have been able to earn had he continued to work in the Member State in question (see, to that effect, Lafuente Nieto , paragraph 40; Naranjo Arjona and Others , paragraph 22; and Grajera Rodríguez , paragraph 19).