ZP v Bundesagentur für Arbeit.
Date: 2020-01-23
23


Article 8 of the AFMP provides that the contracting parties are to make provision, in accordance with Annex II to that agreement, for the coordination of social security systems with the aim in particular of determining the legislation applicable and paying benefits to persons residing in the territory of the contracting parties. Section A, point 1, of that Annex II provides for the application, between the contracting parties, of Regulation No 883/2004. Therefore, and since, according to Article 1(2) of that Annex II, ‘the term “Member State(s)” contained in the legal acts referred to in section A of that annex shall be understood to include Switzerland in addition to the States covered by the relevant legal acts of the European Union’, the provisions of that regulation also cover the Swiss Confederation (judgment of 14 March 2019, Dreyer, C‑372/18, EU:C:2019:206, paragraph 29 and the case-law cited).
33


That interpretation is also consistent with the objectives of Regulation 883/2004, the purpose of which, as follows from recitals 4 and 45, is to coordinate Member States’ social security systems in order to guarantee that the right to free movement of persons can be exercised effectively (judgment of 21 March 2018, Klein Schiphorst, C‑551/16, EU:C:2018:200, paragraph 31). Accordingly, that regulation seeks to prevent the situation in which a worker who, having exercised his right of free movement, has worked in more than one Member State is treated, without objective justification, less favourably than a worker who has completed his entire career in only one Member State (see, to that effect, judgment of 19 September 2019, van den Berg and Others, C‑95/18 and C‑96/18, EU:C:2019:767, paragraph 75 and the case-law cited).
34


In that context, the Court has held, in respect of the AFMP, that the freedom of movement of persons guaranteed by that agreement would be impeded if a national of a contracting party were to be placed at a disadvantage in his State of origin solely for having exercised his right of free movement (judgment of 26 February 2019, Wächtler, C‑581/17, EU:C:2019:138, paragraph 53 and the case-law cited).
35


As regards, in particular, the calculation of unemployment benefits provided for in Article 62(1) of Regulation No 883/2004, it is apparent from the Court’s case-law that the corresponding provision of Regulation No 1408/71 was intended to facilitate the mobility of workers by ensuring that the persons concerned received benefits which took into account, as far as possible, the conditions of employment and, in particular, of the remuneration which they enjoyed under the legislation of the Member State in which they were last employed (see, to that effect, judgment of 28 February 1980, Fellinger, 67/79, EU:C:1980:59, paragraph 7).
39


In that regard, it should, admittedly, be borne in mind that that regulation does not establish a common scheme of social security, but allows different national social schemes to exist and its sole objective is to ensure the coordination of those schemes in order to guarantee that the right to free movement of persons can be exercised effectively. Therefore, according to the Court’s settled case-law, Member States retain the power to organise their own social security schemes (judgment of 28 June 2018, Crespo Rey, C‑2/17, EU:C:2018:511, paragraph 45 and the case-law cited).
40


However, it follows from the very wording of Article 62(1) and (2) of Regulation No 883/2004 that, while certain aspects of the calculation of unemployment benefit, in particular the choice of requiring that that calculation be based on the amount of the previous salary, do in fact fall within Member States’ competence, the fact remains that, where a Member State has made such a choice in its legislation, those provisions ensure that account is taken exclusively of the salary received by the person concerned for the last activity engaged in as an employed person under that legislation (see, by analogy, judgment of 21 March 2018Klein Schiphorst, C‑551/16, EU:C:2018:200, paragraph 46).
41


Moreover, it is settled case-law that, in exercising their power to organise their social security systems, Member States must comply with EU law and, in particular, the provisions of the FEU Treaty giving every citizen of the European Union the right to move and reside within the territory of the Member States (judgment of 7 December 2017, Zaniewicz-Dybeck, C‑189/16, EU:C:2017:946, paragraph 40 and the case-law cited).
48


In that regard, it must be noted that according to the Court’s settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgment of 12 September 2019, A and Others, C‑347/17, EU:C:2019:720, paragraph 38 and the case-law cited).