Waldemar Fellinger v Bundesanstalt für Arbeit, Nuremberg.
Date: 1980-02-28
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 .