Bernard Grisvard and Georges Kreitz v Association pour l'emploi dans l'industrie et le commerce de la Moselle.
Date: 1992-10-01
11 According to Article 71(1)(a)(ii), the competent institution for the payment of unemployment benefits to frontier workers who are wholly unemployed is that of the State of residence. That attachment to the State of residence appears more appropriate and more in conformity with the interests of frontier workers (judgment in Case 58/87 Rebmann [1988] ECR 3467, paragraphs 14 and 15).
13 However, as the Court made clear in its judgment in Case 67/79 Fellinger [1980] ECR 535, paragraph 6, that article is of general application and does not relate to particular situations, such as, in particular, that of frontier workers. The first sentence lays down the general rule that unemployment benefits are to be calculated on the basis of the last wage or salary received in the State of residence. The rule set out in the second sentence is laid down only for the exceptional case in which the worker was not in his last employment in the State of residence for at least four weeks. In so far as that is almost invariably the situation of frontier workers, to subject them to that rule would have the effect of applying to them as a matter of course the rules which that provision lays down by way of exception. Since, moreover, the level of remuneration is often higher in the State of employment, the fact that unemployment benefits paid to frontier workers could never be calculated on the basis of the remuneration paid in the State of employment would be likely to discourage frontier working, contrary to the principles laid down in Regulation No 1408/71 and the Treaty.
16 Under the terms of Article 71(1)(a)(ii), 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 during his last employment. That article clearly requires the legislation of the Member State of residence alone to be applied and not, therefore, the legislation of the State of employment, including any rules it lays down on ceilings.
17 That interpretation, which follows from the wording of the provision in question, is moreover consistent with its aim, which is to equate the system of unemployment benefits for frontier workers with that of workers whose last employment was in the State of residence. That aim would be jeopardized if the unemployment benefits of frontier workers were subject to a ceiling, deriving from the system established by another Member State, which would not be applicable to most workers in the Member State of residence.
23 The cases to which the first method is stated to be applicable do not include Article 71(1)(a)(ii) of Regulation No 1408/71, which relates to unemployed frontier workers.
25 Those arguments cannot be accepted. As the Court held in its judgment in Case 98/80 Romano v Institut National d' Assurance Maladie-Invalidité [1981] ECR 1241, acts of the Administrative Commission cannot have the force of law. Likewise, an argument based on greater convenience cannot prevail against an unequivocal provision.