JUDGMENT OF
THE COURT (Grand Chamber)
(Frontier
worker – Regulation (EEC) No 1612/68 – Child-raising allowance – Not granted –
Social advantage – Residence condition)
In Case
C‑213/05,
REFERENCE
for a preliminary ruling under Article 234 EC by the Bundessozialgericht
(
Wendy
Geven
v
Land
Nordrhein-Westfalen,
THE COURT (Grand
Chamber),
composed of
V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts, P.
Kūris and E. Juhász, Presidents of Chambers, R. Silva de Lapuerta, K. Schiemann
(Rapporteur), J. Makarczyk, G. Arestis, A. Borg Barthet and M. Ilešič, Judges,
Advocate General:
L.A. Geelhoed,
Registrar:
R. Grass,
having
regard to the written procedure,
after
considering the observations submitted on behalf of:
– Ms
Geven, by M. Eppelein,
Assessor,
– the German Government, by M. Lumma,
acting as Agent,
– the United Kingdom Government, by C. Jackson, acting as
Agent, and
– the Commission of the European Communities, by V. Kreuschitz, acting as Agent,
after
hearing the Opinion of the Advocate General at the sitting on
gives the
following
Judgment
1 This
reference for a preliminary ruling concerns the
interpretation of Regulation (EEC) No 1612/68 of the Council of
2 The
reference was made in the course of proceedings between Ms Geven
and Land Nordrhein-Westfalen (Land of North Rhine-Westphalia) concerning
the latter’s refusal to grant her child-raising allowance for her child.
Legal
context
Community
legislation
3 Article
7(1) and (2) of Regulation No 1612/68 reads as follows:
‘1. A
worker who is a national of a Member State may not, in the territory of another
Member State, be treated differently from national workers by reason of his
nationality in respect of any conditions of employment and work, in particular
as regards remuneration, dismissal, and should he become unemployed,
reinstatement or re-employment;
2. He
shall enjoy the same social and tax advantages as national workers.’
National
legislation
4 According
to the order for reference, Paragraph 1(1) of the Bundeserziehungsgeldgesetz
(Law on child-raising allowance and parental leave, ‘the BErzGG’),
in the version applicable at the material time, provides that any person
permanently or ordinarily resident in Germany who has a dependent child in his
household, looks after and brings up that child, and has no, or no full-time,
employment can claim child-raising allowance.
5 In
addition, under Paragraph 1(4) of the BErzGG, in the
version applicable at the material time, nationals of the Member States of the
European Union and frontier workers from countries having a common frontier
with
6 Under
Paragraph 8(1)(1) of Book IV of the Sozialgesetzbuch (Social Code), in the version in force at
the material time (BGBl. I, p. 1229), employment was
regarded as minor if it was of less than 15 hours a week and the monthly
remuneration regularly received did not exceed one seventh of the monthly
reference amount within the meaning of Paragraph 18 of Book IV, namely DEM
The
main proceedings and the order for reference
7 Ms
Geven is a
8 Her
application for child-raising allowance for the first year of her son’s life
was refused by the Land of North Rhine-Westphalia, by decision of
9 Ms
Geven’s action against that refusal was unsuccessful
both at first instance and on appeal, following judgments of the Sozialgericht Münster (
10 In
those circumstances, the Bundessozialgericht decided
to stay the proceedings and referred the following question to the Court for a
preliminary ruling:
‘Does
it follow from Community law (in particular from Article 7(2) of Regulation
(EEC) No 1612/68 …) that the Federal Republic of Germany is precluded from
excluding a national of another Member State who lives in that State and is in
minor employment (between 3 and 14 hours a week) in Germany from receiving
German child-raising allowance because she does not have her permanent or
ordinary residence in Germany?’
The
question referred for a preliminary ruling
11 Article
7(2) of Regulation No 1612/68 provides that a migrant worker is to enjoy the
same social and tax advantages in the host Member State as national workers.
12 The
reference to ‘social advantages’ in that provision cannot be interpreted
restrictively (Case C‑57/96 Meints [1997] ECR
I‑6689, paragraph 39). According to settled case-law, ‘social advantages’ are
to be understood as all advantages which, whether or not linked to a contract
of employment, are generally granted to national workers because of their
objective status as workers or by virtue of the mere fact of their residence on
the national territory, and whose extension to workers who are nationals of
other Member States therefore seems likely to facilitate their mobility within
the European Community (see Case 65/81 Reina [1982] ECR 33, paragraph
12; Meints, paragraph 39; and Case C‑85/96 Martínez Sala
[1998] ECR I‑2691, paragraph 25).
13 The
Court has already held that German child-raising allowance constitutes a social
advantage within the meaning of Article 7(2) of Regulation No 1612/68 (see Martínez Sala,
paragraph 26).
14 The
German and United Kingdom Governments observed that it would be unfair to allow
a frontier worker whose residence and workplace are in different Member States
to enjoy the same social advantages in both Member States and to combine them.
To avoid that risk, and in view of the fact that Regulation No 1612/68 does not
contain any coordinating rules to avoid cumulation of
benefits, the possibility of ‘exporting’ child-raising allowance to the
frontier worker’s Member State of residence could be excluded.
15 It
should be noted that Ms Geven’s status of migrant
worker does not in any way prevent her from being able to claim the equal
treatment prescribed by Article 7(2) of Regulation No 1612/68 in relation to
the grant of social advantages. The Court has already held that frontier
workers can rely on the provisions of Article 7 of Regulation No 1612/68 on the
same basis as any other worker to whom that article applies. The fourth recital
in the preamble to that regulation expressly states that the right of free
movement must be enjoyed ‘without discrimination by permanent, seasonal and
frontier workers and by those who pursue their activities for the purpose of
providing services’, and Article 7 of the regulation refers, without
reservation, to a ‘worker who is a national of a Member State’ (Meints, paragraph 50).
16 It
should also be noted that the scope of the rules on freedom of movement for
workers (and hence of Regulation No 1612/68) extends to all workers carrying on
effective and genuine activities, with the exception of those whose activities
are on such a small scale as to be regarded as purely marginal and ancillary
(see, in particular, Case 53/81 Levin [1982] ECR 1035, paragraph 17).
17 The
national court has established that during the period in question Ms Geven was in a genuine employment relationship allowing her
to claim the status of migrant worker for the purposes of Regulation No
1612/68.
18 It
should be recalled that the equal treatment rule which appears both in Article
48 of the EC Treaty (now, after amendment, Article 39 EC) and in Article 7 of
Regulation No 1612/68 prohibits not only overt discrimination on grounds of
nationality but also all covert forms of discrimination which, by the
application of other criteria of differentiation, lead in fact to the same
result (Meints, paragraph 44).
19 Unless
it is objectively justified and proportionate to the aim pursued, a provision
of national law must be regarded as indirectly discriminatory if it is
intrinsically liable to affect migrant workers more than national workers and
if there is a consequent risk that it will place the former at a particular
disadvantage (Meints, paragraph 45).
20 That
is true of a residence condition such as that at issue
in the main proceedings, which, as the national court points out, can naturally
be more easily met by national workers than by workers from other Member
States.
21 As
explained by the national court, German child-raising allowance constitutes an
instrument of national family policy intended to encourage the birth-rate in
that country. The primary purpose of the allowance is to allow parents to care
for their children themselves by giving up or reducing their employment in
order to concentrate on bringing up their children in the first years of their
life.
22 The
German Government adds essentially that child-raising allowance is granted in
order to benefit persons who, by their choice of residence, have established a
real link with German society. It says that, in that context, a residence
condition such as that at issue in the main proceedings is justified.
23 Regardless
of whether the aims pursued by the German legislation could justify a national
rule based exclusively on the criterion of residence, it must be observed that,
according to the information provided by the national court, the German
legislature did not confine itself to a strict application of the residence
condition for the grant of child-raising allowance but allowed exceptions under
which frontier workers could also claim it.
24 It
appears from the order for reference that, under Paragraph 1(4) of the BErzGG, in the version applicable at the material time,
frontier workers who carry on an occupation in Germany but reside in another Member
State can claim German child-raising allowance if they carry on an occupation
of a more than minor extent.
25 Consequently,
it is apparent that, under the German legislation in force at the material
time, residence was not regarded as the only connecting link with the
26 In
those circumstances, the fact that a non-resident worker does not have a
sufficiently substantial occupation in the
27 As
the Court has already held in Case C‑444/93 Megner
and Scheffel [1995] ECR I‑4741, paragraphs 18 to
21 and 29, while a person in minor employment of the kind referred to in the
national court’s question has the status of worker within the meaning of
Article 39 EC, social policy is, in the current state of Community law, a
matter for the Member States, who have a wide discretion in exercising their
powers in that respect. However, that wide discretion cannot have the effect of
undermining the rights granted to individuals by the provisions of the EC Treaty
in which their fundamental freedoms are enshrined (see, with reference to
Article 39 EC, Case C‑18/95 Terhoeve [1999]
ECR I‑345, paragraph 44, and Case C‑208/05 ITC [2007] ECR I‑0000,
paragraphs 39 and 40, and, by analogy, concerning equal treatment of men and
women workers, Megner and Scheffel, and Case C‑77/02 Steinicke
[2003] ECR I‑9027, paragraphs 61 and 63).
28 As
noted in paragraphs 21 to 25 above, the aim of the German legislature is, in a
situation such as that at issue in the main proceedings, to grant a
child-raising allowance to persons who have a sufficiently close connection
with German society, without reserving that allowance exclusively to persons
who reside in
29 In
exercising its powers, that legislature could reasonably consider that the
exclusion from the allowance in question of non-resident workers who carry on
an occupation in the Member State concerned that does not exceed the threshold
of minor employment as defined in national law constitutes a measure that is appropriate
and proportionate, having regard to the objective mentioned in the preceding
paragraph (see, by analogy, Megner and Scheffel, paragraph 30).
30 In
the light of the above considerations, the answer to the national court’s
question must be that Article 7(2) of Regulation No 1612/68 does not preclude
the exclusion, by the national legislation of a Member State, of a national of
another Member State who resides in that State and is in minor employment
(between 3 and 14 hours a week) in the former State from receiving a social
advantage with the characteristics of German child-raising allowance on the
ground that he does not have his permanent or ordinary residence in the former
State.
Costs
31 Since
these proceedings are, for the parties to the main proceedings, a step in the
action pending before the national court, the decision on costs is a matter for
that court. Costs incurred in submitting observations to the Court, other than
the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
Article
7(2) of Regulation (EEC) No 1612/68 of the Council of
JUDGMENT OF
THE COURT (Grand Chamber)
(Frontier
worker – Regulation (EEC) No 1612/68 – Transfer of residence to another
In Case
C‑212/05,
REFERENCE
for a preliminary ruling under Article 234 EC by the Bundessozialgericht
(
Gertraud
Hartmann
v
Freistaat
Bayern,
THE COURT (Grand
Chamber),
composed of
V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts and P.
Kūris, Presidents of Chambers, R. Silva de Lapuerta, K. Schiemann (Rapporteur),
J. Makarczyk, G. Arestis, A. Borg Barthet, M. Ilešič and L. Bay Larsen, Judges,
Advocate General:
L.A. Geelhoed,
Registrar:
B. Fülöp, Administrator,
having
regard to the written procedure and further to the hearing on
after
considering the observations submitted on behalf of:
– Ms
Hartmann, by M. Eppelein, Assessor,
– the German Government, by M. Lumma,
acting as Agent,
– the Spanish Government, by F. Díez
Moreno, acting as Agent,
– the Netherlands Government, by M. de Mol, acting as Agent,
– the
United Kingdom Government, initially by C. Jackson, acting as Agent, and E. Sharpston QC, and subsequently by C. Gibbs, acting as
Agent, and T. Ward, Barrister,
– the Commission of the European Communities, by V. Kreuschitz and D. Martin, acting as Agents,
after
hearing the Opinion of the Advocate General at the sitting on
gives the
following
Judgment
1 This
reference for a preliminary ruling concerns the
interpretation of Regulation (EEC) No 1612/68 of the Council of
2 The
reference was made in the course of proceedings between Ms Hartmann and Freistaat Bayern (Free State of
Bavaria) concerning the latter’s refusal to grant her child-raising allowance
for her children.
Legal
context
Community
legislation
3 Article
7(1) and (2) of Regulation No 1612/68 reads as follows:
‘1. A
worker who is a national of a Member State may not, in the territory of another
Member State, be treated differently from national workers by reason of his
nationality in respect of any conditions of employment and work, in particular
as regards remuneration, dismissal, and should he become unemployed,
reinstatement or re-employment;
2. He
shall enjoy the same social and tax advantages as national workers.’
National
legislation
4 According
to the order for reference, Paragraph 1(1) of the Bundeserziehungsgeldgesetz
(Law on child-raising allowance and parental leave, ‘the BErzGG’),
in the version applicable at the material time, provides that any person
permanently or ordinarily resident in Germany who has a dependent child in his
household, looks after and brings up that child, and has no, or no full-time,
employment can claim child-raising allowance.
5 In
addition, under Paragraph 1(4) of the BErzGG, in the
version applicable at the material time, nationals of the Member States of the
European Union and frontier workers from countries having a common frontier
with
6 Under
Paragraph 1(7) of the BErzGG, in the amended version
of
The
main proceedings and the order for reference
7 Ms
Hartmann is an Austrian national married since 1990 to a German national who
previously lived in
8 By
decisions of
9 By
decisions of 10 and
10 After
the Sozialgericht München (
11 In
that court’s view, Council Regulation (EEC) No 1408/71 of
12 The
Bayerisches Landessozialgericht
added that a right to child-raising allowance could not be based on Article
7(2) of Regulation No 1612/68 either, since Regulation No 1408/71 took
precedence over that regulation.
13 Ms
Hartmann thereupon appealed on a point of law to the Bundessozialgericht
(
14 In
those circumstances, the Bundessozialgericht decided
to stay the proceedings and refer the following two questions to the Court for
a preliminary ruling:
‘1. Is
a German national who, while continuing his service as a post office official
in Germany, moved his permanent residence from Germany to Austria in 1990 and
has since then carried on his occupation as a frontier worker to be regarded as
a migrant worker within the meaning of Regulation (EEC) No 1612/68 … for
periods between January 1994 and September 1998?
2. If
so:
Does it
constitute indirect discrimination within the meaning of Article 7(2) of
Regulation No 1612/68 if the non-working spouse of the person mentioned in
Question 1, who lives in Austria and is an Austrian national, was excluded from
receiving German child-raising allowance in the period in question because she
did not have either her permanent or ordinary residence in Germany?’
The
questions referred for a preliminary ruling
Question
1
15 By
its first question, the national court essentially asks whether a national of a
16 The
German Government, the United Kingdom Government and the Commission of the
European Communities, in their written observations, and the Netherlands
Government, at the hearing, submitted that only the movement of a person to
another Member State for the purpose of carrying on an occupation should be
regarded as an exercise of the right of freedom of movement for workers. A
person such as Mr Hartmann, who never left his employment in the
17 That
argument must be considered in the light of the judgment in Case C‑152/03 Ritter-Coulais [2006] ECR I‑1711. In that case the Court,
examining the position of the appellants in the main proceedings in the light
of the principle of freedom of movement for workers set out in Article 48 of
the EC Treaty (now, after amendment, Article 39 EC), observed in paragraphs 31
and 32 of the judgment that any national of a Member State, irrespective of his
place of residence and his nationality, who has exercised the right to freedom
of movement for workers and who has been employed in a Member State other than
that of residence falls within the scope of that provision. It followed that
the appellants in the main proceedings, who worked in a
18 In
the present case, the situation which gave rise to the main proceedings is that
of a person who, since the transfer of his residence, resides in one
19 It
follows that for the period from January 1994 to September 1998 the situation
of a frontier worker such as Mr Hartmann falls within the scope of the
provisions of the EC Treaty on freedom of movement for workers, and hence of
Regulation No 1612/68.
20 Having
regard to the above considerations, the answer to Question 1 must be that a
national of a Member State who, while maintaining his employment in that State,
has transferred his residence to another Member State and has since then
carried on his occupation as a frontier worker can claim the status of migrant
worker for the purposes of Regulation No 1612/68.
Question
2
21 By
its second question, the national court essentially asks whether, in
circumstances such as those at issue in the main proceedings, Article 7(2) of
Regulation No 1612/68 precludes a migrant worker’s non-working spouse, who
lives in Austria and has the nationality of that Member State, from being
refused child-raising allowance on the ground that she did not have his
permanent or ordinary residence in Germany.
22 The
Court has already held that German child-raising allowance constitutes a social
advantage within the meaning of Article 7(2) of Regulation No 1612/68 (see Case
C‑85/96 Martínez Sala
[1998] ECR I‑2691, paragraph 26).
23 The
German and United Kingdom Governments observed that it would be unfair to allow
a frontier worker whose residence and workplace are in different Member States
to enjoy the same social advantages in both Member States and to combine them.
To avoid that risk, and in view of the fact that Regulation No 1612/68 does not
contain any coordinating rules to avoid cumulation of
benefits, the possibility of ‘exporting’ child-raising allowance to the
frontier worker’s Member State of residence could be excluded.
24 It
should be noted that Mr Hartmann’s status of frontier worker does not in any
way prevent him from being able to claim the equal treatment prescribed by
Article 7(2) of Regulation No 1612/68 in relation to the grant of social
advantages. The Court has already held that frontier workers can rely on the
provisions of Article 7 of Regulation No 1612/68 on the same basis as any other
worker to whom that article applies. The fourth recital in the preamble to that
regulation expressly states that the right of freedom of movement must be
enjoyed ‘without discrimination by permanent, seasonal and frontier workers and
by those who pursue their activities for the purpose of providing services’,
and Article 7 of the regulation refers, without reservation, to a ‘worker who
is a national of a Member State’ (Case C‑57/96 Meints
[1997] ECR I‑6689, paragraph 50).
25 In
the case at issue in the main proceedings, child-raising allowance is claimed
by Ms Hartmann, who, as the spouse of a worker who falls within the scope of
Regulation No 1612/68, is only an indirect beneficiary of the equal treatment
granted to migrant workers by Article 7(2) of that regulation. Consequently,
the benefit of German child-raising allowance can be extended to Ms Hartmann
only if that allowance constitutes for her husband a ‘social advantage’ within
the meaning of Article 7(2) of Regulation No 1612/68 (see, by analogy, Case C‑3/90
Bernini [1992] ECR I‑1071, paragraph 26).
26 That
is the case here. A benefit such as German child-raising allowance, which
enables one of the parents to devote himself or herself to the raising of a
young child, by meeting family expenses (see, to that effect, Joined Cases C‑245/94
and C‑312/94 Hoever and Zachow
[1996] ECR I‑4895, paragraphs 23 to 25), benefits the family as a whole,
whichever parent it is who claims the allowance. The grant of such an allowance
to a worker’s spouse is capable of reducing that worker’s obligation to
contribute to family expenses, and therefore constitutes for him or her a ‘social advantage’ within the meaning of Article 7(2)
of Regulation No 1612/68 (see, by analogy, Bernini,
paragraph 25).
27 Article
7(2) of Regulation No 1612/68 provides that a migrant worker is to enjoy the
same social and tax advantages in the host Member State as national workers.
Since child-raising allowance is a ‘social advantage’ within the meaning of
that provision, a migrant worker in a situation such as that of Mr Hartmann,
and consequently his spouse, must, for the reasons stated in paragraphs 25 and
26 above, be able to enjoy it on the same basis as a national worker.
28 According
to the documents before the Court, the German legislation makes the grant of
child-raising allowance conditional principally on the recipients being
resident on national territory. Since such a rule can lead to indirect
discrimination against workers who do not live in
29 It
should be recalled that the equal treatment rule which appears both in Article
39 EC and in Article 7 of Regulation No 1612/68 prohibits not only overt
discrimination on grounds of nationality but also all covert forms of
discrimination which, by the application of other criteria of differentiation,
lead in fact to the same result (Meints,
paragraph 44).
30 Unless
it is objectively justified and proportionate to the aim pursued, a provision
of national law must be regarded as indirectly discriminatory if it is
intrinsically liable to affect migrant workers more than national workers and
if there is a consequent risk that it will place the former at a particular
disadvantage (Meints, paragraph 45).
31 That
is true of a residence condition such as that at issue in the main proceedings,
which, as the national court points out, can naturally be more easily met by
German workers or their spouses, who usually live in Germany, than by workers
from other Member States or their spouses, who more often reside in another
Member State (see, by analogy, Case C‑337/97 Meeusen
[1999] ECR I‑3289, paragraphs 23 and 24).
32 As
explained by the national court, German child-raising allowance constitutes an
instrument of national family policy intended to encourage the birth-rate in
that country. The primary purpose of the allowance is to allow parents to care
for their children themselves by giving up or reducing their employment in
order to concentrate on bringing up their children in the first years of their
life.
33 The
German Government adds essentially that child-raising allowance is granted in
order to benefit persons who, by their choice of residence, have established a
real link with German society. It says that, in that context, a residence
condition such as that at issue in the main proceedings is justified.
34 Regardless
of whether the aims pursued by the German legislation could justify a national
rule based exclusively on the criterion of residence, it must be observed that,
according to the information provided by the national court, the German
legislature did not confine itself to a strict application of the residence
condition for the grant of child-raising allowance but allowed exceptions under
which frontier workers could also claim it.
35 It
appears from the order for reference that, under Paragraph 1(4) of the BErzGG, in the version applicable at the material time,
frontier workers who carry on an occupation in Germany but reside in another
Member State can claim German child-raising allowance if they carry on an
occupation of a more than minor extent.
36 Consequently,
it is apparent that, under the German legislation in force at the material
time, residence was not regarded as the only connecting link with the
37 In
those circumstances, the allowance at issue in the main proceedings could not
be refused to a couple such as Mr and Ms Hartmann who do
not live in
38 Having
regard to the above considerations, the answer to Question 2 must be that, in
circumstances such as those at issue in the main proceedings, Article 7(2) of
Regulation No 1612/68 precludes the spouse of a migrant worker carrying on an
occupation in one Member State, who does not work and is resident in another
Member State, from being refused a social advantage with the characteristics of
German child-raising allowance on the ground that he did not have his permanent
or ordinary residence in the former State.
Costs
39 Since
these proceedings are, for the parties to the main proceedings, a step in the
action pending before the national court, the decision on costs is a matter for
that court. Costs incurred in submitting observations to the Court, other than
the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1. A
national of a Member State who, while maintaining his employment in that State,
has transferred his residence to another Member State and has since then
carried on his occupation as a frontier worker can claim the status of migrant
worker for the purposes of Regulation (EEC) No 1612/68 of the Council of
2. In
circumstances such as those at issue in the main proceedings, Article 7(2) of
Regulation No 1612/68 precludes the spouse of a migrant worker carrying on an
occupation in one Member State, who does not work and is resident in another
Member State, from being refused a social advantage with the characteristics of
German child-raising allowance on the ground that he did not have his permanent
or ordinary residence in the former State.