Opinion of the Advocate General — ECLI:EU:C:1998:141
Date: 1998-03-26
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers
Procedure: Action for failure to fulfil obligations - successful
Origin: France

Summary of the Judgmen t 
1. Social security for migrant workers — Community rules — Substantive scope — Provisions 
Uid down in agreements — Excluded 
(Regulation No 1408/71 of the Council, Art. l(j)) 
2. Freedom of movement for persons — Workers — Equal treatment — Conditions of dismissal 
— Award of supplementary retirement pension points in the event of early retirement — Ben­
efit denied to frontier workers — Indirect discrimination based on nationality — Not permis­
sible 
(EC Treaty, Art. 48; Regulation No 1612/68 of the Council, Art. 7(1)) 
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SUMMARY — CASE C-35/97 
1. Supplementary retirement pension schemes 
introduced under agreements concluded 
by the competent authorities with trade or 
inter-trade bodies, trade-union organisa­
tions or individual undertakings or under 
collective agreements concluded by both 
sides of industry, membership of which 
has been rendered compulsory by decision 
of the public authorities, do not constitute 
legislation within the meaning of the first 
subparagraph of Article 1(j) of Regulation 
N o 1408/71. Consequently, those schemes 
— together with a system for the valida­
tion of concessionary retirement pension 
points which forms part thereof — are not 
covered by that regulation, and cannot be 
assessed in the light of its provisions. 
2. A Member State may not exclude frontier 
workers who have been placed in early 
retirement from qualifying for supplemen­
tary retirement pension points until they 
reach normal retirement age. Such a system 
of validation of retirement pension points, 
which forms an integral part of the advan­
tages granted to workers in the sector 
concerned, constitutes one of the condi­
tions applicable to their dismissal, within 
the meaning of Article 7(1) of Regulation 
N o 1612/68 on freedom of movement for 
workers within the Community. The equal 
treatment rule laid down in Article 48 of 
the Treaty and in Article 7(1) of the regu­
lation prohibits not only overt discrimi­
nation by reason of nationality but also all 
covert forms of discrimination which, by 
the application of other distinguishing cri­
teria, lead in fact to the same result. Con­
sequently, a residence condition laid down 
in relation to the award of retirement pen­
sion points, which can more easily be ful­
filled by workers possessing the nation­
ality of the Member State concerned — 
most of whom reside in that State — than 
by workers from other Member States, is 
indirectly discriminatory since it is intrin­
sically liable to affect migrant workers 
more than national workers and there is a 
consequent risk that it will place the former 
at a particular disadvantage. 
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