Judgment;Abstract — ECLI:EU:C:2022:969
Date: 2022-12-08
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Social security for migrant workers;Free movement of workers;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

Summary C-731/21 – 1 
Case C-731/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
1 December 2021 
Referring court:  
Cour de cassation du Grand-Duché de Luxembourg (Luxembourg) 
Date of the decision to refer:  
25 November 2021 
Appellant in cassation:  
GV 
Respondent in cassation:  
Caisse nationale d’assurance pension 
  
1. Background and subject matter of the dispute:  
1 On 22 December 2015, the appellant in cassation and her partner, both French 
nationals residing in France, registered with the Tribunal d’instance de Metz 
(District Court, Metz, France) a joint declaration of a civil covenant of solidarity. 
Both partners were in paid employment in the Grand-Duchy of Luxembourg. 
2 The partner of the appellant in cassation died on 24 October 2016 following an 
accident at work. The appellant then applied to the Caisse Nationale d’Assurance 
Pension (National Pension Insurance Fund, Luxembourg) on 8 December 2016 for 
a survivor’s pension. 
3 The National Pension Insurance Fund asked for evidence that the partnership was 
registered with the Civil Records Registry. The appellant in cassation then 
contacted the Public Prosecutor’s Office, Civil Records Registry Department, 
which informed her that registration of a partnership that had ended on the death 
of a partner was no longer possible after the death.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-731/21 
 
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4 The National Pension Insurance Fund therefore rejected her application for a 
survivor’s pension on the ground that the partnership, which had been entered into 
and registered in France, had not been registered in the Grand-Duchy of 
Luxembourg in order to make it effective vis-à-vis third parties. 
5 By judgment of 25 June 2020, le Conseil supérieur de la sécurité sociale (Higher 
Social Security Board) dismissed the action brought against the decision 
confirming the decision to reject that application.  
6 The appellant in cassation lodged an appeal before the referring court.  
2. Provisions relied on:  
EU law 
Treaty on the Functioning of the European Union 
7 Article 18, which is in Part Two entitled ‘Non-discrimination and citizenship of 
the Union’, provides: 
‘Within the scope of application of the Treaties, and without prejudice to any 
special provisions contained therein, any discrimination on grounds of nationality 
shall be prohibited. …’ 
8 Article 45 reads as follows: 
‘1. Freedom of movement for workers shall be secured within the Union. 
2. Such freedom of movement shall entail the abolition of any discrimination 
based on nationality between workers of the Member States as regards 
employment, remuneration and other conditions of work and employment. 
…’ 
9 Article 48 provides: 
‘The European Parliament and the Council shall, acting in accordance with the 
ordinary legislative procedure, adopt such measures in the field of social security 
as are necessary to provide freedom of movement for workers; to this end, they 
shall make arrangements to secure for employed and self-employed migrant 
workers and their dependants: 
(a) aggregation, for the purpose of acquiring and retaining the right to benefit 
and of calculating the amount of benefit, of all periods taken into account under 
the laws of the several countries; 
(b) payment of benefits to persons resident in the territories of Member States. 
CAISSE NATIONALE D’ASSURANCE PENSION 
 
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…’ 
Regulation (EU) No 492/2011 of the European Parliament and of the Council of 
5 April 2011 on freedom of movement for workers within the Union 
10 In Section 2, entitled ‘Employment and equality of treatment’, Article 7 provides: 
‘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.’ 
Law of the Grand-Duchy of Luxembourg 
Code de la sécurité sociale (Social Security Code) 
11 Article 195 provides: 
‘The surviving spouse, or partner within the meaning of Article 2 of the Law of 
9 July 2004 on the legal effects of certain partnerships, of a recipient of an old-age 
or invalidity pension shall be entitled to a survivor’s pension, without prejudice to 
any other prescribed conditions. …’ 
Loi du 9 juillet 2004 relative aux effets légaux de certains partenariats (Law of 
9 July 2004 on the legal effects of certain partnerships)  
12 Article 2 provides: 
‘For the purposes of this law, “Partnership” means cohabitation by two persons of 
different sexes or of the same sex, hereinafter referred to as “partners”, who live 
as a couple and who have made a declaration in accordance with Article 3 below.’ 
13 Article 3 provides: 
‘Partners who wish to make a partnership declaration shall make a written 
declaration, severally and jointly, before the registrar of the commune of their 
joint domicile or place of residence, of their partnership and of the existence of an 
agreement dealing with the property consequences of their partnership, where 
such an agreement has been concluded between them. 
The registrar shall verify whether both parties meet the conditions laid down in 
the present law and, if so, shall issue a certificate to both of the partners stating 
that their partnership has been declared. 
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For persons whose birth certificates have been drawn up or transcribed in 
Luxembourg, the partnership declaration shall be noted in the margin of each 
partner’s birth certificate. 
The registrar shall, within three working days, send the declaration, including, 
where appropriate, a reference to the property agreement, to the Public 
Prosecutor’s Office for it to be kept in the Civil Records Registry and recorded in 
a file as referred to in Article 1126 et seq. of the New Code of Civil Procedure. 
The registered partnership shall take effect between the parties from the time the 
declaration is received by the registrar who gives it a legal date. It shall not be 
effective vis-à-vis third parties until the day on which the declaration is registered 
with the Civil Records Registry.’ 
14 Article 4 provides: 
‘In order to be able to make the declaration provided for in Article 3, both parties 
must: 
1. have the capacity to enter into an agreement, in accordance with 
Articles 1123 and 1124 of the Civil Code; 
2. not be bound by marriage or another partnership; 
3. not be related by blood or by marriage to a prohibited degree under 
Articles 161 to 163 and the second paragraph of Article 358 of the Civil 
Code; 
4. be lawfully resident in the territory of Luxembourg. 
Subparagraph 4 above applies only to non-Community nationals.’ 
15 Article 4-1 provides: 
‘Partners who have registered their partnership abroad may make an application to 
the Public Prosecutor’s Office for the purposes of registration with the Civil 
Records Registry and inclusion in a file as referred to in Article 1126 et seq. of the 
New Code of Civil Procedure, provided that, on the date when the partnership was 
entered into, both parties met the conditions laid down in Article 4.’ 
Le Nouveau Code de procédure civile (New Code of Civil Procedure) 
16 Article 1126 provides: 
‘Extracts from records and judgments which must be kept at the Civil Records 
Registry shall be filed with the Public Prosecutor’s Office. …’ 
CAISSE NATIONALE D’ASSURANCE PENSION 
 
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3. Positions of the parties: 
Position of the appellant in cassation 
17 One of the appellant in cassation’s pleas is based on Articles 18 and 45 TFEU and 
Article 7 of Regulation (EU) No 492/2011, which lay down the principle of equal 
treatment between migrant workers and nationals, in particular so far as social 
benefits are concerned.  
18 She complains, in particular, about the difference in treatment between persons 
who have entered into a partnership in the Grand-Duchy of Luxembourg and those 
who have entered into a partnership in another Member State. 
19 Besides being registered abroad, a foreign partnership must also be recorded in the 
civil register at the Luxembourg Public Prosecutor’s Office in order to be 
effective. The application of that condition to partnerships entered into in another 
Member State has the effect of making the grant of a survivor’s pension to the 
surviving partner of such partnerships subject to an additional condition compared 
to those imposed on surviving partners of partnerships entered into in the Grand-
Duchy of Luxembourg. In the first case, grant of a pension requires compliance 
with the conditions laid down by the law of the Member State in which the 
partnership was entered into and the condition that it must be registered with the 
Civil Records Registry in the Grand-Duchy of Luxembourg, whereas, in the 
second case, grant of the pension merely requires compliance with the conditions 
laid down by the law of Luxembourg. 
20 Furthermore, registration with the Civil Records Registry is automatic for 
partnerships entered into in the Grand-Duchy of Luxembourg (Article 3 of the 
Law of 9 July 2004) whereas partners who have entered into a partnership abroad 
must do it personally, which leads to inequality to the detriment of partners who 
have entered into their partnership abroad. 
21 The principle of equal treatment laid down both in Article 45 TFEU and in 
Article 7 of Regulation (EU) No 492/2011 prohibits not only direct discrimination 
on grounds of nationality but also all indirect forms of discrimination which, by 
the application of other criteria of differentiation, lead in fact to the same result 
(judgment of 13 April 2010, Bressol and Others, C-73/08, EU:C:2010:181, 
paragraph 40). 
22 Such a distinction based on residence (since a partnership must be entered into at 
the place of residence) is liable to operate to the detriment of nationals of other 
Member States, as non-residents are in the majority of cases foreign nationals 
(judgments of 14 June 2012, Commission v Netherlands, C-542/09, 
EU:C:2012:346, paragraph 38; of 20 June 2013, Giersch and Others, C-20/12, 
EU:C:2013:411, paragraph 44, and of 14 December 2016, Bragança Linares 
Verruga and Others, C-238/15, EU:C:2016:949, paragraph 41).  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-731/21 
 
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23 Distinction based on residence therefore constitutes indirect discrimination on 
grounds of nationality, which has no objective justification in this case.  
24 The appellant in cassation claims that the judgment under appeal therefore 
infringed Articles 18 and 45 TFEU in stating that foreign partners who had 
entered into a partnership abroad were required to comply with an additional 
unofficial formality in order to make their partnership effective abroad, which 
constitutes discrimination on grounds of national origin or residence and an 
obstacle to the free movement of workers. The judgment under appeal must 
therefore be set aside on those grounds. 
Position of the respondent 
25 The National Pension Insurance Fund denies any discrimination on grounds of 
nationality and the fact that registration with the Civil Records Registry is 
‘automatic in the case of partnerships entered into in the Grand-Duchy of 
Luxembourg’. 
Public Prosecutor’s Office 
26 The representative of the Public Prosecutor’s Office points to possible 
discrimination between partners who have entered into and registered a 
partnership in the Grand-Duchy of Luxembourg and those who have entered into a 
partnership in another Member State, since the latter are required to comply with 
the conditions both of the Member State in which the partnership was entered into 
and of the Grand-Duchy of Luxembourg. Such double scrutiny constitutes an 
obstacle to freedom of movement of workers in so far as the surviving partner of a 
partnership entered into in another Member State cannot claim a survivor’s 
pension in the Grand-Duchy of Luxembourg, where the deceased partner has 
exercised his or her right to freedom of movement, unless the partnership satisfies, 
on the one hand, the formal registration conditions laid down by the law of the 
place where it was entered into – the partners’ place of residence – and, on the 
other hand, the condition that the partnership was registered with the Civil 
Records Registry in the Grand-Duchy of Luxembourg, whereas the surviving 
partner of a partnership entered into in the Grand-Duchy of Luxembourg may 
claim a survivor’s pension subject to the sole condition that the partnership 
complies with the conditions of the law of the State in which the partnership was 
entered into, namely those laid down by Luxembourg law, including the 
requirement of registration with the Civil Records Registry. 
4. Assessment of the Court of Cassation: 
27 A registered partnership takes effect between the parties from the time the 
declaration is received by the registrar, who gives it a legal date. It is not effective 
vis-à-vis third parties until the day on which the declaration is registered with the 
Civil Records Registry. 
CAISSE NATIONALE D’ASSURANCE PENSION 
 
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28 It is clear from a reading of Article 4-1 of the Law of 9 July 2004, which deals 
with partnerships entered into abroad, in conjunction with Article 3 of that Law, 
that partnerships entered into in the Grand-Duchy of Luxembourg and those 
entered into abroad are different in so far as registration with the Civil Records 
Registry of a partnership entered into abroad requires compliance not only with 
the formal and substantive conditions imposed by the law of the State of 
registration of the partnership, but also with the conditions imposed, by Article 4 
of the Luxembourg Law of 9 July 2004, on a partnership entered into in 
Luxembourg. 
29 The Luxembourg legislation does not exclude the surviving partner of a 
partnership entered into in another Member State from receiving a survivor’s 
pension. It does not make such entitlement subject to a nationality or residence 
condition. It merely requires the surviving partner, whatever his or her nationality 
or place of residence and in whatever country he or she entered into the 
partnership with the deceased employee who carried on his or her professional 
activity in the Grand-Duchy of Luxembourg, to have registered the partnership 
with the Civil Records Registry. That formality is therefore the same for all 
surviving partners. 
30 There is therefore no direct discrimination under Luxembourg law between 
Luxembourg partners and nationals of another Member State, based on whether 
the partnership was entered into in the Grand-Duchy of Luxembourg or abroad. 
31 However, a provision of national law, even if it applies to all workers regardless 
of nationality, must be regarded as indirectly discriminatory if it is intrinsically 
liable to affect workers who are nationals of other Member States more than 
national workers and if there is a consequent risk that it will place the worker from 
a different Member State at a particular disadvantage, unless it is objectively 
justified and proportionate to the aim pursued (judgment of 10 October 2019, 
Krah, C-703/17, EU:C:2019:850, paragraph 24). 
32 The requirement imposed on partners who have already registered their 
partnership in another Member State to register it also in the Grand-Duchy of 
Luxembourg, which requires the substantive conditions laid down in Article 4 of 
the Law of 9 July 2004 to have been met at the time the partnership was entered 
into abroad, will particularly affect partners who are nationals of another Member 
State and who, exercising their right of freedom of movement, travelled from their 
Member State of residence to Luxembourg in order to carry on a professional 
activity there, which will, where appropriate, entitle the partner to receive a 
survivor’s pension. 
33 That requirement might therefore be regarded as an obstacle to freedom of 
movement of workers in so far as it affects migrant workers who are nationals of 
other Member States more than national workers. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-731/21 
 
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34 Such an obstacle is likely to be objectively justified and proportionate to the aim 
pursued, namely to ensure the effectiveness of the foreign partnership vis-à-vis 
third parties in order to enjoy the same advantages as those afforded to national 
workers, but the correct application of EU law is not so obvious as to leave no 
scope for any reasonable doubt regarding the way to resolve the issue, which has 
not yet been the subject of a reference for a preliminary ruling. 
35 It is therefore necessary to refer the following question to the Court of Justice for 
a preliminary ruling. 
5. Question referred:  
36 The Court of Cassation refers the following question to the Court of Justice for a 
preliminary ruling: 
‘Does European Union law, in particular Articles 18, 45 and 48 of the Treaty on 
the Functioning of the European Union and Article 7(2) of Regulation (EU) 
No 492/2011 of the European Parliament and of the Council of 5 April 2011 on 
freedom of movement for workers within the Union, preclude provisions of the 
law of a Member State, such as Article 195 of the Luxembourg Social Security 
Code and Articles 3, 4 and 4-1 of the amended Law of 9 July 2004 on the legal 
effects of certain partnerships, which make the grant, to the surviving partner of a 
partnership properly entered into and registered in the Member State of origin, of 
a survivor’s pension, due as a result of the exercise by the deceased partner of a 
professional activity in the host Member State, subject to the condition that the 
partnership was recorded in a register kept by that State for the purposes of 
verifying compliance with the substantive conditions required by the law of that 
Member State in order to recognise a partnership and ensure its effectiveness vis-
à-vis third parties, whereas the grant of a survivor’s pension to the surviving 
partner of a partnership entered into in the host Member State is subject to the sole 
condition that the partnership has been properly entered into and registered there?’