Judgment — ECLI:EU:C:2012:399
Date: 2012-06-28
Language of the case: German
Court formation: Second Chamber
Subject matter: Citizenship of the Union;Principles, objectives and tasks of the Treaties;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Freedom of movement for persons — Workers — Equal treatment — Substantive scope — Remuneration — Concept — Top-up amount paid in addition to the remuneration granted to workers placed under a scheme of part-time working for older employees in preparation for retirement — Included (Art. 45 TFEU; Council Regulation No 1612/68, Art. 7(4)) 2. European Union law — Principles — Equal treatment — Discrimination on grounds of nationality — Concept — Indirect discrimination — Included — Prohibition 3. Freedom of movement for persons — Workers — Equal treatment — Social advantages — Top-up amount paid to workers under a scheme of part-time working for older employees in preparation for retirement — Application to a worker taxable in his Member State of residence to whom a Convention against double taxation applies of a notional deduction of the tax on wages of the Member State of employment when calculating that top-up amount — Indirect discrimination — Not permissible — Justification — None (Art. 45 TFEU; Council Regulation No 1612/68, Art. 7(4)) 4. Fundamental rights — Right to bargain collectively — Reconciliation with the requirements relating to the fundamental freedoms guaranteed by the Treaty 1. A benefit such as a top-up amount, which is paid in addition to the remuneration granted to workers placed under a scheme of part-time working for older employees, comes, as a part of the remuneration, within the substantive scope of the provisions of Article 45 TFEU and of Article 7(4) of Regulation No 1612/68 on freedom of movement for workers within the Community, which clarifies and gives effect to certain rights conferred on migrant workers by Article 45 TFEU, irrespective of the fact that, under the national legislation relating to part-time working for older employees, the top-up amount is, in part, financed through public funds in the form of a repayment to the employer. (see paras 37, 38) 2. See the text of the decision. (see paras 39-40) 3. Article 45 TFEU and Article 7(4) of Regulation No 1612/68 on freedom of movement for workers within the Community preclude clauses in collective and individual agreements under which a top-up amount, which is paid by an employer under a scheme of part-time working for older employees in preparation for retirement, must be calculated in such a way that the tax on wages payable in the Member State of employment is notionally deducted when the basis for the calculation of that top-up amount is being established, even though, under a tax convention for the avoidance of double taxation, the pay, salaries and similar remuneration paid to workers who do not reside in the Member State of employment are taxable in their Member State of residence. In accordance with Article 7(4) of Regulation No 1612/68, such clauses are null and void. Article 45 TFEU and the provisions of Regulation No 1612/68 leave the Member States or the social partners free to choose between the different solutions suitable for achieving the objective of those respective provisions. Unless it is objectively justified and proportionate to its aim, a provision of national law or a clause in an agreement 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. (see paras 41, 54, operative part) 4. See the text of the decision. (see para. 50)