Judgment — ECLI:EU:C:2016:30
Date: 2016-01-21
Language of the case: Greek
Court formation: First Chamber
Subject matter: Free movement of workers
Procedure: Action for failure to fulfil obligations - successful
Origin: Cyprus

Summary — Judgment of the Court (First Chamber), 21 January 2016 1. Actions for failure to fulfil obligations — Subject matter of the dispute — Determination during the pre-litigation procedure — Initial complaints set out in greater detail in the application instituting proceedings — Lawfulness (Art. 258 TFEU) 2. Social security — Migrant workers — Provisions of the Treaty — National rules making it impossible for migrant workers to have taken into account, for the acquisition of the right to a pension, periods of work which are taken into account for other workers — Not permissible (Arts 45 TFEU to 48 TFEU) 3. Social security — Migrant workers — Power of the Member States to organise their social security systems — Limits — Compliance with EU law — Treaty rules relating to freedom of movement for workers — Effect with regard to benefits granted under the legislation of just one Member State (Arts 45 TFEU and 48 TFEU) 4. Freedom of movement for persons — Workers — Equal treatment — Social advantages — National legislation providing for a loss of pension rights for national civil servants under the age of 45 who leave their Member State of origin to carry on a professional activity in another Member state, within an EU institution or other international organisation — Not permissible (Art. 4(3) TEU; Arts 45 TFEU and 48 TFEU) 5. Freedom of movement for persons — Workers — Equal treatment — Social advantages — Restriction — Justification — Pursuit of economic objectives — Not permissible (Arts 45 TFEU and 48 TFEU) 1. See the text of the decision. (see paras 12, 13) 2. See the text of the decision. (see paras 34, 35) 3. See the text of the decision. (see paras 38-41) 4. A Member State which has not repealed, with retroactive effect from the date of its accession to the European Union, national legislation in accordance with which a civil servant under the age of 45 who resigns from his position in the national civil service to carry on a professional activity in another Member State or within an EU institution or other international organisation receives immediately a lump sum and loses his future pension rights whereas that is not the case for civil servants who continue in that employment or leaves that employment to carry on other public duties in the first Member State, fails to fulfil its obligations under Articles 45 TFEU and 48 TFEU and Article 4(3) TEU. Such legislation deters workers from leaving their Member State of origin to carry on a professional activity in another Member State, within an EU institution or within another international organisation and has the effect of creating unequal treatment between migrant workers including those who work in the EU institutions or in another international organisation, on the one hand, and civil servants who have worked in the Member State of origin, on the other. While that legislation applies both to national civil servants choosing to resign in order to work in the private sector in their Member State of origin and to those resigning and leaving that Member State in order to work in another Member State, within an EU institution or other international organisation, the fact remains that that legislation directly affects the access of national civil servants to the employment market in Member States other than their Member State of origin and is thus capable of impeding freedom of movement for workers. For a measure to restrict freedom of movement, it is not necessary for it to be based on the nationality of the persons concerned or even for it to have the effect of bestowing an advantage on all national workers or of operating to the detriment solely of nationals of other Member States to the exclusion of national workers. It is enough that the measure should benefit certain categories of person pursuing occupational activity in the Member State in question. (see paras 43, 45-47, 58, operative part) 5. An obstacle to the free movement of workers cannot be justified by the mere contention that variations in the conditions for the grant of social security benefits might put the balance of the system at risk and that the legislation at issue is intended to ensure that balance subject to the principle of proportionality. While it is conceivable that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the public interest capable of justifying the undermining of the provisions of the Treaty concerning the right of freedom of movement for workers, it is, however, for the competent national authorities, where they adopt a measure derogating from a principle enshrined by EU Law, to show in each individual case that that measure is appropriate for securing the attainment of the objective relied upon and does not go beyond what is necessary to attain it. The reasons invoked by a Member State by way of justification must thus be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the measure adopted by that State and precise evidence enabling its arguments to be substantiated. Such an objective, detailed analysis, supported by figures, must be capable of demonstrating, with solid and consistent data, that there are genuine risks to the balance of the social security system. (see paras 53, 54)