Opinion of the Advocate General — ECLI:EU:C:2000:71
Date: 2000-02-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Preliminary rulings — Reference to the Court — Need for a preliminary ruling — To 
be determined by the national court 
(EC Treaty, Art. 177 (now Article 234 EC)) 
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SUMMARY — CASE C-302/98 
2. Freedom of movement for persons — Workers — Equal treatment — Basis for 
calculating sickness insurance contributions levied by a Member State on supplemen­
tary retirement pensions payable under an agreement in another Member State — No 
account taken of contributions already deducted in that other Member State — Not 
permissible 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC)) 
1. It is solely for the national court before 
which the dispute has been brought, 
and which must assume responsibility 
for the subsequent judicial decision, to 
determine in the light of the particular 
circumstances of the case both the need 
for a preliminary ruling in order to 
enable it to deliver judgment and the 
relevance of the questions which it 
submits to the Court. 
(see para. 20) 
2. Article 48 of the Treaty (now, after 
amendment, Article 39 EC) precludes a 
Member State from calculating the 
sickness insurance contributions of a 
retired worker subject to its legislation 
on the basis of the gross amount of the 
supplementary retirement pension pay­
able under an agreement which that 
worker draws in another Member 
State, without taking account of the 
fact that a part of the gross amount of 
that pension has already been deducted 
by way of sickness insurance contribu­
tions in the latter Member State. 
Even if such a system for calculating 
contributions applies to migrant and 
non-migrant workers in the same way, 
it is liable to prejudice only the former 
inasmuch as it is unlikely that sickness 
insurance contributions will be levied 
twice in a worker's State of origin on 
the gross amount of his supplementary 
retirement pension where he has been 
employed only in that Member State. 
By contrast, that risk is real for a 
worker who has been employed in 
another Member State where he draws 
a supplementary retirement pension. 
National legislation of that kind estab­
lishing such a system for calculating 
contributions therefore constitutes an 
obstacle to freedom of movement for 
workers. 
(see paras 34-36 and operative part) 
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