10.

Should the Court nevertheless take the view that Regulation No 1612/68 does apply, the Social Security Commissioner wishes to know whether and under what conditions Mrs Hughes, as the spouse of an employed person, may also claim under Article 7(2) the same social advantages as national employed persons. The United Kingdom is of the opinion in that connection that Mrs Hughes, as a dependent family member of an employed person, may only rely on Article 7(2) if she lives with the employed person in the relevant Member State. I do not think that that is correct. In Lebon the Court expressly declared that members of the employed person's family within the meaning of Article 10 of Regulation No 1612/68, which includes the employed person's spouse, are indirectly entitled to the treatment accorded to the employed person himself under Article 7. ( 16 ) Article 7 does not in fact make the right to equal treatment of the employed person dependent on his being resident in the Member State of employment. It is thus also logical for the indirect right to equal treatment for members of the employed person's family recognized by the Court not to be bound to a requirement that those family members be resident in the employed person's Member State of employment. The recent judgment in Bernini actually makes it clear that there is no such residence condition for the application of Article 7. ( 17 ) The question raised by the Social Security Commissioner may thus be answered to the effect that if an employed person is entitled under Article 7(2) to a social advantage, his or her spouse is indirectly entitled to that social advantage, regardless of the fact that the spouse does not reside in the Member State in which the employed person works. Howsoever that may be, Article 7 guarantees only equal treatment. Strictly speaking, that means that if the legislation of the Member State of employment makes entitlement to a social advantage for nationals of that State, as in this case, conditional on the employed person and/or his family being resident in the territory of that Member State, that could also apply as a requirement for migrant workers and/or their families. ( 18 ) Here it must be added straight away, however, that the Court has consistendy held that rules regarding equal treatment prohibit not merely all open discrimination based on nationality but also any disguised forms of discrimination which with regard to the application of other criteria lead in fact to the same result. ( 19 ) Thus the Court held in its judgment of 8 May 1990Biehl that ‘Even though the criterion of permanent residence in the national territory referred to in connection with obtaining any repayment of an overdeduction of tax applies irrespective of the nationality of the taxpayer concerned, there is a risk that it will work in particular against taxpayers who are nationals of other Member States. It is often such persons who would in the course of the year leave the country or take up residence there.’ ( 20 ) In that case the Court therefore came to the conclusion that the residence requirement was incompatible with Community law. In this case, too, there is according to Mrs Hughes disguised discrimination inasmuch as the residence condition works principally against those who are not United Kingdom nationals. That argument, which is a matter for the Social Security Commissioner to decide, has not been raised in the questions referred for preliminary ruling. That is not surprising in view of the fact that in this case the employed person who (assuming that Regulation No 1612/68 applies) has acquired entitlement to Family Credit and from whose entitlement Mrs Hughes' entitlement is derived is a United Kingdom national.