OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 8 October 2014 ( 1 )

Case C‑523/13

Walter Larcher

v

Deutsche Rentenversicherung Bayern Süd

(Request for a preliminary ruling from the Bundessozialgericht (Germany))

‛Reference for a preliminary ruling — Social security for migrant workers — Article 45 TFEU — Article 3(1) of Regulation (EEC) No 1408/71 — Old-age benefit — Principle of non-discrimination — Worker covered, in a Member State by the scheme of part-time work for older employees prior to retirement — Consideration for entitlement to benefits in another Member State’

I – Introduction

1. By this reference for a preliminary ruling, the Bundessozialgericht (Federal Social Court, Germany) seeks to ascertain, first, whether the principle of equal treatment precludes a national provision which lays down that an old-age pension following a period of part-time work for older employees can be granted only if that period of part-time work was pursued on the basis of the national provisions of the Member State awarding the pension and not on the basis of the provisions of the Member State within whose territory that period of part-time work was pursued. Secondly, and in the event that the answer to the first question is in the affirmative, the national court asks whether the principle of equal treatment requires the carrying out of a comparative examination of the conditions laid down by the provisions of the two Member States in question and, if that is the case, to what extent those conditions or, more generally, the schemes of part-time work for older employees of those two States must be similar or identical.

2. Those questions arise in the context of proceedings between Mr Larcher and the Deutsche Rentenversicherung Bayern Süd. Mr Larcher, an Austrian national, worked in Germany for a period of more than 29 years and then returned to work in Austria, where, after working full time, he decided to take advantage of part-time work for older employees, reducing his working hours by 60% of normal working time, in accordance with Austrian law. ( 2 )

3. In connection with the various periods worked in the course of his working life, Mr Larcher has, since 2006, been in receipt of an Austrian retirement pension known as an ‘early old-age pension by virtue of long insured periods’, and since 2009 he has received a German old-age pension known as an ‘old-age pension for the long-term insured’. Those two pensions are not the subject-matter of the dispute in the main proceedings.

4. The main proceedings, however, relate to the old-age pension granted after a period of part-time work for older employees, which Mr Larcher requested from the relevant German authorities in 2006.

5. That request was rejected by the Deutsche Rentenversicherung Bayern Süd on the grounds that the period of part-time work for older employees, which occurred between 1 March 2004 and 30 September 2006 in Austria, had not been pursued under the German provisions. When his administrative complaint was rejected, Mr Larcher brought the case before the German courts. However, both his application at first instance and his appeal were dismissed. In dismissing the appeal, the Bayrisches Landessozialgericht (Higher Social Court of Bavaria, Germany) relied on the fact that the applicant in the main proceedings did not fulfil the condition relating to the reduction in working time laid down by the German Law on part-time work for older employees (Altersteilzeitgesetz), ( 3 ) namely that working time should be reduced to half of the hours worked up to that time, since Mr Larcher had reduced his working time by 60%, that is by more than the 50% required by the German legislation.

6. Consequently, Mr Larcher decided to lodge an appeal on a point of law (‘Revision’) before the Bundessozialgericht.

7. In support of his appeal, he maintains that the appellate court infringed the provisions of the German law on the reduction in working time by interpreting them in a way which is not in accordance with EU law. According to the applicant in the main proceedings, the interpretation made by the appellate court infringes the prohibition on discrimination on grounds of nationality and the principle of free movement. On the basis of the judgment in Öztürk, ( 4 ) Mr Larcher takes the view that there is unjustified indirect discrimination in this case.

8. For its part, the national court observes that the questions raised in the main proceedings cannot be dealt with solely on the basis of the existing case-law. However, it states that, where a worker accepts a job in another Member State, it is likely that he will be penalised at the time of retirement because of the differences that exist between the laws which are applicable to him, compared to retired persons who have spent all of their working life in a single Member State. The national court takes the view that Articles 45 TFEU to 48 TFEU and Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 ( 5 ) should prevent obstacles to the free movement of migrant workers. In its view, such an obstacle could exist in this case. Finally, in examining the justification for such an obstacle, the national court, which is inclined to compare the schemes of part-time work for older employees of the two Member States in question, raises the question of the elements to be taken into account for that purpose.

9. It is against that background that the Bundessozialgericht decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the principle of [equal treatment] laid down in Article 39(2) EC (now Article 45(2) TFEU) and Article 3(1) of Regulation … No 1408/71 preclude a national provision under which it is a condition of entitlement to an old-age pension following part-time work for older employees that the part-time work for older employees was pursued under the legislation of that Member State, and not of another Member State? (2) If so, what requirements does the principle of equal treatment in Article 39(2) EC … and Article 3(1) of Regulation … No 1408/71 impose on the assimilation of part-time work for older employees completed under the legislation of the other Member State as a condition of entitlement to a national old-age pension? (a) Is a comparative examination of the conditions for part-time work for older employees needed? (b) If so, is it sufficient that the part-time work for older employees in both Member States is essentially the same in content, in terms of its functioning and structure? (c) Or must the conditions for part-time work for older employees in both Member States be identical in content?’

10. Mr Larcher, the German Government and the European Commission submitted written observations on those questions.

II – Analysis

A – The schemes of part-time work for older employees in general and the first question referred

11. Faced with the rapidly ageing European population, the European Union and the Member States included among the aims of the various employment strategies launched since the early 2000s ( 6 ) measures designed both to encourage ‘older’ workers to extend their active life and also to contribute towards attempts to ensure the viability of health and social security systems and pension schemes. ( 7 )

12. It is in that context, in particular, that a number of EU Member States have adopted schemes of part-time work for older employees. ( 8 )

13. The common feature of those schemes is to allow a gradual transition from an active life to retirement by means of a reduction in working time. ( 9 ) Thus, workers who have reached a specified age may reduce their working time, for example by changing from a full-time job to a part-time job for the period up until their retirement, with compensation for the loss of earnings generally in the form of a pension or benefits provided by their employer or by an employment fund. ( 10 ) Some of those schemes also have other objectives, such as the stability of the national social security system or, like the German and Austrian schemes which gave rise to the dispute in the main proceedings, combatting unemployment, since the working time made available by the person benefitting from part-time work for older employees allows a (young) job seeker or an apprentice to be recruited. ( 11 )

14. In Germany, where Mr Larcher unsuccessfully applied for payment of the pension following part-time work for older employees, that pension is made subject to fulfilment of the conditions laid down in Paragraph 237 of the Social Security Code, Book VI, (Sozialgesetzbuch Sechstes Buch, ‘the SGB VI’), which include the conditions of access to part-time work for older employees, including the condition relating to the reduction in working time by 50% of the weekly time worked up until then.

15. It is clear from the information in the order for reference, first, that Mr Larcher fulfils all the conditions laid down in Paragraph 237 of the SGB VI, except for that of reducing working time to 50% during the period of part-time work for older employees, since, as has already been pointed out, Mr Larcher reduced his working time to 40%, in accordance with Austrian law, and, secondly, that a period of part-time work for older employees pursued in another Member State does not constitute an obstacle to payment, by the German social insurance funds, of the pension relating to part-time work for older employees provided for by the SGB VI, provided that the conditions of the SGB VI are fulfilled.

16. The purpose of the first question referred for a preliminary ruling is specifically to establish whether freedom of movement for workers, as laid down by Article 45 TFEU, rather than the principle of equal treatment, precludes a requirement by a Member State that all of the conditions laid down by its national legislation for entitlement to that pension must be satisfied in order for an old-age pension following part-time work for older employees to be paid.

17. Mr Larcher and the Commission propose that that question be answered in the affirmative on the ground that such legislation constitutes indirect discrimination against migrant workers and, in any event, deters them from pursuing part-time work for older employees in other Member States. Essentially, by referring to the case which gave rise to the judgment in Öztürk (EU:C:2004:232) and, more generally, to the case-law of the Court relating to the assimilation of facts, those interested parties take the view that a Member State cannot, without infringing the right to freedom of movement, require that the conditions governing part-time work for older employees in the other Member State must be identical in content to those of the Member State from which the pension is sought in order for a migrant worker to be awarded a retirement pension following part-time work for older employees.

18. As for the German Government, it points out, primarily, that a worker who makes use of his freedom of movement must take into account the disadvantages of the disparity between the social security laws of the Member States. Nevertheless, it considers that, with regard to receipt of the pension, a Member State must not from the outset preclude the possibility that the period of part-time work for older employees may be pursued in another Member State which also has such a scheme of part-time work for older employees. In that case, the worker must be able to satisfy the conditions imposed by the Member State from which the pension is sought.

19. In so far as I am concerned, I take the view that the answer to be given should be confined to the relationship between the condition at issue in the main proceedings, namely the 50% reduction in working time laid down in Paragraph 237 of the SGB VI, and the freedom of movement for workers, since that condition must, in my view, be regarded as an obstacle to that freedom and must be considered disproportionate to the objectives pursued by the German legislature.

20. First of all, contrary to what Mr Larcher and the Commission maintain, the first question referred cannot, in my opinion, be resolved by applying the case-law relating to the assimilation of facts, in particular the judgment in Öztürk (EU:C:2004:232).

21. The concept of the assimilation of facts developed by that case-law is aimed essentially at ensuring that situations arising in a Member State are assessed in the same way as if they had arisen in the Member State in which they must take effect. ( 12 )

22. Developed largely in the context of the interpretation of Article 45 TFEU and/or Regulation No 1408/71, that case-law requires, in principle, that each Member State which makes the payment of social benefits subject to the completion by a worker, exclusively within its territory, of a period of insurance or a given reference period must recognise equivalent periods completed by that same worker within the territory of other Member States.

23. That was the solution specifically adopted by the Court in Öztürk. In that case, the Court considered that a Member State, in that case the Republic of Austria, could not make entitlement to an early old-age pension in the event of unemployment conditional upon fulfilment of the requirement that the person concerned (in that case a worker of Turkish nationality who had worked partly in Austria and in Germany before becoming unemployed in the latter Member State) has received, within a certain period prior to his application for the pension, unemployment insurance benefits from the first Member State alone. ( 13 )

24. Similarly, the Court has previously ruled that the free movement of workers precluded both the legislation of a Member State where it permits the reference period for entitlement to an invalidity pension to be prolonged, subject to certain conditions, but does not provide for the possibility of a prolongation where events or circumstances corresponding to the events or circumstances which would enable a prolongation to be granted occur in another Member State, ( 14 ) and a Member State’s refusal to take into account, for the acquisition of the right to a pension, periods of employment completed by a person subject to a special scheme for civil servants or persons treated as such (in that case, a doctor in the Greek public sector, subject to a special scheme within the meaning of Regulation No 1408/71) in public hospitals in another Member State, where the relevant national legislation allows such periods to be taken into account if they have been completed in comparable establishments within that State. ( 15 )

25. In various situations, the Court has also held that it is contrary to the Treaties for a Member State not to take into consideration, for the purpose of the grant of an old-age pension, periods devoted to child-rearing completed in another Member State as though they had been completed in the territory of the first Member State. ( 16 )

26. That line of case-law could have been applicable to the main proceedings if, for example, this case were concerned with a situation in which Mr Larcher, in spite of fulfilling all the conditions laid down by the German legislation, including that concerning the 50% reduction in working time, had been refused the retirement pension following part-work for older employees on the ground that the period of part-time work for older employees had not been completed within German territory.

27. However, as I have already made clear, at least formally, on the one hand, the German legislation does not require, for the purpose of granting the pension, that the part-time work for older employees was completed in Germany and, on the other hand, Mr Larcher did not fulfil the condition, laid down by the German legislation, that his working time should be reduced by 50% during the part-time work for older employees pursued in Austria.

28. Accordingly, the fundamental question raised by the present case does not concern the assimilation of situations or circumstances arising in a Member State as if those situations and circumstances had arisen within the territory of the Member State to which an application has been made for a social security benefit for the purpose of fulfilling the conditions laid down by the legislation of the Member State in question.

29. Rather, it relates to the possible obligation on the part of a Member State, for the purposes of granting an old-age pension, to recognise as comparable to its own conditions the legal conditions laid down by another Member State allowing an identical period of part-time work for older employees to be completed.

30. In other words, the national court is raising a question concerning not the assimilation of factual situations, but the comparison of legal conditions.

31. That having been said, it is not disputed that the old-age pension following part-time work for older employees constitutes an old-age benefit within the meaning of Article 4(1)(c) of Regulation No 1408/71 and that, as the Court has accepted, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for granting social security benefits. ( 17 )

32. However, that power must be exercised in compliance with EU law, in particular the provisions relating to the freedom of movement for workers. ( 18 )

33. It is appropriate, therefore, to verify whether the requirement under German legislation that a worker has reduced his working time by 50% during the period of part-time work for older employees completed in a Member State other than the Federal Republic of Germany, for the purposes of subsequently obtaining an old-age pension following part-time work for older employees in the latter State, is incompatible with Article 45 TFEU, since it is established that that requirement applies irrespective of the nationality of the worker in question.

34. According to the Court’s case-law, provisions which preclude or deter a national of a Member State from leaving his State of origin, and thus from exercising his right to freedom of movement, constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned. ( 19 )

35. As the German Government maintained with reference to the judgment in von Chamier-Glisczinski, it is true that, in the present state of development of EU law, the freedom of movement for workers does not extend to simple disparities in the national social security laws, the disadvantages of which must be borne by the persons who have decided to exercise their freedom of movement. ( 20 )

36. However, the present case differs from the case which led to the judgment in von Chamier-Glisczinski.

37. In that judgment, the Court found, first, that the situation in which Mrs von Chamier-Glisczinski found herself resulted from the combined application of two bodies of social security legislation, in as much as, she, a German national, was living in Austria and was seeking a care benefit in kind from the German authorities, whereas such a benefit did not exist in Austria and, secondly, that that situation would have been different if the Austrian legislation had made it possible to grant such a benefit in kind, so that that benefit would have been provided to the interested party by the Austrian authorities. ( 21 )

38. In the present case, by contrast, not only is there no information in the file to suggest that Mr Larcher applied to the German authorities for payment of the old-age pension following part-time work for older employees on the ground that such a pension does not exist in Austria, there is also no information to suggest that Mr Larcher’s situation would have been different if the Austrian legislation had been amended.

39. In fact, the condition at issue, namely the reduction in working time to 50% during the period of part-time work for older employees, is concerned less with a problem of coordination or of disparity between social security laws relating to old-age benefits than with the pursuit of transitional occupational activity prior to the start of retirement.

40. However, as regards the conditions relating to the pursuit of an occupational activity, the Court has already found that national provisions which ‘affect access of workers to the labour market’, ( 22 ) including those which relate to the manner in which that activity is pursued, ( 23 ) constitute an obstacle to freedom of movement for workers and not mere disadvantages.

41. In this case, there is little doubt that a national measure requiring a worker to pursue his occupational activity by working for half the time he previously worked, in order to be eligible subsequently for a pension following part-time work for older employees, constitutes both a manner in which that activity is pursued and, in particular with regard to older workers, a condition for accessing and remaining on the labour market.

42. In my opinion that measure is therefore likely to be covered by the concept of obstacle within the meaning of Article 45 TFEU, as interpreted by the Court.

43. It also seems likely to me to constitute an obstacle to freedom of movement for workers.

44. A person who has spent most of his working life in Germany, like Mr Larcher, and who would like to be eligible for a pension following part-time work for older employees would be deterred from leaving that Member State if he could pursue the period of part-time work for older employees only by reducing his working time by 50%, and thus would be unable to respond to offers of employment, even better paid employment, in other Member States which have a similar scheme but in which, as in Austria, the condition regarding the reduction in working time during part-time work for older employees may as a matter of law vary between 40 and 60% of normal working time.

45. Similarly, the condition at issue would be liable to deter an employer established in a Member State, other than the Federal Republic of Germany, which has a scheme of part-time work for older employees from taking on a national from the latter Member State in accordance with arrangements for reducing working time different from those required in Germany.

46. Therefore, at this stage, it is necessary to verify whether, in accordance with the Court’s case-law, such an obstacle may nevertheless be justified by the pursuit of an objective of general interest, it being understood that it must be such as to ensure achievement of that objective and not go beyond what is necessary for that purpose. ( 24 )

47. As I have pointed out in point 13 of this Opinion, and as the German Government stated in its written observations, the 50% reduction in working time during the period of part-time work for older employees, on the one hand, seeks to allow a transition by the worker to retirement and, on the other hand, pursues the objective of encouraging the recruitment of unemployed persons or apprentices to fill the working time made available by the person who benefits from the scheme of part-time work for older employees.

48. In itself, pursuit of those two objectives cannot be criticised. With respect to encouragement of recruitment in particular, the Court has already accepted that it constitutes a legitimate aim of social policy. ( 25 )

49. On the other hand, without there being any need to assess the suitability of the condition at issue for attaining the objectives pursued, it must be stated that that condition is disproportionate, as the German Government acknowledges, moreover, in its written observations.

50. In a situation such as the one in the main proceedings, the rigid application of the condition regarding the reduction in working time to 50% is tantamount to prohibiting a worker who is pursuing part-time work for older employees in another Member State from receiving payment of the ‘old-age pension following part-work for older employees’, when he has made available more than 50% of his previous working time in order to allow a young unemployed person or an apprentice to be recruited and has also met all the other conditions imposed by the German legislation.

51. As both the national court and the German Government point out in their written observations, in such a situation, the objective of the German legislature is therefore also attained by a 60% reduction in working time since this makes available an even larger part of the job. ( 26 )

52. The condition of a 50% reduction in working time required by the German legislation and applied rigidly in the main proceedings by the German authorities as well as by the courts of first instance and of appeal therefore seems to me to go beyond what is necessary to attain the social policy objective of encouraging the recruitment of young unemployed persons or apprentices to fill the time made available by the person benefitting from the scheme of part-time work for older employees.

53. Furthermore, the fact that a Member State pursuing such a social policy objective must, under EU law, accept a reduction of more than 50% in working time during a period of part-time work for older employees pursued in another Member State entails no serious budgetary consequences. ( 27 )

54. It is true that, in the Member States which have introduced a scheme of part-time work for older employees, the loss of earnings of the person benefitting from that scheme and having reduced his working time is compensated for either directly by the public authorities or, in one way or another, by the employer who, in turn, is generally reimbursed by the State, in various forms, for the additional costs. ( 28 )

55. However, the wage compensation offered to Mr Larcher during the period of part-time work for older employees completed in Austria, including, of course, the additional 10% reduction in working time in relation to that required by the German legislation, was borne in full not by the Federal Republic of Germany but by the Republic of Austria. Moreover, that additional 10% reduction in working time does not have a significant effect on the amount of old-age pension following part-time work for older employers paid by the German authorities as compared with the amount which would have been awarded to a worker who had reduced his working time by 50% for a period of part-time work for older employees pursued within German territory or within the territory of another Member State, such as the Republic of Austria.

56. In the light of all those considerations, I suggest that the answer to the first question should be to the effect that Article 45 TFEU precludes a Member State from making payment of an old-age pension following part-time work for older employees subject to the condition that the worker reduced his working time by 50% during the period of part-time work for older employees, in so far as, in view of the objective of encouraging recruitment of young unemployed persons or apprentices pursued by that Member State, a greater reduction in working time, completed lawfully in the context of part-time work for older employees in another Member State, automatically entails refusal of the right to receive payment of that pension.

B – The second question referred

57. By its second question, the national court seeks to ascertain whether, in order to ensure compliance with the principle of equal treatment, it is necessary to carry out a comparative examination of the conditions laid down by the national legislation on part-time work for older employees of the two Member States concerned. If the answer is in the affirmative, the national court raises the question of the extent to which those conditions or, more generally, the schemes of part-time work for older employees of those Member States must be similar or identical.

58. In my view, it is not strictly necessary to answer that question in view of the answer I have proposed for the first question, which is sufficient to enable the national court definitively to settle the dispute in the main proceedings.

59. That being so and in the alternative, the answer to the first question has already provided several elements which also allow the second question to be answered, at least in part.

60. As is evident from the preceding arguments, it seems to me to be essential to carry out a comparative examination of the fundamental conditions laid down by the legislation of the two Member States in question, in the light of the objective or objectives pursued by the Member State from which the pension following part-time work for older employees is sought.

61. The argument adopted by Mr Larcher before the national court and rightly rejected by that court, according to which, in essence, the Member State from which a pension following part-time work for older employees is sought should automatically recognise the conditions in which the part-time work for older employees was completed in another Member State, cannot be upheld.

62. Such a proposal, apart from ignoring the fact that Member States retain the competence to lay down the conditions for payment of social benefits, entails great risks of ‘forum shopping’, enabling citizens of the Union to complete a period of part-time work for older employees in the Member State of their choice but not allowing the Member State responsible for awarding the pension following that period to object to payment of that pension.

63. It can also be inferred from the answer to the first question — and as rightly maintained by the national court — that it is also necessary to reject the line of argument of the defendant in the main proceedings, namely Deutsche Rentenversicherung Bayern Süd (a line of argument which is also supported by the German Government in its written observations to the Court), according to which the pension following part-time work for older employees paid in Germany should be made subject to the requirement that the conditions governing the systems of part-time work for older employees are identical in the Member States.

64. As I have already pointed out, that approach is likely to have an adverse effect on the freedom of movement for workers, since to require that the conditions of eligibility for part-time work for older employees are similar in all respects to those governing German part-time work for older employees for the purpose of granting a pension could be disproportionate to the objectives pursued by the system of part-time work for older employees in Germany.

65. As the national court itself suggested, the answer to the second question does not, therefore, lie in the extreme proposals made by the parties to the main proceedings. Rather, the solution is to be found in an intermediate answer. In my opinion, therefore, it is appropriate to verify whether the conditions laid down in the Member State where part-time work for older employees was pursued make it possible to attain the objectives pursued by the Member State where the pension following part-time work for older employees is sought. Those objectives may be attained even where the conditions for part-time work for older employees differ between the Member State where the pension is sought and that where the period of part-time work for older employees was completed.

66. That solution maintains the principle that Member States have competence to determine the conditions for granting social benefits, while ensuring that, in the case of migrant workers, their freedom of movement within the Union can be respected.

67. When analysing the conditions providing entitlement to the pension following part-time work for older employees, it is possible to identify three categories of conditions.

68. First of all, the first of those categories comprises the conditions which, in my opinion, are of no relevance for obtaining the pension and which should not constitute obstacles to payment of that pension to a national of a Member State who has completed his part-time work for older employees in another Member State. Those conditions include, in my view, those connected with the methods of financing the system of part-time work for older employees.

69. As has already been pointed out, the loss of earnings of the person who benefits from a national scheme of part-time work for older employees and who has reduced his working time is compensated for by the public authorities, directly or indirectly.

70. In spite of the variety of systems for financing schemes of part-time work for older employees established in the Member States and the importance of that condition from the point of view of national law, this does not seem to me to be in any way essential for examination of the right to receive a pension following part-time work for older employees in the case of migrant workers. Refusing that pension to a migrant worker who has completed his part-time work for older employees in a Member State with methods of financing different from those of the Member State where the pension is claimed would constitute an obstacle to the freedom of movement for workers which, in my opinion, cannot be justified. In particular, the Member State from which the pension is sought could not lawfully rely on reasons relating to the equilibrium of its social security system, since, as I have already pointed out, that Member State will not have borne the costs incurred during the period of part-time work for older employees.

71. Secondly, there are the conditions which raise fewest problems because their scheme is taken into account in Regulation No 1408/71. That category includes conditions relating to the contribution periods required in order to receive the pension following part-time work for older employees. Article 45(1) of that regulation lays down that contribution periods completed in a Member State must be taken into account in the Member State which is responsible for granting the pension ‘as if they had been completed under its own legislation’. Furthermore, the national court applies that article in the main proceedings, since it recognised that Mr Larcher fulfilled the conditions connected with the mandatory insurance periods ( 29 ) laid down by German law. However, although the condition laid down by the German legislation relating to contribution periods is actually fulfilled in the present case, this is achieved, as the national court explains, by taking into account the Austrian insurance periods. ( 30 )

72. Finally, as illustrated by the present case, the most problematic conditions are those which are specific to part-time work for older employees, namely the age of taking up part-time work for older employees and the rate of reduction in working time. Those conditions vary from one Member State to another and the conflicts between those conditions are not directly governed in an act of EU secondary legislation. Accordingly, the Member States, since they retain competence to lay down the conditions for granting social security benefits, may consequently establish a body of disparate rules, which might adversely affect migrant workers.

73. It is possible to mention several hypothetical examples, which might, however, occur in the future.

74. As regards the age at which part-time work for older employees may start, could a Member State refuse to grant all or part of the pension following part-time work for older employees to a worker who pursued part-time work for older employees in a Member State from the age of 59, while the first Member State does not allow such part-time work for older employees to be pursued within its territory until the age of 60?

75. Similarly, is the beneficiary of part-time work for older employees in a Member State who has reduced his working time by 35% (and thus continues to work for 65% of his previous working time) entitled to payment of a pension following part-time work for older employees in a Member State where the reduction in working time must be 50% when pursuing part-time work for older employees?

76. As the Commission essentially suggested in its written observations, the resolution of those questions requires, in my view, a specific examination of the particular situation in the light of the objectives pursued at national level in order to ensure compliance with EU law and, in particular, the principle of proportionality. In other words, the role of the national authorities and court is therefore to verify the importance of the conditions at issue in relation to the national objectives pursued.

77. It is in the course of that examination that the national authorities and, where appropriate, the national court must assess whether or not age and the reduction in working time are important to the objectives pursued by the national law and verify whether or not the difference between the condition laid down by national law and that laid down by the law of the Member State in which the part-time work for older employees was completed is capable of affecting the pursuit of those objectives.

78. Thus, where a reduction in working time is not sufficient to allow recruitment of a young job seeker or apprentice, the national authorities of the Member State in which that objective is pursued will, in my opinion, be able to refuse to grant the pension following part-time work for older employees requested by a worker who completed his period of part-time work for older employees in another Member State.

79. However, that is not the case with Mr Larcher. As I have shown in the arguments concerning the answer to the first question, because he reduced his working time for part-time work for older employees completed in Austria by more than the required reduction of 50% laid down by German law, the working time released made it possible to recruit a young job seeker or apprentice in accordance with the objective pursued by the German legislature, as the German Government conceded in its written observations.

III – Conclusion

80. In the light of the foregoing considerations, I propose that the Court should give the following answer to the questions referred by the Bundessozialgericht: Article 45 TFEU precludes a Member State from making payment of an old-age pension following part-time work for older employees subject to the condition that the worker reduced his working time by 50% during the period of part-time work for older employees, in so far as, in view of the objective of encouraging recruitment of young unemployed persons or apprentices pursued by that Member State, a greater reduction in working time, completed lawfully in the context of part-time work for older employees in another Member State, automatically entails refusal of the right to receive payment of that pension.

( 1 ) Original language: French.

( 2 ) Paragraph 27(2)(2) of the Austrian Law on unemployment insurance of 1977 (Arbeitslosenversicherungsgesetz 1977), as amended by the Amending Law of 30 December 2003 (BGBl. I, 128/2003), which lays down that the reduction in working time under the scheme of part-time work for older employees may be between 40 and 60% of normal working time.

( 3 ) Paragraph 2(1) and (2) of that law, as amended by the Law of 23 April 2004 (BGBl. 2004 I, p. 602).

( 4 ) C‑373/02, EU:C:2004:232.

( 5 ) OJ 2006 L 392, p. 1, ‘Regulation No 1408/71’.

( 6 ) See the Lisbon Strategy for growth and jobs, launched in 2000, the Europe 2020 Strategy, initiated by the Commission in 2010, and the annual guidelines adopted by the Council of the European Union for the employment policies of the Member States (see Council Decision 2010/707/EU of 21 October 2010 (OJ 2010 L 308, p. 46) and, finally, Council Decision 2014/322/EU of 6 May 2014 (OJ 2014 L 165, p. 49)).

( 7 ) In the context of the Europe 2020 Strategy, see in particular the eleventh recital of Decision No 940/2011/EU of the European Parliament and of the Council of 14 September 2011 on the European Year for Active Ageing and Solidarity between Generations (2012) (OJ 2011 L 246, p. 5), which promotes the creation of a culture of active ageing, helping to ‘raise the labour market participation of older people, enable them to be active in society for longer, improve their individual quality of life and limit pressure on health, social care and pension systems’.

( 8 ) Currently, eight Member States (the Federal Republic of Germany, the Republic of Austria, the Kingdom of Denmark, the Italian Republic, the Grand-Duchy of Luxembourg, Hungary, the Portuguese Republic and the Republic of Finland) have such schemes. The French Republic and the Kingdom of Sweden, which did have such schemes, have abolished them, however.

( 9 ) In Germany, that feature is referred to in Paragraph 1(1) of the Law on part-time work for older employees.

( 10 ) It should be pointed out with respect to the Federal Republic of Germany that the supplementary remuneration paid to workers benefitting from the scheme of part-time work for older employees was at the source of the dispute in the main proceedings giving rise to the judgment in Erny, C‑172/11, EU:C:2012:399.

( 11 ) With respect to the Federal Republic of Germany, pursuit of that objective was at the heart of the cases which led to the judgments in Kutz-Bauer, C‑187/00, EU:C:2003:168, and Steinicke, C‑77/02, EU:C:2003:458, regarding access for female workers to the scheme of part-time work for older employees.

( 12 ) See Opinion of Advocate General Ruiz-Jarabo Colomer in Öztürk, C‑373/02, EU:C:2004:95, point 53.

( 13 ) Öztürk, EU:C:2004:232, paragraph 68 and the operative part of the judgment.

( 14 ) Judgment in Paraschi, C‑349/87, EU:C:1991:372, paragraph 27. See also the judgment in Duchon, C‑290/00, EU:C:2002:234, paragraphs 39 and 46.

( 15 ) Judgment in Vougioukas, C‑443/93, EU:C:1995:395, paragraph 44.

( 16 ) See the judgments in Elsen, C‑135/99, EU:C:2000:647, paragraph 36; Kauer, C‑28/00, EU:C:2002:82, paragraph 52; and Reichel-Albert, C‑522/10, EU:C:2012:475, paragraph 45.

( 17 ) See, in particular, the judgments in von Chamier-Glisczinski, C‑208/07, EU:C:2008:455, paragraph 63, and da Silva Martins, C‑388/09, EU:C:2011:439, paragraph 71.

( 18 ) See, in particular, the judgment in von Chamier-Glisczinski, EU:C:2008:455, paragraph 63 and the case-law cited.

( 19 ) See the judgments in Bosman, C‑415/93, EU:C:1995:463, paragraph 96; Commission v Denmark, C‑464/02, EU:C:2005:546, paragraph 35; and Commission v Germany, C‑269/07, EU:C2009:527, paragraph 107.

( 20 ) See in that respect, in particular, the judgments in Leyman, C‑3/08, EU:C:2009:595, paragraph 45 and the case-law cited, and von Chamier-Glisczinski, EU:C:2009:455, paragraph 85.

( 21 ) von Chamier-Glisczinski, EU:C:2009:455, paragraph 86.

( 22 ) Judgments in Graf, C‑190/98, EU:C:2000:49, paragraph 23, and Commission v Denmark, EU:C:2005:546, paragraph 36.

( 23 ) See Commission v Denmark, EU:C:2005:546, paragraph 37.

( 24 ) Ibid., paragraph 53 and the case-law cited.

( 25 ) See the judgments in ITC, C‑208/05, EU:C:2007:16, paragraph 39, and Caves Krier Frères, C‑379/11, EU:C:2012:798, paragraph 51. See also, particularly as regards equal treatment for male and female workers, Kutz-Bauer, EU:C:2003:168, paragraph 56 and the case-law cited.

( 26 ) It should be pointed out that the German legislation does not require that the young worker or apprentice recruited to fill the working time made available must be German or even be employed within German territory.

( 27 ) Moreover, the German Government has not objected that its budgetary equilibrium or social security system is called into question.

( 28 ) The Federal Republic of Germany, the Republic of Austria and the Portuguese Republic make the employer bear the financial burden, while the Kingdom of Denmark, the Italian Republic and the Republic of Finland finance part-time work for older employees through a direct payment by public bodies. Finally, Hungary and Luxembourg have a hybrid system, since the employer pays the sums to the recipient and is then fully reimbursed by the public bodies.

( 29 ) See paragraph 34 of the order for reference.

( 30 ) Ibid.