Case C-307/06: Action brought on 14 July 2006 — Commission of the European Communities v Federal Republic of Germany
Date: 2006-09-16
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, education grant, equal treatment, frontier worker, part-time employment, wage earner

C 224/24

EN

Official Journal of the European Union

16.9.2006

Pleas in law and main arguments

The actions of the Greek authorities which are characterised by
protectionism in favour of a branch of the national economy,
specifically in favour of the hauliers of Northern Greece, do not
justify in any circumstances interference with the exercise of an
economic activity safeguarded by legislation such as combined
transport within the meaning of Directive 92/106/EEC, which,
pursuant to Article 2 thereof, should have been applied from 1
July 1993.

with Paragraph 1(7) of the Bundeserziehungsgeldgesetz, only if
they are in an employment relationship involving non-minor
employment. That condition has to be satisfied by frontier
workers only, workers resident in Germany not being affected
by the rule: the latter are entitled to child-raising allowance
irrespective of the number of weekly hours of work performed
or the amount of pay. The German legislature thus assumes
that,
in the case of persons living in Germany, the minor
nature of their employment does not preclude classifying them
as workers.

(1) OJ L 368 of 17.12.1992, p. 38.

That requirement
Article 7(2) of Regulation (EEC) No 1612/68 of the Council.

is incompatible with Article 39 EC and

Even if workers in minor employment do not fall within the
personal scope of Regulation (EEC) No 1408/71 if the condi-
tions stated for Germany in Annex I C (now D) are not satisfied
in their case, that does not allow the conclusion that Regulation
(EEC) No 1612/68 is not material. The Court of Justice has
emphasised in its case-law that the exclusion of benefits from
the scope of Regulation (EEC) No 1408/71 does not free the
Member States from the obligation to make sure that no other
provision of Community law, in particular of Regulation (EEC)
No 1612/68, precludes the imposition of a residence condition.
With respect to child-raising allowance, the Court of Justice has
even expressly held that it constitutes a social advantage within
the meaning of Article 7(2) of Regulation (EEC) No 1612/68.

A person in minor employment can fall within the concept of
worker within the meaning of Article 39 EC. According to
settled case-law of the Court of Justice, the concept of worker
in Article 39 EC and Regulation (EEC) No 1612/68 has a Com-
munity law meaning and must not be interpreted narrowly.
The objective characteristic of an employment relationship is
that for a certain period of time a person performs services for
and under the direction of another person in return for which
he receives remuneration. The Court of Justice concludes that
part-time employment is not excluded from the scope of the
provisions on freedom of movement for workers.

A rule of national law which is not objectively justified and
proportionate to the aim pursued constitutes indirect discrimi-
nation if by its nature it is liable to affect migrant workers
rather than national workers and there is therefore a risk that
migrant workers will be particularly disadvantaged by it. In the
Commission's view, a requirement making payment of German
child-raising allowance to workers
in minor employment
dependent on their being resident in Germany is not objectively
justified and not proportionate, and thus infringes Article 39
EC and Article 7(2) of Regulation (EEC) No 1612/68.

(1) OJ, English Special Edition 1968 (II), p. 475.

Action brought on 14 July 2006 — Commission of the
European Communities v Federal Republic of Germany

(Case C-307/06)

(2006/C 224/45)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by V. Kreuschitz and I. Kaufmann-Bühler, acting as
Agents)

Defendant: Federal Republic of Germany

Form of order sought

— declare

that, by granting Erziehungsgeld (child-raising
allowance), on the basis of the national provisions of the
Bundeserziehungsgeldgesetz, to workers resident in another
Member State only if they are in an employment relation-
ship involving non-minor employment, with that condition
having to be satisfied by frontier workers only, the Federal
Republic of Germany has failed to fulfil
its obligations
under Article 39 EC and Article 7(2) of Regulation (EEC)
No 1612/68 (1);

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Under Article 7(2) of Regulation (EEC) No 1612/68, a worker
who is a national of a Member State is to enjoy, in the territory
of another Member State, the same social and tax advantages as
national workers.

Erziehungsgeld (child-raising allowance) is granted in Germany
in accordance
to workers resident in another Member State,