Case C-546/07: Action brought on 5 December 2007 — Commission of the European Communities v Federal Republic of Germany
Date: 2007-12-05
Institutions: Court of Justice
Subjects: Germany, Poland, action for annulment (EU), free movement of workers, job access, labour market, migrant worker, social-security benefit

8.3.2008

EN

Official Journal of the European Union

C 64/17

Questions referred

1. Bearing in mind that the granting of parental leave must be
a measure intended to promote equality, in the manner and
to the extent freely fixed each Member State within the
minimum limits imposed by Directive 1996/34/EC (1), is it
possible that the enjoyment of that period of parental leave,
in the case of a reduction in the working day and in salary
by reason of taking care of children, should affect rights in
the process of being acquired by the worker, male or female,
taking such parental leave and may individuals rely before
the public institutions of a State on the principle of the
protection of rights acquired or in the process of being
acquired?

2. In particular, does the expression ‘rights acquired or in the
process of being acquired’ in Clause 2(6) of the framework
agreement on parental leave … include only rights related to
working conditions and affect only the contractual relation-
ship with the employer or, on the contrary, does it also affect
the maintenance of rights acquired or in the process of being
acquired in matters of social security, and is the requirement
for ‘continuity of the entitlements to social security cover
under the different schemes’ in Clause 2(8) of the framework
agreement on parental leave … satisfied by the formulation
under consideration and applied by the national authorities
and, if applicable, is the right to continuity of entitlements to
social security cover sufficiently certain and precise to be
relied upon before the public authorities of a Member State?

equal treatment and non-discrimination for men and women
in matters of social security (OJ 1979 L 6, p. 24) and is it
contrary to the requirements of equality and non-discrimina-
tion between men and women, in accordance with the tradi-
tion common to all the Member States, to the extent that
this principle must apply not only to conditions of employ-
ment but also to the public activity of social protection of
workers?

(1) Council Directive 96/34 EC of 3 June 1996 on the framework agree-
leave concluded by UNICE, CEEP and ETUC

ment on parental
(OJ 1996 L 145, p. 4).

(2) OJ 1979, L 6, p. 24; EE 05/02, p. 174.

Action brought on 5 December 2007 — Commission of
the European Communities v Federal Republic of Germany

(Case C-546/07)

(2008/C 64/26)

Language of the case: German

Parties

3. Are the provisions of Community law compatible with
national legislation which, during the period of reduction in
the working day by reason of parental
leave, reduces the
amount of invalidity pension to be paid in relation to what it
would have been before that leave and reduces the accrual
and consolidation of future benefits in proportion to the
reduction in working hours and in salary?

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and P. Dejmek, acting as Agents)

Defendant: Federal Republic of Germany

4. Given the duty of the national courts to interpret national
law in the light of the obligations imposed by the Directive,
in order to enable the objectives of the Community legisla-
tion to be achieved to the greatest possible extent, must that
requirement apply equally to the continuity of social security
entitlements during the period of parental leave and, specifi-
cally, in the circumstances of the case to a form of part-time
leave or reduction in the working day such as was used on
this occasion?

Form of order sought

— Declare that the Federal Republic of Germany has infringed
its obligations arising from Article 49 EC and the standstill
clause in Chapter 2 (Freedom of Movement for Persons),
Paragraph 13 of Annex XII (List referred to in Article 24 of
the Act of Accession of 16 April 2003) in that:

5. In the specific circumstances of the case, does the reduction
in the grant and accrual of social security entitlements
during the period of parental
leave constitute direct or
indirect discrimination contrary to the provisions of Direc-
tive 79/7/EEC (2) of 19 December 1978 on the principle of

it

(a) in its administrative practice,

interprets the term
‘Unternehmen der anderen Seite’ (undertakings from the
other side) in Paragraph 1(1) of the intergovernmental
agreement between Germany and Poland of 31 January
1990 on the posting of workers from Polish undertak-
ings to carry out works contracts as meaning ‘German
undertakings’ and

C 64/18

EN

Official Journal of the European Union

8.3.2008

(b) with the so-called ‘Arbeitsmarktschutzklausel’ (the clause
protecting the labour market) it widened the regional
restrictions for access of workers after 16 April 2003,
namely the date the EU Act of Accession: Poland was
signed;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

A. The posting of polish workers to carry out works contracts
in Germany takes place pursuant
to an agreement of
31 January 1990 between the Government of the Federal
Republic of Germany and the Polish Government on the
posting of workers from Polish undertakings to carry out
works contracts. Under German administrative practice, the
term ‘Unternehmen der anderen Seite’ in Paragraph 1(1) of
that agreement is interpreted as meaning ‘German undertak-
ings’.

B. The result is that only German undertakings can conclude
works contracts under the Agreement. The only alternative
for undertakings from other Member States which wish to
carry out work in Germany is to establish a subsidiary
company in that Member State. Undertakings from other
Member States are thus prevented from taking advantage of
the freedom to provide services granted to them under
Article 49 EC to conclude works contracts, for work to be
carried out in the Federal Republic of Germany, with Polish
undertakings under the Agreement between Germany and
Poland. There is thus direct discrimination of undertakings
from Member States other than Germany which is based on
the nationality or the location of the registered office of
undertakings.

C. Under Article 46 EC in conjunction with Article 55 EC,
discriminatory special
rules may only be justified on
grounds of public policy, public security or public health.
Pursuant to settled case-law, reliance on the justification of
public policy, laid down in Article 46 EC, presupposes that
the maintaining in force of the discriminatory measure must
be necessary to counter a genuine and sufficiently serious
threat to one of the fundamental interests of society.

D. Those conditions are not met in the present case. In order
to properly supervise the implementation of the Agreement
it is not necessary to impose a requirement that undertak-
ings must have their registered office in Germany since all
applications have to be made to the German authorities in
any case. As regards the enforcement of the liability of the
applicant for payment of social security contributions and
penalties for infringements of law, such questions are not
specifically related to the agreement on works contracts, but
are related to the general provision of services in Germany
by undertakings from other Member States. There also

to undertakings

appears to be no reason why the opening of the bilateral
agreement
from other Member States
should lead to an incorrect application or circumvention of
the transitional provisions in the Accession Agreement.
Concerns about the incorrect use of the transitional provi-
sions in no way amount to a sufficiently serious threat to
public policy or security capable of justifying a discrimina-
tory restriction on the freedom to provide services.

E. It is apparent from the wording of the standstill clause in
Chapter 2, Paragraph 13 of Annex XII (List referred to in
Article 24 of the Act of Accession of 16 April 2003) that
the standstill obligation is absolute and any restriction on
the access of Polish workers with works contracts to the
German labour market which places them in a situation
which is worse than the one they were in on 16 April 2003
is prohibited. Pursuant to the so-called ‘Arbeitsmarktschutzk-
lausel’ (the clause protecting the labour market), which is
continuously applied in the administrative practice of the
Federal Employment Agency, works contracts are not
permitted in principle if they are to be concluded in an
agency district in which the average unemployment rate over
the last 6 months has been at least 30 % above the unem-
ployment rate of the Federal Republic of Germany. The list
of the agency districts falling within that rule are updated
quarterly. Consequently,
the Arbeitsmarktschutzklausel
infringes the standstill clause of the Act of Accession since
new agency districts have been added to the list of ‘blocked’
districts after 16 April 2003.

Reference for a preliminary ruling from the Handelsgericht
Wien (Austria) lodged on 11 December 2007 — Friederike
Wallentin-Hermann v Alitalia — Linee Aeree Italiane SpA

(Case C-549/07)

(2008/C 64/27)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Friederike Wallentin-Hermann

Defendant: Alitalia — Linee Aeree Italiane SpA