CELEX: 62002CC0400
Language: en
Date: 2004-02-05 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 5 February 2004. # Gerard Merida v Bundesrepublik Deutschland. # Reference for a preliminary ruling: Bundesarbeitsgericht - Germany. # Article 39 EC - Collective agreement - Supplementary temporary allowance in favour of former civilian employees of the allied forces in Germany - Frontier workers - Determination of the basis of calculation of that allowance - Notional taking into account of German tax on wages. # Case C-400/02.

OPINION OF ADVOCATE GENERALSTIX-HACKLdelivered on 5 February 2004(1)
         Case C-400/02Gérard MeridavFederal Republic of Germany(Reference for a preliminary ruling from the Bundesarbeitsgericht (Germany))
            (Freedom of movement for workers  –  Equal treatment in collective agreements  –  Interim assistance  –  Discrimination against persons formerly employed in Germany and resident in France)
            
      
         
      I –  Introduction
        1.        These proceedings are concerned with the calculation of a particular benefit (‘Überbrückungsbeihilfe’; hereinafter: ‘interim
      assistance’) provided for under a collective agreement and paid upon termination of employment.
      
      
      II –  Relevant legislation
       A – Regulation (EEC) No 1612/68 
         			(2)
         		of the Council of 15 October 1968 on freedom of movement for workers within the Community (hereinafter: ‘Regulation No 1612/68’)
        2.        Article 7(4) reads:
      ‘Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment,
      employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises
      discriminatory conditions in respect of workers who are nationals of the other Member States.’
      
      
       B – National law
        3.        According to the uncontested particulars supplied by the referring court in the order for reference and by the representative
      of the Federal Republic of Germany at the hearing, the applicable provisions of German law are set out below.
      
      
        4.        Civilian workers were employed by the French forces stationed in Germany until those forces were withdrawn; the French armed
      forces had been their employer. Earnings from such employment were paid by the German authorities by order and for account
      of the French armed forces. In accordance with the double taxation convention between Germany and France, the tax law applicable
      to the earnings was determined by the employee’s place of residence. On that basis, instead of deducting wage tax (‘Lohnsteuer’)
      from the gross earnings of employees resident in France, the German authorities in fact paid to them a sum greater than that
      paid to employees resident in Germany. That amount paid by the former employer was subject to tax in France.
      
      
        5.        Interim assistance is a social benefit paid by the Federal Republic of Germany on its own account and out of its budgetary
      resources to persons formerly employed with the French armed forces stationed in Germany pursuant to the Collective Agreement
      of 31 August 1971 on social security for persons employed with the armed forces stationed in the Federal Republic of Germany
      (hereinafter: ‘Collective Agreement on Social Security’) where their employment was terminated on account of the withdrawal
      of those forces from Germany.
      
      
        6.        Under the provisions of the Collective Agreement on Social Security relevant to the main proceedings, the amount of interim
      assistance is calculated uniformly for all recipients. That amount is essentially calculated so that, on the basis of the
      collectively agreed basic remuneration to which the employee was entitled for a full calendar month at the time of cessation
      of employment, allowance is also made – in addition to the unemployment benefits actually received – for notional German income
      tax which, of course, is considered in the light of the tax criteria applicable at the time of payment of interim assistance.
      Thus, an allowance is also made for notional German income tax in the case of former employees resident in France whose earnings
      during the period of their employment suffered no deductions for wage tax under German law.
      
      
        7.        Interim assistance calculated by that method is taxable above a certain tax-free allowance where its recipients live in Germany.
      Recipients living in France are required to pay French taxes on interim assistance. The second sentence of Paragraph 4(4)
      of the Collective Agreement on Social Security provides: ‘Where interim assistance is paid in addition to the benefits provided
      by the Bundesanstalt für Arbeit (Federal Employment Office), it shall be increased by the amount required to cover the wage
      tax’. At the hearing, the representative of the German Government maintained that ‘by topping up in that way …, any form of
      tax burden is effectively cancelled out, in which case it makes no difference which Member State … levies this tax … In Germany,
      beneficiaries are invariably in a position so as not to be economically burdened by the tax. In the present case, the tax
      which [the plaintiff] has to pay in France on interim assistance could … be reimbursed. Proof of the amount of tax paid is
      the sole prerequisite for such reimbursement. Residents and non-residents are … treated strictly in the same manner at all
      times … with regard to … taxes actually payable.’
      
      
      III –  Facts, main proceedings and question referred for a preliminary ruling
        8.        Mr Merida is a French national and resides in France. Until his employment was terminated, he worked for the French armed
      forces stationed in Germany. Once his employment had been terminated, Mr Merida received interim assistance pursuant to the
      Collective Agreement on Social Security. The amount of benefit received was calculated in accordance with that collective
      agreement, that is to say, on the basis of his former gross salary, an allowance being made for the unemployment benefits
      actually received in France and for notional German wage tax. In Mr Merida’s case, interim assistance calculated by that method
      was taxable in France as earnings, under the relevant double taxation convention, and was therefore subject to French tax.
      
      
        9.        Taking the view that, as a result of the deduction of notional German wage tax, he had been placed – unlawfully – at a disadvantage
      in relation to employees resident in Germany, Mr Merida instituted proceedings against the Federal Republic of Germany. The
      competent Arbeitsgericht (Labour Court) and the Landesarbeitsgericht (Regional Labour Court) both dismissed the action. Mr
      Merida then brought an appeal on a point of law against the judgment of the Landesarbeitsgericht before the Bundesarbeitsgericht
      (Federal Labour Court). The latter court is uncertain whether the Collective Agreement on Social Security is compatible with
      the Community principle of freedom of movement for workers as regards the method for calculating interim assistance in circumstances
      such as those arising in the main proceedings. For that reason the Bundesarbeitsgericht stayed the proceedings by order of
      27 June 2002 and referred the following question to the Court of Justice for a preliminary ruling:
       Is Article 39 EC infringed by the fact that, for the purposes of determining the basis of assessment for interim assistance
      in a case arising under Paragraph 4(1)(b) of the Collective Agreement on Social Security, account must be taken of notional
      German wage tax (second sentence of Paragraph 4(3)(b) of that collective agreement) if the former employee lives and is subject
      to tax abroad?
      
      
      IV –  The question referred for a preliminary ruling
       A – Essential submissions of the parties
        10.      Mr Merida and the Commission take the view that recipients of interim assistance who live in France are indirectly discriminated against by virtue of
      the deduction of notional German wage tax. They submit that the method by which interim assistance is calculated means that
      those recipients in effect receive less in total than they used to be paid by their former employer. Indeed, apart from the
      deduction of notional German wage tax and unemployment benefits, employees governed by German tax law by reason of their residence
      in Germany did not suffer any further deduction in respect of interim assistance. However, for recipients living in France,
      not only was account taken of notional German wage tax but, in addition, French tax was actually payable on interim assistance.
      However, interim assistance was, they claim, intended to maintain payment during the first year following termination of employment
      of the full salary that had been paid by the former employer. Achievement of that objective was guaranteed in the case of
      recipients resident in Germany. On the basis of the double taxation convention, recipients resident in France, on the other
      hand, received a higher salary because the amounts paid by the employer were still chargeable to wage tax in France. Indeed,
      for the purposes of interim assistance, the amount of gross earnings was in that case reduced not only by notional German
      wage tax but also by actual French tax. Such discrimination could not, in their view, be justified on grounds of administrative
      simplification. The Community principle of freedom of movement for workers under Article 39 EC could not be restricted by
      that measure.
      
      
        11.      The Federal Republic of Germany considers that calculating the amount of interim assistance by deducting notional German wage tax is not discriminatory in
      circumstances such as those pertaining to Mr Merida. In that regard it raises inter alia grounds of administrative simplification
      and asserts that interim assistance does not serve to maintain payment of a salary in the event of unemployment. At the hearing,
      the representative of the German Government maintained that such assistance was in fact a voluntary social benefit paid by
      the Federal Republic of Germany to former employees from other States which was designed to ‘soften the social welfare impact
      of the readjustment process’ in the event of unemployment and was ‘a particular type of assistance in the form of a social
      benefit’. Interim assistance, it submits, was therefore calculated in the same way for all beneficiaries. Community law did
      not create a right to more favourable treatment for frontier workers than for employees resident in the State concerned. At
      the hearing, the Federal Republic of Germany further contended that, in principle, interim assistance was in itself still
      subject to tax even for recipients resident in Germany. Nevertheless, any taxes accruing were ‘cancelled out’ for the purpose
      of calculating interim assistance by a corresponding increase in the benefit paid. That arrangement also applied, it concludes,
      in relation to taxes payable in France on interim assistance.
      
      
       B – Assessment
       1. Wording of the question referred
      
        12.      The referring court entertains doubts as to whether the second sentence of Paragraph 4(3)(b) of the Collective Agreement on
      Social Security is compatible with Article 39 EC inasmuch as that provision of the collective agreement is concerned with
      ‘determining the basis of assessment’ (clearly meaning the calculation of the amount) for interim assistance – even for recipients
      resident in France – by deduction of notional German wage tax. It is therefore seeking an interpretation of Article 39 EC.
      However, collectively agreed benefits such as interim assistance also come under the principle of non-discrimination laid
      down in Article 7(4) of Regulation No 1612/68. In similar cases the Court has thus far examined the EC Treaty and Regulation
      No 1612/68 jointly and has established that the regulation sets out in detail the rights enjoyed by migrant workers pursuant
      to Article 39 EC where obligations arising from employment and/or from a collective agreement are concerned. 
         			(3)
         		
      
        13.      I therefore propose rewording the question referred as follows:
       Are Article 39 EC and Article 7(4) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement
      for workers within the Community to be interpreted as precluding a provision of a notional collective agreement under which
      the amount of a social benefit such as the ‘interim assistance’ at issue in the main proceedings is calculated, in the case
      of recipients resident in another Member State and subject to tax there, in such a way that, on the basis of former gross
      earnings, account is taken of the notional wage tax of the first Member State although, under a double taxation convention,
      wage tax was not deducted by that State from the pay of the abovementioned recipients during the currency of their employment?
      
      
       2. Interpretation of Article 39 EC and Article 7(4) of Regulation No 1612/68
      
       a) Whether or not discrimination has arisen by virtue of actual double taxation 
      
        14.      Mr Merida and the Commission regard as unlawful discrimination the fact that, for the purpose of calculating interim assistance
      for recipients resident in France, account is taken of notional German wage tax although the interim assistance is still taxable
      in France. Plainly the question referred by the national court also has regard to that consideration, in focusing on liability
      to tax in France.
      
      
        15.      In that respect, it should first be pointed out that, given that the Collective Agreement on Social Security is said to form
      the basis of any discrimination occurring, the referring court did not provide comprehensive particulars of it. It was not
      until the hearing that the Federal Republic of Germany argued – without challenge – on the basis of the relevant passage from
      the collective agreement, that interim assistance is in fact taxable in the hands of its recipients in Germany but that the
      taxes were reimbursable and recipients resident in France could also claim that reimbursement. Thus the argument that recipients
      resident in France are treated unfavourably in that they are subject to ‘quasi’ double taxation (notional taxation in Germany
      and actual taxation in France), put forward by Mr Merida and the Commission and rated as possible by the referring court does
      not hold true.
      
      
       b) 	Whether discrimination might arise owing to the fact that the amount of interim assistance intended for recipients resident
      in France does not correspond to the amount paid to them by their former employer
      
        16.      For the purpose of calculating interim assistance for all recipients – that is to say, whether or not they are resident in
      Germany – on the basis of individual gross earnings, account is taken of notional German wage tax for which any comparable
      person resident in Germany is liable. Recipients resident in France are consequently at a disadvantage in relation to recipients
      resident in Germany in so far as the amount of interim assistance that they receive, unlike the amount granted to recipients
      in Germany, does not correspond to the actual amount paid by their former employer.
      
      
        17.      It is uncertain whether that constitutes indirect discrimination prohibited by Article 39 EC and Article 7(4) of Regulation
      No 1612/68.
      
      
        18.      Article 39 EC and Article 7(4) of Regulation No 1612/68 prohibit not only discrimination by reason of nationality but also
      all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result. 
         			(4)
         		 It is clear from the Court’s case-law that, unless it is objectively justified and proportionate to the objective pursued,
      a provision of national law is to be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant
      workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. 
         			(5)
         		
      
        19.      Although the Collective Agreement on Social Security does not distinguish between recipients of interim assistance by nationality,
      it may still impact differently depending on whether the employee lives in Germany or France at the time of receipt of interim
      assistance. However, a State’s own nationals are far more likely to be resident in that State than former migrant workers
      and, consequently, a criterion of that kind demonstrates a tendency to disadvantage former frontier workers. 
         			(6)
         		 This could therefore constitute indirect discrimination.
      
      
        20.      Indirect discrimination arises through the application of different rules to comparable situations or the application of the
      same rule to different situations and where the measure concerned cannot be justified by an objective difference or as a measure
      proportionate to its aim. 
         			(7)
         		 The method for calculating interim assistance could be regarded as a provision under which the same rule is being applied
      to different situations.
      
      
        21.      In most cases the Court has assessed whether indirect discrimination exists by examining the objective of the measure at issue
      in a given case. 
         			(8)
         		
      
        22.      In line with the arguments – which were indeed plausible in that regard – advanced by the Federal Republic of Germany at the
      hearing, the objective of interim assistance is not to maintain an individual’s level of income in the event of his unemployment.
      On the contrary, its objective is to grant a State-funded social benefit which is independent from the employment concerned
      and serves to soften the social welfare impact in the event of unemployment. This is apparent from the fact that the benefit
      is paid on behalf of a third party, namely the Federal Republic of Germany, from its own resources and without consideration,
      rather than at the expense of the former employer.
      
      
        23.      It appears entirely consistent with that objective to calculate that social benefit uniformly for comparable recipients who
      are resident either in the national territory or in another Member State, that is to say, taking account in this instance
      of notional German wage tax.
      
      
        24.      It is true that the amount of interim assistance payable to recipients resident in France does not correspond to the amount
      paid by their former employer. However, the latter nominally greater amount payable to employees resident in France was no
      more than the natural consequence of the fact that their earnings during the currency of their employment were exempt from
      German wage tax on the basis of the relevant double taxation convention.
      
      
        25.      Under the Court’s case-law, a difference of that kind in the respective situations of taxpayers resident in different Member
      States under double taxation conventions, is compatible with Community law inasmuch as it is the consequence, primarily, of
      differing rates of taxation of the Member States concerned, which is a matter for the individual Member States. 
         			(9)
         		 However, it cannot be inferred from the fact that a difference in treatment, as occurred in the main proceedings in the case
      of active employees resident in Germany and France, is compatible with Community law that this must also be reflected in the
      calculation of a State-funded social benefit, granted independently of the employer, the objective of which is to soften the
      social welfare impact in the event of unemployment.
      
      
        26.      Therefore, it must be ruled that Article 39 EC and Article 7(4) of Regulation No 1612/68 do not preclude the calculation of
      interim assistance in accordance with the Collective Agreement on Social Security in the case of recipients resident in France
      provided that interim assistance is a State-funded social benefit granted independently of the employer, the objective of
      which is to soften the social welfare impact in the event of unemployment.
      
       
      V –  Conclusion
        27.      In light of all the foregoing considerations, I propose that the Court should answer the question referred for a preliminary
      ruling as follows:
       Article 39 EC and Article 7(4) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for
      workers within the Community must be interpreted as not precluding a provision of a collective agreement of a Member State
      under which the amount of a social benefit such as the ‘interim assistance’ at issue in the main proceedings is calculated,
      in the case of recipients resident in another Member State and liable to tax there, in such a way that, on the basis of former
      gross earnings, account is taken of the notional wage tax of the first Member State on former gross earnings, although, under
      a double taxation convention, wage tax was not deducted by that State from the pay of the abovementioned recipients during
      the currency of their employment, if a tax imposed on interim assistance in another Member State is reimbursed in precisely
      the same manner as any tax imposed in the first Member State.
      
      
       1 –
         
         Original language: German.
      
      2 –
         
         OJ, English Special Edition 1968 (II), p. 475.
            
         
      
      3 –
         
         Case C-175/88 Biehl [1990] ECR I-1779, Case C-419/92 Scholz [1994] ECR I-505 and Case C‑15/96 Schöning-Kougebetopoulou [1998] ECR I-47.
            
         
      
      4 –
         
         Case 152/73 Sotgiu [1974] ECR 153, paragraph 11, Case C-237/94 O’Flynn [1996] ECR I-2617, paragraph 17, and Case C-57/96 Meints [1997] ECR I-6689, paragraph 44.
            
         
      
      5 –
         
         Case C-278/94 Commission v Belgium [1996] ECR I-4307 and the O’Flynn case (cited in footnote 4). 
            
         
      
      6 –
         
         .Meints judgment (cited in footnote 4) and Case C-35/97 Commission v France [1998] ECR I-5325.
            
         
      
      7 –
         
         See, for purposes of illustration, the judgments on the tax treatment of non-residents in Cases C-279/93 Schumacker [1995] ECR I-225, C-80/94 Wielockx [1995] ECR I-2493, C-107/94 Asscher [1996] ECR I-3089 and C-391/97 Gschwind [1999] ECR I-5451, paragraph 21 et seq.; see further the judgments in Meints (cited in footnote 4), at paragraph 45, and O’Flynn (cited in footnote 4), at paragraph 20.
            
         
      
      8 –
         
         See, for instance, the Court’s recent case-law in Joined Cases C-4/02 and C-5/02 Schönheit and Becker [2003] ECR I-0000, paragraphs 84 and 95.
            
         
      
      9 –
         
         Case C-336/96 Gilly [1998] ECR I-2793 and Case C-385/00 deGroot [2002] ECR I-11819.