CELEX: 61994CJ0315
Language: en
Date: 1996-03-14 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 14 March 1996. # Peter de Vos v Stadt Bielefeld. # Reference for a preliminary ruling: Arbeitsgericht Bielefeld - Germany. # Freedom of movement for persons - Military service - Social advantage. # Case C-315/94.

Case C-315/94 Peter de VosvStadt Bielefeld(Reference for a preliminary rulingfrom the Arbeitsgericht Bielefeld)
         
            «(Freedom of movement for persons – Military service – Social advantage)»
            
               
                  Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 14 December 1995 
                     
                
               
            
                   
               
               
            
               
                  Judgment of the Court (Sixth Chamber), 14 March 1996  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  1..
                  Freedom of movement for persons – Workers – Equal treatment – Social advantages – Concept  (Council Regulation No 1612/68, Art. 7(2)) 
         
                  2..
                  Freedom of movement for persons – Workers – Equal treatment – Legislation of a Member State ensuring in respect of its nationals, during the suspension of their contract of employment
                     in the public sector on account of military service, the continued payment on their behalf of employer's and employee's supplementary
                     retirement contributions – Advantage excluded from the scope of Article 7 of Regulation No 1612/68 because granted as compensation for the consequences
                     of military service – Advantage may not be claimed by nationals of other Member States  
                  (Council Regulation No 1612/68, Art. 7(1) and (2)) 
         
         1.
          Social advantages within the meaning of Article 7(2) of Regulation No 1612/68 on freedom of movement for workers within the Community should
         be understood to mean all those advantages which, whether or not linked to a contract of employment, are generally granted
         to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national
         territory and the extension of which to workers who are nationals of other Member States therefore seems likely to facilitate
         their mobility within the Community. 
         
         2.
          Article 7(1) and (2) of Regulation No 1612/68 on freedom of movement for workers within the Community must be interpreted
         as meaning that a worker who is a national of a Member State and performs military service in that State and whose contract
         of employment in the public sector of another Member State is thus suspended is not entitled, during such suspension, to have
         payment continued on his behalf, under the same conditions as if he were working, of the employer's and employee's contributions
         to the supplementary retirement scheme of which he is a member in the Member State of employment, even if the latter grants
         such a right to its nationals in the same circumstances. The continued payment of supplementary retirement contributions during a period of suspension of the employment contract which
         is granted to nationals of the Member State in question constitutes an advantage established by the legislature to compensate
         partially those nationals called up to perform military service for the consequences of that obligation.  It is not made by
         virtue of a statutory or contractual obligation incumbent on the employer as conditions of employment and work, within the
         meaning of Article 7(1) of Regulation No  1612/68 and cannot be considered to be an advantage granted to national workers
         because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, that
         is as a social advantage within the meaning of Article 7(2) thereof. 
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)14 March 1996  (1)
         
         
            
         
               ((Freedom of movement for persons – Military service – Social advantage))
               
            In Case C-315/94, 
            REFERENCE to the Court under Article 177 of the EC Treaty by the Arbeitsgericht Bielefeld (Germany) for a preliminary ruling
            in the proceedings pending before that court between 
            
            
            
             Peter de Vos 
            
            
            and
            
             Stadt Bielefeld 
            
            
            on the interpretation of Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement
            for workers within the Community (OJ, English Special Edition 1968(II), p. 475),
            
            THE COURT (Sixth Chamber),,
            
            composed of: C.N. Kakouris, President of the Chamber, G. Hirsch, F.A. Schockweiler, P.J.G. Kapteyn (Rapporteur) and J.L. Murray, Judges, 
            
            Advocate General: D. Ruiz-Jarabo Colomer, Registrar: R. Grass, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
               Stadt Bielefeld, by Marion Weike, Stadtverwaltungsdirektorin der Stadt Bielefeld, acting as Agent, 
               
               
               ─
               the German Government, by Ernst Röder, Ministerialrat at the Federal Ministry of Economic Affairs, and Bernd Kloke, Oberregierungsrat
               at the same ministry, acting as Agents, 
               
               
               ─
               the Swedish Government, by Lotty Nordling, Rättschef, acting as Agent, 
               
               
               ─
               the Commission of the European Communities, by Christopher Docksey and Günter Wilms, of its Legal Service, acting as Agents,
               
               
               
            
            
            having regard to the report of the Judge-Rapporteur,
            
            after hearing the Opinion of the Advocate General at the sitting on 14 December 1995, 
         gives the following
         
         
         Judgment
         1
            
         By order of 3 November 1994, received at the Court on 29 November 1994, the Arbeitsgericht Bielefeld (Labour Court, Bielefeld)
         referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article
         7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community
         (OJ, English Special Edition 1968(II), p. 475). 
         
         
         2
            
         That question was raised in the context of a dispute between Mr de Vos (
         the plaintiff), a Belgian national, and Stadt Bielefeld, the municipality of Bielefeld (
         the defendant), which employs him as a senior doctor (Oberarzt). 
         
         
         3
            
         The collective labour agreement of 4 November 1966 applicable to employees of the Federal Republic of Germany and the  
          Länder   and to employees of municipal authorities and undertakings (
         the CLA) envisages for persons in the situation of the plaintiff supplementary old-age and survivors' insurance with the Versorgungsanstalt
         des Bundes und der Länder (Pension Institution of the Federal Republic and the  
          Länder ,  
         the VBL).  Under Paragraph 29 of the statutes of the VBL, the employer pays monthly contributions to that body for the person insured.
         
         
         
         4
            
         The plaintiff performed military service in the Belgian army from 29 March 1993 to 1 March 1994.  During that period, the
         defendant did not contribute to the VBL on behalf of the plaintiff.  The VBL therefore suspended the plaintiff's membership
         from 28 March 1993 to 2 March 1994. 
         
         
         5
            
         Under Paragraph 1 of the Wehrpflichtgesetz (Law on military service, BGBl. 1994, I, p. 1505), all German citizens aged 18
         years or over must perform military service. 
         
         
         6
            
         Paragraph 1 of the Gesetz über den Schutz des Arbeitsplatzes bei Einberufung zum Wehrdienst (Law on employment protection
         on call-up for military service,  
         APSG, BGBl. 1980, I, p. 425) provides: 
         
         (1)
         Where a worker is called up for basic military service or reserve training, the employment relationship shall be suspended
         during the military service. 
         
         
         (2)
         An employer must pay remuneration to an employee in the public service during reserve training as in the case of convalescent
         leave.  Remuneration does not include special allowances granted with regard to the convalescent leave. 
         ...
         
         
         7
            
         Paragraph 14a of the APSG provides as follows: 
         
         (1)
         An existing insurance policy in the supplementary old-age and survivors' pension scheme for employees in the public service
         shall not be affected by call-up for basic military service or reserve training.  That shall also apply if the supplementary
         old-age and survivors' pension is accorded by higher rate insurance or other means. 
         
         
         (2)
         The employer must continue to pay the contributions (employer's and employee's contributions) during the military service,
         at the level at which they would have been payable if the employment relationship were not suspended because of the call-up
         of the employee. At the end of the military service, the employer shall notify the Federal Minister of Defence or the department designated
         by him of the contributions made in respect of the period of military service in order to obtain reimbursement. The second sentence shall not apply to cases referred to in Paragraph 1(2).Applications for reimbursement must be submitted during the year following the end of the military service.  Any changes made
         after the period of military service to the amounts of the contributions shall not be taken into account.
         
         
         
         8
            
         In the action brought before the Arbeitsgericht Bielefeld, the plaintiff claimed that the defendant was required to pay contributions
         to the VBL during the period of his military service in the Belgian army by virtue of Article 48 of the EC Treaty and Article
         7 of Regulation No 1612/68 which, in his view, prohibit any discrimination based on nationality between workers of the Member
         States. 
         
         
         9
            
         Article 7 of Regulation No 1612/68 provides: 
         
         1.
          A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from
         national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards
         remuneration, dismissal, and should he become unemployed, reinstatement or re-employment; 
         
         
         2.
          He shall enjoy the same social and tax advantages as national workers. 
         ...
         
         
         10
            
         Taking the view that the dispute raised a number of questions on the interpretation of Community law, the Arbeitsgericht Bielefeld
         decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: Must Article 7(1) and (2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers
         within the Community be interpreted as meaning that a worker who is a national of one Member State and is employed in the
         territory of another Member State is entitled to have payment of contributions (employer's and employee's contributions) to
         the supplementary old-age and survivors' pension scheme for workers in the public service continued, at the same level as
         would have been payable if the employment relationship had not been suspended because of his call-up for military service,
         where nationals of that State employed in the public service are so entitled by law when performing military service in that
         State?
         
         
         11
            
         The defendant and the German Government submit, in essence, that the obligation of the employer to continue to pay contributions
         for an employee in the public service who is performing his military service is inseparable from the obligation of the Federal
         Minister of Defence, laid down by the APSG, to reimburse the employer for contributions paid.  The latter obligation to reimburse
         flows from the duty to have regard for the interest of civil servants incumbent upon the Federal Republic of Germany as regards
         persons called up for military service and does not therefore constitute an obligation arising from the employment contract.
          In this respect, they consider in particular that Case 15/69  
          Südmilch  v  
          Ugliola  [1969] ECR 363 concerned different circumstances. 
         
         
         12
            
         The German Government further maintains that the employer's obligation to continue throughout the period of military service
         to pay supplementary old-age and survivors' pension insurance contributions for which it may then claim reimbursement from
         the Federal Minister of Defence was laid down only for technical administrative reasons. 
         
         
         13
            
         The Swedish Government states that the contributions paid, directly or indirectly, when a worker performs his military service
         must be regarded as compensation for that service and on no account as either a condition of employment or work or as a social
         advantage applicable to workers of other Member States in the same circumstances as a Member State's nationals. 
         
         
         14
            
         It should first be considered whether, for the purposes of applying Article 7(1) of Regulation No 1612/68, the system guaranteeing
         the continued payment of old-age and survivors' pension insurance contributions when a worker performs his military services,
         as provided for by the German legislation, is linked to that person's conditions of employment or work. 
         
         
         15
            
         In principle, the employer's contribution to supplementary old-age and survivors' pension insurance is part of remuneration
         since it is a financial benefit granted by the employer, under the CLA, to the worker on account of the employment relationship.
          However, where the worker fulfils his military service obligations, the employment contract is suspended.  Accordingly, the
         employer's obligation to pay contributions under the employment contract is also suspended. 
         
         
         16
            
         Although Paragraph 14a(2) of the APSG provides that the employer must continue to pay the contributions (employer's and employee's
         contributions) during the period of military service at the level payable if the employment contract had not been suspended
         because of the employee's call-up, the fact remains that that obligation on the part of the employer is not linked to the
         employment contract. 
         
         
         17
            
         As the Advocate General observes at point 33 of his Opinion, the present case is thus different from the  
          Ugliola  case.  In  
          Ugliola , Paragraph 6 of the APSG required the employer to take account of absence on military service, by providing in particular
         that the period of military service should be taken into account in calculating the period of his service with that employer,
         whereas the obligation arising from Paragraph 14a(2) of the APSG does not, in the main proceedings, form part of the conditions
         of employment and work.  The role of the employer under that provision is merely to cooperate with the Federal authorities
         by advancing on their behalf, for technical and administrative reasons, the contributions which would have been payable by
         both the employer and the worker if the employment contract had not been suspended. 
         
         
         18
            
         It should therefore be held that the continued payment of supplementary old-age and survivors' pension insurance contributions,
         as provided for by the German legislation, is not made by virtue of a statutory or contractual obligation incumbent on the
         employer as conditions of employment and work, within the meaning of Article 7(1) of Regulation No 1612/68, but is an advantage
         granted by the State itself to those called up as partial compensation for the consequences of their obligation to perform
         military service. 
         
         
         19
            
         It should accordingly be considered whether, under Article 7(2) of Regulation No 1612/68, a Member State must provide such
         an advantage to nationals of other Member States employed within its territory when they fulfil their military service obligations
         for their own State. 
         
         
         20
            
         The Court has already held that  
         social advantages should be understood to mean all those advantages which, whether or not linked to a contract of employment, are generally
         granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence
         on the national territory and the extension of which to workers who are nationals of other Member States therefore seems likely
         to facilitate their mobility within the Community (Case 207/78  
          Ministère Public  v  
          Even  [1979] ECR 2019, paragraph 22, and Case C-310/91  
          Schmid  v  
          Belgian State  [1993] ECR I-3011, paragraph 18). 
         
         
         21
            
         As observed above, an advantage such as that which stems from the German legislation for certain categories of national workers
         serves as partial compensation for those called up for the consequences of their obligation to perform military service. 
         
         
         22
            
         Such an advantage, which is essentially linked to the performance of military service, cannot therefore be considered to be
         granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence
         on the national territory and thus does not have the essential characteristics of social advantages referred to in Article
         7(2) of Regulation No 1612/68. 
         
         
         23
            
         The reply to the question referred to the Court must therefore be that Article 7(1) and (2) of Regulation No 1612/68 must
         be interpreted as meaning that a worker who is a national of one Member State and is employed in the territory of another
         Member State is not entitled to have payment of contributions (employer's and employee's contributions) to the supplementary
         old-age and survivors' pension scheme for workers in the public service continued, at the same level as would have been payable
         if the employment relationship had not been suspended because of his call-up for military service, where nationals of that
         State employed in the public service are so entitled when performing military service in that State. 
         
         Costs
         24
            
         The costs incurred by the German and Swedish Governments and the Commission of the European Communities, which have submitted
         observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step
         in the action pending before the national court, the decision on costs is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Sixth Chamber),
         
         
         in answer to the question referred to it by the Arbeitsgericht Bielefeld by order of 3 November 1994, hereby rules: 
         
                  Kakouris
               
               
                  Hirsch 
               
               
                  Schockweiler 
               
            
                  Kapteyn
               
               
                  Murray 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 14 March 1996. 
         
         
         
         
                  R. Grass 
               
               
                  C.N. Kakouris  
               
            
         
         
         
                  Registrar
               
               
                  President of the Sixth Chamber
               
            
      
      
          1 –
            
             Language of the case: German.