Landkreis Südliche Weinstraße v PF and Others.
Date: 2020-04-02
13


The referring court considers that Article 7(2) of Regulation No 492/2011 is applicable to the case before it. It takes the view, first, that payment of the school transport costs at issue in the main proceedings constitutes a social advantage for the purposes of Article 7(2) of Regulation No 492/2011. Secondly, it points out that, according to the judgment of 12 May 1998, Martínez Sala (C‑85/96, EU:C:1998:217, paragraph 25), that concept covers all the 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 whose extension to workers who are nationals of other Member States seems likely to facilitate the mobility of such workers.
17


The referring court states that there is an inextricable link between the organisation of the school system and the territory, which would justify the residence requirement laid down by the national legislation at issue in the main proceedings. It refers, in this regard, to Article 10 of Regulation No 492/2011, which makes the right to attend general educational courses subject to a requirement of residence in the Member State, as the Court held in its judgment of 13 June 2013, Hadj Ahmed (C‑45/12, EU:C:2013:390, paragraph 31).
21


In order to answer this question, in the first place, it should be pointed out, on the one hand, that any EU national who, irrespective of his place of residence and his nationality, exercises the right to freedom of movement for workers and who is employed in a Member State other than that of his residence comes within the scope of Article 45 TFEU, a provision which Regulation No 492/2011 is intended to put into concrete terms (see, to that effect, judgment of 21 February 2006, Ritter-Coulais, C‑152/03, EU:C:2006:123, paragraph 31).
22


Thus, a national of a Member State who, while maintaining his employment in that State, transfers his residence to another Member State, comes within the scope of the provisions of the FEU Treaty on freedom of movement for workers, and hence of Regulation No 492/2011 (see, to that effect, as regards 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October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), repealed and replaced by Regulation No 492/2011, judgment of 18 July 2007, Hartmann, C‑212/05, EU:C:2007:437, paragraph 19).
23


On the other hand, it should be recalled that Regulation No 492/2011 benefits frontier workers, as is apparent from recitals 4 and 5 of that regulation, according to which the right of all workers in the Member States to pursue the activity of their choice within the European Union should be enjoyed without discrimination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services. Similarly, Article 7 of Regulation No 492/2011, which reproduces in exactly the same terms the wording of Article 7 of Regulation No 1612/68, refers, without reservation, to a ‘worker who is a national of a Member State’ (judgments of 27 November 1997, Meints, C‑57/96, EU:C:1997:564, paragraph 50, and of 18 July 2007, Geven, C‑213/05, EU:C:2007:438, paragraph 15).
24


Moreover, it is clear from the Court’s case-law that a national of a Member State who, while maintaining his employment in that State, has transferred his residence to another Member State and has since then carried on his occupation as a frontier worker can claim the status of ‘migrant worker’ for the purposes of Regulation No 492/2011 (see, as regards Regulation No 1612/68, repealed and replaced by Regulation No 492/2011, judgment of 18 July 2007, Hartmann, C‑212/05, EU:C:2007:437, paragraph 20).
26


In the second place, it should be pointed out that the members of a migrant worker’s family are the indirect recipients of the equal treatment granted to the worker under Article 7(2) of Regulation No 492/2011 (see, as regards Article 7(2) of Regulation No 1612/68, now Article 7(2) of Regulation No 492/2011, judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 40).
27


As far as the concept of social advantage, referred to in Article 7(2) of that regulation, is concerned, this term encompasses all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers 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 seems likely to facilitate the mobility of such workers (see, inter alia, judgments of 12 May 1998, Martínez Sala, C‑85/96, EU:C:1998:217, paragraph 25, and of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 38).
29


In the third place, it is important to recall that Article 7(2) of Regulation No 492/2011 is a particular expression, in the specific area of the grant of social advantages, of the principle of equal treatment enshrined in Article 45 TFEU and must be accorded the same interpretation as that provision (judgment of 10 October 2019, Krah, C‑703/17, EU:C:2019:850, paragraph 21; see also, as regards Article 7(2) of Regulation No 1612/68, now Article 7(2) of Regulation No 492/2011, judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 35).
30


That principle of equal treatment prohibits not only overt 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 (judgment of 10 October 2019, Krah, C‑703/17, EU:C:2019:850, paragraph 23; see also, as regards Article 7(2) of Regulation No 1612/68, now Article 7(2) of Regulation No 492/2011, judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 41, and the case-law cited).
31


Thus, a requirement of residence on national territory which is imposed by national legislation for the purpose of entitlement to a child-raising allowance constitutes indirect discrimination in that it is intrinsically liable to affect migrant workers more than national workers and there is a consequent risk that it will place the former at a particular disadvantage (see, as regards Regulation No 1612/68, repealed and replaced by Regulation No 492/2011, judgment of 18 July 2007, Hartmann, C‑212/05, EU:C:2007:437, paragraphs 28 to 31).
34


First, it should be recalled that, once it has been established that national legislation is intrinsically liable to affect frontier workers more than national workers, it is immaterial, for the purposes of categorisation as indirect discrimination, whether the national measure affects, as well as frontier workers, nationals of the Member State in question who are unable to meet such a criterion. In order for a measure to be treated as being indirectly discriminatory, it is not necessary for it to have the effect of placing all the nationals of the Member State in question at an advantage or of placing at a disadvantage only frontier workers, but not nationals of the State in question (see, to that effect, judgment of 13 March 2019, Gemeinsamer Betriebsrat EurothermenResort Bad Schallerbach, C‑437/17, EU:C:2019:193, paragraphs 31 and 32; see also, as regards Regulation No 1612/68, repealed and replaced by Regulation No 492/2011, judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 45).
36


In any event, such a national measure constitutes an obstacle to the free movement of workers, prohibited by Article 7(2) of Regulation No 492/2011, in that, even if it is applicable without distinction, it is liable to preclude or deter a national of a Member State from leaving his State of origin in order to exercise his right to freedom of movement (see, to that effect, judgment of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraph 96).
39


It is important to recall that indirect discrimination is in principle prohibited, unless it is objectively justified. In order to be justified, it must, first, be appropriate for securing the attainment of a legitimate objective and must, secondly, not go beyond what is necessary to attain that objective (judgments of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 46, and of 10 July 2019, Aubriet, C‑410/18, EU:C:2019:582, paragraph 29).
40


In that regard, the Court has ruled that action undertaken by a Member State in order to ensure that its resident population is highly educated pursues a legitimate objective which can justify indirect discrimination and that higher education is an objective in the public interest, acknowledged at the level of the European Union (judgments of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 53, and of 10 July 2019, Aubriet, C‑410/18, EU:C:2019:582, paragraph 31).
45


In that regard, it is important to point out that the fact, mentioned by the referring court, that such alternative measures are more difficult for the national authorities to implement is not sufficient in itself to justify the infringement of a fundamental freedom guaranteed by the FEU Treaty (see, to that effect, judgment of 26 May 2016, Kohll and Kohll-Schlesser, C‑300/15, EU:C:2016:361, paragraph 59) and, therefore, to justify an obstacle under Article 7(2) of Regulation No 492/2011.