European Commission v Republic of Cyprus.
Date: 2016-01-21
12


It should be observed that, according to settled case-law of the Court, although it is true that the subject-matter of proceedings brought under Article 258 TFEU is circumscribed by the pre-litigation procedure provided for in that provision and, consequently, the Commission’s reasoned opinion and the application must be based on the same complaints, that requirement cannot go so far as to mean that in every case exactly the same wording must be used in each, where the subject-matter of the proceedings has not been extended or altered (see, in particular judgments in Commission v Germany, C‑433/03, EU:C:2005:462, paragraph 28; Commission v Finland, C‑195/04, EU:C:2007:248, paragraph 18; and Commission v Netherlands, C‑576/10, EU:C:2013:510, paragraph 34).
13


Accordingly, in its application the Commission may clarify its initial complaints provided, however, that it does not alter the subject-matter of the dispute (see judgment in Commission v Finland, C‑195/04, EU:C:2007:248, paragraph 18 and the case-law cited).
34


The Court has previously held that Article 48 TFEU, the objective of which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers (see judgment in da Silva Martins, C‑388/09, EU:C:2011:439, paragraph 70 and the case-law cited), entails in particular that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the Treaty (see judgments in Nemec, C‑205/05, EU:C:2006:705, paragraph 38, and Bouman, C‑114/13, EU:C:2015:81, paragraph 39).
35


Furthermore, the Court has also held that a request for aggregation may be satisfied in direct application of Articles 45 TFEU to 48 TFEU, without recourse to the coordination rules adopted by the Council in accordance with Article 48 TFEU (see, to that effect, judgment in Vougioukas, C‑443/93, EU:C:1995:394, paragraph 36).
38


Although Member States retain the power to organise their social security schemes, they must nonetheless, when exercising that power, observe EU law and, in particular, the provisions of the EC Treaty on freedom of movement for workers and the right of establishment (see judgment in Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 43).
39


In that regard, it should be recalled that it is settled case-law that all the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the European Union, and preclude measures which might place such nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State. In that context, nationals of the Member States have in particular the right, which they derive directly from the Treaty, to leave their State of origin to enter the territory of another Member State and reside there in order there to pursue an economic activity (see, in particular, judgments in Ritter-Coulais, C‑152/03, EU:C:2006:123, paragraph 33; Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 44; Casteels, C‑379/09, EU:C:2011:131, paragraph 21; and Las, C‑202/11, EU:C:2013:239, paragraph 19).
40


Indeed, while European Union primary law can offer no guarantee to an insured person that moving to another Member State will be neutral in terms of social security, in particular where sickness and old-age pension insurance are concerned, since, given the disparities between the Member States’ social security schemes and legislation, such a move may be to the advantage of the person concerned in terms of social security, or not, depending on the circumstances, it is settled case-law that, where its application is less favourable, national legislation is consistent with EU law only to the extent that, in particular, such legislation does not place the worker at a disadvantage compared with those who pursue all their activities in the Member State where it applies and does not purely and simply result in the payment of social security contributions on which there is no return (see judgment in Mulders, C‑548/11, EU:C:2013:249, paragraph 45 and the case-law cited).
41


Thus, the Court has repeatedly held that the aim of Articles 45 TFEU and 48 TFEU would not be achieved if, as a consequence of the exercise of their right to freedom of movement, migrant workers were to lose the social security advantages afforded them by the legislation of one Member State (see, inter alia, judgments in Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 46; da Silva Martins, C‑388/09, EU:C:2011:439, paragraph 74; and Mulders, C‑548/11, EU:C:2013:249, paragraph 46).
42


Moreover, according to the Court’s case-law, Articles 45 to 48 TFEU are intended in particular to prevent a worker who, by exercising his right of freedom of movement, has been employed in more than one Member State from being treated, without objective justification, less favourably than one who has completed his entire career in only one Member State (see judgment in da Silva Martins, C‑388/09, EU:C:2011:439, paragraph 76).
46


As regards the Republic of Cyprus’s argument that the legislation at issue in the present case does not treat migrant workers less favourably on the ground that it applies indiscriminately to all workers choosing to leave the Cypriot civil service in order to work in their Member State of origin or in another Member State, it should be recalled that for a measure to restrict freedom of movement, it is not necessary for it to be based on the nationality of the persons concerned or even for it to have the effect of bestowing an advantage on all national workers or of operating to the detriment solely of nationals of other Member States, but not of nationals of the State in question. It is enough that the measure should benefit certain categories of persons pursuing occupational activity in the Member State in question (see judgments in Bosman, C‑415/93, EU:C:1995:463, paragraphs 94 and 95, and Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 50 and the case-law cited).
47


While the legislation at issue in the present case applies both to Cypriot civil servants choosing to resign in order to work in the private sector in their Member State of origin and to those resigning and leaving that Member State in order to work in another Member State, within an EU institution or other international organisation, the fact remains that that legislation may restrict the freedom of movement of the latter category of civil servants preventing or deterring them from leaving their Member State of origin to take up employment in another Member State, within an EU institution or in another international organisation. Such legislation directly affects the access of Cypriot civil servants to the employment market in Member States other than the Republic of Cyprus and is thus capable of impeding freedom of movement for workers (see, to that effect, judgment in Bosman, C‑415/93, EU:C:1995:463, paragraphs 98 to 100 and 103).
51


Thus, the Cypriot legislation may deter the abovementioned group of civil servants from leaving Cyprus to work within an EU institution since, by accepting employment within such an institution, they lose the right to benefit under the national sickness insurance scheme from old-age benefits to which they would have been entitled had they not accepted that employment (see, to that effect, judgments in My, C‑293/03, EU:C:2004:821, paragraph 47; Rockler, C‑137/04, EU:C:2006:106, paragraph 19; and Öberg, C‑185/04, EU:C:2006:107, paragraph 16).
52


In addition to the fact that it constitutes an obstacle prohibited by Article 45 TFEU, such a consequence cannot be accepted in the light of the duty of sincere cooperation and assistance which Member States owe the European Union and which finds expression in the obligation laid down in Article 4(3) TEU to facilitate the achievement of the EU’s tasks (see, to that effect, judgment in My, C‑293/03, EU:C:2004:821, paragraph 48).
53


As regards the argument of the Republic of Cyprus that the obstacle to the free movement of workers resulting from the provisions of Article 27 of Law 97 (I)/1997 is justified by the fact that variations in the conditions for the grant of social security benefits might put the balance of the system at risk and that those provisions are intended to ensure that balance subject to the principle of proportionality, it should be noted that while reasons of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see judgments in Verkooijen, C‑35/98, EU:C:2000:294, paragraph 48; Kranemann, C‑109/04, EU:C:2005:187, paragraph 34; and Thiele Meneses, C‑220/12, EU:C:2013:683, paragraph 43), national legislation may, however, constitute a justified restriction on a fundamental freedom when it is dictated by reasons of an economic nature in the pursuit of an objective in the public interest (see judgment in Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 52). Therefore, it is conceivable that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the public interest capable of justifying the undermining of the provisions of the Treaty concerning the right of freedom of movement for workers (see, to that effect, judgment in Kohll, C‑158/96, EU:C:1998:171, paragraph 41)
54


However, according to the settled case-law of the Court, it is for the competent national authorities, where they adopt a measure derogating from a principle enshrined by European Union Law, to show in each individual case that that measure is appropriate for securing the attainment of the objective relied upon and does not go beyond what is necessary to attain it. The reasons invoked by a Member State by way of justification must thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State and by specific evidence substantiating its arguments. Such an objective, detailed analysis, supported by figures, must be capable of demonstrating, with solid and consistent data, that there are genuine risks to the balance of the social security system (see, in particular, judgments in Commission v Belgium, C‑254/05, EU:C:2007:319, paragraph 36, and Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 71).