Commission of the European Communities v French Republic.
Date: 1998-09-24
34 As the French Government and the Commission have already pointed out, the Court has held, in paragraphs 19 and 20 of its judgment in Commission v France, cited above, that the supplementary retirement pension schemes introduced under agreements concluded by the competent authorities with trade or inter-trade bodies, trade-union organisations or individual undertakings or under collective agreements concluded by both sides of industry, membership of which has been rendered compulsory by Article L 731-5 of the Social Security Code, do not constitute legislation within the meaning of the first subparagraph of Article 1(j) of Regulation No 1408/71.
36 By contrast, the system of validation, which forms an integral part of the advantages granted to workers in the sector concerned upon their being placed in early retirement, constitutes one of the conditions applicable to their dismissal, within the meaning of Article 7(1) of Regulation No 1612/68.  In that regard, Article 7(4) of that regulation provides that any clause of a collective agreement concerning conditions of dismissal is null and void in so far as it lays down discriminatory conditions in respect of workers who are nationals of other Member States.
37 The Court has consistently held that the equal treatment rule laid down in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 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 (see, inter alia, Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11, and Case C-57/96 Meints v Minister van Landbouw, Natuurbeheer en Visserij [1997] ECR I-6689, paragraph 44).
38 Unless it is objectively justified and proportionate to its aim, a provision of national law must 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 (Meints, cited above, paragraph 45).
40 Moreover, contrary to the arguments advanced by the French Government, frontier workers are entitled to rely on the provisions of Article 7 of Regulation No 1612/68 in the same way as any other worker to whom that article refers. The fourth recital in the preamble to that regulation expressly provides that the right to freedom of movement must be enjoyed `without discrimination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services', whilst Article 7 refers without qualification to `a worker who is a national of a Member State' (see, to that effect, Meints, paragraphs 49 and 50).
41 The application of Article 7(1) of Regulation No 1612/68 to the present case cannot be precluded by the fact that the concessionary points system benefits persons whose contract of employment has terminated.  Workers are guaranteed certain rights linked to their status as such, including those referred to in Article 7(1) of Regulation No 1612/68 concerning conditions of dismissal, even when they are no longer in an employment relationship (see, to that effect, Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 36).
45 As regards the principle of the protection of legitimate expectations, neither the fact that the Agreement was concluded nearly 20 years ago, nor the fact that the French authorities have since then regarded the different treatment of frontier workers residing in Belgium as compatible with Community law nor the fact that this judgment may have significant financial implications for the French Republic eliminates the discriminatory nature of the concessionary points system established by the Agreement.
46 As to the principle of legal certainty, it must be noted that the relevant provisions of Regulation No 1612/68 entered into force more than 10 years before the Agreement was concluded.  An interpretation given by the Court of Justice to a provision of Community law clarifies and defines its meaning and scope only as it should have been understood and applied from the time of its entry into force (see, to that effect, Joined Cases C-367/93 to C-377/93 Roders v Inspecteur der Invoerrechten en Accijnzen [1995] ECR I-2229, paragraph 42).
49 The Court would observe here that it is only exceptionally that, in application of the general principle of legal certainty inherent in the Community legal order, the Court may decide to restrict the right to rely upon a provision it has interpreted with a view to calling in question legal relations established in good faith.  As the Court has consistently held, such a restriction may be allowed only in the actual judgment ruling upon the interpretation sought (see, to this effect, the judgment in Case C-163/90 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625, paragraph 30).
51 The present case concerns the application of the principle of non-discrimination, which is enshrined both in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68.  At the time when the Agreement was concluded, the case-law clearly established, beyond doubt, that this principle prohibited all covert forms of discrimination (see paragraph 37 of this judgment) and that criteria such as the place of origin or residence of a worker may, according to the circumstances, be tantamount, as regards their practical effect, to unlawful discrimination on the grounds of nationality (Sotgiu, cited above, paragraph 11).
52 Furthermore, the financial consequences which may ensue for a State from a judgment of the Court have never justified in themselves limiting its effects.  To limit the effects of a judgment solely on the basis of such considerations would considerably diminish the judicial protection of the rights which individuals have under Community law (see, to this effect, the judgment in Roders and Others, cited above, paragraph 48).