Ibrahim Kocak v Landesversicherungsanstalt Oberfranken und Mittelfranken (C-102/98) and Ramazan Örs v Bundesknappschaft (C-211/98).
Date: 2000-03-14
35 Second, it must be borne in mind that, in its judgment in Case C-262/96 Sürül v Bundesanstalt für Arbeit [1999] ECR I-0000, paragraph 74, the Court held that Article 3(1) of Decision No 3/80 establishes, in the area in which that decision applies, a precise and unconditional principle such as is capable of being applied by a national court and, therefore, of governing the legal situation of individuals. The direct effect which must therefore be accorded to that provision means that the persons to whom it applies are entitled to rely on it before the courts of the Member States.
36 Under that provision, Turkish nationals who reside in the territory of one of the Member States and to whom Decision No 3/80 applies are to enjoy in the Member State in which they reside the same social security benefits under the legislation of that Member State as the nationals of that State. The said provision therefore constitutes the implementation and the concrete expression, in the particular field of social security, of the general principle of non-discrimination on grounds of nationality laid down in Article 9 of the Association Agreement (Sürül, cited above, paragraph 64).
39 As regards the scope of the principle of non-discrimination on grounds of nationality embodied in Article 3(1) of Decision No 3/80, it must be borne in mind that, according to settled case-law, the rule of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, achieve in practice the same result (Case C-190/98 Volker Graf v Filzmoser Maschinenbau [2000] ECR I-0000, paragraph 14).
42 Such legislation thus clearly differs from the provisions at issue in Dafeki, cited above, which accorded to documents and certificates of civil status emanating from the competent authorities of other States a lower probative value than that accorded to documents and certificates drawn up by the German authorities (see paragraphs 5 and 12 of that judgment).
49 The Commission submits that, in view of the abovementioned legal and factual differences, a refusal in principle to take account, for pension insurance purposes, of a date of birth other than that indicated in the first declaration made to a social security authority, when the new birth date does not appear in a document whose original was issued before the date of that declaration, constitutes a form of indirect discrimination against Turkish migrant workers, and that it remains to be determined whether such discrimination is justified by objective considerations independent of the nationality of the workers concerned, and whether it is proportionate to the legitimate aim pursued by the national law (see, in that regard, Case C-237/94 O'Flynn v Adjudication Officer [1996] ECR I-2617, paragraph 19).
52 Since legislation of the kind at issue in the main proceedings does not therefore involve any difference of treatment such as to constitute indirect discrimination on grounds of nationality, it is unnecessary to consider whether it is justified by objective considerations and whether it is proportionate to the legitimate aims pursued by national law (see, in that connection, Case C-15/96 Kougebetopolou v Freie und Hansestadt Hamburg [1998] ECR I-47, paragraph 21, and Case C-350/96 Clean Car Autoservice v Landeshauptmann von Wien [1998] ECR I-2521, paragraphs 30 and 31).