Aldo Celozzi v Innungskrankenkasse Baden-Württemberg.
Date: 2007-01-18
13. In order to answer that question, it should be noted at the outset that, as regards freedom of movement for workers, the principle of non-discrimination laid down in Article 39(2) EC was implemented as far as concerns social security for migrant workers by Article 3(1) of Regulation No 1408/71.
16. The Court has consistently held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each benefit, in particular its purposes and the conditions on which it is granted, and not on whether it is classified as a social security benefit by national legislation (see, inter alia, Case 249/83 Hoeckx  [1985] ECR 973, paragraph 11; Case C-111/91 Commission  v Luxembourg  [1993] ECR I-817, paragraph 28; Case C-66/92 Acciardi  [1993] ECR I-4567, paragraph 13; and Case C-57/96 Meints  [1997] ECR I-6689, paragraph 23).
17. The Court has also stated on numerous occasions that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Hoeckx , paragraphs 12 to 14; Commission  v Luxembourg , paragraph 29; Acciardi , paragraph 14; and Meints , paragraph 24).
20. Moreover, the Court has already held, regarding the payment of benefits by an employer by way of maintenance of wages, that those benefits, as well as daily sickness benefits the payment of which is suspended for a period of up to six weeks as a result, are benefits which fall within the scope of Regulation No 1408/71 (see Case C-45/90 Paletta  [1992] ECR I-3423, paragraph 17).
22. It must be borne in mind, as the Court has repeatedly held, that the object of Article 3(1) of Regulation No 1408/71 is to ensure, in accordance with Article 39 EC, equal treatment in matters of social security, without distinction based on nationality, for the persons to whom that regulation applies by abolishing all discrimination in that regard deriving from the national legislation of the Member States (Case C-131/96 Mora Romero  [1997] ECR I-3659, paragraph 29, and Case C-124/99 Borawitz [2000] ECR I-7293, paragraph 23).
23. It is settled case-law that the principle of equal treatment, as laid down in Article 3(1) of Regulation No 1408/71, prohibits not only overt discrimination based on the nationality of the beneficiaries of social security schemes but also all covert forms of discrimination which, through the application of other distinguishing criteria, lead in fact to the same result ( Mora Romero , paragraph 32, and Borawitz , paragraph 24).
24. Accordingly, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or the great majority of those affected are migrant workers, where they are applicable without distinction but can more easily be satisfied by national workers than by migrant workers or where there is a risk that they may operate to the particular detriment of the latter (Case C‑237/94 O’Flynn  [1996] ECR I-2617, paragraph 18, and Borawitz , paragraph 25).
25. It is otherwise only if those provisions are both justified by objective considerations independent of the nationality of the workers concerned and proportionate to the legitimate aim pursued by the national law ( O'Flynn , paragraph 19, and Borawitz , paragraph 26).
26. It is clear from that body of case-law that, unless 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 the nationals of other Member States more than the nationals of the State whose legislation is at issue and if there is a consequent risk that it will place the former at a particular disadvantage (see, to that effect, O’Flynn , paragraph 20; Meints , paragraph 45; and Borawitz , paragraph 27).
27. It is not necessary in this respect to establish that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect (see, to that effect, O'Flynn , paragraph 21, and Case C-373/02 Öztürk  [2004] ECR I-3605, paragraph 57).
32. Secondly, any correction of the tax class stated on the tax card is dependent on, firstly, an express application by the migrant worker, even though he is at no point informed by the competent authorities of the existence of such a possibility of correction or of the requirement to make a specific application to secure an amendment of that tax class and, secondly, the production of a certificate from the tax authorities of the Member State of which the worker is a national and a detailed examination of the marital status and financial circumstances of the person concerned.