Walter Larcher v Deutsche Rentenversicherung Bayern Süd.
Date: 2014-12-18
30. As the Court has consistently held, the object of Article 3(1) of Regulation No 1408/71 is to ensure, in accordance with Article 45 TFEU, 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 national legislation of the Member States (see, inter alia, judgments in Mora Romero , C‑131/96, EU:C:1997:317, paragraph 29; Borawitz , C‑124/99, EU:C:2000:485, paragraph 23; and Celozzi , C‑332/05, EU:C:2007:35, paragraph 22).
31. It is also 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 (judgment in Celozzi , EU:C:2007:35, paragraph 32).
32. The Court has accordingly ruled 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 migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage (see, to that effect, judgments in O’Flynn , C‑237/94, EU:C:1996:206, paragraph 20; Meints , C‑57/96, EU:C:1997:564, paragraph 45; Borawitz , EU:C:2000:485, paragraph 27; and Celozzi , EU:C:2007:35, paragraph 26).
33. It is not necessary, in that 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, judgments in O’Flynn , EU:C:1996:206, paragraph 21; Öztürk , EU:C:2004:232, paragraph 57; and Celozzi , EU:C:2007:35, paragraph 27).
38. In those circumstances, it is still necessary to determine whether such national legislation may nevertheless be justified. In that regard, according to the Court’s settled case-law, national measures of the kind at issue in the main proceedings may be allowed only if they pursue a legitimate objective in the public interest, they are appropriate to ensuring the attainment of that objective, and they do not go beyond what is necessary to attain the objective pursued (see, inter alia, judgment in van den Booren , C‑127/11, EU:C:2013:140, paragraph 45).
40. While it is true, as the Advocate General observed in point 48 of his Opinion, that those two objectives, which are inextricably linked in this case, can be regarded as legitimate objectives of social policy (see, to that effect, judgments in Palacios de la Villa , C‑411/05, EU:C:2007:604, paragraph 64, and Caves Krier Frères , C‑379/11, EU:C:2012:798, paragraphs 50 and 51), it is still necessary to determine whether the national measures at issue in the main proceedings are appropriate to ensuring the attainment of those objectives and do not go beyond what is necessary to do so.
44. However, it should be recalled that, when applying domestic law, national courts are required to interpret that law, in so far as is possible, in a manner consistent with EU law in order to ensure, for matters within their jurisdiction, the full effectiveness of EU law when they determine the disputes before them (see, to that effect, inter alia, judgment in C‑397/01 to C‑403/01 Pfeiffer and Others , EU:C:2004:584, paragraphs 113 and 114).
48. In order to answer that question, it should be borne in mind that the system put in place by Regulation No 1408/71 is merely a system of coordination, concerning, inter alia, the determination of the legislation applicable to employed and self-employed persons who make use, in various circumstances, of their right to freedom of movement and that it is inherent in such a system that the conditions to which entitlement to a retirement pension is subject differ depending on the Member State (see, to that effect, judgment in Tomaszewska , C‑440/09, EU:C:2011:114, paragraphs 25 and 26).
49. However, when laying down those conditions, Members States must ensure the equal treatment of all workers occupied on their territory as effectively as possible and not penalise workers who exercise their right to freedom of movement (see, to that effect, judgments in Piatkowski , C‑493/04, EU:C:2006:167, paragraph 19; Nikula , C‑50/05, EU:C:2006:493, paragraph 20; and Derouin , C‑103/06, EU:C:2008:185, paragraph 20).