Gerard Merida v Bundesrepublik Deutschland.
Date: 2004-09-16
11. According to Mr Merida, the notional deduction from his basic remuneration of the German tax on wages for the purposes of determining the basis of assessment of the interim assistance is unlawful. In fact, under the double taxation agreement that benefit is taxable only in France and, in the event, it is being subjected to unlawful double taxation. The notional calculation of net salary under German tax law for the purposes of determining the amount of that benefit, apart from running counter to the objective pursued by it, which is to offset the loss of income consequential upon cessation of employment, is contrary to Community law.
19. Moreover, Article 7(4) of Regulation No 1612/68, which clarifies and gives effect to certain rights conferred on migrant workers by Article 39 EC (Case C-15/96 Schöning-Kougebetopoulou [1998] ECR I-47, paragraph 12), provides that any clause of a collective agreement concerning remuneration and other conditions of work or dismissal is null and void in so far as it lays down discriminatory conditions in respect of workers who are nationals of the other Member States.
20. It is common ground that a benefit such as interim assistance, which forms part of the benefits awarded to employees in the event of dismissal, comes within the substantive scope of the provisions cited in the preceding paragraph and that a frontier worker in Mr Merida’s situation may rely on those provisions in regard to such a benefit (see, in that connection, Case C-35/97 Commission  v France  [1998] ECR I-5325, paragraphs 36, 40 and 41).
21. It has been consistently held that the equal treatment rule laid down in Article 39 EC 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 C-237/94 O’Flynn  [1996] ECR I-2617, paragraph 17).
22. The principle of non-discrimination requires not only that comparable situations must not be treated differently but also that different situations must not be treated in the same way (see, to that effect, Case C-354/95 National Farmers’ Union and Others  [1997] ECR I-4559, paragraph 61).
23. 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 ( O’Flynn, paragraph 20).
24. Yet, in the present case the notional taking into account of the German wage tax has an unfavourable effect on the situation of frontier workers. In fact, the notional deduction of that tax in determining the basis of assessment of the interim assistance puts at a disadvantage persons who, like Mr Merida, reside and are liable to tax in a Member State other than the Federal Republic of Germany as opposed to workers resident and liable to tax in the latter State.
30. However, these objections based on the increase in financial burdens and possible administrative difficulties must be rejected. In fact, grounds of that kind cannot justify the Federal Republic of Germany’s failure to comply with its obligations under the EC Treaty (Case C‑55/00 Gottardo  [2002] ECR I-413, paragraph 38).