Georges Erny v Daimler AG - Werk Wörth.
Date: 2012-06-28
30. It is true that, under Article 267 TFEU, the Court has no jurisdiction to rule either on the interpretation of contractual clauses or provisions of national laws or on their conformity with European Union law (see, to that effect, Case C-384/08 Attanasio Group  [2010] ECR I-2055, paragraph 16 and the case-law cited).
32. According to settled case-law, it is for the Court to restrict its analysis to the provisions of European Union law and provide an interpretation of them which will be of use to the national court, which has the task of determining the compatibility of the provisions of national law and of the contractual clauses with that law ( Attanasio Group , paragraph 19).
34. By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 45 TFEU and Article 7(4) of Regulation No 1612/68 are to be interpreted as meaning that they preclude clauses in collective and individual agreements under which a top-up amount such as that at issue in the main proceedings, which is paid by an employer under a scheme of part-time working for older employees, must be calculated in such a way that the tax on wages payable by the worker in the Member State of employment is notionally deducted when establishing the basis for the calculation of that top-up amount, even though, under a tax convention for the avoidance of double taxation, the pay, salaries and analogous remuneration paid to workers who do not reside in the Member State of employment are taxable in their Member State of residence. If the answer to that question is in the affirmative, the referring court wishes to know what consequences result for the calculation of the top-up amount payable to those workers.
36. The prohibition of discrimination laid down in that provision applies not only to the actions of public authorities, but also to all agreements intended to regulate paid labour collectively, as well as to contracts between individuals (see, inter alia, Case C-94/07 Raccanelli  [2008] ECR I-5939, paragraph 45 and the case-law cited).
37. Moreover, Article 7(4) of Regulation No 1612/68, which clarifies and gives effect to certain rights conferred on migrant workers by Article 45 TFEU ( Merida , paragraph 19), provides that any clause of a collective or individual agreement concerning, inter alia, 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.
38. A benefit such as the top-up amount, which is paid in addition to the remuneration granted to workers placed under a scheme of part-time working for older employees, comes unquestionably, as a part of the remuneration, within the substantive scope of the provisions cited in the preceding paragraph, irrespective of the fact that, under the Law on part-time working for older employees, the top-up amount is, in part, financed through public funds in the form of a repayment to the employer. A cross-border worker in Mr Erny’s situation may rely on those provisions in regard to such a top-up amount (see, to that effect, Merida , paragraph 20).
39. The Court has consistently held that the equal treatment rule laid down in Article 45 TFEU 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).
40. 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, inter alia, Merida , paragraph 22).
41. Unless it is objectively justified and proportionate to its aim, a provision of national law or a clause in an agreement 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, inter alia, Merida , paragraph 23). In order for a measure to be treated as being indirectly discriminatory, it is not necessary for it to have the effect of placing at an advantage all the nationals of the State in question or of placing at a disadvantage only nationals of other Member States, but not nationals of the State in question (see to that effect, inter alia, Case C-542/09 Commission  v Netherlands  [2012] ECR, paragraph 38).
48. However, those justifications, which are based on the increase in financial burdens and possible administrative difficulties, must be rejected. Grounds of that kind cannot, in any event, justify the failure to comply with the obligations arising out of the prohibition of discrimination based on nationality set out in Article 45 TFEU (see, to that effect, inter alia, Merida , paragraph 30), as neither the scope nor the content of those grounds of justification is in any way affected by the public or private nature of the disputed provisions (see, to that effect, inter alia, Case C-415/93 Bosman  [1995] ECR I-4921, paragraph 86).
53. Neither Article 45 TFEU nor Regulation No 1612/68 prescribes a specific measure to be taken by the Member States or by a private employer such as Daimler in the event of a breach of the prohibition of discrimination. Those provisions leave them free to choose between the different solutions suitable for achieving the objective of those respective provisions, depending on the different situations which may arise ( Raccanelli , paragraph 50).