Commission of the European Communities v Grand Duchy of Luxembourg.
Date: 1993-03-10
9 The rules on equal treatment, both in the Treaty and in Article 7 of Regulation No 1612/68, forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11).
10 That applies to the requirement that the mother reside on the territory of the Grand Duchy for a year preceding the birth of the child, because such a requirement is in practice more easily met by Luxembourg nationals than by nationals of other Member States (see, in that regard, Case C-279/89 Commission v United Kingdom [1992] ECR I-5785, paragraph 42).
12 That justification cannot be accepted. In the circumstances of the present case, a requirement of prior residence in the Grand Duchy is neither necessary nor appropriate to attain the public health objective that is being sought. Whilst the obligation to undergo certain medical examinations in the Grand Duchy is indeed appropriate in the light of that objective, it is disproportionate not to take account of medical examinations that may have been carried out in other Member States.
17 Article 52 confers on nationals of one Member State who wish to pursue activities as self-employed persons in another Member State the benefit of the same treatment as the host State' s own nationals and prohibits any discrimination based on nationality which hinders the taking up or pursuit of such activities. That prohibition covers not only specific rules on the pursuit of occupational activities, but also, as emerges from the General Programme for the abolition of restrictions on the freedom of establishment (OJ, English Special Edition, Second Series (IX), p. 7), any measure which, pursuant to any provision laid down by law, Regulation or administrative action in a Member State, or as the result of the application of such a provision, or of administrative practices, hinders nationals of other Member States in their pursuit of an activity as a self-employed person by treating nationals of other Member States differently from nationals of the country concerned.
18 It follows that the imposition of residence requirements which are, as has already been established, discriminatory as regards the payment of childbirth allowance constitutes a breach of Article 52 of the Treaty.
21 In that connection, since Regulation No 1612/68 is of general application regarding the free movement of workers, Article 7(2) thereof may apply to social advantages which, at the same time, fall specifically within the scope of Regulation No 1408/71.
28 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 the particular 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 Case C-78/91 Hughes v Chief Adjudication Officer [1992] ECR I-4839, paragraph 14).
29 The Court has often stated 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 concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, in particular, Hughes, paragraph 15, Case C-356/89 Newton v Chief Adjudication Officer [1991] ECR I-3017, Joined Cases 379 to 381/85 and 93/86 Giletti and Others [1987] ECR 955, paragraph 11, and Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn, Kalmthout [1985] ECR 973, paragraphs 12 to 14).
30 It should be noted here, first, that the provisions concerning the disputed maternity allowance confer on recipients a legally defined right, without any individual and discretionary assessment of personal needs (see the Hughes judgment), and, secondly, that maternity benefits are expressly mentioned in Article 4(1)(a) of Regulation No 1408/71.