Wendy Geven v Land Nordrhein-Westfalen.
Date: 2007-07-18
12. The reference to ‘social advantages’ in that provision cannot be interpreted restrictively (Case C‑57/96 Meints  [1997] ECR I‑6689, paragraph 39). According to settled case-law, ‘social advantages’ are to be understood as all advantages which, whether or not linked to a contract of employment, are generally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate their mobility within the European Community (see Case 65/81 Reina  [1982] ECR 33, paragraph 12; Meints , paragraph 39; and Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraph 25).
13. The Court has already held that German child-raising allowance constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 (see Martínez Sala , paragraph 26).
15. It should be noted that Ms Geven’s status of migrant worker does not in any way prevent her from being able to claim the equal treatment prescribed by Article 7(2) of Regulation No 1612/68 in relation to the grant of social advantages. The Court has already held that frontier workers can rely on the provisions of Article 7 of Regulation No 1612/68 on the same basis as any other worker to whom that article applies. The fourth recital in the preamble to that regulation expressly states that the right of free movement must be enjoyed ‘without discrimination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services’, and Article 7 of the regulation refers, without reservation, to a ‘worker who is a national of a Member State’ ( Meints , paragraph 50).
16. It should also be noted that the scope of the rules on freedom of movement for workers (and hence of Regulation No 1612/68) extends to all workers carrying on effective and genuine activities, with the exception of those whose activities are on such a small scale as to be regarded as purely marginal and ancillary (see, in particular, Case 53/81 Levin  [1982] ECR 1035, paragraph 17).
18. It should be recalled that the equal treatment rule which appears both in Article 48 of the EC Treaty (now, after amendment, Article 39 EC) and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination on grounds 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 ( Meints , paragraph 44).
19. Unless it is objectively justified and proportionate to the aim pursued, 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 ( Meints , paragraph 45).
26. In those circumstances, the fact that a non-resident worker does not have a sufficiently substantial occupation in the Member State concerned is capable of constituting a legitimate justification for a refusal to grant the social advantage at issue.
27. As the Court has already held in Case C‑444/93 Megner and Scheffel  [1995] ECR I‑4741, paragraphs 18 to 21 and 29, while a person in minor employment of the kind referred to in the national court’s question has the status of worker within the meaning of Article 39 EC, social policy is, in the current state of Community law, a matter for the Member States, who have a wide discretion in exercising their powers in that respect. However, that wide discretion cannot have the effect of undermining the rights granted to individuals by the provisions of the EC Treaty in which their fundamental freedoms are enshrined (see, with reference to Article 39 EC, Case C‑18/95 Terhoeve  [1999] ECR I‑345, paragraph 44, and Case C‑208/05 ITC  [2007] ECR I‑0000, paragraphs 39 and 40, and, by analogy, concerning equal treatment of men and women workers, Megner and Scheffel , and Case C‑77/02 Steinicke  [2003] ECR I‑9027, paragraphs 61 and 63).
29. In exercising its powers, that legislature could reasonably consider that the exclusion from the allowance in question of non-resident workers who carry on an occupation in the Member State concerned that does not exceed the threshold of minor employment as defined in national law constitutes a measure that is appropriate and proportionate, having regard to the objective mentioned in the preceding paragraph (see, by analogy, Megner and Scheffel , paragraph 30).