Alphonse Eschenbrenner v Bundesagentur für Arbeit.
Date: 2017-03-02
31


In that regard, the circumstances of the dispute in the main proceedings differ from those at issue in the cases which gave rise to the judgments of 16 September 2004, Merida (C‑400/02, EU:C:2004:537), and of 28 June 2012, Erny (C‑172/11, EU:C:2012:399), which the referring court refers to, and which concerned situations in which the benefits at issue were actually subject to tax in both Member States. Indeed, unlike the circumstances at issue in the main proceedings, the power to tax the benefits at issue in the cases giving rise to those judgments belonged, under the Tax Convention, to one Member State, while those benefits were subject to a notional tax deduction in the other Member State (see, judgments of 16 September 2004, Merida, C‑400/02, EU:C:2004:537, paragraphs 11 and 24, as well as of 28 June 2012, Erny, C‑172/11, EU:C:2012:399, paragraph 34).
32


As regards, next, the principle of equal treatment, Article 45(2) TFEU states that freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. That provision is given specific expression in Article 7(2) of Regulation No 492/2011 which states that a worker who is a national of a Member State is to enjoy, in the territory of the other Member States, the same social and tax advantages as national workers.
35


In that regard, it must be noted that the principle of equal treatment laid down in both Article 45 TFEU and in Article 7 of Regulation No 492/2011 prohibits not only direct discrimination on the ground of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, judgment of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 41 and the case-law cited).
36


A provision of national law — even if it applies regardless of nationality — 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 migrant worker at a particular disadvantage, unless objectively justified and proportionate to the aim pursued (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 26, as well as the case-law cited).
45


Although it is true that Member States must exercise their competence in the area of direct taxation consistently with EU law and, in particular, with the fundamental freedoms guaranteed by the FEU Treaty (see judgment of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 171 and the case-law cited), it is nevertheless apparent from the Court’s case-law that EU law does not preclude unfavourable consequences for free movement of workers that are the result of differences between tax scales in the Member States (see, to that effect, judgment of 12 May 1998, Gilly, C‑336/96, EU:C:1998:221, paragraphs 47 and 53).
46


Thus, given the disparities between the Member States’ legislation in this field, a worker’s decision to rely on his freedom of movement under, in particular, Article 45 TFEU, can, depending on the circumstances, be more or less advantageous for such a worker from a tax point of view (see, by analogy, concerning the principle of non-discrimination, judgments of 15 July 2004, Lindfors, C‑365/02, EU:C:2004:449, paragraph 34, and of 12 July 2005, Schempp, C‑403/03, EU:C:2005:446, paragraph 45; of freedom of establishment, judgments of 6 December 2007, Columbus Container Services, C‑298/05, EU:C:2007:754, paragraph 51, and of 28 February 2008, Deutsche Shell, C‑293/06, EU:C:2008:129, paragraph 43; as well as free movement of capital, judgment of 7 November 2013, K, C‑322/11, EU:C:2013:716, paragraph 80).
52


According to the Court’s well-established case-law, the social objective of that directive is to guarantee employees a minimum of protection at European Union level in the event of the employer’s insolvency through payment of outstanding claims resulting from contracts of employment or employment relationships and relating to pay for a specific period (see judgment of 17 November 2011, van Ardennen, C‑435/10, EU:C:2011:751, paragraph 27 and the case-law cited, as well as, to that effect, judgment of 24 November 2016, Webb-Sämann, C‑454/15, EU:C:2016:891, paragraphs 32 and 35).
53


The Member States are thus bound to ensure, within the limit of a ceiling they are entitled to set to guarantee outstanding claims, that all those claims are paid (see, to that effect, judgment of 4 March 2004, Barsotti and Others, C‑19/01, C‑50/01 and C‑84/01, EU:C:2004:119, paragraph 36).
54


Nevertheless, while guarantee institutions must thus take responsibility for outstanding pay, pursuant inter alia to Article 3 of Directive 2008/94, it is for national law to specify what is meant by the term ‘pay’ and to define what it includes (see judgment of 16 July 2009, Visciano, C‑69/08, EU:C:2009:468, paragraph 28 and the case-law cited).