K.M. Zyla v Staatssecretaris van Financiën.
Date: 2019-01-23
20


It is settled case-law that an EU citizen who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and been employed in a Member State other than that of his origin comes within the scope of Article 45 TFEU (judgment of 7 March 2018, DW, C‑651/16, EU:C:2018:162, paragraph 18 and the case-law cited).
22


It is also clear from the Court’s case-law that all of the provisions of the FEU Treaty relating to the freedom of movement of persons are intended to facilitate the pursuit by EU citizens of occupational activities of all kinds throughout the European Union, and preclude measures which might place them at a disadvantage when they wish to pursue an economic activity in another Member State (judgment of 7 March 2018, DW, C‑651/16, EU:C:2018:162, paragraph 21 and the case-law cited).
23


Accordingly, provisions which preclude or deter a national of a Member State from leaving his country of origin to exercise his right to freedom of movement constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (judgments of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 18, and of 16 February 2006, Öberg, C‑185/04, EU:C:2006:107, paragraph 15 and the case-law cited).
24


In that regard it must be borne in mind, as the Netherlands Government noted in its written observations, that the principle of equal treatment enshrined in Article 45 TFEU prohibits not only overt discrimination based on nationality but all covert forms of discrimination which, by applying other distinguishing criteria, in fact lead to the same result. Unless objectively justified and proportionate to the aim pursued, 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 (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraphs 25 and 26).
26


However, 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 to the exclusion of nationals of the State in question (see, to that effect, judgment of 18 December 2014, Larcher, C‑523/13, EU:C:2014:2458, paragraph 32 and the case-law cited). In addition, it follows from the case-law cited in paragraphs 22 and 23 above that even non-discriminatory obstacles to the freedom of movement for workers are, in principle, prohibited by Article 45 TFEU.
30


Consequently, the legislation at issue in the main proceedings concerns levies allocated specifically and directly to the funding of social security. That legislation therefore has a direct and sufficiently relevant link to the laws which govern the branches of social security listed in Article 3 of Regulation No 883/2004 and thus comes within the scope of that regulation (see, to that effect, judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraph 27 and the case-law cited). The dispute in the main proceedings thus concerns a possible restriction on the freedom of movement for workers as a result of a social security measure which forms an integral part of the national social security system.
33


The Court has previously held that persons insured under the Netherlands social security system are entitled only in exceptional circumstances to tax credits in respect of social security, since it is only in a situation where an insured person cannot set off reductions in contributions against contributions due that that person can claim such tax credits (see, to that effect, judgment of 8 September 2005, Blanckaert, C‑512/03, EU:C:2005:516, paragraph 47). It follows that the existence of the compensation mechanism identified in paragraph 32 above does not affect the nature of the social security credit provided for in Netherlands law, which, as the Advocate General noted in point 56 of his Opinion, is specifically intended to offset the economic effort which social security contributions represent for workers.
34


That being so, it is clear from settled case-law that, although, in principle, Member States retain the power to organise their social security schemes, they must nonetheless, when exercising that power, observe EU law and, in particular, the provisions of the FEU Treaty on the free movement of workers and the right of establishment (see, inter alia, judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 22 and the case-law cited).
37


It must be noted in this regard that, in order to ensure the free movement of employed and self-employed persons within the European Union, while upholding the principle of equal treatment of those persons under the various measures of national legislation, Regulation No 1408/71, and then Regulation No 883/2004, have established a system of coordination concerning, inter alia, the determination of the legislation applicable to employed persons who make use, under various circumstances, of their right to freedom of movement (judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraph 34 and the case-law cited).
38


The completeness of that system of conflict rules has the effect of divesting the legislature of each Member State of the power to determine at its discretion the ambit and the conditions for the application of its national legislation so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraph 35 and the case-law cited).
43


Furthermore, the Court has held that it falls within the internal process of a national social security system to allow entitlement to reductions in contributions only to persons liable to pay them, that is to say, persons insured under that system (judgment of 8 September 2005, Blanckaert, C‑512/03, EU:C:2005:516, paragraph 49).
44


Moreover, as has been noted in paragraph 22 above, the provisions of the Treaty on the freedom of movement of persons are intended to facilitate the pursuit by EU citizens of occupational activities of all kinds throughout the European Union, and preclude measures that might place EU citizens at a disadvantage when they wish to pursue an activity in a Member State other than their Member State of origin. In that context, nationals of the Member States have in particular the right, which they derive directly from the FEU Treaty, to leave their Member State of origin to enter the territory of another Member State and reside there in order to pursue an activity there (judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 33 and the case-law cited).
45


However, primary EU law cannot guarantee to a worker that moving to a Member State other than his Member State of origin will be neutral in terms of social security, since, given the disparities between the Member States’ social security schemes and legislation, such a move may be more or less advantageous for the person concerned in that regard (judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 34 and the case-law cited). EU law guarantees only that workers active in a Member State other than their Member State of origin are subject to the same conditions as workers of that other State.