Gertraud Hartmann v Freistaat Bayern.
Date: 2007-07-18
17. That argument must be considered in the light of the judgment in Case C‑152/03 Ritter-Coulais  [2006] ECR I‑1711. In that case the Court, examining the position of the appellants in the main proceedings in the light of the principle of freedom of movement for workers set out in Article 48 of the EC Treaty (now, after amendment, Article 39 EC), observed in paragraphs 31 and 32 of the judgment that any national of a Member State, irrespective of his place of residence and his nationality, who has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of residence falls within the scope of that provision. It followed that the appellants in the main proceedings, who worked in a Member State other than that of their actual place of residence, fell within the scope of Article 48 of the Treaty.
19. It follows that for the period from January 1994 to September 1998 the situation of a frontier worker such as Mr Hartmann falls within the scope of the provisions of the EC Treaty on freedom of movement for workers, and hence of Regulation No 1612/68.
20. Having regard to the above considerations, the answer to Question 1 must be that a national of a Member State who, while maintaining his employment in that State, has transferred his residence to another Member State and has since then carried on his occupation as a frontier worker can claim the status of migrant worker for the purposes of Regulation No 1612/68.
Question 2
22. 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 Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraph 26).
24. It should be noted that Mr Hartmann’s status of frontier worker does not in any way prevent him 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 freedom of 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’ (Case C‑57/96 Meints  [1997] ECR I‑6689, paragraph 50).
25. In the case at issue in the main proceedings, child-raising allowance is claimed by Ms Hartmann, who, as the spouse of a worker who falls within the scope of Regulation No 1612/68, is only an indirect beneficiary of the equal treatment granted to migrant workers by Article 7(2) of that regulation. Consequently, the benefit of German child-raising allowance can be extended to Ms Hartmann only if that allowance constitutes for her husband a ‘social advantage’ within the meaning of Article 7(2) of Regulation No 1612/68 (see, by analogy, Case C‑3/90 Bernini  [1992] ECR I‑1071, paragraph 26).
26. That is the case here. A benefit such as German child-raising allowance, which enables one of the parents to devote himself or herself to the raising of a young child, by meeting family expenses (see, to that effect, Joined Cases C‑245/94 and C‑312/94 Hoever and Zachow  [1996] ECR I‑4895, paragraphs 23 to 25), benefits the family as a whole, whichever parent it is who claims the allowance. The grant of such an allowance to a worker’s spouse is capable of reducing that worker’s obligation to contribute to family expenses, and therefore constitutes for him or her a ‘social advantage’ within the meaning of Article 7(2) of Regulation No 1612/68 (see, by analogy, Bernini , paragraph 25).
28. According to the documents before the Court, the German legislation makes the grant of child-raising allowance conditional principally on the recipients being resident on national territory. Since such a rule can lead to indirect discrimination against workers who do not live in Germany, the national court wonders whether the rule can be justified and whether it satisfies the criterion of proportionality.
29. It should be recalled that the equal treatment rule which appears both in 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).
30. 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).
31. That is true of a residence condition such as that at issue in the main proceedings, which, as the national court points out, can naturally be more easily met by German workers or their spouses, who usually live in Germany, than by workers from other Member States or their spouses, who more often reside in another Member State (see, by analogy, Case C‑337/97 Meeusen  [1999] ECR I‑3289, paragraphs 23 and 24).
32. As explained by the national court, German child-raising allowance constitutes an instrument of national family policy intended to encourage the birth-rate in that country. The primary purpose of the allowance is to allow parents to care for their children themselves by giving up or reducing their employment in order to concentrate on bringing up their children in the first years of their life.
33. The German Government adds essentially that child-raising allowance is granted in order to benefit persons who, by their choice of residence, have established a real link with German society. It says that, in that context, a residence condition such as that at issue in the main proceedings is justified.
34. Regardless of whether the aims pursued by the German legislation could justify a national rule based exclusively on the criterion of residence, it must be observed that, according to the information provided by the national court, the German legislature did not confine itself to a strict application of the residence condition for the grant of child-raising allowance but allowed exceptions under which frontier workers could also claim it.
35. It appears from the order for reference that, under Paragraph 1(4) of the BErzGG, in the version applicable at the material time, frontier workers who carry on an occupation in Germany but reside in another Member State can claim German child-raising allowance if they carry on an occupation of a more than minor extent.
36. Consequently, it is apparent that, under the German legislation in force at the material time, residence was not regarded as the only connecting link with the Member State concerned, and a substantial contribution to the national labour market also constituted a valid factor of integration into the society of that Member State.
37. In those circumstances, the allowance at issue in the main proceedings could not be refused to a couple such as Mr and Ms Hartmann who do not live in Germany, but one of whom works full-time in that State.