DW v Valsts sociālās apdrošināšanas aģentūra.
Date: 2018-03-07
13


The referring court recalls, in that respect, that under the Court’s case-law such legislation may constitute a barrier to freedom of movement for workers is prohibited under Article 45 TFEU. Such legislation cannot be accepted either in the light of the duty of genuine cooperation and assistance which Member States owe and which finds expression in the obligation laid down in Article 4(3) TEU (judgments of 16 December 2004, My, C‑293/03, EU:C:2004:821, paragraphs 45 to 48; of 16 February 2006, Öberg, C‑185/04, EU:C:2006:107, paragraphs 16 and 17; and of 4 February 2015, Melchior, C‑647/13, EU:C:2015:54, paragraphs 26 and 27).
16


As a preliminary point, it must be borne in mind that, although Member States retain the power to organise their social security schemes, by determining, inter alia, the conditions on which social security benefits are granted, they must nonetheless, when exercising that power, observe EU law and, in particular, the provisions of the Treaty on freedom of movement for workers (see, to that effect, judgments of 1 April 2008, Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 43; of 21 January 2016, Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 38; and of 6 October 2016, Adrien and Others, C‑466/15, EU:C:2016:749, paragraph 22).
18


With regard, in the first place, to whether the provisions of the Treaty relating to the free movement for workers apply, it is important to recall that it is settled case-law that an EU national who, irrespective of his place of residence and his nationality, exercises the right to freedom of movement for workers and who has been employed in a Member State other than that of origin falls within the scope of Article 45 TFEU (judgments of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 14, and of 16 February 2006, Öberg, C‑185/04, EU:C:2006:107, paragraph 11 and the case-law cited).
19


In addition, an EU national working in a Member State other than his State of origin and who has accepted a post in an international organisation also comes within the scope of that provision (see in particular, to that effect, judgments of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 15; of 16 February 2006, Öberg, C‑185/04, EU:C:2006:107, paragraph 12 and the case-law cited; and of 4 July 2013, Gardella, C‑233/12, EU:C:2013:449, paragraph 25). Such a national does not lose his status as worker for the purposes of Article 45 TFEU because his post is with an international organisation (judgment of 4 July 2013, Gardella, C‑233/12, EU:C:2013:449, paragraph 26).
21


With regard, in the second place, to whether the application of national legislation such as that at issue in the main proceedings constitutes an obstacle to the freedom of movement for workers, it should be observed that the provisions of the Treaty relating to the free 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 EU citizens at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (judgments of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 17; of 16 February 2006, Öberg, C‑185/04, EU:C:2006:107, paragraph 14 and the case-law cited; of 1 April 2008, Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 44; and of 21 January 2016, Commission v Cyprus, C‑515/14, EU:C:2016:30, point 39).
22


Thus, 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).
23


Indeed, Articles 45 TFEU is intended in particular to prevent a worker who, by exercising his right of freedom of movement, has been employed in more than one Member State from being treated, without objective justification, less favourably than one who has completed his entire career in only one Member State (see, inter alia, to that effect, judgments of 7 March 1991, Masgio, C‑10/90, EU:C:1991:107, paragraph 17, and of 21 January 2016, Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 42).
26


The Court has indeed held that national legislation which does not take into account, for the calculation of the amount of parental benefit, periods of employment completed under the Joint Sickness Insurance Scheme of the European Union is likely to dissuade citizens of a Member State from working within an institution of the European Union situated in another Member State since, by accepting employment with such an institution, they lose the right to benefit under the national sickness insurance scheme from family benefits to which they would have been entitled had they not accepted that employment (judgments of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 19, and of 16 February 2006, Öberg, C‑185/04, EU:C:2006:107, paragraph 16).
29


That finding is not called into question by the Latvian Government’s argument that temporary benefits, like maternity benefits, are not likely to constitute a major obstacle when a worker is deciding whether or not to accept a post within an EU institution or in the territory of a Member State other than that of origin. In that regard, suffice it to note that the question whether or not there is a barrier to freedom of movement for workers is not assessed in the light of the durability of the benefit concerned. In accordance with the Court’s case-law, the articles of the Treaty concerning the free movement of persons are fundamental provisions of the European Union and any restriction, even minor, of that freedom is prohibited (judgment of 15 February 2000, Commission v France, C‑34/98, EU:C:2000:84, paragraph 49).
31


In that regard, it follows from the Court’s case-law that a measure restricting one of the fundamental freedoms guaranteed by the Treaty may be justified only if it pursues a legitimate objective which is compatible with the Treaty and respects the principle of proportionality. For that to be the case, such a measure must be appropriate for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it (see, inter alia, judgments of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 22, and of 16 February 2006, Öberg, C‑185/04, EU:C:2006:107, paragraph 19 and the case-law cited).
33


In that respect, it must be noted that, while reasons of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty, national legislation may, however, constitute a justified restriction of a fundamental freedom when it is dictated by reasons of an economic nature in the pursuit of an objective in the public interest. Therefore, it is conceivable that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the public interest capable of justifying the undermining of the provisions of the Treaty concerning the right of freedom of movement for workers (judgment of 21 January 2016, Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 53 and the case-law cited).
34


Nevertheless, according to the settled case-law of the Court, it is for the competent national authorities, where they adopt a measure derogating from a principle enshrined by EU law, to show in each individual case that that measure is appropriate for securing the attainment of the objective relied upon and does not go beyond what is necessary to attain it. The reasons invoked by a Member State by way of justification must thus be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the measure adopted by that State and by specific evidence substantiating its arguments. Such an objective, detailed analysis, supported by figures, must be capable of demonstrating, with solid and consistent data, that there are genuine risks to the balance of the social security system (judgment of 21 January 2016, Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 54).
37


Given that it has been found that the legislation at issue in the main proceedings is incompatible with the principle of freedom of movement for workers guaranteed by Article 45 TFEU, there is no need to rule on the interpretation of Article 4(3) TEU (judgment of 6 October 2016, Adrien and Others, C‑466/15, EU:C:2016:749, paragraph 37).