1. The reference for a preliminary ruling concerns the interpretation of Article 39(2) EC.
2. That reference was made as part of an appeal brought by Mr Baldinger, the applicant in the main proceedings, against the refusal of the Pensionsversicherungsanstalt der Arbeiter, the defendant in the main proceedings, to grant him a monthly allowance for former prisoners of war provided for by Austrian legislation. Legal background Community law
3. As provided by Article 4(4) thereof, Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1; hereinafter ‘Regulation No 1408/71’), does not apply to ‘benefit schemes for victims of war or its consequences’.
4. Article 7(1) and (2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) provides: ‘1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment; 2. He shall enjoy the same social and tax advantages as national workers.’ Austrian legislation
5. Under Paragraph 1 of the Kriegsgefangenenentschädigungsgesetz (Law on Compensation for Prisoners of War, in the version published in the BGBl. I, No 40/2002, hereinafter the ‘KGEG’): ‘Austrian nationals who 1. became prisoners of war in the course of the First or Second World War; or 2. were taken into custody and detained by a foreign power for political or military reasons in the course of the Second World War or during the period when Austria was occupied by the allied forces; or 3. were outside the territory of the Republic of Austria as a result of political persecution or the threat of political persecution within the meaning of the Opferfürsorgegesetz (Law on Victim Welfare) BGBl. No 183/1947, and for the reasons referred to in subparagraph 2 above were taken into custody by a foreign power and detained after the start of the Second World War, shall be entitled to a payment in accordance with the provisions of this federal law.’
6. Paragraph 4 of the KGEG provides: ‘(1) Any person entitled under this federal law shall receive a monthly payment twelve times per year in the amount of: 14.53 Euros, if he was a prisoner of war within the meaning of Paragraph 1 for at least three months; 21.8 Euros, if he was a prisoner of war within the meaning of Paragraph 1 for at least two years; 29.07 Euros, if he was a prisoner of war within the meaning of Paragraph 1 for at least four years; and 36.34 Euros, if he was a prisoner of war within the meaning of Paragraph 1 for at least six years. (2) Payments made under subparagraph 1 shall not be regarded as income when assessing compensatory allowances (Ausgleichszulagen) under statutory social security provisions ...’
7. Paragraph 11(1) of the KGEG states: ‘The following bodies shall be responsible for determining the position in cases covered by this federal law: 1. for persons in receipt of a retirement allowance or pension ... , the social security insurance body responsible for paying the retirement allowance or pension, with the exception of the General Accident Insurance Authority; 2. for persons in receipt of a federal civil servant’s pension (Ruhegenuss), a survivor’s pension (Versorgungsgenuss), a transitional benefit (Übergangsbeitrag), welfare benefits (Versorgungsgeld), maintenance benefits (Unterhaltungsbeitrag) or a benefit paid on honourable discharge (Emeritierungsbezug), the Federal Pension Authority (Bundespensionsamt); … 7. for persons in receipt of pensions, benefits or compensation under the Kriegsopferversorgungsgesetz (Law on the Welfare of War Victims), the Heeresversorgungsgesetz (Law on the Welfare of Army Personnel) and persons in receipt of financial assistance under the Verbrechensopfergesetz (Law on Victims of Crime), the Federal Authority for Social Affairs and Matters relating to Disabled Persons;
8. in all other cases, the Federal Authority for Social Affairs and Matters relating to Disabled Persons ... .’ The main proceedings and the question referred 8. It is apparent from the order for referral that Mr Baldinger was born in Austria on 19 April 1927 and that he had acquired nationality of that State. From January 1945 to May 1945 he served in the Second World War as a soldier in the Deutsche Wehrmacht (German armed forces). From 8 May 1945 to 27 December 1947 he was held as a prisoner of war in the Union of Soviet Socialist Republics.
9. Mr Baldinger subsequently worked in Austria, then, in 1954, left that country to seek employment in Sweden where he worked until 1964, before again working in Austria from 1964 to 1965. In April 1965 he emigrated on a long-term basis to Sweden, worked there and, in 1967, took Swedish nationality, at the same time renouncing his Austrian nationality.
10. Since 1 May 1986, Mr Baldinger has been receiving an invalidity and old-age pension from the defendant in the main proceedings. The application made by Mr Baldinger to the defendant for the allowance under the KGEG was rejected by a decision of 1 March 2002, against which an appeal seeking annulment was lodged before the national court.
11. That court notes that the disputed allowance, introduced in Austrian legislation in 2000, is not linked to the beneficiary’s status as a worker or to the acquisition, on that basis, of acquired rights, in particular the right to a pension. Regulation No 1408/71, cited above, does not apply to benefit schemes instituted in favour of victims of war or its consequences. In such schemes, benefit is granted in order to compensate victims on the basis of the particular interest of the paying State.
12. Mr Baldinger fulfils the conditions for the grant of the disputed allowance. However, it was refused him on the sole ground that, after having been a prisoner of war, he accepted work in another Member State of the European Union and that finally he acquired the nationality of that State. The national court asks whether that legal consequence, which, by its effects, could be considered indirect discrimination on the basis of nationality and use of the right of free movement of workers, is compatible with Community law, particularly as it arises from a law adopted after the accession of the Republic of Austria and the Kingdom of Sweden to the European Union.
13. In those circumstances, the Arbeits- und Sozialgericht Wien decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Is Article 48(2) of the EC Treaty [now, after amendment, Article 39(2) EC], on the free movement of workers, to be interpreted as precluding a national rule which provides that entitlement to financial compensation first legislated for in the year 2000 for persons who 1. became prisoners of war in the course of the First or Second World War; or 2. were taken into custody and detained by a foreign power for political or military reasons in the course of the Second World War or during the period when Austria was occupied by the allied forces; or 3. were outside the territory of the Republic of Austria as a result of political persecution or the threat of political persecution and were taken into custody for political or military reasons by a foreign power and detained after the start of the Second World War, is to be conditional on such persons holding Austrian nationality at the time of application?’ The question referred
14. It is to be remembered in this regard that it is not for the Court of Justice to rule on the interpretation of provisions of national law but that it must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the question put to it is set (see, inter alia, Case C-224/02 Pusa [2004] ECR I-0000, paragraph 37).
15. According to the national court, Paragraph 1 of the KGEG, in so far as it concerns ‘Austrian nationals’, is to be interpreted as meaning that the benefit of the allowance granted thereunder in favour of former prisoners of war is subject to the condition that that citizen should possess Austrian nationality at the time when the application for that allowance is made. The national court questions whether such a condition is compatible with the Community provisions on the free movement of workers.
16. Article 4 of Regulation No 1408/71, which defines the material scope of that regulation, provides in paragraph (4) that the regulation does not apply to ‘benefit schemes for victims of war or its consequences’.
17. An allowance such as that at issue in the main proceedings, apart from not being linked to the status of worker, is provided to former prisoners of war, who prove that they underwent a long period of captivity, in testimony of national gratitude for the hardships they endured and is thus paid as a quid pro quo for the service they rendered to their country.
18. Having regard to that aim and those conditions for its grant, such an allowance is covered by Article 4(4) of Regulation No 1408/71, such that it is excluded from the material scope of that regulation (see, in that regard, Case 9/78 Gillard and Caisse régionale d’assurance maladie du Nord-Est [1978] ECR 1661, paragraph 13, and Case 207/78 Even and ONPTS [1979] ECR 2019, paragraphs 12 to 14).
19. Furthermore, for the same reasons, such an allowance does not fall within the category of advantages granted to national workers principally because of their status as workers or national residents and, as a result, does not fulfil the essential characteristics of the ‘social advantages’ referred to in Article 7(2) of Regulation (EEC) No 1612/68 ( Even and ONPTS , cited above, paragraphs 20 to 24).
20. The same conclusion must be reached in the light of Article 39(2) EC which covers conditions of employment, remuneration and other working conditions, which cannot cover compensatory allowances which are linked to service rendered in wartime by citizens to their own country and whose essential aim is to provide those citizens with a benefit because of the hardships they endured for that country.
21. In those circumstances, the answer to the question referred must be that Article 39(2) EC, Article 4(4) of Regulation No 1408/71 and Article 7(2) of Regulation No 1612/68 must be interpreted as not precluding national legislation which, in circumstances such as those in the main proceedings, refuses to grant an allowance in favour of former prisoners of war on the ground that the applicant did not hold the nationality of the Member State involved when the application was made, but that of another Member State.