Abstract
In O.D. and Others v INPS (C-350/20), the Court dealt with the refusal of the Italian authorities to grant childbirth and maternity allowances to third-country nationals falling within the scope of the Single Permit Directive. In CG (C-709/20), the Court considered the refusal of the UK authorities to grant social assistance to an economically inactive EU citizen resident under the UK scheme adopted in the context of Brexit. In AB v Olympiako (C-511/19), the Court found that the Greek legislation, adopted in the context of the economic crisis, placing public sector workers in a labour reserve system is not discriminatory on grounds of age. In WABE and MH Müller Handel (C-804/18 and C-341/19), the Court clarified what circumstances could justify differential treatment indirectly based on religion or belief. The Court confirmed the direct effect of the principle of equal pay for male and female workers enshrined in Article 157 TFEU for cases of work of equal value in Tesco Stores (C-624/19). In Team Power Europe (C-784/19), the Court specified under which criteria a temporary-work agency could be considered as pursuing ‘substantial activities’ in a Member State. In A (C-535/19), the Court held that a Member State cannot exclude an economically inactive EU citizen from its public sickness insurance system but does not have to grant access free of charge. In FORMAT (C-879/19), the Court confirmed that Article 14(2) of Regulation 1408/71 does not apply to a person who, under a single employment contract concluded with a single employer, works in several Member States for more than 12 months in each of those Member States. Finally, in PF (C-27/20), the Court dealt a national legislation which uses the penultimate year preceding the payment period as the reference year for the calculation of family allowances to be allocated.
Keywords
Right to equal treatment with regard to family benefits for third-country nationals under the Single Permit Directive: O.D. and Others v INPS 1
A few months after the INPS v WS case 2 in which the Court considered the Italian legislation on family benefits in light of Article 12(1)(e) of Directive 2011/98, the Court was asked to interpret Article 12(1)(e) again in light of the refusal by the Italian authorities to grant childbirth and maternity allowances to third-country nationals falling within the scope of Directive 2011/98. 3
In this case, third-country nationals residing in Italy and holding a single work permit provided by the national law transposing Directive 2011/98 were refused childbirth and maternity allowances on the basis that those benefits were exclusively reserved for Italian nationals, EU citizens and third-country nationals holding long-term residence status. The third-country nationals appealed the decisions of the INPS and the case ended up before the Supreme Court of Cassation, which decided to refer a question regarding the compliance of the Italian legislation on childbirth and maternity allowances with several provisions of the Italian Constitution. The Constitutional Court decided to make a preliminary reference to the Court of Justice in order to ask for an interpretation of Article 34 of the Charter and Article 12(1)(e) of Directive 2011/98 with the view to checking the compliance of the Italian legislation.
The Grand Chamber first stated that Article 12(1)(e) of Directive 2011/98 gives specific expression to the entitlement to social security benefits provided for in Article 34(1) and (2) of the Charter. 4 Consequently, the questions of the Italian Constitutional Court were only examined in light of Directive 2011/98. 5
Article 12(1)(e) provides for equal treatment with nationals of the Member State of residence with regard to the branches of social security, as defined in Regulation 883/2004. The Court first had to consider whether the benefits concerned fell within the branches of social security as defined in Regulation 883/2004. 6 The Court recalled the test to determine whether a benefit qualifies as a social security benefit under Regulation 883/2004, namely whether the benefit ‘is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 3(1) of Regulation 883/2004’. 7 In respect of the childbirth allowance, the Court considered it to be a family benefit for the purpose of Article 3(1)(j) of Regulation 883/2004 since it was granted to any child, without any income requirement, born or adopted, whose parents reside in Italy and are Italian nationals or EU citizens or have long-term resident status, for the purpose of helping families bearing the costs linked with birth or adoption. 8 For the maternity allowance, the Court found that despite the fact that it was awarded to mothers who are not in employment, self-employment or professional practice by taking into account their economic situation, the authorities were not able to take other personal circumstances into account. 9 Since it was automatically granted to mothers meeting certain legally defined, objective criteria, without any individual and discretionary assessment of the personal needs of the person concerned, the maternity allowance ought to be considered as a maternity benefit under Article 3(1)(b) of Regulation 883/2004. 10
As a result, third-country nationals who fall within the scope of Directive 2011/98 enjoy equal treatment with regard to those benefits pursuant to Article 12(1)(e) of that Directive. Since Italy did not exclude those benefits from the equal treatment provision when implementing the Directive, it cannot exclude third-country nationals falling within the scope of Directive 2011/98 from equal treatment with regard to childbirth and maternity allowances. 11
Access to social assistance for economically inactive EU citizens under Directive 2004/38 in the context of Brexit: CG 12
CG, a dual national (Croatian and Dutch), is a single mother of two young children. She arrived in Northern Ireland in 2018 where she lived with her partner, a Dutch national, until moving to a women's refuge. CG has no resources of her own to support herself or her children.
She was granted a temporary right of residence in the UK on 4 June 2020 on the basis of the new UK scheme, put in place in the context of the withdrawal agreement between the EU and the UK, applicable to EU citizens residing in the UK. Her temporary right of residence is not subject to any condition of resources. On 8 June 2020, she applied to the Department for Communities in Northern Ireland for Universal Credit, a social assistance benefit. Her application was rejected as the Universal Credit Regulations exclude EU citizens with a right of residence granted under the new scheme. CG challenged the refusal by claiming that there was differential treatment between EU citizens legally residing in the UK and UK nationals that was incompatible with Article 18 TFEU.
Firstly, in terms of jurisdiction, the Court clarified that it had jurisdiction to give a preliminary ruling for questions referred before the end of the transition period, that is before 31 December 2020, pursuant to Article 86(2) of the withdrawal agreement. 13
On substance, since CG is an EU citizen who moved and resided in a Member State other than her own 14 and given that Universal Credit could be considered as social assistance within the meaning of Article 24(2), 15 the Court reframed the preliminary ruling question in light of Article 24 of Directive 2004/38, which is the specific expression of the principle of non-discrimination found in Article 18 TFEU. 16
The Court then recalled its ruling in Dano, 17 where it held that access to equal treatment with regard to social assistance is reserved for those EU citizens who satisfy the conditions of Directive 2004/38. 18 Under Article 7(1)(b) of Directive 2004/38, an economically inactive EU citizen, such as CG, must have sufficient resources if she or he wants to reside in a Member State other than her or his own for longer than three months. 19 If, taking into account the person's financial situation, it appears that that EU citizen does not have sufficient resources to claim a right of residence under that Directive, the Member State can refuse to grant him or her social assistance. 20 This interpretation of Article 24 of Directive 2004/38 was not changed by the fact that CG had a right of temporary residence under UK law and not under the Directive itself. Indeed, the Court referred to Article 37 of the Directive, which states that Member States can have more favourable rules than those established by the Directive. 21
That being said, since CG had exercised her fundamental freedom to move and reside enshrined in Article 21(1) TFEU, she could rely on the provisions of the Charter of Fundamental Rights. The Court considered that when the authorities granted CG a right of residence under UK law, they were implementing the provisions of the TFEU on Union citizenship and therefore had a duty to comply with the provisions of the Charter pursuant to Article 51(1) of the Charter. 22 In particular, in reviewing CG's application for social assistance, the Court ruled that the authorities must ensure that her human dignity (Article 1 of the Charter), her private and family life (Article 7 of the Charter) and the right of her children (Article 24 of the Charter) are respected. 23 The Court left it to the referring court to take into account all means of assistance that CG and her children can receive under national law in order to comply with the Charter of fundamental rights. 24
Greek legislation, adopted in the context of the economic crisis, placing public sector workers in a labour reserve system is not discriminatory on grounds of age as it is justified by employment policy aims: AB v Olympiako 25
AB worked for OAKA, a legal person governed by private law within the broader public sector, from 1982 until 2013. From 1 January 2012, AB was placed in a labour reserve system, in accordance with national law, until his dismissal on 30 April 2013. Being placed in a labour reserve system resulted in him having his basic salary reduced to 60%, his severance pay for dismissal not being due, and a loss of potential advancement. AB brought an action against OAKA challenging his placement in the labour reserve system. He claimed that he suffered discriminatory treatment on grounds of age contrary to Directive 2000/78. While the national law did not provide for a specific age limit for being placed in the labour reserve system, it stated that placements would last for a maximum duration of 24 months and would only be for employees who were close to full retirement which is only possible after 35 years of membership of the social security system. This law was adopted in order to reduce wage costs in accordance with the agreement concluded by Greece and its creditors during the economic crisis.
The Court started its judgment by stating that the national law at issue came under the scope of Directive 2000/78 since the Directive applies to both public and private sectors in relation to employment and working conditions, including dismissals and pay. 26 In respect of the differential treatment, the Court noted that the condition of 35 years of membership of the social security system, while appearing neutral within the meaning of Article 2(2)(b) of Directive 2000/78, was in effect inextricably linked to the age of the workers concerned. 27
The Court then considered whether the differential treatment could be objectively justified in light of Article 6 of Directive 2000/78 by a legitimate aim for which the means were appropriate and necessary. The Court held that while the acute economic crisis faced by Greece when it introduced the measure establishing the labour reserve system could not constitute a legitimate aim in itself, it influenced Greek employment policy 28 and could explain why the Greek government needed to take that measure for the protection of employment. 29 Hence, the Court recognised that the measure pursued the legitimate aim of promoting a high level of employment and guaranteeing an age structure that balances young and older civil servants. 30
Finally, the Court found that the aims were both appropriate and necessary in light of the objective pursued. The Court highlighted that it is for the competent authorities of the Member States to find the right balance between the different interests involved. 31 While the placement in the labour reserve system led to a significant loss in both remuneration and opportunity of advancement, that placement lasted for maximum period of 24 months, at the end of which the workers benefited from a full pension. 32 Considering the fact that they received their pension at a full rate, the Court held that the loss of the severance pay in case of dismissal was not unreasonable, given the economic context in Greece at the time. 33 Furthermore, there were accompanying measures mitigating the consequences of the placement which led the Court to consider that the Greek legislation was appropriate and did not go beyond what was necessary to achieve its employment policy objectives. 34
Circumstances under which a prohibition on wearing any visible form of expression of political, philosophical or religious beliefs in the workplace might be justified: WABE and MH Müller Handel 35
In Cases C-804/18 and C-341/19, the Grand Chamber of the Court clarified what circumstances could justify differential treatment indirectly based on religion or belief.
The facts of Case C-804/18 are as follows. IX was a special needs carer who had been employed by WABE, a company that runs childcare centres in Germany, since 2014. She had worn an Islamic headscarf since 2016. Upon her return from parental leave in 2018, she learned of the new instructions of her employer concerning the neutrality required for the teaching staff in respect of parents, children and third parties. When IX refused to remove her headscarf, she was temporarily suspended and was issued with several warnings. She brought an action against WABE before the referring court in order to have the warnings removed from her personnel file. She claimed, inter alia, that the prohibition of the wearing of headscarves constituted direct discrimination.
In Case C-341/19, the same type of prohibition had been put in place by the employer of MJ, who worked as a sales assistant and cashier. The prohibition by the employer of MJ, however, only related to the wearing of conspicuous, large-sized signs of any political, philosophical or religious beliefs. The reason for the introduction of the prohibition was, according to the employer, to maintain neutrality and avoid conflict between employees.
In both cases, the referring courts essentially asked guidance from the Court of Justice on what circumstances such prohibitions could be justified in light of Directive 2000/78. 36
For both cases, the Court first considered whether it was a situation of direct discrimination which could not then be justified. The Court recalled its G4S Secure Solutions judgment 37 in which it has held that a prohibition to wear any visible sign of political, philosophical or religious beliefs in the workplace does not constitute direct discrimination if it concerns any manifestation of such beliefs without distinction and treats all workers in the same way by requiring them, in a general and undifferentiated way, to dress neutrally. 38 The Court found that, based on the facts provided which were for the referring court to verify, the prohibition established by WABE in Case C-804/18 did not constitute direct discrimination. 39 In respect of Case C-341/19, the Court considered that the criterion of wearing conspicuous, large-sized signs of political, philosophical or religious beliefs was inextricably linked to one or more specific religions or beliefs, amounting to direct discrimination. 40
That being said, the Court still gave an answer in both cases on the issue of justifications relevant for cases of indirect discrimination. It held that indirect discrimination on the grounds of religion or belief could be justified by a legitimate aim being a genuine need for the undertaking to guarantee its neutrality. 41 Such a need to preserve the neutrality of the undertaking is derived from the freedom to conduct a business enshrined in Article 16 of the Charter. 42 Whether there is a genuine need depends on the ability for the undertaking to demonstrate it. 43 Particularly relevant is the ability for the undertaking to prove that, without a neutrality policy, its freedom to conduct a business would be undermined as it would suffer adverse consequences. 44 Furthermore, the prohibition must be appropriate and limited to what is strictly necessary to achieve the aim of neutrality. 45
Finally, the Court addressed the doubts of the referring courts concerning whether a national constitutional provision could be considered as a more favourable provision within the meaning of Article 8(1) of Directive 2000/78 in order to assess the appropriateness of the neutrality policy of the undertakings. The Court answered that Directive 2000/78 sets out a general framework for equal treatment in employment and occupation under which Member States are granted a margin of discretion in order to consider the diversity of their approaches concerning the place of religion and beliefs within their society. 46
Direct effect of the principle of equal pay for male and female workers under Article 157 TFEU in cases of work of equal value: Tesco Stores 47
Tesco Stores is a retailer established in the UK, operating online and in 3,200 stores, employing approximately 250,000 workers. It also operates a distribution network of 24 distribution centres with approximately 11,000 employees. From February 2018 onwards, several male and female employees of Tesco Stores brought proceedings against Tesco on the grounds that did not enjoyed equal pay for male and female workers, contrary to national legislation and Article 157 TFEU. Pointing out the uncertainty among UK courts regarding the direct effect of Article 157 TFEU for cases of work of equal value, the referring court asked the Court to clarify whether Article 157 TFEU produces direct effect in those cases.
Tesco argued that Article 157 TFEU lacked direct effect when the workers compared perform different work. For Tesco, Article 157 TFEU was not explicit enough in order to produce direct effect in cases of ‘work of equal value’ as it required additional reference to provisions under national law or EU law. 48
The Court began by recalling that Article 157 TFEU establishes a clear and precise obligation on the Member States to guarantee that the principle of equal pay for male and female workers for both equal work and work of equal value is respected. 49 This provision is applicable to the public sector but also to any agreement intended to regulate paid labour collectively as well as any contract between individuals. 50 It is settled case law of the Court 51 that Article 157 TFEU produces direct effect and can therefore be relied upon in front of national courts. 52 Relating to the context of the case referred, the Court recalled that the principle of direct effect can be relied upon in discrimination cases where men and women receive unequal pay for equal work when the work is carried out in the same establishment or service. 53 The Court held that in a situation where the pay conditions of the workers can be attributed to a single source, it must be understood that the work is carried out in the same establishment or service in order to identify the entity responsible for the inequality. 54 Contrary to what Tesco argued, Article 157 TFEU applies in the same way to situations of ‘equal work’ and ‘work of equal value’. 55 Finally, the question of whether the workers perform ‘equal work’ or ‘work of equal value’ is a factual question that needs to be assessed by the national court, but that does not change the application of Article 157 TFEU. 56
Criteria under which a temporary-work agency can be considered as pursuing ‘substantial activities’ in a Member State for the purpose of Article 12(1) of Regulation 883/2004 and 14(2) of Regulation 987/2009: Team Power Europe 57
In Team Power Europe, the Grand Chamber of the Court clarified that the activities of selecting and recruiting temporary workers were not sufficient in themselves in order for the temporary-work agency to be considered as carrying out its ‘substantial activities’ in a Member State for the purpose of Article 12(1) of Regulation 883/2004 and 14(2) of Regulation 987/2009.
On 8 October 2018, a Bulgarian national was recruited by Team Power Europe, a company registered as a temporary work agency in Bulgaria, for an assignment for another company established in Germany. He worked under the direction and supervision of that German undertaking from 15 October to 21 December 2018. The Bulgarian authorities refused to consider the worker as a posted worker for the purpose of Article 12(1) of Regulation 883/2004 and therefore refused to issue an A1 certificate for that worker. According to the Bulgarian authorities, the direct relationship between Team Power Europe and the worker had not been maintained, and Team Power Europe did not carry out its substantial activities in Bulgaria. In that context, the referring court asked the Court of Justice for the interpretation of the ‘substantial activities other than purely internal managerial activities’ within the meaning of Article 14(2) of Regulation 987/2009 and in relation to Article 12(1) of Regulation 883/2004.
The Court had already established a list of non-exhaustive criteria to be taken into account in order to establish whether a temporary-work agency performs its substantial activities in a Member State. 58 However, contrarily to the previous case law of the Court, the specificity of this case was that Team Power Europe did not assign temporary workers to any company established in Bulgaria but only to companies established in other Member States. 59 Therefore, the question was whether the selection and recruitment of temporary workers were sufficient activities in order to be considered as ‘substantial activities other than purely internal managerial activities’ within the meaning of Article 14(2) of Regulation 987/2009. Using a literal interpretation of Article 14(2), the Court considered that while the selection and recruitment cannot qualify as ‘purely internal management activities’, 60 those activities alone were not sufficient to consider that the temporary-work agency was performing a significant part of its activities in a Member State. 61 In particular, the Court considered that it was the activity of assigning the workers to companies which generated turnover and not the activity of selection and recruitment itself. 62 Such a strict interpretation from the Court is reinforced by the fact that the rule under Article 12(1) of Regulation 883/2004 on posted workers constitutes a derogation from the general conflict rule of Article 11. 63 Furthermore, the relevance of the activity of assigning the temporary workers to a company is reinforced by the concepts of temporary-work agency and temporary workers under Directive 2008/104. 64 65 Finally, taking into account the aim of Regulation 883/2004, the Court held that allowing a temporary-worker agency that assigns temporary workers only to Member States other than the one in which it is established would encourage forum shopping 66 and ultimately create a distortion of competition. 67
Right of economically inactive Union citizens to be affiliated to the public sickness insurance system of the host Member State: A 68
A, an Italian national, moved to Latvia with his spouse and children of Latvian nationality. He requested to be affiliated with the Latvian system of public compulsory sickness insurance and to receive a European Health Insurance Card. His request was denied by the Latvian authorities on the grounds that he fell outside the categories of beneficiaries under Latvian law as he was neither employed nor self-employed. As a result, he could only receive healthcare benefits in exchange for payment. A brought an action against the decision of the Latvian authorities. The case was appealed to the Supreme Court of Latvia (Augstākā tiesa (Senāts)) which asked whether the benefits at hand consisted of sickness benefits, or whether they were excluded from the scope of the Regulation as social and medical assistance. 69 The referring court also referred questions regarding the interaction between Regulation 883/2004 and Directive 2004/38, 70 and whether in light of these instruments the national legislation of a Member State may exclude economically inactive Union citizens from being affiliated with its public sickness insurance system. 71
The Court, sitting as the Grand Chamber, recalled that a benefit is regarded as a social security benefit when two cumulative criteria are met: the benefit is granted without any individual and discretionary assessment of personal needs on basis of a legally defined position; and secondly, it relates to one of the risks expressly listed in Article 3(1) of Regulation 883/2004 (i.e. sickness benefits). 72 In making its assessment, the Court followed the explanation of the referring court, according to whom medical care is guaranteed to every person falling into one of the categories of recipients defined by the Latvian legislation on medical care. 73 The Court therefore concluded that the benefit was indeed a sickness benefit under the scope of the Regulation. 74
The Court continued by noting that the aim of Article 11(3)(e) of Regulation 883/2004 is on the one hand to prevent the concurrent application of a number of national legislative systems, and on the other hand, to ensure that persons are not left without social security cover because there is no legislation which is applicable to them. 75 While it is for the Member States to lay down the conditions on access to social security benefits, 76 these conditions may not have the effect of excluding from the scope of legislation the person to whom, pursuant to the Regulation, that legislation is applicable. 77 Following this reasoning, the Court held that a Member State may not refuse to affiliate Union citizens to its public sickness insurance scheme who, following the rules of the Regulation on the determination of legislation applicable, fall under the scope of the legislation of that Member State. 78 A should therefore be able to be affiliated to the public sickness insurance system of Latvia, as economically inactive citizens are covered by the legislation of the Member State of residence. 79
Concerning the relationship between Regulation 883/2004 and Article 7(1)(b) of Directive 2004/38, the Court first pointed out that A was not a permanent resident in Latvia, and under the Directive, right of residence for a period of longer than three months requires that economically inactive citizens have both comprehensive sickness insurance and sufficient resources not to become a burden on the social assistance system of the host Member State. 80 Therefore, the Court confirmed that while the host Member State is required to affiliate that citizen to its public sickness insurance system when the conflict rules under the Regulation designate it as the competent Member State, that Member State is nevertheless not obliged to provide that system free of charge in order to prevent the citizen from becoming an unreasonable burden on the public finances of that State. 81 The Member State can ask for conditions such as the conclusion or maintenance by that citizen of comprehensive private sickness insurance, enabling the reimbursement to that Member State of the health expenses it has incurred for that citizen's benefit, or the payment of a contribution to that Member State's public sickness insurance system. However, these conditions may only be imposed in compliance with the principle of proportionality and as far as they are not excessively difficult for the citizen to comply. 82
Article 14(2) of Regulation 1408/71 does not apply to a person who, under a single employment contract concluded with a single employer, works in several Member States for more than 12 months in each of those Member States: FORMAT 83
A Polish national resided and worked in Poland for a construction company called Format. During his fixed-term employment, he also worked for periods in France and the United Kingdom. The Polish social insurance institution refused to issue him a E101 form attesting that he was covered by the Polish system. Format and the employee brought an action against this decision, but the regional court dismissed their claim on the basis that the concept of a person working in two or more Member States under Article 14(2)(b) of Regulation 1408/71 does not cover a situation such as the one at hand, as the situation of the worker was a normal arrangement in the construction sector so he must be considered as working in the territory of a single Member State. In the view of the court, the situation felt within the scope of Article 13(2)(a) – under which a person is covered by the system of the Member State of employment. 84 The case was finally brought before the referring court which asked whether the expression ‘a person normally employed in the territory of two or more Member States’ used in Article 14(2) of Regulation 1408/71 could be interpreted as also applying to a person who, during the period covered by and within the framework of one and the same contract of employment concluded with a single employer, performs work in the territory of each of at least two Member States during directly consecutive and successive periods of several months. 85
The Court began answering the question by first elaborating on the distinction between a person employed in two or more Member States and a person working occasionally in several Member States. It held that in making that assessment, factors such as the duration of the activities and nature of the employment must be taken in account. 86 In this case, the employee worked successively in two Member States, but in the first Member State the periods of work lasted for around 13 months and nearly two years, whereas in the second Member State the period of work lasted only for 2 months. 87 The Court noted that Article 14(2) does not impose any temporal limits of work completed in another Member State. 88 However, the Court recalled that in its previous case law involving Format, 89 it had already held that if employment in the territory of a single Member State constitutes the normal arrangement for the person concerned, he cannot be covered by Article 14(2) of Regulation 1408/71. 90 The Court reasoned that another interpretation would extend the scope of Article 14(2) to situations where the period of work would be so long that the activity should be regarded as the normal working arrangement for the person. 91
The Court also noted that Article 14(2) is a derogation, similar to the derogation of Article 14(1)(a), from the principle that a person is subject to the system of the Member State of employment pursuant to Article 13(2)(a). 92 Such derogations must be interpreted strictly. 93
In interpreting Article 14(2), the Court considered that the derogation for posted workers under Article 14(1)(a) provides for a maximum period of 12 months of work in another Member State. 94 To prevent circumvention of this general principle laid in Article 13(2)(a), and to ensure consistent interpretation of its exceptions, the Court stated that Article 14(2) of Regulation No 1408/71 may be applicable so long as the duration of the uninterrupted periods of work completed in the other Member States does not exceed 12 months. 95 The Court indicated that situation at hand did not seem to fall under the scope of this Article, but left it to the referring court to verify. 96
Freedom of movement for workers and reduction in family benefits: PF 97
A married couple of French nationality, PF and QG, and their four minor children, received family allowances from Caisse d’allocations familiales (Family Allowances Fund, the CAF). After QG's secondment as judge of the French judiciary to the Court of Justice of the European Union in Luxembourg, the reinstatement in his original employment resulted in a substantial drop in income. Consequently, PF and QG applied for family allowances on the basis of their new situation. However, as stated in national legislation, family allowances are calculated based on the income of the preceding years. After receiving an unfavourable decision from the CAF, the applicants sought to annul that decision before the referring court on the basis of freedom of movement of workers and violation of equal treatment (Articles 20 and 45 TFEU, Article 4 of Regulation 883/2004 and Article 7 of Regulation 492/2011 98 ). 99 In essence, the referring court asked the Court of Justice whether these Articles preclude a provision of national legislation which defines the reference calendar year for the purposes of calculating family allowance as the penultimate year preceding the payment period, and results in a situation where a person is deprived part of his rights to family allowances after exercising his right to free movement. 100
First, the Court stated that only the interpretation of Article 45 TFEU and Article 7 Regulation No 492/2011 were relevant in this case, as Article 20 TFEU is not independently applicable and the case concerned a secondment of a national official to an institution of the European Union to which Regulation 883/2004 does not apply. 101
When assessing the existence of discrimination on basis of nationality, the Court noted that the national legislation on the calculation of family allowances applied without distinction to all workers, irrespective of their nationality. 102 Regarding indirect discrimination, the Court found that the recipients of family allowances who have exercised the right to freedom of movement are not treated less favourably than recipients of such allowances who have not exercised that right. Variations in income, upwards and downwards, can be experienced by both workers who have moved to another Member State and by those who have not left their Member State of origin. 103 In this respect, the Court noted that it was not the exercise of the right to freedom of movement that led to the reduction of allowances, but the fact that the income received was higher after they moved to another Member State. 104 Furthermore, the Court recalled that the movement of a worker to another Member State may be, depending on the case and due to the disparities between the systems and legislation of the Member States, more or less advantageous for the person concerned in terms of social protection. 105 The applicants argued that the national legislation may discourage a worker from moving to another Member State to work, as upon their return, they find themselves penalised as a result of significantly reduced payments of family allowances. The Court responded by noting that the reasons for which a worker chooses to exercise his free movement rights cannot be taken into account when assessing the discriminatory nature of a national provision. 106
Based on these considerations, the Court concluded that Article 45 TFEU and Article 7 of Regulation 492/2011 do not preclude a provision of national legislation which uses, as the reference year for the calculation of family allowances to be granted, the penultimate year preceding the payment period. 107
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.
