C-15/69

In Case 15/69

Reference to the Court under Article 177 of the EEC Treaty by the Bundes­ arbeitsgericht (Federal Labour Court), Kassel, for a preliminary ruling in the action pending before that court between Wurttembergische Milchverwertung-Sudmilch-AG, Rosensteinstraße 20, Stuttgart-N, appellant,

and

Salvatore Ugliola, worker, Rosensteinstraße 20, Stuttgart-N,

respondent,

on the interpretation of Article 9 of Regulation No 38/64 of the Council of 25 March 1964 (Official Journal, No 62 of 17 April 1964) and of Article 7 of Regulation No 1612/68 of the Council of 15 October 1968, on freedom of movement for workers within the Community (Official Journal L 257 of 19 October 1968; English Special Edition, 1968 (II), p. 475). 1 — Language of the Case: German. 2 — CMLR.

Issues of fact and of law

I — Facts and procedure (1) When a worker resumes his previous employment after The facts and procedure may be sum­ basic military service or re­ marized as follows: serve training, he must suffer Salvatore Ugliola, an Italian national, no disadvantage, either to his employed by Wurttembergische Milch- occupational prospects or to verwertung-Sudmilch-AG from 29 May his position with his employer 1971, did his military service in Italy by reason of his absence on from 12 May 1965 to 3 August 1966 military service. and his employment with this under­ (2) The period of basic military taking was thereby interrupted from 6 service or of reserve training May 1965 to 14 August 1966. shall be taken into account in Before the competent German court, calculating the duration of his Mr Ugliola had requested that his occupation and the period of period of military service be taken into service with his employer; account in calculating the duration of however, as regards appren­ his employment with the defendant, in tices and those undergoing pursuance of the provisions of the law vocational training, the period on security of employment during mili­ of military service shall be tary service ('Arbeitsplatzschutzgesetz' taken into account in the cal­ of 30 March 1967 as amended on 21 culation of the duration of his May 1968), in force in the German occupation only after the end Federal Republic. This law provides in of the apprenticeship. The particular: period of basic military ser­ '(a) Article 1(1): vice or of reserve training When a worker is called up tor shall be regarded as time spent military service or reserve train­ in service and employment, ing, the contract of employment for the purpose of wage shall be suspended during that regulations and collective con­ period. tracts in the public service'. (b) Article 6(1) and (2): Mr Ugliola based his claim, inter alia,

on Regulations Nos 38/64 and 1612/68 not form part of labour law, but of of the Council of the EEC. Article 9 of public law. Regulation No 38/64 states that: Mr Ugliola's claim was accepted by the A worker who is a national of a German courts, both at first instance and Member State may not, in the terri on appeal; the appeal court adopted the tory of another Member State, be argument based on Regulation No 38/64. differently treated from national By reason of the fundamental importance workers by reason of his nationality. of the case, the Landesarbeitsgericht He shall enjoy the same protection (Higher Labour Court) authorized an and receive the same treatment as appeal to the Bundesarbeitsgericht national workers in respect of any (Federal Labour Court), which, by order conditions of employment and work, of 27 February 1969, received at the in particular as regards remunera Court Registry on 28 March 1969, re tion and dismissal.' quested the Court of Justice of the Euro Article 7 of Regulation No 1612/68 is pean Communities, under Article 177 of worded as follows: the EEC Treaty, to give a preliminary

October 1968) [the English Special Edition 1968 (II), p. 475 contains 2. He snail enjoy the same social and Regulation (EEC) No 1612/68] be tax advantages as national workers. interpreted to mean that a worker 3. He shall also, by virtue of the same who is a national of a Member State right and under the same condi and who is employed in the territory tions as national workers, have of another Member State, is entitled access to training in vocational to have the period of his military schools and retraining centres. service taken into account in the

States.' Justice of the EEC, the Commission of The Wurttembergische Milchverwer- the European Communities and the tung-Südmilch undertaking questioned Government of the Federal Republic the justification for this claim, maintain of Germany submitted written observa ing, in particular, that the provisions of tions. the German law referred to above do Upon hearing the report of the Judge-

Rapporteur and the opinion of the Regulation No 38/64 and in Article Advocate-General, the Court decided 7(1) of Regulation No 1612/68, show that it was unnecessary to hold any that the cases of application of the prin preliminary inquiries. ciple of equality of treatment set out in The two parties to the mam action, the these provisions are only examples and Government of the Federal Republic cannot therefore cover exhaustively the of Germany and the Commission of the vast sphere of conditions of employment European Communities submitted their and work.

The observations submitted under Arti employment as well as by Council cle 20 of the Statute of the Court may Directives No 64/240 (Official Journal be summarized as follows: No 62 of 17 April 1964, p. 981/64, Article 5(3)) and No 68/360 (Official A — Observations of the Commission of Journal L 257 of 19 October 1968, the European Communities Article 6(2)). These provisions are

grant worker for choosing to work in tion No 38/64 may be applicable. This another Member State. The 'Arbeits- question is within the jurisdiction of the platzschutzgesetz' is not concerned with national court alone. the terms or the performance of the As regards the substance of the request civic duty which military service con for interpretation, it is in accordance stitutes, but rather with the legal effects with both the text of the Community on a given contract of employment, aris provisions in question and the objectives ing from the absence of a worker who and very nature of the Community that has to do military service.

SUDMILCH v UGLIOLA

Moreover, pro titled. visions which guarantee employment in The scope of the decision on the ques the case of call-up for military service tion of interpretation submitted to the exist in all the Member States and are Court of Justice is thus wider than the intended to prevent a worker from find specific problems of treating the time ing himself at a disadvantage, as a spent on military service as service with result of his military service, as regards the employer. the provisions of the labour legislation. The German law in question is part of the body not of labour law but of mili B — Observations of the Government of tary law. Consequently, it is outside the the Federal Republic of Germany scope of Regulations Nos 38/64 and

The German law the period of time spent on military ser in question, therefore, concerns national vice to be counted towards the workers' defence and as such falls outside, the period of service with their employer, provisions of the Treaty. but also, inter alia, for the following benefits: 2. First subsidiary argument — in the case of premature discharge Although the Community regulations in from military service, the Federal question must be considered to concern State must guarantee the increased the 'law on the security of employment', expenses which the German em they in no way offend against the pro ployer has to bear as a result of the hibition on discrimination.

JUDGMENT OF 15.10. 1969 — CASE 15/69

military service in the Bundeswehr. On fence it is possible for different national the other hand, a German citizen doing regulations to exist in this area, in par­ his military service abroad with another ticular as regards the general concept of Member State, does not benefit from military service. Differential treatment these special measures. According to the under the 'Arbeitsplatzschutzgesetz' is law in question, the inequality of treat­ also justified in these circumstances. In ment is not linked to the nationality but particular, the indiscriminate application to the performance of the military ser­ of this law to foreigners could lead to an vice in the Bundeswehr. It is an objec­ accumulation of the respective advan­ tive criterion, the choice of which was tages offered by the various national not arbitrary once it is linked to a low laws in this matter. concerning national defence, the costs of 3. Second subsidiary argument which are borne by the Federal Re­ public alone. By enlarging the ambit of Even if it could be considered that the this law in favour of workers who have rules contained in the 'Arbeitsplatz­ performed their military service in other schutzgesetz' constituted an infringe­ Member States of which they are na­ ment of the prohibition on discrimina­ tionals, the German State would be in­ tion, this infringement would nevertheless directly relieving the defence budget of be authorized by virtue of Article 48 of those States. In the absence of Com­ the Treaty which permits discrimination munity integration in the field of de­ for reasons of public security.

4 The fulfilment by migrant workers of an obligation for military service owed to their own State is liable to affect their conditions of work and employment in another Member State. Articles 6(2) and 7(2) of EEC Regulation No 38/64, Article 5(3) of Directive No 64/240 of the Council and Article 6(2) of Directive No 68/360 of the Council provide for the protection of migrant workers against certain consequences affecting their conditions of work and employment which might arise from their being called up for military service. The nature of these consequences remains substantially the same, whether the worker is called up by the State in which he is employed or by another Member State of which he is a national.

5 A national law which is intended to protect a worker who resumes his em­ ployment with his former employer from any disadvantages occasioned by his absence on military service, by providing in particular that the period spent in the armed forces must be taken into account in calculating the period of his service with that employer falls within the context of conditions of work and employment. Such a law cannot therefore, on the basis of its indirect connexion with national defence, be excluded from the ambit of Article 9(1) of EEC Regulation No 38/64 and Article 7 of EEC Regulation No 1612/68 on equality of treatment and protection for migrant workers 'in respect of any conditions of employment and work'.

6 Apart from the cases expressly referred to in paragraph (3), Article 48 of the Treaty does not allow Member States to make any exceptions to the equality of treatment and protection required by the Treaty for all workers within the Community by indirectly introducing discrimination in favour of their own nationals alone based upon obligations for military service. Consequendy, as a rule of national law protecting workers from the unfavourable con­ sequences, as regards conditions of work and employment in an undertaking, arising out of absence through obligations for military service must also be applied to the nationals of other Member States employed in the territory of the State in question who are subject to military service in their country of origin.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties to the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 48 and 177; Having regard to Article 9 of EEC Regulation No 38/64 of the Council of 25 March 1964 and Article 7 of EEC Regulation No 1612/68 of the Council of 15 October 1968; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

in answer to the questions referred to it by the Bundesarbeitsgericht, Kassel, by judgment of that court dated 27 February 1969, hereby rules:

The principle of equality of treatment set out, on the basis of Article 48 of the EEC Treaty, by Article 9(1) of EEC Regulation No 38/64 of the Council of 25 March 1964 and Article 7 of EEC Regulation No 1612/68 of the Council of 15 October 1968 entitle a migrant worker who is a national of a Member State and who had to interrupt his

SUDMILCH v UGLIOLA

employment with an undertaking in another Member State in order to fulfil his obligations for military service in the country of which he is a national, to have the period of his military service taken into account in the calculation of his seniority in that undertaking, to the extent to which the periods of military service in the country of employment are also taken into account for the benefit of national workers.

DELIVERED ON 10 JULY 19691

Mr President, I

Members of the Court, The action which led the German high The Bundesarbeitsgericht (Federal court to submit this question to you Labour Court), the appeal court in arose in the following circumstances. matters of labour law, is asking you to Mr Ugliola, an Italian national, has rule on the scope of Article 9(1) of worked since May 1961 as a dairy Regulation No 38/64 of the Council of employee with the Württembergische 25 March 1964 and Article 7 of Regula­ Milchverwertung-Südmilch, an under­ tion No 1612/68 of 15 October 1968 taking situated in the German Federal on freedom of movement for workers Republic. He interrupted his employ­ within the Community. Must these ment from 6 May 1965 to 14 August Articles be interpreted to mean that a 1966 in order to do his military service worker who is a national of a Member in Italy, and then immediately returned State and who is employed in the terri­ to his job with his former employer. tory of another Member State is en­ The question then arose of the applica­ titled, in accordance with the legislation tion in his favour of the German law of the country of employment, to have which guarantees employment when an the period of his military service in his employee is called up for military ser­ country of origin taken into account in vice. Under this law, which has been in the calculation of his seniority with his force since 31 March 1957, the contract employer, where he has interrupted his of employment shall be suspended dur­ employment in order to fulfil his obliga­ ing the period in which the worker is tions for military service? required to do his basic military service 1 — Translated from the French.