C-44/72

JUDGMENT OF THE COURT 13 DECEMBER 1972 1

Pieter Marsman

v M. Rosskamp (Reference for a preliminary ruling by the Arbeitsgericht Rheine)

Case 44/72

Summary

Free movement of persons — Workers — Conditions of employment and work — National legislation — Special social protection — Prohibition on discrimination (EEC Treaty, Article 48, Regulation No 1612/68 of the Council, Article 7)

M. Rosskamp, 84 Beckerhookstraße, 4432 Gronau, Federal Republic of Germany,

defendant in the main action,

on the interpretation of Article 48 of the Treaty of the European Economic Community and Article 7 of Regulation No 1612/68 of the Council of 15 October

1 — Language of the Case: German.

JUDGMENT OF 13. 12. 1972 — CASE 44/72

1968 on freedom of movement for workers within the Community (OJ English Special Edition, 1968 (II), p. 475),

Issues of fact and of law

I — Facts and procedure 2. The plaintiff in the main action, a Dutch national residing in the Nether­ The facts and procedure may be sum­ lands, was a metal-worker employed in marized as follows: the undertaking of the defendant in the 1. Article 7 of Regulation No 1612/68 main action at Gronau in the Federal of the Council of 15 October 1968 (OJ Republic of Germany. On 26 February English Special Edition, 1968 (II), p. 475) 1971 an accident at work reduced his on Freedom of movement for workers capacity for work by 60%. For this reason within the Community implements the he receives an accident pension paid by prohibition on discrimination laid down in the competent German statutory accident Article 48 of the Treaty and accordingly insurance body but his employer terminated paragraph (1) thereof provides that 'A his contract of employment with effect worker who is a national of a Member from 3 December 1971. The plaintiff State may not, in the territory of another contested the legality of this dismissal Member State, be treated differently before the Arbeitsgericht Rheine, relying in from national workers by reason of his particular on Paragraph 14 of the Law on nationality in respect of any conditions of seriously disabled persons (Schwerbe­ employment and work, in particular as schädigtengesetz, Bundesgesetzblatt I, p. regards remuneration, dismissal, and 389) under which the dismissal of persons should he become unemployed, reinstate­ covered by the law requires the prior con­ ment or re-employment.' Article 7(2) adds sent of the Hauptfürsorgestelle für Kriegs­ that such worker shall on the territory of beschädigte und Kriegshinterbliebene each Member State enjoy the same social (Head Welfare Office for War-disabled and tax advantages as national workers. Persons and Surviving Dependants).

3. Paragraph 1 of the German Law of The plaintiff, the Commission, the German 16 June 1953 lists the categories of disabled Government and the Italian Government workers to which it applies and sub submitted written observations. paragraph (e) thereof refers to those who After hearing the report of the Judge- have suffered an industrial accident. With Rapporteur and the views of the Advocate- regard to foreigners, the protection given General, the Court decided that a pre by the Law is, however, dependent on paratory inquiry was unnecessary. additional conditions listed in Article 1 (3), On 15 November 1972 the Commission, that is to say: they must (1) reside on the represented by Mr Karpenstein, and the territory of the Federal Republic or in German Government, represented by Mr West Berlin and (2) be in receipt of an Seidel. presented oral argument. accident pension within the meaning of The Advocate-General delivered his opinion the German Law. at the hearing on 20 November 1972. Since Mr Marsman did not fulfil the con dition as to residence his employer con sidered that he was entitled to dismiss him II — Observations submitted under without the agreement of the welfare Article 20 of the Protocol on office. the Statute of the Court of

tion. In both cases the relevant provision 5. The action for reference was entered in fixes the conditions of employment and the Court Register on 10 July 1972. work for workers.

advantages under the law without regard Since Regulation No 1612/68 is directed being had to residence or the grant of an applicable, the provisions of national law accident pension whilst the nationals of which do not conform to the provisions Member States as 'non-Germans' are which it lays down are amended or sup­ required to reside in the Federal Republic plemented by the provisions contained in or West Berlin and to have acquired a that regulation. The regulation produces right to benefit against the German social this effect because the provisions of Com­ security institutions. munity law take precedence over national The Commission suggests that the follow­ laws. The Federal Government considers ing reply should be given to the question that the precedence of Community law referred for a preliminary ruling: follows from the fact that European law would be an inadequate instrument for the 'The principle of the equality of treatment attainment of the objectives of the Com­ of nationals of Member States contained munities if the Member States could de­ in Article 48 of the EEC Treaty and Article prive measures of Community law of all 7 of Regulation No 1612 of the Council effect by enacting conflicting national of 15 October 1968 also applies to provi­ legislation. sions which, under national law, make the Since this is the legal position and in view dismissal of a worker whose earning capac­ especially of the pre-eminence and the ity has been reduced as a result of an direct applicability of the provisions of industrial accident subject, for social Regulation No 1612/68 the Federal reasons, to particularly stringent condi­ Government has not so far considered it tions'. necessary formally to amend the relevant law. Nevertheless it intended to avail The German Government considers that itself of the opportunity afforded by a the rule against discrimination laid down review of the Schwerbeschädigtengesetz in Article 48 of the Treaty and Article 7 which was necessitated on other grounds of Regulation No 1612/68 applies to all to take account of the new legal situation conditions of employment and work. Such and consequently to amend the said law. equality of treatment also holds good The German Government proposes the with regard to the special guarantees following reply to the question which has against dismissal which may be provided been referred: in favour of certain categories of person even if such special protection, as in the 'In view of the provisions of Article 48 of case of severely disabled persons, corre­ the EEC Treaty and of Article 7 of

Grounds of judgment

1 By an order of 15 May 1972 which was received at the Court Registry on 10 July 1972 the Arbeitsgericht Rheine referred, under Article 177 of the Treaty establishing the European Economic Community, a question on the interpretation of Article 48 of that Treaty 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 (OJ English Special Edition 1968 (II), p. 475).

2 Under Article 48 of the Treaty, freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Under Article 7 of Regulation No 1612/68, 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 (Article 7 (1)) but shall enjoy the same social and tax advantages as national workers (Article 7 (2)).

JUDGMENT OF 13. 12. 1972 — CASE 44/72

3 It is clear from the file that the main action concerns whether a worker of Dutch

nationality employed in a German undertaking who suffers an industrial accident in the Federal Republic of Germany resulting in a loss of earning capacity of more than 50 % enjoys the special protection against dismissal introduced by Paragraph 14 of the Schwerbeschädigtengesetz of 16 June 1963 when he fulfils the conditions to which the grant of such protection is subject except that he does not live in the Federal Republic of Germany and the latter condition is required only of foreign workers and not of those of German nationality. The question referred by the national court therefore asks whether the prohibition on discrimination referred to in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 also concerns the special protection against dismissal which the legislature of a Member State only grants, on specific social grounds, to certain fixed categories of workers.

MARSMAN v ROSSKAMP

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the plaintiff in the main action, the Commission of the European Communities, the Government of the Federal Republic of Germany and the Government of the Italian Republic; 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 Regulation No 1612/68 of the Council, especially Article 7; 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 question referred to it by the Arbeitsgericht Rheine by an order of 15 May 1972, hereby rules: