61969J0015

++++

FREE MOVEMENT OF PERSONS - WORKERS - EQUALITY OF TREATMENT - NATIONAL LAW AFFORDING PROTECTION AGAINST DISADVANTAGES RESULTING FROM FULFILMENT OF OBLIGATIONS FOR MILITARY SERVICE - APPLICATION TO THE NATIONALS OF OTHER MEMBER STATES .

( EEC TREATY, ARTICLE 48; REGULATION NO 38/64/EEC OF THE COUNCIL, ARTICLE ( 9)1; REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL, ARTICLE 7 )

A RULE OF NATIONAL LAW PROTECTING WORKERS FROM THE UNFAVOURABLE CONSEQUENCES, AS REGARDS CONDITIONS OF WORK AND EMPLOYMENT IN THE 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 .

IN CASE 15/69

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESARBEITSGERICHT ( FEDERAL LABOUR COURT ), KASSEL, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

WUERTTEMBERGISCHE MILCHVERWERTUNG-SUEDMILCH-AG, ROSENSTEINSTRASSE 20, STUTTGART-N,

APPELLANT,

AND

SALVATORE UGLIOLA, WORKER, ROSENTEINSTRASSE 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 BY ORDER DATED 27 FEBRUARY 1969, RECEIVED AT THE COURT REGISTRY ON 28 MARCH 1969, THE BUNDESARBEITSGERICHT ( FEDERAL LABOUR COURT ), KASSEL, HAS SUBMITTED A QUESTION IN ACCORDANCE WITH ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC ON THE INTERPRETATION OF 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 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY .

2 THIS QUESTION ASKS WHETHER THE ABOVEMENTIONED ARTICLES " MUST...BE INTERPRETED TO MEAN THAT A WORKER WHO IS A NATIONAL OF A MEMBER STATE AND WHO IS EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE, IS ENTITLED TO HAVE THE PERIOD OF HIS MILITARY SERVICE TAKEN INTO ACCOUNT IN THE CALCULATION OF THE DURATION OF HIS SERVICE WITH HIS EMPLOYER, IN ACCORDANCE WITH THE LEGISLATION OF THE COUNTRY OF EMPLOYMENT, IN RESPECT OF THE PERIOD DURING WHICH HE HAD TO INTERRUPT HIS EMPLOYMENT IN ORDER TO FULFIL HIS OBLIGATIONS FOR MILITARY SERVICE IN HIS COUNTRY OF ORIGIN ".

3 THE REGULATIONS OF WHICH INTERPRETATION IS REQUESTED ARE BASED UPON ARTICLE 48 OF THE TREATY WHICH, IN ORDER TO ENSURE THE FREE MOVEMENT OF WORKERS WHICH IS ESSENTIAL TO THE COMMON MARKET, PRESCRIBES 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 . THIS PROVISION IS SUBJECT TO NO RESERVATIONS OTHER THAN THE RESTRICTION SET OUT IN PARAGRAPH ( 3 ) CONCERNING THE PUBLIC POLICY, PUBLIC SECURITY AND PUBLIC HEALTH . THE COMMUNITY RULES RELATING TO MATTERS OF SOCIAL SECURITY ARE BASED ON THE PRINCIPLE THAT THE LAW OF EACH MEMBER STATE MUST ENSURE THAT NATIONALS OF OTHER MEMBER STATES EMPLOYED WITHIN ITS TERRITORY RECEIVE ALL THE BENEFITS WHICH IT GRANTS TO ITS OWN NATIONALS .

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 EMPLOYMENT 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 . CONSEQUENTLY, AS A RULE OF NATIONAL LAW PROTECTING WORKERS FROM THE UNFAVOURABLE CONSEQUENCES, 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 .

7 THEREFORE, THE ABOVEMENTIONED PROVISIONS ENTITLE A MIGRANT WORKER WHO IS A NATIONAL OF A MEMBER STATE AND WHO HAS HAD TO INTERRUPT HIS 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 .

THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .

9 AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE BUNDESARBEITSGERICHT, KASSEL, THE DECISIONS AS TO COSTS IS A MATTER FOR THAT COURT .

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 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 .