61972J0044

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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 )

THE PROHIBITION ON DISCRIMINATION AS REGARDS CONDITIONS OF EMPLOYMENT AND WORK LAID DOWN IN ARTICLE 48 OF THE TREATY AND ARTICLE 7 OF REGULATION NO 1612/68 OF THE COUNCIL ALSO CONCERNS SPECIAL PROTECTION, ESPECIALLY AGAINST DISMISSAL, WHICH THE LEGISLATION OF A MEMBER STATE CONFERS ON SPECIFIC CATEGORIES OF WORKERS FOR REASONS OF A SOCIAL NATURE .

IN CASE 44/72

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARBEITSGERICHT RHEINE ( LABOUR COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PIETER MARSMAN, 161 DEURINGERSTRAAT, HENGELO, NETHERLANDS, PLAINTIFF IN THE MAIN ACTION,

V

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 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OJ ENGLISH SPECIAL EDITION, 1968 ( II ), P . 475 ),

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 )).

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 PER CENT ENJOYS THE SPECIAL PROTECTION AGAINST DISMISSAL INTRODUCED BY PARAGRAPH 14 OF THE SCHWERBESCHAEDIGTENGESETZ 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 .

4 ARTICLE 48 OF THE TREATY PRESCRIBES THE ABOLITION OF ANY DISCRIMINATION BASED ON NATIONALITY BETWEEN WORKERS AS REGARDS EMPLOYMENT, REMUNERATION AND OTHER CONDITIONS OF WORK AND EMPLOYMENT IN ORDER TO ENSURE FREEDOM OF MOVEMENT FOR WORKERS WHICH IS ESSENTIAL TO THE COMMON MARKET . THIS PROVISION IS SUBJECT ONLY TO THE CONDITIONS WHICH ARE LAID DOWN RESTRICTIVELY IN ARTICLE 48 ( 3 ) AND RELATE TO PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH . THE COMMUNITY RULES ON SOCIAL SECURITY ARE BASED ON THE PRINCIPLE THAT THE LAW OF EACH MEMBER STATE MUST GIVE THE NATIONALS OF OTHER MEMBER STATES EMPLOYED ON ITS TERRITORY ALL THE ADVANTAGES WHICH IT GRANTS ITS OWN NATIONALS . IT FOLLOWS THAT THE PROHIBITION ON DISCRIMINATION SET OUT IN ARTICLE 48 ALSO CONCERNS THE SPECIAL PROTECTION WHICH THE LEGISLATION OF A MEMBER STATE ACCORDS TO SPECIFIC CATEGORIES OF WORKERS FOR REASONS OF A SOCIAL NATURE .

5 WHEN ARTICLE 7 OF REGULATION NO 1612/68 SPECIFICALLY MENTIONED DISMISSAL AMONGST THE CONDITIONS OF WORK AND EMPLOYMENT WHICH WORKERS OF OTHER MEMBER STATES MUST ENJOY ON AN EQUAL FOOTING WITH NATIONAL WORKERS, IT MERELY ENSURED THE PROPER IMPLEMENTATION OF ARTICLE 48 . IT FOLLOWS THAT THIS PROVISION ALSO REFERS TO THE SPECIAL CONDITIONS, IN PARTICULAR REGARDING DISMISSAL, WHICH MAY BE ENJOYED IN A MEMBER STATE BY SPECIFIC CATEGORIES OF NATIONAL WORKERS .

6 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE GOVERNMENT OF THE ITALIAN REPUBLIC WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . 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 ARBEITSGERICHT RHEINE, THE DECISION ON COSTS IS THEREFORE A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE ARBEITSGERICHT RHEINE BY AN ORDER OF 15 MAY 1972, HEREBY RULES :

THE PROHIBITION ON DISCRIMINATION AS REGARDS CONDITIONS OF EMPLOYMENT AND WORK LAID DOWN IN ARTICLE 48 OF THE TREATY AND ARTICLE 7 OF REGULATION NO 1612/68 OF THE COUNCIL ALSO CONCERNS THE SPECIAL PROTECTION, IN PARTICULAR AGAINST DISMISSAL, WHICH THE LEGISLATION OF A MEMBER STATE ACCORDS TO SPECIFIC CATEGORIES OF WORKERS FOR REASONS OF A SOCIAL NATURE .