Social security for migrant workers – Equal treatment – Sickness benefits
(Council Regulation No 1408/71, Art. 3(1))
Article 3(1) of Regulation No 1408/71 precludes the application of a daily sick pay scheme implemented by a Member State under which a migrant worker, whose spouse resides in another Member State, is automatically placed in a tax class which is less favourable – namely that applicable to workers who are married but permanently separated from their spouse – than that of a married national worker whose spouse resides in the Member State concerned and is not in paid employment, and which does not allow account to be taken retroactively, as regards the amount of that sick pay, which is calculated according to net income, itself determined by tax class, of a subsequent correction of that class following an express application by the migrant worker based on his actual marital status.
The principle of equal treatment, as laid down in Article 3(1) of Regulation No 1408/71, prohibits not only overt discrimination based on the nationality of the beneficiaries of social security schemes but also all covert forms of discrimination which, through the application of other distinguishing criteria, lead in fact to the same result.
Even if such a system does not in itself lay down, for the purposes of the calculation of the amount of daily sick pay, any formal difference in treatment between national workers and those from another Member State, its application is likely to place a migrant worker, whose spouse continues to reside frequently in the Member State of origin, in a legal or factual position which is less favourable than that in which a national worker, in the same circumstances, would find himself.
That difference in treatment cannot be justified by arguments relating to the administrative simplification of the procedures for allocating daily sick pay, the function of the latter in ensuring that the workers concerned receive an income which allows them to meet their subsistence needs, or the complexity of the calculations needed for the payment of daily sick pay. Such aims do not preclude subsequent correction of the amount of sick pay, inter alia by the introduction of a mechanism whereby the amount of that pay is retroactively adjusted to take account of the actual position of the migrant worker concerned.
(see paras 23, 29, 31, 34, 36-38, 40, operative part)