Keywords
Summary

Keywords

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - TREATY PROVISIONS - OBJECT - COORDINATION , NOT HARMONIZATION , OF THE LEGISLATION OF THE MEMBER STATES - DIFFERENCES IN TREATMENT STEMMING FROM DIFFERENCES BETWEEN SOCIAL SECURITY SYSTEMS - PERMISSIBILITY - CREATION BY THE COMMUNITY RULES OF DISPARITIES IN TREATMENT - ILLEGAL

( EEC TREATY , ARTS 48 TO 51 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - EQUAL TREATMENT - FAMILY BENEFITS - APPLICABLE LEGISLATION - LEGISLATION OF THE STATE OF RESIDENCE OF MEMBERS OF THE FAMILY - COVERT DISCRIMINATION - ARTICLE 73 ( 2 ) OF REGULATION NO 1408/71 - INVALIDITY

( EEC TREATY , ARTS 48 AND 51 ; COUNCIL REGULATION NO 1408/71 , ART . 73 ( 2 ))

3 . PRELIMINARY RULINGS - ASSESSMENT OF VALIDITY - DECLARATION THAT A REGULATION IS INVALID - EFFECTS - TEMPORAL LIMITATION - POWERS OF THE COURT

( EEC TREATY , SECOND PARAGRAPH OF ART . 174 , ART . 177 )

Summary

1 . ARTICLE 51 OF THE TREATY PROVIDES FOR THE COORDINATION , NOT THE HARMONIZATION , OF THE LEGISLATION OF THE MEMBER STATES AND HENCE LEAVES IN BEING DIFFERENCES BETWEEN THE MEMBER STATES ' SOCIAL SECURITY SYSTEMS AND , CONSEQUENTLY , IN THE RIGHTS OF WORKERS EMPLOYED IN THE MEMBER STATES . IT FOLLOWS THAT SUBSTANTIVE AND PROCEDURAL DIFFERENCES BETWEEN THE SOCIAL SECURITY SYSTEMS OF INDIVIDUAL MEMBER STATES , AND HENCE IN THE RIGHTS OF WORKERS EMPLOYED IN THE MEMBER STATES , ARE UNAFFECTED BY ARTICLE 51 OF THE TREATY . HOWEVER , THE OBJECTIVE OF SECURING FREE MOVEMENT FOR WORKERS WITHIN THE COMMUNITY , AS PROVIDED FOR BY ARTICLES 48 TO 51 OF THE TREATY , WILL BE IMPERILLED AND MADE MORE DIFFICULT TO REALIZE , IF UNNECESSARY DIFFERENCES IN THE SOCIAL SECURITY RULES ARE INTRODUCED BY COMMUNITY LAW . IT FOLLOWS THAT THE COMMUNITY RULES ON SOCIAL SECURITY INTRODUCED PURSUANT TO ARTICLE 51 OF THE TREATY MUST REFRAIN FROM ADDING TO THE DISPARITIES WHICH ALREADY STEM FROM THE ABSENCE OF HARMONIZATION OF NATIONAL LEGISLATION .

2 . THE PRINCIPLE OF EQUAL TREATMENT PROHIBITS NOT ONLY OVERT DISCRIMINATION BASED ON NATIONALITY BUT ALL COVERT FORMS OF DISCRIMINATION WHICH , BY APPLYING OTHER DISTINGUISHING CRITERIA , IN FACT ACHIEVE THE SAME RESULT .

THAT IS THE CASE WHEN THE CRITERION OF THE MEMBER STATE IN WHICH THE MEMBERS OF THE FAMILY RESIDE IS USED BY THE COMMUNITY RULES IN ORDER TO DETERMINE THE LEGISLATION APPLICABLE TO THE FAMILY BENEFITS OF A MIGRANT WORKER . EVEN THOUGH THE LEGISLATION OF A MEMBER STATE EMPLOYS THE SAME CRITERION TO DETERMINE THE ENTITLEMENT TO FAMILY BENEFITS OF A NATIONAL OF THAT STATE EMPLOYED IN ITS TERRITORY , THAT CRITERION IS BY NO MEANS EQUALLY IMPORTANT FOR THAT CATEGORY OF WORKER , SINCE THE PROBLEM OF MEMBERS OF THE FAMILY RESIDING OUTSIDE THE MEMBER STATE OF EMPLOYMENT ARISES ESSENTIALLY FOR MIGRANT WORKERS . CONSEQUENTLY , THE CRITERION IS NOT OF SUCH A NATURE AS TO SECURE THE EQUAL TREATMENT LAID DOWN BY ARTICLE 48 OF THE TREATY AND THEREFORE MAY NOT BE EMPLOYED WITHIN THE CONTEXT OF THE COORDINATION OF NATIONAL LEGISLATION WHICH IS LAID DOWN IN ARTICLE 51 OF THE TREATY WITH A VIEW TO PROMOTING THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY IN ACCORDANCE WITH ARTICLE 48 .

IT FOLLOWS THAT ARTICLE 73 ( 2 ) OF REGULATION NO 1408/71 IS INVALID IN SO FAR AS IT PRECLUDES THE AWARD TO EMPLOYED PERSONS SUBJECT TO FRENCH LEGISLATION OF FRENCH FAMILY BENEFITS FOR MEMBERS OF THEIR FAMILY RESIDING IN THE TERRITORY OF ANOTHER MEMBER STATE .

3 . WHERE IT IS JUSTIFIED BY OVERRIDING CONSIDERATIONS THE SECOND PARAGRAPH OF ARTICLE 174 OF THE TREATY GIVES THE COURT DISCRETION TO DECIDE , IN EACH PARTICULAR CASE , WHICH SPECIFIC EFFECTS OF A REGULATION WHICH HAS BEEN DECLARED VOID MUST BE MAINTAINED . WHEN THE COURT MAKES USE OF THE POSSIBILITY OF LIMITING THE EFFECT ON PAST EVENTS OF A DECLARATION IN PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY THAT A MEASURE IS INVALID , IT IS FOR THE COURT TO DECIDE WHETHER AN EXCEPTION TO THAT TEMPORAL LIMITATION OF THE EFFECT OF ITS JUDGMENT MAY BE MADE IN FAVOUR OF THE PARTY WHICH BROUGHT THE ACTION BEFORE THE NATIONAL COURT OR IN FAVOUR OF ANY OTHER PERSON WHO TOOK SIMILAR STEPS BEFORE THE DECLARATION OF INVALIDITY OR WHETHER , CONVERSELY , A DECLARATION OF INVALIDITY APPLICABLE ONLY TO THE FUTURE CONSTITUTES AN ADEQUATE REMEDY EVEN FOR PERSONS WHO TOOK ACTION AT THE APPROPRIATE TIME WITH A VIEW TO PROTECTING THEIR RIGHTS .