JUDGMENT OF 13. 12. 1972 — CASE 44/72 MARSMAN v ROSSKAMP

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

THE COURT composed of: R. Monaco, President of Chamber, President, P. Pescatore, President of Chamber, A. M. Donner, A. Trabucchi, J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

Grounds of judgment

Costs

I —. Facts and procedure

1. Article 7 of Regulation No 1612/68 of the Council of 15 October 1968 (OJ English Special Edition, 1968 (II), p. 475) on Freedom of movement for workers within the Community implements the prohibition on discrimination laid down in Article 48 of the Treaty and accordingly paragraph (1) thereof provides that 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(2) adds that such worker shall on the territory of each Member State enjoy the same social and tax advantages as national workers.

2. The plaintiff in the main action, a Dutch national residing in the Netherlands, was a metal-worker employed in the undertaking of the defendant in the main action at Gronau in the Federal Republic of Germany. On 26 February 1971 an accident at work reduced his capacity for work by 60 %. For this reason he receives an accident pension paid by the competent German statutory accident insurance body but his employer terminated his contract of employment with effect from 3 December 1971. The plaintiff contested the legality of this dismissal before the Arbeitsgericht Rheine, relying in particular on Paragraph 14 of the Law on seriously disabled persons (Schwerbeschädigtengesetz, Bundesgesetzblatt I, p. 389) under which the dismissal of persons covered by the law requires the prior consent of the Hauptfürsorgestelle für Kriegsbeschädigte und Kriegshinterbliebene (Head Welfare Office for War-disabled Persons and Surviving Dependants).

3. Paragraph 1 of the German Law of 16 June 1953 lists the categories of disabled workers to which it applies and subparagraph (e) thereof refers to those who have suffered an industrial accident. With regard to foreigners, the protection given by the Law is, however, dependent on additional conditions listed in Article 1 (3), that is to say: they must (1) reside on the territory of the Federal Republic or in West Berlin and (2) be in receipt of an accident pension within the meaning of the German Law.

4. Since the court making the reference entertains doubts as to whether the condition relied upon was in accordance with Community law it requests the Court to give a preliminary ruling on the following question:

5. The action for reference was entered in the Court Register on 10 July 1972. The plaintiff, the Commission, the German Government and the Italian Government submitted written observations.

II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

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 % 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.

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.

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: