25.8.2012

Official Journal of the European Union

C 258/6

(Case C-172/11) (<span class="super">1</span>)

(Freedom of movement for workers - Article 45 TFEU - Regulation (EEC) No 1612/68 - Article 7(4) - Principle of non-discrimination - Top-up amount on wages paid to workers placed on a scheme of part-time work prior to retirement - Cross-border workers subject to income tax in the Member State of residence - Notional taking into account of the tax on wages of the Member State of employment)

2012/C 258/09

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Georges Erny

Defendant: Daimler AG — Werk Wörth

Re:

Reference for a preliminary ruling — Arbeitsgericht Ludwigshafen am Rhein, Landau Divisions — Interpretation of Article 45 TFEU and of Article 7(4) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English special edition 1968 (II), p. 475) — Top-up amount on wages paid to workers placed on a scheme of part-time work prior to retirement — Less favourable pay for cross-border workers subject to income tax only in their State of residence as a result of the taking into account, when calculating that top-up amount, of the tax on wages notionally payable in the State of employment

Operative part of the judgment

Article 45 TFEU and Article 7(4) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community preclude clauses in collective and individual agreements under which a top-up amount such as that at issue in the main proceedings, which is paid by an employer under a scheme of part-time working for older employees in preparation for retirement, must be calculated in such a way that the tax on wages payable in the Member State of employment is notionally deducted when the basis for the calculation of that top-up amount is being established, even though, under a tax convention for the avoidance of double taxation, the pay, salaries and similar remuneration paid to workers who do not reside in the Member State of employment are taxable in their Member State of residence. In accordance with Article 7(4) of Regulation No 1612/68, such clauses are null and void. Article 45 TFEU and the provisions of Regulation No 1612/68 leave the Member States or the social partners free to choose between the different solutions suitable for achieving the objective of those respective provisions.

(<span class="note">1</span>) OJ C 226 30.7.2011.