Borawitz v Landesversicherungsanstalt Westfalen: ECJ 21 Sep 2000

(Free movement of persons) (Judgment) Social security for migrant workers – Equal treatment – National legislation fixing, in connection with the transfer abroad of retroactive pension payments, a higher minimum amount than that paid within the country
‘the object of article 3(1) of Regulation No 1408/71 is to ensure, in accordance with [article 39 EC], equal treatment in matters of social security, without distinction based on nationality, for the persons to whom that regulation applies by abolishing all discrimination in that regard deriving from the national legislation of the Member States
It is settled case law that the principle of equal treatment, as laid down in that article, 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 . .
Accordingly, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or where the great majority of those affected are migrant workers, as well as conditions which are applicable without distinction but can more easily be satisfied by national workers than by migrant workers or where there is a risk that they may operate to the particular detriment of migrant workers (Case C-237/94 O’Flynn v Adjudication Officer [1996] ECR I-2617, paragraph 18).
It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by the national law . .’


C-124/99, [2000] EUECJ C-124/99, [2000] ECR I-7293





Cited by:

CitedPatmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .
Lists of cited by and citing cases may be incomplete.


Updated: 04 June 2022; Ref: scu.162635