JUDGMENT OF THE COURT

14 March 2000 (1)

(EEC-Turkey Association Agreement - Decisions of the Association Council -Social Security - Principle of non-discrimination on grounds of nationality -Direct effect - Scope - Legislation of a Member State on determination of datesof birth for the purposes of allocating a social security number and awarding aretirement pension)

In Joined Cases C-102/98 and C-211/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Bundessozialgericht, Germany, for a preliminary ruling in theproceedings pending before that court between

Ibrahim Kocak

and

Landesversicherungsanstalt Oberfranken und Mittelfranken (C-102/98)

and between

Ramazan Örs

and

Bundesknappschaft (C-211/98)

on the interpretation of Article 9 of the Agreement establishing an Associationbetween the European Economic Community and Turkey signed at Ankara on12 September 1963 and concluded, approved and confirmed on behalf of theCommunity by Council Decision 64/732/EEC of 23 December 1963 (OJ 1977 L 361,p. 29), of Article 37 of the Additional Protocol signed in Brussels on 23 November1970 and concluded, approved and confirmed on behalf of the Community byCouncil Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1977 L 361, p.61), of Article 10(1) of Decision No 1/80 of the Association Council of 19September 1980 on the development of the Association (not published), and ofArticle 3(1) of Decision No 3/80 of the Association Council of the same date onthe application of the social security schemes of the Member States of theEuropean Communities to Turkish workers and members of their families (OJ 1983C 110, p. 60),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, D.A.O. Edward, L. Sevón,R. Schintgen (Rapporteur) (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann,J.-P. Puissochet, G. Hirsch, H. Ragnemalm, M. Wathelet and V. Skouris, Judges,

Advocate General: D. Ruíz-Jarabo Colomer,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

in Case C-102/98,

-    the German Government, by E. Röder, Ministerialrat at the FederalMinistry of the Economy, and C.-D. Quassowski, Regierungsdirektor in theFederal Ministry of Finance, acting as Agents,

-    the Commission of the European Communities, by P.J. Kuijper, LegalAdviser, acting as Agent, assisted by I. Brinker and R. Karpenstein, of theBrussels Bar,

in Case C-211/98,

-    Ramazan Örs, by H.-H. Volkenborn, Rechtsanwalt, Herten,

-    the German Government, by E. Röder and C.-D. Quassowski,

-    the French Government, by K. Rispal-Bellanger, Head of Subdirectorate inthe Legal Directorate, Ministry of Foreign Affairs, and A. de Bourgoing,Chargé de Mission in the same directorate, acting as Agents, and

-    the Commission of the European Communities, by P.J. Kuijper, assisted by R. Karpenstein,

having regard to the Report for the Hearing,

after hearing the oral observations of Landesversicherungsanstalt Oberfranken undMittelfranken, represented by N. Mayer, Director, and W.D. Walloth, Ministerialratin the Federal Ministry of Labour, acting as Agents, Mr Örs, represented by H.-H.Volkenborn, the German Government, represented by C.-D. Quassowski, and theCommission, represented by P.J. Kuijper, assisted by R. Karpenstein, at the hearingon 7 September 1999,

after hearing the Opinion of the Advocate General at the sitting on 7 October1999,

gives the following

Judgment

1.

    By two orders of 17 February and 31 March 1998 received at the Registry of theCourt on 9 April 1998 (C-102/98) and 8 June 1998 (C-211/98), theBundessozialgericht (Federal Social Court) referred to the Court for preliminaryrulings under Article 177 of the EC Treaty (now Article 234 EC) a number ofquestions on the interpretation of Article 9 of the Agreement establishing anAssociation between the European Economic Community and Turkey signed atAnkara on 12 September 1963 and concluded, approved and confirmed on behalfof the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1977L 361, p. 29, hereinafter 'the Association Agreement‘), of Article 37 of theAdditional Protocol signed on 23 November 1970 at Brussels and concluded,approved and confirmed on behalf of the Community by Council Regulation (EEC)No 2760/72 of 19 December 1972 (OJ 1977 L 361, p. 61, hereinafter 'theAdditional Protocol‘), of Article 10(1) of Decision No 1/80 of the AssociationCouncil of 19 September 1980 on the development of the Association (notpublished), and of Article 3(1) of Decision No 3/80 of the Association Council ofthe same date on the application of the social security schemes of the MemberStates of the European Communities to Turkish workers and members of theirfamilies (OJ 1983 C 110, p. 60).

2.

    Those questions were raised in two actions brought respectively by Ibrahim Kocac,a Turkish national, against the Landesversicherungsanstalt (Regional InsuranceOffice) Oberfranken und Mittelfranken (hereinafter 'the LVA‘) (C-102/98) andby Ramazan Örs, a Turkish national, against the Bundesknappschaft (FederalInsurance Fund for Miners) (C-211/98) against the refusal of those two bodies totake account, for the award of retirement pensions to Mr Kocak and Mr Örs, ofthe changes, pronounced by a Turkish court, to the dates of birth which they haddeclared when they became members of the German social security scheme.

The EEC-Turkey Association

3.

    Pursuant to Article 2(1) of the Association Agreement, the aim of that Agreementis to promote the continuous and balanced strengthening of trade and economicrelations between the Contracting Parties. To that end, the Association Agreementprovides for a preparatory stage enabling the Republic of Turkey to strengthen itseconomy with aid from the Community (Article 3), a transitional stage in which acustoms union will be progressively established and economic policies will bealigned (Article 4) and a final stage based on the customs union, entailing closercoordination of economic policies (Article 5).

4.

    Article 6 of the Association Agreement provides:

'To ensure the implementation and the progressive development of theAssociation, the Contracting Parties shall meet in a Council of Association whichshall act within the powers conferred on it by this Agreement‘.

5.

    Article 9 of the Association Agreement provides:

'The Contracting Parties recognise that within the scope of this Agreement andwithout prejudice to any special provisions which may be laid down pursuant toArticle 8, any discrimination on grounds of nationality shall be prohibited inaccordance with the principle laid down in Article 7 of the Treaty establishing theCommunity.‘

6.

    Article 12 of the Association Agreement provides:

'The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treatyestablishing the Community for the purpose of progressively securing freedom ofmovement for workers between them.‘

7.

    Article 1 of the Additional Protocol which, by virtue of Article 62 thereof, formsan integral part of the Association Agreement lays down the conditions,arrangements and timetables for implementing the transitional stage referred to inArticle 4 of the Association Agreement.

8.

    According to Article 37 of the Additional Protocol:

'As regards conditions of work and remuneration, the rules which each MemberState applies to workers of Turkish nationality employed in the Community shallnot discriminate on grounds of nationality between such workers and workers whoare nationals of other Member States of the Community‘.

9.

    Article 39(1) of the Additional Protocol provides:

'Before the end of the first year after the entry into force of this Protocol theCouncil of Association shall adopt social security measures for workers of Turkishnationality moving within the Community and for their families residing in theCommunity.‘

10.

    According to the third recital in its preamble, Decision No 1/80 is intended toimprove, in the social field, the treatment accorded to workers and members oftheir families as compared with the rules then in force and to implement theprovisions relating to social security and those relating to the exchange of youngworkers.

11.

    Article 10(1) of Decision No 1/80, contained in Section 1 - 'Questions relating toemployment and the free movement of workers‘ - of Chapter II, which is entitled'Social Provisions‘, provides:

'The Member States of the Community shall as regards remuneration and otherconditions of work grant Turkish workers duly registered as belonging to theirlabour forces treatment involving no discrimination on the basis of nationalitybetween them and Community workers.‘

12.

    The purpose of Decision No 3/80, adopted on the basis of Article 39 of theAdditional Protocol, is to coordinate the social security systems of the MemberStates so as to enable Turkish workers working or having worked in one or moreMember States of the Community, members of those workers' families andsurvivors of such workers to enjoy benefits in the traditional branches of socialsecurity.

13.

    Pursuant to Article 2 of Decision No 3/80, entitled 'Persons covered‘:

'This decision shall apply:

-    to workers who are, or have been, subject to the legislation of one or moreMember States and who are Turkish nationals,

...‘.

14.

    Article 3(1) of Decision No 3/80, entitled 'Equality of treatment‘, provides:

'Subject to the special provisions of this Decision, persons resident in the territoryof one of the Member States to whom this Decision applies shall be subject to thesame obligations and enjoy the same benefits under the legislation of any MemberState as the nationals of that State.‘

15.

    Article 4(1) of Decision No 3/80, entitled 'Matters covered‘, provides:

'This Decision shall apply to all legislation concerning the following branches ofsocial security:

...

(c)    old-age benefits;

...‘.

The national legislation

16.

    In Germany, every insured male who reaches the age of 65 and has been insuredfor at least 60 months is entitled to a retirement pension.

17.

    Every person who is insured for pension purposes must have a social securitynumber, which incorporates his date of birth. That number is allocated to him bythe competent retirement fund on the basis of the data forwarded by the firstemployer of the person concerned in the declaration which the latter is requiredto submit to the sickness insurance authorities.

18.

    Under Article 1(5) of the Verordnung über die Vergabe und Zusammensetzungder Versicherungsnummer (Regulation on the Assignment and Composition ofInsurance Numbers, BGBl.I, 1987, p. 2532) of 7 December 1987:

'A social security number shall be allocated only once and shall not be rectified. If the date of birth or the serial number of the social security number is incorrect,the insured shall be given a new social security number; the incorrect number mustno longer be used and must be marked as being unusable ...‘.

19.

    Article 33a of Book I of the Sozialgesetzbuch (Code of Social Law) (hereinafter'the SGB‘), which entered into force on 1 January 1998 following the enactmenton 16 December 1997 of the first Law amending Book III of the SGB and otherLaws (BGBl.I, 1997, p. 2970), provides:

'(1)    If rights or obligations are dependent on whether a specific age-limit isreached or not exceeded, the applicable date of birth is the date whichresults from the first declaration made by the person entitled to those rightsor subject to those obligations, or by the members of his family, to a socialsecurity institution or, in so far as information within the context of the thirdor sixth chapter of the Fourth Book is concerned, to his employer.

(2)    An applicable date of birth under paragraph 1 may be departed from onlyif the competent benefit institution determines:

    (a)    that a clerical error has been made; or

    (b)    that a different date of birth results from a document whose originalwas issued before the date on which the declaration under paragraph1 was made.

(3)    Paragraphs 1 and 2 shall apply mutatis mutandis to dates of birth which area component of an insurance number or other reference mark used in thesocial benefit fields of this Code.‘

20.

    It is apparent from the explanatory memorandum to the draft law, as submitted bythe national court, that the aim of that provision was to obviate improper claimsfor social security benefits, in the form of premature applications for the paymentof such benefits, in cases where inter alia dates of birth had been changed. Thelaws of various other countries allowed a date of birth to be changed by judicialdecision. Such changes might lead, under German social law, to advantages notavailable under the laws of those other countries since most of the latter refusedto recognise, for social security purposes, changes made to dates of birth. Suchsituations called for an additional and particularly detailed administrative check tobe made. By simplifying such checks, the new rules were intended to ensure thatsuch changes were no longer, in principle, taken into account under German sociallaw. However, there was no need for a specific transitional provision to beadopted.

The main proceedings

Case C-102/98

21.

    From April 1962 to December 1966, Mr Kocak worked in Germany in the miningindustry and was therefore subject to compulsory affiliation to the social securityscheme. Since May 1970 Mr Kocak has lived permanently in that Member State;until he took early retirement on 1 October 1986, he was employed as a productionworker. Since 1 October 1991, the date on which his early retirement paymentsceased, he has received social assistance.

22.

    Mr Kocak's date of birth, as incorporated in the social security numbers assignedto him in 1970 and 1980, is 20 October 1933. Following a judgment of 3 December1985 given by the Turkish civil court in Dücze, Mr Kocak's year of birth in theTurkish register of civil status was amended and entered as 1926. Consequently,by decision of 14 August 1986, the Landesversicherungsanstalt Schleswig-Holsteinassigned to him a new insurance number reflecting his date of birth as thusrectified.

23.

    In August 1991 Mr Kocak applied to the LVA for the award of a retirementpension on the ground that he had reached the age of 65. By decision of 17February 1992 the LVA determined that the judgment rectifying the Turkishregister of civil status could not be recognised as regards Mr Kocak's date of birthand that only the date of 20 October 1933 was relevant for German pensioninsurance purposes. Consequently, it assigned a new insurance number to MrKocak, taking 1933 as his year of birth. By decision of 1 December 1993 the LVArejected Mr Kocak's application for a retirement pension on the ground that hewas born in 1933 and would not therefore reach the age of 65 until October 1998.

24.

    By decision of 19 January 1994 the LVA also rejected the objections lodged by MrKocak against the two abovementioned decisions, on the ground in particular thatit had not been proved that he had been born not in 1933, the year which he hadindicated when he joined the German retirement scheme, but in 1926; neither thejudgment of the Turkish civil court nor the witness evidence produced by Mr Kocakwas capable of proving that point; the judgment was based only on a medicalcertificate and the witness evidence was not corroborated by any document.

25.

    The Landessozialgericht Schleswig-Holstein set aside the judgment delivered at firstinstance by the Sozialgericht (Social Court) Itzenhoe, which had upheld theapplication brought before it by Mr Kocak, and he therefore appealed on a pointof law to the Bundessozialgericht. Entertaining doubts as to whether Article 33aof Book I of the SGB was compatible with the principles of non-discrimination andequal treatment applicable to the EEC-Turkey Association, the ThirteenthChamber of the Bundessozialgericht stayed proceedings pending a preliminaryruling from the Court of Justice on the following question:

'Is the law relating to the association between the European Economic Communityand Turkey (in particular Article 9 of the Agreement establishing an Associationbetween the European Economic Community and Turkey of 12 September 1963,Article 37 of the Additional Protocol to that agreement of 23 November 1970,Article 10 of Decision No 1/80 of the Council of Association of 19 September 1980and Article 3(1) of Decision No 3/80 of the Council of Association of 19 September1980) to be interpreted as not permitting the legislature of a Member State toadopt rules under which the applicable date of birth for use in the insurancenumber allocated to an insured person and for the grant of old-age pension is inprinciple, in the case of Turkish migrant workers also - without regard to particularcharacteristics of the Turkish register of civil status - the date of birth which resultsfrom the first declaration made by the insured person to the social securityinstitution of the Member State in question or to the employer in that State (in sofar as he is under a duty to notify the social security institution)?‘

Case C-211/98

26.

    Mr Örs has lived in Germany since 1972 and is affiliated to the Bundesknappschaftpension scheme. When he became a member, Mr Örs declared that he had beenborn on 1 May 1950 and accordingly the Bundesknappschaft assigned to him asocial security number incorporating that date of birth.

27.

    Following a judgment of the Regional Court in Balikesir of 9 November 1992, MrÖrs's date of birth was rectified in the Turkish register of civil status to 1 May 1946. The judgment was based on sworn evidence produced by the applicant and on anexamination of skin tissue from Mr Örs's right arm.

28.

    By decision of 14 June 1993 the Bundesknappschaft rejected Mr Örs's applicationfor his date of birth and his social security number to be amended on the basis ofthat judgment, and, by decision of 14 September 1993, dismissed his objection tothe earlier decision.

29.

    The actions which Mr Örs brought against those adverse decisions before theSozialgericht Gelsenkirchen and, on appeal, before the Landessozialgericht (HigherSocial Court) Nordrhein-Westfalen were dismissed, whereupon he appealed on apoint of law to the Bundessozialgericht. In his appeal he contended, first, that thesocial security number serves not only to identify a person but is also of decisiveimportance regarding the length of that person's working life and, therefore, hisrights as regards old-age benefits and, second, that the judgment of the Turkishcourt, having become res judicata, was binding on the Bundesknappschaft. He alsostated that the latter, as a sickness fund, had registered him on the basis of hisamended date of birth.

30.

    After observing, in particular, that the case before it was different from that whichgave rise to the judgment of the Court of Justice in Case C-336/94 Dafeki vLandesversicherungsanstalt Württemberg [1997] ECR I-6761 because, first, Mr Örswas not a Community national but a Turkish migrant worker and, second, Article33a of Book I of the SGB excluded subsequent rectification of any date of birth forsocial-law purposes, the Eighth Chamber of the Bundessozialgericht stayedproceedings pending a preliminary ruling from the Court of Justice on the followingquestions:

'1.    Is there, on the basis of the law relating to the Association between theEuropean Economic Community and Turkey, a prohibition of discriminationin the field of social security which is directly applicable to a Turkish workerin the Federal Republic of Germany?

2.    If Question 1 is answered in the affirmative, is that prohibition to beinterpreted as precluding a national provision under which the applicabledate of birth for statutory pension insurance benefits and for the insurancenumber assigned in that regard is the date which was officially recordedwhen the Turkish worker was first registered with a national social benefitinstitution?‘

31.

    By order of the President of the Court of 2 December 1998 the two cases werejoined for the purposes of the oral procedure and the judgment.

The questions referred to the Court

32.

    By its questions, which it is appropriate to consider together, the national courtseeks essentially to ascertain whether the principle of non-discrimination ongrounds of nationality laid down in certain of the abovementioned provisions of therules on the EEC-Turkey Association must be interpreted as precluding a MemberState from applying to Turkish workers rules which, for the purposes of awardinga retirement pension and determining the social security number allocated for thatpurpose, take as the conclusive date of birth the one given in the first declarationmade by the person concerned to a social security authority in that Member Stateand allow another date of birth to be taken into account only if a document isproduced of which the original was issued before that declaration was made.

33.

    First, it is important to note that Turkish nationals who, like Mr Kocak andMr Örs, are or have been subject to the legislation of one of the Member Statesrank among the persons covered by Decision No 3/80, as defined in Article 2thereof.

34.

    Furthermore, legislation of a Member State which, like that at issue in the mainproceedings, fixes the date of birth to be used in determining the inception of, inparticular, entitlement to a retirement pension constitutes legislation concerningone of the branches of social security expressly mentioned in Article 4(1)(c) ofDecision No 3/80 and therefore falls within the matters covered by that decision.

35.

    Second, it must be borne in mind that, in its judgment in Case C-262/96 Sürül vBundesanstalt für Arbeit [1999] ECR I-0000, paragraph 74, the Court held thatArticle 3(1) of Decision No 3/80 establishes, in the area in which that decisionapplies, a precise and unconditional principle such as is capable of being appliedby a national court and, therefore, of governing the legal situation of individuals. The direct effect which must therefore be accorded to that provision means thatthe persons to whom it applies are entitled to rely on it before the courts of theMember States.

36.

    Under that provision, Turkish nationals who reside in the territory of one of theMember States and to whom Decision No 3/80 applies are to enjoy in the MemberState in which they reside the same social security benefits under the legislation ofthat Member State as the nationals of that State. The said provision thereforeconstitutes the implementation and the concrete expression, in the particular fieldof social security, of the general principle of non-discrimination on grounds ofnationality laid down in Article 9 of the Association Agreement (Sürül, cited above,paragraph 64).

37.

    In those circumstances, it is unnecessary to consider whether the latter provision,to which the national court expressly refers, is also applicable to persons who, likeMr Kocak and Mr Örs, are already entitled to rely on the principle of non-discrimination on grounds of nationality specifically laid down in relation to socialsecurity in Article 3(1) of Decision No 3/80.

38.

    The same applies to the provisions of Article 37 of the Additional Protocol and toArticle 10(1) of Decision No 1/80, which affirm the application to Turkish nationalsof the general principle of non-discrimination on grounds of nationality with regardto pay and other working conditions.

39.

    As regards the scope of the principle of non-discrimination on grounds ofnationality embodied in Article 3(1) of Decision No 3/80, it must be borne in mindthat, according to settled case-law, the rule of equal treatment prohibits not onlyovert discrimination based on nationality but also all covert forms of discriminationwhich, by applying other distinguishing criteria, achieve in practice the same result(Case C-190/98 Volker Graf v Filzmoser Maschinenbau [2000] ECR I-0000,paragraph 14).

40.

    It must be pointed out, first, that legislation such as that at issue in the mainproceedings applies irrespective of the nationality of the workers concerned.

41.

    Second, that legislation accords to the documents to be produced in order to setaside the date of birth indicated in the first declaration made to a social securityauthority the same probative value regardless of their provenance or origin. Itdraws no distinction based either on the State in which any such document wasdrawn up or on the type of document produced and, as the German Governmenthas stated without being contradicted, it attributes probative value not only todocuments recording civil status but also to other documents, such as those issuedin connection with education or military service, which allow inferences to be drawnregarding the date of birth of the person concerned.

42.

    Such legislation thus clearly differs from the provisions at issue in Dafeki, citedabove, which accorded to documents and certificates of civil status emanating fromthe competent authorities of other States a lower probative value than thataccorded to documents and certificates drawn up by the German authorities (seeparagraphs 5 and 12 of that judgment).

43.

    In addition, it is clear from the Bundessozialgericht's orders for reference that,under Turkish law too, the relevant date of birth for social security purposesremains in principle the one indicated when the person concerned first becameaffiliated to the scheme and a subsequent rectification of that date has no effect forsuch purposes.

44.

    Accordingly, it must be concluded that, by requiring, as a precondition for a dateof birth other than that indicated in the first declaration made to a social securityauthority to be taken into account, the production of a document the original ofwhich was issued before the date of that declaration, legislation such as that atissue in the main proceedings does not place Turkish nationals in a different legalsituation from that of nationals of the Member State in which they reside.

45.

    The national court does not exclude the possibility that such legislation mightnevertheless entail indirect discrimination against Turkish workers by takinginsufficient account of differences, in law and in fact, regarding records of civilstatus as between the Turkish Republic and the Federal Republic of Germany. Whilst, according to that court, the first declarations made by German nationals toa social security authority are based in general on sound and reliable entries, thosemade by Turkish workers born in their country of origin often have an appreciablyless certain basis and therefore more often need later rectification.

46.

    In that regard, the national court observes, in its order for reference in Case C-102/98, that under Article 16 of the Personenstandsgesetz (Law on Civil Status,hereinafter 'the PStG‘) the birth of a child must be notified within a week to theregistrar of civil status for the area in which it is born. In principle that obligationattaches to the legitimate father but it may also attach to other persons. UnderArticle 68 of the PStG any person who fails to fulfil his obligation to make such adeclaration or does not do so within the prescribed period is guilty of an offencefor which a fine may be imposed.

47.

    Under Article 20 of the PStG, the registrar of civil status must check the particularsgiven by the declarant if he doubts their accuracy. Once the date of birth has beenentered in the register of civil status it can be rectified only pursuant to a courtorder (Article 47 of the PStG, read in conjunction with Articles 46 to 46b). Forthat purpose, the court is required to determine the facts exhaustively on its owninitiative and in so doing to use all appropriate sources of information. It mayorder an entry to be rectified only if convinced that it is incorrect.

48.

    According to the national court, the situation is appreciably different in Turkey. It considers that although, under Article 39 of the Turkish civil code, a birth mustbe declared within one month to the authority responsible for keeping the registerof civil status, that obligation is not, apparently, always complied with within theprescribed period and in a reliable manner, particularly in rural areas. It alsoobserves that although, under Article 38 of the Turkish civil code and Article 11 ofthe Turkish Law on civil status, rectifications to the register of civil status may bemade on the basis of a court decision, the standard of verification frequentlyapplied by the Turkish courts in that regard is described as extremely generous bythe special administrative departments of the social security authorities. Moreover,on many occasions, the German courts have criticised the fact that no detailedinvestigation has been carried out in Turkey on the initiative of the authoritiesthere.

49.

    The Commission submits that, in view of the abovementioned legal and factualdifferences, a refusal in principle to take account, for pension insurance purposes,of a date of birth other than that indicated in the first declaration made to a socialsecurity authority, when the new birth date does not appear in a document whoseoriginal was issued before the date of that declaration, constitutes a form of indirectdiscrimination against Turkish migrant workers, and that it remains to bedetermined whether such discrimination is justified by objective considerationsindependent of the nationality of the workers concerned, and whether it isproportionate to the legitimate aim pursued by the national law (see, in that regard,Case C-237/94 O'Flynn v Adjudication Officer [1996] ECR I-2617, paragraph 19).

50.

    In that connection, it must be noted that the particular difficulties to which thelegislation at issue is liable to give rise for Turkish migrant workers derive from theTurkish legislation on the keeping of the registers of civil status and the particularconditions under which it is applied in practice.

51.

    It is not permissible, on the basis of the principle of non-discrimination on groundsof nationality embodied in Article 3(1) of Decision No 3/80, to require a MemberState which lays down rules regarding the determination of dates of birth for thepurpose of establishing a social security number and of awarding a retirementpension to take account of particular circumstances which derive from the Turkishlegislation on civil status and of the detailed arrangements for its application inpractice.

52.

    Since legislation of the kind at issue in the main proceedings does not thereforeinvolve any difference of treatment such as to constitute indirect discrimination ongrounds of nationality, it is unnecessary to consider whether it is justified byobjective considerations and whether it is proportionate to the legitimate aimspursued by national law (see, in that connection, Case C-15/96 Kougebetopolou vFreie und Hansestadt Hamburg [1998] ECR I-47, paragraph 21, and Case C-350/96Clean Car Autoservice v Landeshauptmann von Wien [1998] ECR I-2521,paragraphs 30 and 31).

53.

    For the same reason, it is likewise unnecessary to consider, in particular, whether,as contended by the Commission, having regard to the doubts expressed by thenational court in its order for reference in Case C-102/98, the legislation isdisproportionate to the aims pursued in that, in the absence of any transitionalprovision, it also applies to Turkish workers whose first declarations to a socialsecurity authority were made under earlier legislation at a time when they had noreason to expect that, on applying for a pension, they might be unable to rely ontheir true date of birth - a date other than that initially declared - unless that dateappeared in a document whose original was issued before the date of the firstdeclaration.

54.

    As to whether persons such as Mr Kocak and Mr Örs may derive rights regardingthe award of their retirement pensions from the fact that, before the entry intoforce of the legislation at issue in the main proceedings, they had been assigned anew social security number or had applied under earlier legislation for a change totheir social security number, that is a matter of national law.

55.

    Accordingly, the answer to the questions submitted must be that Article 3(1) ofDecision No 3/80 must be interpreted as not precluding a Member State fromapplying to Turkish workers legislation which, for the purposes of awarding aretirement pension and determining the social security number allocated for thatpurpose, takes as the conclusive date of birth the one given in the first declarationmade by the person concerned to a social security authority in that Member Stateand allows another date of birth to be taken into account only if a document isproduced the original of which was issued before that declaration was made.

Costs

56.

    The costs incurred by the German and French Governments and the Commission,which have submitted observations to the Court, are not recoverable. Since theseproceedings are, for the parties to the main proceedings, a step in the proceedingspending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundessozialgericht by orders of 17February 1998 and 31 March 1998, hereby rules:

Article 3(1) of Decision No 3/80 of the Association Council of 19 September 1998on the application of the social security schemes of the Member States of theEuropean Communities to Turkish workers and members of their families mustbe interpreted as not precluding a Member State from applying to Turkish workerslegislation which, for the purposes of awarding a retirement pension anddetermining the social security number allocated for that purpose, takes as theconclusive date of birth the one given in the first declaration made by the personconcerned to a social security authority in that Member State and allows anotherdate of birth to be taken into account only if a document is produced the originalof which was issued before that declaration was made.

Rodríguez Iglesias        Edward            Sevón Schintgen Kapteyn            Gulmann            Puissochet Hirsch Ragnemalm Wathelet Skouris

Delivered in open court in Luxembourg on 14 March 2000.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: German.