C-399/09 Landtova: Peace?

The much-awaited judgment (at least in the Czech Republic) in the Landtova case is out, but surprisingly, things have been rather quiet this far. And peaceful...

Background
When Czechoslovakia fell apart by the end of 1992 and was succeeded by the Czech Republic and Slovakia, the two countries decided (in a bilateral agreement) to take account of the "federation time" for the purposed of counting the pension in the following way: where, by the end of 1992, a person worked for an employer based in the Czech Republic, the "federation time" was deemed to be "Czech time" and vice versa. Landtova is a Czech national who, by the end of 1992, worked for an employer based in Slovakia, meaning that her "federation time" is considered to be "Slovak time". As a result, her pension is lower than it would have been if she had benefited from the "Czech time".

When faced with applicants like Landtova, the Constitutional Court ruled that this was contrary to the Constitution (the Charter of Fundamental Rights and Freedoms, to be more precise) and required that such applicants should be treated as if they worked for an employer based in the Czech Republic by the end of 1992, and there pensions should accordingly be increased to the appropriate level (so that the Czechs with Slovak-based employers are not discriminated against as opposed to the Czechs with Czech-based employers).
The Supreme Administrative Court repeatedly disagreed with the Constitutional Court and, finally, sent the case to Luxembourg, taking the view that the rule "created" by the Counstitutional Court runs counter to Regulation no 1408/71 and to the ban on discrimination.

Judgment
The Court ruled just as it was advised to rule by GA Cruz Villalón in his opinion of 3 March 2011. In fact, the Court did so pretty much in a "copy and paste" fashion. In short, the Court said:
a) the supplementary benefit introduced by the Czech Republic's Constitutional Court is not contrary to Regulation No 1408/71, because "what is at issue is not the award of a parallel Czech old age benefit, nor one and the same period of insurance being taken into account twice, but merely the elimination of an objectively established difference between benefits from different sources" (paragraph 38 of the judgment);
b) the conditions for acquiring the supplementary benefit (Czech nationality, residence in the Czech republic) are discriminatory and precluded as such by the combined provisions of Article 3(1) and Article 10 of Regulation No 1408/71.
Like the Advocate-General, the Court adds in this regard that "where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category, the latter arrangements, for want of the correct application of EU law, being the only valid point of reference remaining" (paragraph 51 of the judgment). As far as Ms Landtová is concerned, she belongs to the person within the advantaged category and the Court held in this regard that "there is no provision of EU law which requires that a category of persons who already benefit from supplementary social protection, such as that at issue in the main proceedings, should be deprived of it" (paragraph 53 of the judgment). In other words, the referring court cannot rely on the EU law to deprive Ms Landtová of the supplementary benefit and therefore - in the absence of any other ground capable of overriding the force of the Constitutional Court's case-law - the referring court must give it to her, as required by the case-law of the Constitutional Court.

Follow-up

The good news is that, as a result, a So Lange clash between the Luxembourg Court and the Czech Republic's Constitutional Court will most probably be avoided. Landtová (and other people in her situation) will (most certainly) be given her supplementary benefit and, consequently, the case will never reach the Constitutional Court. Its case-law, though declared discriminatory by the Court in Luxembourg, may thus last forever....
The bad news is that the Court's ruling is the worst result the Czech government could get. What the Court says is: you can provide people with the supplementary benefit, but if you do, you have to give it not only to Czech nationals (residing in the Czech Republic) but to any national of any Member State (including Slovakia). In theory, this could have dramatic consequences for the state budget of the Czech Republic (but it depends on how many nationals of other Member States actually are in the situation such as to be affected by the rule - for one thing, they must have worked in former Czechoslovakia - and on how many of them will actually request the supplementary benefit).
The winner is...