Judgment — ECLI:EU:C:2008:425
Date: 2008-07-17
Language of the case: German
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers;Anti-discrimination;Non-discrimination on grounds of nationality
Concepts: General;Equal treatment
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Freedom of movement for persons – Workers – Meaning (Art. 39 EC) 2. Freedom of movement for persons – Workers – Provisions of the Treaty – Prohibition of discrimination based on nationality – Scope (Art. 39 EC) 3. Freedom of movement for persons – Workers – Equal treatment – Prohibition of discrimination based on nationality (Art. 39 EC) 1. A researcher preparing a doctoral thesis on the basis of a grant contract concluded with an association operating in the public interest which manages scientific research institutes and which is established under the private law of a Member State must be regarded as a worker within the meaning of Article 39 EC only if his activities are performed for a certain period of time under the direction of an institute forming part of that association and if, in return for those activities, he receives remuneration. It is for the national court to undertake the necessary verification of the facts in order to establish whether such is the case. In that regard, the concept of ‘worker’ within the meaning of Article 39 EC has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. (see paras 33-35, 37, operative part 1) 2. A private-law association in the form of an association operating in the public interest must observe the principle of non-discrimination in relation to workers within the meaning of Article 39 EC. Under Article 39 EC, freedom of movement for workers within the European Community 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. Moreover, the principle of non-discrimination laid down by Article 39 EC is worded in general terms and is not addressed specifically to the Member States or to bodies governed by public law. Thus, the prohibition of discrimination based on nationality applies not only to the actions of public authorities but also to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services. The abolition, as between Member States, of obstacles to freedom of movement for persons would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law. Thus, with regard to Article 39 EC, which lays down a fundamental freedom and which constitutes a specific application of the general prohibition of discrimination contained in Article 12 EC, the prohibition of discrimination applies equally to all agreements intended to regulate paid labour collectively, as well as to contracts between individuals. (see paras 41-46, 48, operative part 2) 3. Discrimination based on nationality which is prohibited under Article 39 EC consists in the application of different rules to comparable situations or in the application of the same rule to different situations. It is for the national court to establish whether, where a private-law association concludes grant contracts and employment contracts with doctoral students, employment contracts being reserved for domestic doctoral students, the potential withholding of the choice between the two types of contract for a foreign doctoral student resulted in inequality in the treatment of domestic and foreign doctoral students. Furthermore, neither Article 39 EC nor Regulation No 1612/68 on freedom of movement for workers within the Community prescribes a specific measure to be taken by the Member States or private-law associations in the event of a breach of the prohibition of discrimination, but leaves them free to choose between the different solutions suitable for achieving the objective of those respective provisions, depending on the different situations which may arise. Consequently, in the event that a foreign doctoral student is justified in relying on damage caused by the discrimination to which he has been subject, it is for the referring court to assess, in the light of the national legislation applicable in relation to non-contractual liability, the nature of the compensation which he would be entitled to claim. (see paras 47-48, 50-52, operative part 2-3)