Opinion of the Advocate General — ECLI:EU:C:1999:423
Date: 1999-09-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
Freedom of movement for persons — Workers — Equal treatment — National legislation 
refusing to grant entitlement to compensation on termination of employment to a worker 
who terminates his contract of employment himself — Whether permissible 
(EC Treaty, Art. 48 (now, after amendment. Art. 39 EC)) 
I - 4 9 3 
SUMMARY — CASE C-190/98 
Article 48 of the Treaty (now, after amend­
ment, Article 39 EC) does not preclude 
national legislation which denies entitle­
ment to compensation on termination of 
employment in the case of a worker who 
terminates his contract of employment 
himself in order to take up employment 
with a new employer established in that 
Member State or in another Member State, 
but grants it in the case of a worker whose 
contract ends without the termination 
being at his own initiative or attributable 
to him. 
First, such legislation applies irrespective of 
the nationality of the worker concerned 
and does not affect migrant workers to a 
greater extent than national workers. Sec­
ondly, although provisions which, even if 
they are applicable without distinction, 
preclude or deter nationals of a Member 
State from leaving their country of origin in 
order to exercise the right to freedom of 
movement constitute an obstacle to that 
freedom if they affect access of workers to 
the labour market, legislation of the kind at 
issue is not such as to preclude or deter a 
worker from ending his contract of employ­
ment in order to take a job with another 
employer, because the entitlement to com­
pensation on termination of employment is 
not dependent on the worker's choosing 
whether or not to stay with his current 
employer, but on a future and hypothetical 
event, namely the subsequent termination 
of his contract without such termination 
being at his own initiative or attributable to 
him. Such an event is too uncertain and 
indirect a possibility for that legislation to 
be capable of being regarded as liable to 
hinder freedom of movement for workers. 
(see paras 15-16, 23-26 and operative part) 
I - 4 9 4