Opinion of the Advocate General — ECLI:EU:C:1997:587
Date: 1997-12-04
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
1. Freedom of movement for persons — Workers — Treaty provisions — Scope ratione personae
— Possibility for an employer to rely on the rude of equal treatment
(EC Treaty, Art. 48)
2. Freedom of movement for persons — Workers — Equal treatment — Management of an
undertaking — National rule requiring undertakings to appoint as manager a person residing
in the territory of the State — Indirect discrimination based on nationality — Not permissible
— Justification — None
(EC Treaty, Art. 48)
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SUMMARY — CASE C-350/96
1. The rule of equal treatment in the context
of freedom of movement for workers,
enshrined in Article 48 of the Treaty, may
also be relied upon by an employer in
order to employ, in the Member State in
which he is established, workers who are
nationals of another Member State.
Whilst the rights deriving from Article 48
of the Treaty are undoubtedly enjoyed by
those directly referred to — namely,
workers — there is nothing in the word­
ing of that article to indicate that they
may not be relied upon by others, in par­
ticular employers. Furthermore, in order
to be truly effective, the right of workers
to be engaged and employed without
discrimination necessarily entails as a
corollary the employer's entitlement to
engage them in accordance with the rules
governing freedom of movement for
workers.
2. Article 48 of the Treaty precludes a Mem­
ber State from providing that the owner
of an undertaking exercising a trade on
the territory of that State may not
appoint as manager a person not resident
there.
A requirement that nationals of the other
Member States must reside in the State
concerned in order to be appointed man­
agers of undertakings is such as to consti­
tute indirect discrimination based on
nationality, contrary to Article 48(2) of
the Treaty, since a residence criterion is
liable to operate mainly to the detriment
of nationals of other Member States, non­
residents being in the majority of cases
foreigners. It would be otherwise only if
the imposition of such a residence
requirement were based on objective con­
siderations independent of the nationality
of the employees concerned and propor­
tionate to a legitimate aim pursued by the
law of the Member State in question.
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