Judgment — ECLI:EU:C:2008:282
Date: 2008-05-15
Language of the case: Italian
Court formation: Seventh Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers
Concepts: Equal treatment
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment Freedom of movement for persons – Workers – Equal treatment – Conditions of employment (Art. 39(2) EC) As provided in Article 39(2) EC, freedom of movement for workers 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. Observance of the principle of equal treatment, of which Article 39 EC is a specific expression, requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such treatment is objectively justified. In that regard, if national workers are entitled, under domestic legislation, to reinstatement from the point of view of increases in salary, seniority and the payment by the employer of social security contributions, from the date of their original recruitment, former foreign-language assistants who have become linguistic associates must also be entitled to similar reinstatement with effect from the date of their original recruitment. When application of that domestic legislation to national workers presupposes continuation of the employment relationship between employer and workers, it is for the national court, which alone has jurisdiction to assess the facts and to interpret the national legislation, to determine whether there exists any continuity linking the duties performed as an exchange assistant and those performed as a linguistic associate. In carrying out that assessment, the national court must determine, first, whether the duties involved in the work carried out by exchange assistants are the same as those involved in the work carried out by linguistic associates, having particular regard to the definition of the pedagogical profile of the foreign-language teaching courses and to the evaluation of the students’ knowledge and, second, whether the two kinds of duties in question meet the same teaching needs. If the national court should find that there is such continuity, despite the temporary interruption of the employment relationship with the employer, it would be necessary to consider whether a national worker placed in a comparable situation would have been entitled to the recognition of rights acquired since the date of his first recruitment. In this respect, only an analysis concentrating on the substance, rather than the form, of statutory schemes will make it possible to establish whether their actual application to different categories of workers in comparable legal situations leads to situations which are compatible or, in contrast, incompatible with the fundamental principle of non-discrimination on grounds of nationality. It is therefore contrary to Article 39(2) EC that, when a fixed-term contract of employment as an exchange assistant is replaced by a contract of employment for an indefinite period as a linguistic associate, a person in the position described above should be refused recognition of the rights acquired since the date of her first recruitment, with consequences with regard to remuneration, the account to be taken of seniority and the payment, by the employer, of contributions to a social security scheme, inasmuch as a national worker placed in a comparable situation would have been entitled to such recognition, which it is for the national court to ascertain. (see paras 18-19, 23-24, 26-30, operative part)