Judgment;Summary — ECLI:EU:C:2020:299
Date: 2020-04-23
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
14 November 2018 
Referring court: 
Bundesarbeitsgericht (Germany) 
Date of the decision to refer: 
18 October 2018 
Applicant, respondent and appellant on a point of law: 
WN 
Defendant, appellant and respondent in the appeal on a point of law: 
Land Niedersachsen 
      
Subject matter of the main proceedings 
Account taken of professional experience acquired in another Member State in the 
case of recruitment by the public sector 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Question referred 
Are Article 45(2) TFEU and Article 7(1) of Regulation (EU) No 492/2011 
of the European Parliament and of the Council of 5 April 2011 on freedom 
of movement for workers within the Union to be interpreted as precluding a 
provision such as that in Paragraph 16(2) of the Tarifvertrag für den 
Öffentlichen Dienst der Länder (the Collective Agreement for the public 
sector of the Länder; ‘the TV-L’), pursuant to which the relevant 
professional experience acquired with the previous employer has a 
EN 
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privileged position in the case where an employee is allocated to the steps of 
a collective pay structure following re-employment as a result of that 
professional experience being fully acknowledged pursuant to the second 
sentence of Paragraph 16(2) of the TV-L, whereas only a maximum of three 
years of the relevant professional experience acquired with other employers 
is taken into account pursuant to the third sentence of Paragraph 16(2) of the 
TV-L, if that privileged position is required under EU law by clause 4.4 of 
the framework agreement on fixed-term contracts concluded on 18 March 
1999, which is contained in the annex to Council Directive 1999/70/EC of 
28 June 1999 concerning the framework agreement on fixed-term work 
concluded by ETUC, UNICE and CEEP? 
Provisions of EU law cited 
Article 45(2) TFEU 
Article 7(1) of Regulation (EU) No 492/2011 of the European Parliament and of 
the Council of 5 April 2011 on freedom of movement for workers within the 
Union (OJ 2011 L 141, p. 1) 
Clause 4.4 of the framework agreement on fixed-term contracts in the annex to 
Council Directive 1999/70/EC of 28 June 1999 concerning the framework 
agreement on fixed-term work concluded by ETUC, UNICE and CEEP 
Provisions of national law cited 
Paragraphs 16, 17 and 44 of the Tarifvertrag für den Öffentlichen Dienst der 
Länder (Collective Agreement for the public sector of the Länder) (TV-L) and the 
explanatory notes concerning Paragraph 16(2) of the TV-L 
Paragraph 4 of the Gesetz über Teilzeitarbeit und befristete Arbeitsverträge (Law 
on part-time work and fixed-term employment contracts) 
Brief summary of the facts and procedure 
1 The parties in the main proceedings are in dispute over the account taken of 
periods of relevant professional experience from a previous employment 
relationship in another Member State of the European Union upon allocation 
within the remuneration structure of the TV-L. This collective agreement governs 
the employment conditions of workers employed in a German Federal Land 
(State).  
2 In this context, each worker is allocated to a salary group consisting of several 
steps. Pursuant to the first sentence of Paragraph 16(2) of the TV-L, workers are 
allocated to step 1 if they have no relevant professional experience. If workers 
have relevant professional experience of at least one year from a previous fixed-
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term or indefinite employment relationship with the same employer, the step 
allocation takes place by taking account of the periods of relevant professional 
experience from that previous employment relationship (second sentence). A 
previous employment relationship within the meaning of this provision exists if 
there is a period of no more than six months between the end of the previous 
employment relationship and the beginning of the new employment relationship. 
3 If the relevant professional experience of at least one year has been acquired in an 
employment relationship with another employer, the employee is allocated to 
step 2 or, if the employee was recruited after 31 January 2010 and has relevant 
professional experience of at least three years, to step 3 (third sentence of 
Paragraph 16(2) of the TV-L). Irrespective of this, pursuant to the fourth sentence 
of Paragraph 16(2) of the TV-L, in the case of new recruitments, the employer 
may take account, in whole or in part, of periods of previous professional activity 
when allocating an employee to a step in order to cover staffing needs, if that 
activity is beneficial to the intended activity. 
4 The applicant worked as a teacher in various schools in France from 1997 to 2014 
without interruption. Less than six months after the end of this activity, she joined 
the teaching service of the Land of Lower Saxony as a teacher. The Land 
acknowledged the professional experience acquired in France as being relevant. 
As this professional experience was acquired with a different employer, however, 
only a maximum of three years of this experience could be taken into account. 
The applicant was therefore allocated to step 3 of salary group 11 of the TV-L as 
from the date of her recruitment, in accordance with the third sentence of 
Paragraph 16(2) of the TV-L.  
5 By letter of 20 October 2014, the applicant requested that her step allocation be 
reviewed and asserted a claim for remuneration in line with step 5 of salary 
group 11 as from the date of her recruitment, which request was refused by the 
defendant Land. The applicant therefore brought an action before the 
Arbeitsgericht (Labour Court) and sought a declaration that the Land is obliged to 
provide her with remuneration in accordance with step 5 of salary group 11 of the 
TV-L, together with interest, retrospectively from the date of her appointment. 
The Arbeitsgericht (Labour Court) upheld the action. Upon the appeal of the 
defendant Land, the Landesarbeitsgericht (Higher Labour Court) annulled the 
judgment of the Arbeitsgericht (Labour Court) and dismissed the action. By way 
of her appeal on a point of law before the referring court, the applicant seeks to 
have the judgment given at first instance restored. 
Principal arguments of the parties in the main proceedings 
6 The applicant takes the view that the privileged position of the relevant 
professional experience acquired with the same employer when allocating an 
employee to a step infringes Article 45 TFEU and Article 7 of Regulation 
No 492/2011. 
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7 The defendant takes the view that the indirect discrimination based on nationality 
contained in Paragraph 16(2) of the TV-L is justified, as that provision 
legitimately seeks to preserve the established rights of workers who have 
previously worked on a fixed-term basis with the same employer. 
Brief summary of the basis for the reference 
8 The allocation of the applicant was carried out correctly according to national law. 
As the applicant’s professional experience was acquired with a different 
employer, she had to be allocated to step 3, in accordance with the third sentence 
of Paragraph 16(2) of the TV-L. Admittedly, pursuant to the fourth sentence of 
Paragraph 16(2) of the TV-L, it is possible for an employee to be allocated to a 
step higher than step 3 upon recruitment if that recruitment is made to cover 
staffing needs and the existing experience is beneficial to the new activity. The 
employer has discretion in this respect. The employer did not make use of this 
possibility in the applicant’s case, however. 
9 It is questionable whether the limited account taken of professional experience 
that was acquired in another Member State of the European Union infringes EU 
law. This would be the case if the described differentiation in the second and third 
sentences of Paragraph 16(2) of the TV-L infringes Article 45(2) TFEU and 
Article 7(1) of Regulation No 492/2011 on the ground that it unjustifiably restricts 
the applicant’s right of free movement as a worker. Should this constitute an 
infringement, it would have the result that the relevant professional experience 
acquired in another Member State from previous employment relationships would 
have to be taken into account to the same extent as relevant professional 
experience from previous employment relationships with the same employer ― 
and therefore without restriction. 
10 The provisions on the free movement of workers are applicable to the applicant. 
She is a worker within the meaning of Article 45 TFEU and, as a teacher, is not 
employed in the public service within the meaning of Article 45(4) TFEU. As a 
circumstance relating to remuneration, the allocation of a worker to a step of a 
salary group comes within the material scope of Article 45 TFEU and of 
Article 7(1) of Regulation No 492/2011. There is a connection with the European 
Union by reason of the fact that the applicant acquired her professional experience 
in another Member State. 
11 The referring court takes the view that the third sentence of Paragraph 16(2) of the 
TV-L indirectly discriminates against the applicant on the basis of her nationality, 
as the requirements of the second sentence of Paragraph 16(2) of the TV-L 
(privileged account taken of professional experience acquired with the same 
employer) can be satisfied by a domestic employee of German nationality more 
easily than by employees who were employed in another Member State. 
12 There would be no infringement of Article 45(2) TFEU had the parties to the 
collective agreement not adopted the rule in the second sentence of 
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Paragraph 16(2) of the TV-L. There would be no question of an infringement of 
EU law if Paragraph 16(2) of the TV-L merely provided that, in principle, all 
employees are allocated to step 1 of their salary group upon recruitment and, if 
they have relevant professional experience, a maximum of three years of that 
experience is acknowledged, irrespective of where it was acquired. 
13 The referring court takes the view that the provision in the second sentence of 
Paragraph 16(2) of the TV-L leads to an infringement of the free movement of 
workers, however, because one category of employees is privileged by reason of 
the more extensive acknowledgement of professional experience. 
14 It is questionable whether there is any justification for the privileged position 
provided for in the second sentence of Paragraph 16(2) of the TV-L. This would 
be the case if the provision pursues one of the legitimate aims listed in the Treaty 
or is justified by overriding reasons in the public interest. Application of that 
provision must be such as to ensure achievement of the objective in question and 
must not go beyond what is necessary for that purpose (cf. judgment of 
5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger 
Landeskliniken, C-514/12, EU:C:2013:799, paragraph 36). 
15 It must also be noted in the present case that the provision in question was 
negotiated by the social partners. In the same way as the Member States, the social 
partners at national level enjoy broad discretion in their choice, not only to pursue 
a particular objective in the field of social and employment policy, but also in the 
definition of the measures capable of achieving it (cf., e.g., judgments of 
16 October 2007, Palacios de la Villa, C-411/05, EU:C:2007:604, paragraph 68; 
of 12 October 2010, Rosenbladt, C-45/09, EU:C:2010:601, paragraph 41; of 
8 September 2011, Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560, 
paragraph 65; and of 11 November 2014, Schmitzer, C-530/13, EU:C:2014:2359, 
paragraph 38). 
16 The second sentence of Paragraph 16(2) of the TV-L is tailored to the case of re-
employment of workers previously employed on a fixed-term basis. This is 
apparent from explanatory note No 3 concerning Paragraph 16(2) of the TV-L, 
which allows account to be taken of relevant professional experience only if there 
are no more than six months between the termination of the employment 
relationship with a Federal Land and the re-employment by that Federal Land. 
Such short periods of time between two employment relationships with the same 
employer typically arise only in the case of fixed-term employment relationships.  
17 The purpose of the privileged position of the professional experience acquired in 
an employment relationship with the same employer is to provide employees with 
the opportunity to advance through the steps in the case of repeated fixed-term 
contracts. This serves to protect fixed-term workers, and that protection is 
required under EU law by point 4 of clause 4 of the Framework Agreement and 
was transposed into national law by Paragraph 4(2) of the Gesetz über 
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Teilzeitarbeit und befristete Arbeitsverträge (Law on part-time work and fixed-
term employment contracts). 
18 However, the referring court takes the view that it has not been clarified, as a 
matter of EU law, whether the objective of protecting fixed-term workers, the 
basis of which lies in secondary law, can justify the obstacle to free movement of 
workers described in the present case. The Court of Justice has not yet dealt with 
the objective of protecting fixed-term workers in the context of the free movement 
of workers. Only in the context of freedom of establishment has it acknowledged 
the preservation of the established rights of a category of persons as constituting 
an overriding ground of public interest (cf. judgment of 6 December 2007, 
Commission v Germany, C-456/05, EU:C:2007:755, paragraphs 63 and 65), 
although that purpose was not prescribed by EU law. 
19 The case-law of the Court of Justice has not yet sufficiently clarified what 
influence a restriction of fundamental freedoms governed by primary law and 
requirements under secondary law, such as the protection of fixed-term workers 
required by the Framework Agreement, has on the justification for an 
encroachment on a fundamental freedom such as freedom of movement for 
workers. 
20 Unlike similar cases already decided by the Court of Justice (cf. judgments of 
29 April 2004, Commission v Germany, C-387/99, EU:C:2004:235, paragraph 50; 
of 30 September 2003, Inspire Art, C-167/01, EU:C:2003:512, paragraph 58; of 
15 July 2010, Commission v United Kingdom, C-582/08, EU:C:2010:429, 
paragraphs 47 and 48; and of 5 October 2004, Commission v Greece, C-475/01, 
EU:C:2004:585, paragraph 24), an infringement of the freedom of movement for 
workers comes into consideration in the present case solely on the basis of the 
obligations that arise from secondary law (point 4 of clause 4 of the Framework 
Agreement) and which the parties to the collective agreement took into account by 
means of the provision in the second sentence of Paragraph 16(2) of the TV-L. 
21 It is not clear whether the privileged position of employees previously employed 
in the same Federal Land is justified by the provision in the second sentence of 
Paragraph 16(2) of the TV-L on the ground that the special protection of 
employees who previously worked in that Federal Land on a fixed-term basis – 
that protection being the purpose of that provision – is required by the Framework 
Agreement. The Court of Justice is therefore requested to provide clarification on 
the question of how the conflict between two separate objectives protected under 
EU law, one originating from primary law (freedom of movement for workers) 
and the other originating from secondary law (protection of fixed-term workers), 
can be resolved.