Opinion of the Advocate General — ECLI:EU:C:2018:627
Date: 2018-07-25
Language of the case: German
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of that case-law and an explanation of the numerous difficulties raised by that question, see Barnard, C., EU Employment Law, Oxford University Press, Oxford, 2012, 4th edition, pp. 282 to 286). For the purposes of the principle of non-discrimination on grounds of nationality, this level of precision is not, however, necessary given the general nature of the test applied in that regard. 13 See, in particular, judgments of 14 February 1995, Schumacker (C‑279/93, EU:C:1995:31, paragraph 28), and of 7 May 1998, Clean Car Autoservice (C‑350/96, EU:C:1998:205, paragraph 29). 14 Judgment of 12 February 1974, Sotgiu (152/73, EU:C:1974:13, paragraph 11). 15 Judgment of 28 November 1989, Groener (C‑379/87, EU:C:1989:599, paragraph 12). 16 Judgments of 28 November 1989, Groener (C‑379/87, EU:C:1989:599, paragraph 23), and of 6 June 2000, Angonese (C‑281/98, EU:C:2000:296, paragraphs 39 to 42). 17 Judgment of 7 July 2005, Commission v Austria (C‑147/03, EU:C:2005:427, paragraphs 43, 46 and 47). 18 Judgment of 21 November 1991, Le Manoir (C‑27/91, EU:C:1991:441, paragraph 11). 19 See, to that effect, Opinion of Advocate General Lenz in O’Flynn (C‑237/94, EU:C:1996:123, point 27). Geographic or linguistic conditions are, in matters of discrimination on grounds of nationality, equivalent to conditions for access to employment such as the requirement of a minimum size (see judgment of 18 October 2017, Kalliri, C‑409/16, EU:C:2017:767) or certain physical strength (see judgment of 1 July 1986, Rummler, 237/85, EU:C:1986:277) in matters of discrimination on grounds of sex. 20 In particular, in the case giving rise to the judgment of 16 February 1978, Commission v Ireland (61/77, EU:C:1978:29), the Court was faced with Irish legislation excluding boats of a certain size or power from a fishing zone. However, although they were genuinely neutral with regard to nationality, those conditions of size and power led, in practice, to the exclusion from the waters in question of a big part of the French and Dutch fishing fleets, whereas the Irish and British fishing fleets, made up of smaller boats, were largely spared. 21 Such as, in the case referred to in the previous footnote, information relating to the specific characteristics of Member States’ fishing fleets. 22 The works council claims that the provisions of the UrlG always place workers who are nationals of Member States other than Austria at a disadvantage. The Commission had adopted the same approach in its written observations before returning to its position at the hearing and claiming that those workers are at a disadvantage in most cases. 23 I would point out that the wording of Paragraph 3(2)(1) of the UrlG, which covers only periods of service carried out in Austria — a condition which unquestionably constitutes unequal treatment indirectly based on nationality — has been ‘corrected’ by the case-law of the Oberster Gerichtshof (Supreme Court), which requires equal account to be taken of periods of service carried out in other Member States (see point 10 and footnote 6 of this Opinion). That ‘correction’ in the case-law does not dispense with the need for the Austrian legislature to amend that provision. According to the Court’s settled case-law, if a provision of national law that is contrary to EU law is retained unchanged, ‘this creates an ambiguous state of affairs by keeping the persons concerned in a state of uncertainty as to the possibility of relying on EU law’ (see judgments of 24 March 1988, Commission v Italy (104/86, EU:C:1988:171, paragraph 12), and of 13 July 2000, Commission v France (C‑160/99, EU:C:2000:410, paragraph 22)). 24 The works council submits that, according to a survey, only 13% of workers in the average of EU Member States have never changed job, whereas 60 to 66% of those workers have changed job up to five times, which affects, in particular, seasonal workers — such as those employed, in the present case, in the tourism sector — and confirms the negative effect of the provisions of the UrlG at issue on those workers. However, I understand that argument as meaning that those provisions actually disadvantage the majority of workers, in particular seasonal workers, irrespective of their nationality. 25 In that regard, unequal treatment on the grounds of nationality resulting from the provisions of the UrlG could be established on the basis of national statistics if they cover enough individuals, do not illustrate purely fortuitous or short-term phenomena, and appear, in general, to be significant (see, by analogy, so far as concerns discrimination on grounds of sex, judgment of 6 April 2000, Jørgensen (C‑226/98, EU:C:2000:191, paragraph 33). However, the statistics presented by the Austrian Government in its written observations and at the hearing tend, on the contrary, to establish the dynamism of the Austrian labour market. 26 Such reasoning is fundamentally biased by the unequal ratio between nationals and non-nationals falling, in the present case, within the scope of the legislation at issue. Taking account of the fact that there are fundamentally more Austrian workers covered by Austrian social legislation — in so far as logically the labour market of that Member State relies above all on Austrians — there are of course more Austrians than foreign nationals who qualify for the sixth week of paid annual leave provided for by the UrlG. See, by analogy, so far as concerns discrimination on grounds of sex, judgment of 9 February 1999, Seymour-Smith and Perez (C‑167/97, EU:C:1999:60, paragraph 59). In that judgment, the Court stated that the discriminatory effects of a measure are assessed by comparing ‘on the one hand, the respective proportions of men in the workforce able to satisfy the requirement of two years’ employment under the disputed rule and of those unable to do so, and, on the other, … those proportions as regards women in the workforce. It is not sufficient to consider the number of persons affected, since that depends on the number of working people in the Member State as a whole as well as the percentages of men and women employed in that State’ (the emphasis is mine). 27 In any event, although I can accept that, in absolute terms, the majority of workers who qualify for the sixth week of annual paid leave provided for in Paragraph 2(1) of the UrlG are Austrian, I sincerely doubt that the majority of those negatively affected by that law are nationals of other Member States, for the reasons set out in point 31 of this Opinion. 28 Judgments of 28 June 2012, Erny (C‑172/11, EU:C:2012:399, paragraph 41); of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 45); and of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 27). 29 In that context, it cannot be argued, as the works council does, that all non-national workers are put at a disadvantage whereas only some national workers are, however many they may be. The excessiveness of that claim is clear from the outset. It is likely that a number of nationals from other Member States, for example Germans, start their professional career in Austria. Moreover, workers who have started their career in another Member State and have joined the service of their current employer with less than five years of experience are not disadvantaged by the limit provided for in Paragraph 3(3) of the UrlG. 30 See, in particular, judgments of 15 January 1998, Schöning-Kougebetopoulou (C‑15/96, EU:C:1998:3, paragraph 22); of 12 March 1998, Commission v Greece (C‑187/96, EU:C:1998:101, paragraphs 20 and 21); of 30 November 2000, Österreichischer Gewerkschaftsbund (C‑195/98, EU:C:2000:655, paragraphs 41 to 44); of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraphs 70, 71 and 73); of 12 May 2005, Commission v Italy (C‑278/03, EU:C:2005:281, paragraph 18); of 26 October 2006, Commission v Italy (C‑371/04, EU:C:2006:668, paragraph 18); and of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 28). 31 C‑224/01, EU:C:2003:513, paragraphs 73 and 85. 32 See judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 84. See also on that point judgments of 30 November 2000, Österreichischer Gewerkschaftsbund (C‑195/98, EU:C:2000:655, paragraph 49), and of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 40). The Court considers that the various public bodies and administrations of a Member State constitute distinct employers. 33 See, a contrario, the case giving rise to the judgment of 10 March 2011, Casteels (C‑379/09, EU:C:2011:131). That case concerned a collective agreement which, for the purposes of granting supplementary pension benefits, takes account of periods of work completed by a worker with the same employer differently, depending on whether those periods were completed in an establishment abroad or in an establishment situated in the Member State in question. 34 In that regard, I would point out that to the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract is to be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. See Article 8(2) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6). 35 It is for the referring court alone to interpret the provisions of the UrlG and to verify the claims made by EurothermenResort Bad Schallerbach. That said, even if those claims were not established, the mere fact that the UrlG treats any change of employer strictly in the same way is sufficient, in my opinion, to conclude that there is no indirect discrimination. 36 Judgment of 5 December 2013 (C‑514/12, EU:C:2013:799). 37 Judgment of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 31). 38 Judgment of 5 December 2013, SALK (C‑514/12, EU:C:2013:799). 39 See, on this point, Opinion of Advocate General Jacobs in Bickel and Franz (C‑274/96, EU:C:1998:115, point 38): ‘Let us suppose, for example, that under the relevant regulations the ruins of Pompeii were open free of charge out of season to residents of Naples and the surrounding area. It would be difficult to argue that such a rule worked to the particular disadvantage of nationals of other Member States since the vast majority of Italian residents would also be affected’ (the emphasis is mine). It is therefore regrettable that the Court adopted the opposite interpretation in its judgment of 16 January 2003, Commission v Italy (C‑388/01, EU:C:2003:30), by finding different legislation, adopted by local authorities, granting free admission to local museums to persons residing in the surrounding area to be indirectly discriminatory. In paragraph 14 of that judgment, the Court rejected the argument that the majority of Italians risked being put at a disadvantage in the same way as foreigners by merely referring, yet again, to the case-law set out in point 34 of this Opinion. 40 See, in particular, judgments of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463, paragraph 96), and of 27 January 2000, Graf (C‑190/98, EU:C:2000:49, paragraph 18). 41 See, in particular, judgments of 1 April 2008, Government of the French Community and Walloon Government (C‑212/06, EU:C:2008:178, paragraph 45); of 10 March 2011, Casteels (C‑379/09, EU:C:2011:131, paragraph 22); and of 18 July 2017, Erzberger (C‑566/15, EU:C:2017:562, paragraph 33). 42 Judgment of 18 July 2017, Erzberger (C‑566/15, EU:C:2017:562, paragraphs 34 and 35). 43 See, to that effect, Opinion of Advocate General Fennelly in Graf (C‑190/98, EU:C:1999:423, point 32): ‘In the normal case, the migrant worker must take the national employment market as he finds it’. See also my Opinion in Erzberger (C‑566/15, EU:C:2017:347, points 74 to 78). 44 Judgments of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463, paragraphs 94 and 95), and of 1 April 2008, Government of the French Community and Walloon Government (C‑212/06, EU:C:2008:178, paragraph 44). 45 Judgments of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463, paragraph 96); of 16 March 2010, Olympique Lyonnais (C‑325/08, EU:C:2010:143, paragraph 34); and of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 30). 46 The present case is thus distinguishable from the case-law of the Court on social security, in particular judgments of 21 January 2016, Commission v Cyprus (C‑515/14, EU:C:2016:30), and of 13 July 2016, Pöpperl (C‑187/15, EU:C:2016:550). In the cases giving rise to those judgments, a civil servant who resigned from his employment in the national civil service and took up employment in another Member State, lost the opportunity to benefit from an advantage to which he had already contributed and which could, therefore, be considered to have been acquired. That is not the case here. Furthermore, whereas social security rights are potentially exportable, the same is not true of the right to paid annual leave. 47 It is likely that the importance that a worker gives to that consideration, weighing up the pros and cons of resigning and moving abroad, is, in general, particularly low. Admittedly, this will depend on the age of the worker in question and the years of activity already spent working for his current employer, depending on whether the worker is more or less close to the 25 years of service required by Paragraph 2(1) of the UrlG. Nevertheless, the risk of losing such an advantage pales in insignificance in comparison to the existential doubts of a worker who is planning on leaving his Member State of origin to try his luck abroad. 48 See, to that effect, judgment of 27 January 2000, Graf (C‑190/98, EU:C:2000:49, paragraph 25). See also, by analogy, judgments of 4 October 1991, Society for the Protection of Unborn Children Ireland (C‑159/90, EU:C:1991:378, paragraph 24); of 15 June 2010, Commission v Spain (C‑211/08, EU:C:2010:340, paragraph 72); and of 12 July 2012, SC Volksbank România (C‑602/10, EU:C:2012:443, paragraph 81). The question of a future event being too uncertain and indirect a possibility for national legislation to constitute an obstacle to the freedom of movement for workers must not be confused with that of the significance of such a barrier, with regard to which the Court considers that even minor restriction is prohibited by Article 45 TFEU (see, to that effect, judgments of 13 December 1989, Corsica Ferries (France) (C‑49/89, EU:C:1989:649, paragraph 8), and of 1 April 2008, Government of the French Community and Walloon Government (C‑212/06, EU:C:2008:178, paragraph 52)). Indeed, the first question concerns the impact — likely or, on the contrary, purely hypothetical and therefore inexistent — that the legislation is likely to have on the choice of the worker to exercise his freedom of movement, whereas the second question relates to the consequences of that legislation on workers exercising that freedom. 49 Judgment of 30 September 2003 (C‑224/01, EU:C:2003:513, paragraph 74). 50 Judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 83), and of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 38); see also order of 10 March 2005, Marhold (C‑178/04, not published, EU:C:2005:164, paragraph 34). 51 Judgments of 15 January 1998, Schöning-Kougebetopoulou (C‑15/96, EU:C:1998:3, paragraphs 26 and 27); of 30 November 2000, Österreichischer Gewerkschaftsbund (C‑195/98, EU:C:2000:655, paragraph 49); of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraphs 83 and 84); and of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 38). 52 See, with regard to Article 45 TFEU, judgment of 13 December 2012, Caves Krier Frères (C‑379/11, EU:C:2012:798, paragraph 51). See, also, so far as concerns other areas of EU law, judgments of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709, paragraph 63); of 11 January 2007, ITC (C‑208/05, EU:C:2007:16, paragraph 39); and of 16 October 2007, Palacios de la Villa (C‑411/05, EU:C:2007:604, paragraph 68). 53 See, in particular, judgment of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 36 and the case-law cited). 54 The Court considers that the various public bodies and authorities of a Member State constitute separate employers. See footnote 32 above and the case-law cited. 55 Judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 84), and of 5 December 2013, SALK (C‑514/12, EU:C:2013:799, paragraph 38). In some older cases, the Court even considered that the measures at issue were not really intended to achieve the objective of promoting loyalty relied on (see judgments of 15 January 1998, Schöning-Kougebetopoulou (C‑15/96, EU:C:1998:3, paragraph 26), and of 30 November 2000, Österreichischer Gewerkschaftsbund (C‑195/98, EU:C:2000:655, paragraph 49)). 56 It is therefore quite logical that the UrlG provides only for marginal account to be taken of periods of service completed with previous employers, since those periods are not comparable to those completed with the current employer in the light of the loyalty incentive objective pursued. On the whole, the periods of service completed with previous employers should not be taken into account at all. Nevertheless, in my opinion, taking account of the periods up to a maximum of five years in total, as provided for by Paragraph 3(2) and (3) of the UrlG, serves merely to mitigate the rigidity of the 25 years of seniority requirement and thus contributes to its proportionality. 57 See, by analogy with regard to the free movement of goods, judgment of 10 May 1995, Alpine Investments (C‑384/93, EU:C:1995:126, paragraph 51), and Opinion of Advocate General Jacobs in Alpine Investments (C‑384/93, EU:C:1995:15, point 88). 58 See, to that effect, judgment of 30 September 2003, C‑224/01, EU:C:2003:513. 59 Judgment of 30 September 2003, Köbler (C-224/01, EU:C:2003:513, paragraphs 85 and 86). 60 Admittedly, rewarding loyalty will always, to some extent, be contrary to the logic of freedom of movement guaranteed by the FEU Treaty. A loyalty bonus rewards immobility precisely where the provisions of the FEU Treaty facilitate mobility. This does not mean that it is contrary to EU law. EU law does not preclude stable and long-term relationships, whether professional or personal.