Judgment — ECLI:EU:C:2014:2139
Date: 2014-09-04
Language of the case: German
Court formation: Fifth Chamber
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Fifth Chamber), 4 September 2014 1. EU law — Principles — Equal treatment — Discrimination on grounds of nationality — Relationship between Article 18 TFEU and Articles 45 TFEU and 49 TFEU (Arts 18 TFEU, 45(2) TFEU and 49 TFEU) 2. Freedom of movement for persons — Workers — Provisions of the Treaty — Scope ratione personae — Whether an employer can rely on the rule of equal treatment (Arts 45 TFEU and 49 TFEU) 3. Freedom of movement for persons — Freedom of establishment — Article 49 TFEU –Purpose (Art. 49 TFEU) 4. Freedom of movement for persons — Workers — Freedom of establishment — Restrictions — Trade in military arms and munitions and the brokering of the sale and purchase of military arms and munitions — Condition of nationality for the members of their statutory representation bodies or their managing partner — Unlawful — Justification — Protection of essential security interests — Assessment by the national court (Arts 45 TFEU, 49 TFEU and 346(1)(b) TFEU) 1. See the text of the decision. (see paras 20, 21) 2. The rule of equal treatment in the context of freedom of movement for workers, enshrined in Article 45 TFEU, 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. That consideration, which relates to a situation in which a company established in a Member State was precluded by a provision of national law from registering for a trade because the person whom it had appointed as its salaried manager did not reside in that Member State, also applies, by analogy, where the condition at issue concerns a manager who is not an employee. The rules governing freedom of movement for workers could easily be frustrated if Member States were able to circumvent prohibitions under those rules merely by imposing on employers conditions to be met by any worker whom they wished to employ, which, if imposed directly on the worker, would constitute restrictions of the exercise of the worker’s right to freedom of movement under Article 45 TFEU. A finding to that effect must also be made where the employer wishes to employ, not a salaried worker, but a worker with self-employed status whose situation is covered by Article 49 TFEU. (see paras 25, 26) 3. See the text of the decision. (see para. 27) 4. Articles 45 TFEU and 49 TFEU must be interpreted as precluding legislation of a Member State under which, in the case of businesses wishing to trade in military weapons and munitions and broker the sale and purchase of such goods, members of their statutory representation bodies, or their managing partner, must hold the nationality of that Member State. That legislation establishes a difference in treatment on grounds of nationality that is prohibited, in principle, both by Article 49 TFEU and by Article 45(2) TFEU It is for the national court, however, to verify whether the Member State which, in order to justify that legislation, relies on the derogation allowed under Article 346(1)(b) TFEU is able to show that such derogation is necessary in order to protect its essential security interests. In that regard, the derogation allowed under Article 346 TFEU must be narrowly construed. Moreover, even though Article 346(1)(b) TFEU refers to measures that a Member State may consider necessary for the protection of the essential interests of its security, that provision cannot be construed as conferring on Member States a power to depart from the provisions of the Treaty simply in reliance on those interests. The Member State which wishes to avail itself of the derogation allowed under Article 346(1)(b) TFEU must show that such derogation is necessary in order to protect its essential security interests. Even assuming that it could be shown that the objectives of ensuring the trustworthiness of persons authorised to trade in military weapons and munitions or to broker the sale and purchase of such goods, of ensuring security of supply as regards defence material and of preventing the disclosure of strategic information constitute essential interests of the Member State’s security, for the purposes of Article 346(1)(b) TFEU, the nationality condition would still, in accordance with the principle of proportionality, not have to go beyond what is appropriate and necessary for achieving those objectives. (see paras 29, 33-35, 37, 39, operative part)