Opinion of the Advocate General — ECLI:EU:C:2012:596
Date: 2012-09-27
Language of the case: French
Subject matter: Citizenship of the Union;Principles, objectives and tasks of the Treaties;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

Summary – Judgment of the Court (Second Chamber), 13 December 2012 1. Questions referred for a preliminary ruling – Admissibility – Need to provide the Court with sufficient information on the factual and legislative context (Art. 267 TFEU; Statute of the Court of Justice, Art. 23) 2. Freedom of movement for persons – Workers – Provisions of the Treaty – Whether may be relied upon by others (Art. 45 TFEU) 3. Freedom of movement for persons – Workers – Provisions of the Treaty – Purpose – Rules intended to facilitate the pursuit of occupational activities throughout the European Union (Art. 45 TFEU) 4. Questions referred for a preliminary ruling – Jurisdiction of the Court –Interpretation of national law – Precluded (Art. 267 TFEU) 5. Freedom of movement for persons – Workers – Equal treatment – Access to employment – National legislation making the grant of a recruitment subsidy paid to employers recruiting older unemployed persons subject to the condition that the unemployed person be registered with the national administration – Registration subject to a condition of residence in the national territory – Unlawful (Art. 45 TFEU) 6. Freedom of movement for persons – Workers – Equal treatment – Affording non-resident workers less favourable treatment than that afforded to resident workers – Not permissible – Justification by reasons in the public interest – Conditions – Burden of proof (Art. 45 TFEU) 1. See the text of the decision. (see para. 18) 2. In order to be truly effective, the right of workers to be engaged and employed without discrimination, as laid down in Article 45 TFEU, necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers. While it is established that the rights to freedom of movement laid down in Article 45 TFEU benefit workers, including those seeking employment, there is nothing in the wording of that article to indicate that those rights may not be relied upon by others. In those circumstances, an employer of a frontier worker who comes within the scope of that article may rely on the rights directly conferred on workers. (see paras 27-29) 3. See the text of the decision. (see para. 31) 4. See the text of the decision. (see paras 35-38) 5. Article 45 TFEU must be interpreted as precluding legislation of a Member State which makes the grant to employers of a subsidy for the recruitment of unemployed persons aged over 45 years subject to the condition that the unemployed person recruited has been registered as a job seeker in that same Member State, in the case where such registration is subject to a condition of residence in the national territory, this being a matter for the referring court to verify. The discretion which the Member States enjoy in matters of social policy may not have the effect of undermining the rights granted to individuals by the Treaty provisions in which their fundamental freedoms are enshrined. In that regard, a condition of residence is, as a rule, inappropriate as regards migrant workers and frontier workers since, having participated in the employment market of a Member State, they have in principle established a sufficient link of integration with the society of that State, allowing them to benefit from the principle of equal treatment, as compared with, respectively, national workers and resident workers. The link of integration arises, in particular, from the fact that, through the taxes which they pay in the host Member State by virtue of their employment there, migrant and frontier workers also contribute to the financing of the social policies of that State. (see paras 42, 52, 53, 55, operative part) 6. See the text of the decision. (see paras 47-49)