Judgment — ECLI:EU:C:2013:799
Date: 2013-12-05
Language of the case: German
Court formation: Second Chamber
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

summary publication), paragraph 22). 19 In the present case, it must be held that the order for reference contains the factual and legal material necessary for the Court to be able to provide useful answers to the referring court and for the governments of the Member States and other interested parties to be able to submit their own observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. The order for reference has also clearly set out the reasons why the Landesgericht Salzburg has referred a question to the Court of Justice for a preliminary ruling. 20 Furthermore, the Landesgericht Salzburg observed, in response to a request for clarification addressed to it by the Court under Article 101 of its Rules of Procedure, that Paragraph 54 of the L-VBG, as amended, did not affect the relevance of the question referred, as that provision maintained the taking into account of 60% of all periods of service completed between attaining the age of 18 or 22 and entering the employ of Land Salzburg. 21 Accordingly, the request for a preliminary ruling is admissible. Substance 22 By its question, the referring court asks, in essence, whether Article 45 TFEU and Article 7(1) of Regulation No 492/2011 are to be interpreted as precluding national legislation under which, in determining the reference date for the purposes of the advancement of an employee of a local or regional authority to the next pay step in his grade, account is to be taken of all uninterrupted periods of service completed with that authority, but of only a proportion of any other periods of service. 23 Article 45(2) TFEU prohibits any discrimination based on nationality between workers of the Member States as regards employment, remuneration or other conditions of work and employment. Article 7(1) of Regulation No 492/2011 constitutes merely the specific expression of the principle of non-discrimination laid down in Article 45(2) TFEU within the specific field of conditions of employment and work and must therefore be interpreted in the same way as Article 45(2) TFEU (Case C‑371/04 Commission v Italy [2006] ECR I‑10257, paragraph 17 and the case-law cited). 24 Indisputably, given that it affects workers’ remuneration, determination of the reference date for the purposes of advancement falls within the material scope of the provisions cited in the preceding paragraph. 25 The equal treatment rule laid down in Article 45 TFEU and in Article 7 of Regulation No 492/2011 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, through the application of other distinguishing criteria, lead in fact to the same result (see, inter alia, Case C‑237/94 O’Flynn [1996] ECR I‑2617, paragraph 17, and Case C‑172/11 Erny [2012] ECR, paragraph 39). 26 Unless objectively justified and proportionate to the aim pursued, a provision of national law – even if it applies regardless of nationality – must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage (see, to that effect, Case C‑269/07 Commission v Germany [2009] ECR I‑7811, paragraph 54 and the case-law cited). 27 In order for a measure to be treated as being indirectly discriminatory, it is not necessary for it to have the effect of placing at an advantage all the nationals of the State in question or of placing at a disadvantage only nationals of other Member States, but not nationals of the State in question (Erny, paragraph 41 and the case-law cited). 28 In the present case, by refusing to take into account in their entirety any relevant periods of service that a migrant worker has completed with an employer established in a Member State other than the Republic of Austria, the national legislation at issue in the main proceedings is liable to affect migrant workers more than national workers, placing the former at a particular disadvantage as they will in all likelihood have accrued professional experience in a Member State other than the Republic of Austria before entering the employ of Land Salzburg. Thus, a migrant worker who has accrued relevant professional experience with employers established in a Member State other than the Republic of Austria and whose professional experience with those employers is of the same length as the experience accrued by a worker who has spent his entire career working for Land Salzburg will be placed on a lower pay step than the latter. 29 In addition, the referring court observes that the legislation in question has a similar impact on employees re-entering the employ of Land Salzburg, who, after initially working for Land Salzburg, have gone on to work for other employers, as only 60% of the total periods of service completed by those workers before re-entering the employ of Land Salzburg will be taken into account. That legislation is thus likely to deter workers already employed by Land Salzburg from exercising their right to freedom of movement: if they decide to leave the employ of Land Salzburg, only a proportion of the periods of service that they have completed up to that point will be taken into account for the purposes of determining their remuneration if ever they wish to re-enter the employ of Land Salzburg at a later date. 30 However, provisions of national legislation which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute obstacles to that freedom even if they apply without regard to the nationality of the workers concerned (see, inter alia, Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 26, and Case C‑325/08 Olympique Lyonnais [2010] ECR I‑2177, paragraph 34). 31 It is admittedly true that the legislation at issue in the main proceedings may operate to the detriment not only of migrant workers, but also of Austrian workers who have accrued relevant professional experience with an employer established in Austria other than Land Salzburg. However, as was pointed out in paragraph 27 above, in order for a measure to be treated as being indirectly discriminatory, it is unnecessary for it to have the effect of placing at an advantage all the nationals of the State in question or of placing at a disadvantage only nationals of other Member States, but not nationals of the State in question. 32 All the provisions of the Treaty on the Functioning of the European Union relating to freedom of movement for persons are intended, as are those of Regulation No 492/2011, to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in the territory of another Member State (see, to that effect, inter alia, Kranemann, paragraph 25, and Olympique Lyonnais, paragraph 33). 33 Regarding the arguments put forward by the Austrian and German Governments, both of which take the view that the national legislation at issue in the main proceedings has only a random impact on a migrant worker’s decision to join SALK, it should be borne in mind that the reasons why a migrant worker chooses to make use of his freedom of movement within the European Union are not to be taken into account in assessing whether a provision of national law is discriminatory. The possibility of exercising a freedom so fundamental as the freedom of movement for persons cannot be limited by such considerations, which are purely subjective (O’Flynn, paragraph 21). 34 Moreover, the articles of the Treaty relating to the free movement of goods, persons, services and capital are fundamental provisions of EU law and any restriction of that freedom, however minor, is prohibited (see, inter alia, Case C‑169/98 Commission v France [2000] ECR I‑1049, paragraph 46, and Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 52 and the case-law cited). 35 Consequently, national legislation such as the legislation at issue in the main proceedings is liable to restrict freedom of movement for workers, an effect which is in principle prohibited by Article 45 TFEU and Article 7(1) of Regulation No 492/2011. 36 A measure of that kind cannot be accepted unless it pursues one of the legitimate aims listed in the Treaty or is justified by overriding reasons in the public interest. Even so, application of that measure still has to be such as to ensure achievement of the objective in question and must not go beyond what is necessary for that purpose (see, to that effect, inter alia, Kranemann, paragraph 33, and Olympique Lyonnais, paragraph 38). 37 In that regard, the referring court finds that the legislation at issue in the main proceedings introduces a ‘loyalty reward’ for workers who spend their entire career with the same employer. Land Salzburg and the Austrian Government contend that the legislation in question does not introduce any such reward. 38 Even assuming that the legislation in question does indeed pursue the objective of rewarding workers’ loyalty to their employers, and even though such an objective may conceivably constitute an overriding reason in the public interest (see Case C‑224/01 Köbler [2003] ECR I‑10239, paragraph 83), it must be found that, given the characteristics of that legislation, the obstacle which it entails is not such as to ensure achievement of that objective. 39 Indeed, the referring court has observed, in response to the request for clarification mentioned in paragraph 20 above, that SALK employees, as officials or contractual agents of Land Salzburg, benefit from account being taken of all previous uninterrupted periods of relevant service – relevant, that is, in terms of duties performed, whether at SALK or elsewhere – completed not only with SALK, but with Land Salzburg generally. 40 However, in view of the large number of potential employers coming under the authority of Land Salzburg, that pay scheme is intended to allow mobility within a group of distinct employers and not to reward the loyalty of an employee to a particular employer (see, to that effect, Case C‑195/98 Österreichischer Gewerkschaftsbund [2000] ECR I‑10497, paragraph 49). 41 Land Salzburg contends, as do the Austrian and German Governments, that the legislation at issue in the main proceedings pursues the legitimate aims of administrative simplification and transparency. Regarding the former aim, they argue that the adoption of the fixed rate of 60% in respect of all periods of service completed with employers other than Land Salzburg replaces the previous – more complex – system, simplifying the calculations which the administration must carry out in order to determine the reference date for the purposes of advancement (as it is no longer necessary to examine the entirety of each newly-recruited worker’s professional career on an individual basis) and reducing, as a result, the related administrative costs. 42 However, it is not possible to accept that the aim of administrative simplification, designed merely to reduce the public administration’s workload, inter alia by simplifying the calculations which that administration must carry out, constitutes an overriding reason in the public interest capable of justifying the restriction of a freedom so fundamental as the freedom of movement for workers guaranteed by Article 45 TFEU. 43 Moreover, the fact that simplification of that kind makes it possible for administrative costs to be reduced is a purely economic consideration and in consequence cannot, according to settled case-law, constitute an overriding reason in the public interest (see, in particular, Case C‑96/08 CIBA [2010] ECR I‑2911, paragraph 48 and the case-law cited). 44 In so far as the national legislation at issue in the main proceedings is intended to ensure greater transparency in the determination of the reference date for the purposes of advancement to higher pay steps, it must be found that, in any event, that legislation goes beyond what is necessary to achieve that aim: the desired transparency could be achieved through measures which do not restrict freedom of movement for workers, such as the establishment and publication or dissemination by appropriate means of predetermined and non-discriminatory criteria for assessing the length of relevant professional experience for the purposes of advancement. 45 In the light of the foregoing, the answer to the question referred is that Article 45 TFEU and Article 7(1) of Regulation No 492/2011 must be interpreted as precluding national legislation under which, in determining the reference date for the purposes of the advancement of an employee of a local or regional authority to the next pay step in his grade, account is to be taken of all uninterrupted periods of service completed with that authority, but of only a proportion of any other periods of service. Costs 46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Second Chamber) hereby rules: Article 45 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 must be interpreted as precluding national legislation under which, in determining the reference date for the purposes of the advancement of an employee of a local or regional authority to the next pay step in his grade, account is to be taken of all uninterrupted periods of service completed with that authority, but of only a proportion of any other periods of service. [Signatures] * Language of the case: German.