Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken Betriebs GmbH v Land Salzburg.
Date: 2013-12-05
2. The request has been made in proceedings between the Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken Betriebs GmbH (Staff Committee of the company administering the clinics and hospitals of the Province of Salzburg) and Land Salzburg (the Province of Salzburg) concerning the fact that, for the purposes of calculating their remuneration, Land Salzburg took into account only a proportion of the periods of service completed by its employees with another employer.
Legal context
European Union (‘EU’) law
15. In those circumstances, the Landesgericht Salzburg decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Do Article 45 TFEU and Article 7(1) of Regulation No 492/2011 preclude national legislation (in the present case, Paragraphs 53 and 54 of [the L‑VBG]) under which, in determining the reference date for the purposes of advancement, a public employer is to take into account all uninterrupted periods of service which its employees have completed with it, but is to take into account, on an all-inclusive basis from a certain age, only a proportion of the periods of service which its employees have completed with other public or private employers – whether within Austria or in other EU or EEA States?’
Consideration of the question referred
Admissibility
17. In that regard, it should be borne in mind that the need to provide an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based (see Case C‑380/05 Centro Europa 7  [2008] ECR I‑349, paragraph 57 and the case-law cited, and Case C‑384/08 Attanasio Group  [2010] ECR I‑2055, paragraph 32).
18. The Court also stresses that it is important for the referring court to set out the precise reasons why it is unsure as to the interpretation of EU law and why it considers it necessary to refer questions to the Court for a preliminary ruling (see, to that effect, inter alia, Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others  [2005] ECR I‑10423, paragraph 46 and the case-law cited, and the Order in Case C‑432/10 Chihabi and Others [2011] ECR I‑5 (summary publication), paragraph 22).
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).
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).
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).
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).
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.
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).
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).