Caves Krier Frères Sàrl v Directeur de l’Administration de l’emploi.
Date: 2012-12-13
25. According to settled case-law, any national of a Member State who, irrespective of his place of residence and of his nationality, has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of his residence falls within the scope of Article 45 TFEU (see, inter alia, Case C-152/03 Ritter-Coulais  [2006] ECR I-1711, paragraph 31, and Case C-212/05 Hartmann  [2007] ECR I-6303, paragraph 17).
26. Furthermore, according to the case-law of the Court, in the context of Article 45 TFEU, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a ‘worker’. Once the employment relationship has ended, the person concerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended, and a person who is genuinely seeking work must also be classified as a worker (see Case C-85/96 Martínez Sala  [1998] ECR I-2691, paragraph 32 and the case-law cited).
28. While it is established that the rights to freedom of movement laid down under that article 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 order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers (see Case C-350/96 Clean Car Autoservice  [1998] ECR I-2521, paragraphs 19 and 20, and Case C-208/05 ITC Innovative Technology Center  [2007] ECR I-181, paragraphs 22 and 23).
30. To the extent that the case in the main proceedings falls within the scope of that provision, it is not necessary to rule on the interpretation of Article 21 TFEU. The latter provision, which sets out generally the right of every citizen of the European Union to move and reside freely within the territory of the Member States, finds specific expression in Article 45 TFEU in relation to freedom of movement for workers (see, inter alia, ITC , paragraphs 64 and 65; Case C-287/05 Hendrix  [2007] ECR I-6909, paragraphs 61 and 62; and Case C-367/11 Prete  [2012] ECR, paragraph 20).
31. As regards the question whether national legislation such as that at issue in the main proceedings constitutes a restriction within the meaning of Article 45 TFEU, it must be pointed out that all of the provisions of the FEU Treaty relating to freedom of movement for persons are intended 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 the Member States at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see, inter alia, ITC , paragraph 31, and Case C-325/08 Olympique Lyonnais  [2010] ECR I-2177, paragraph 33).
35. In that context, it should be observed that it is settled case-law that the Court does not have jurisdiction to interpret the internal law of a Member State (see, inter alia, Joined Cases C-128/10 and C-129/10 Naftiliaki Etaireia Thasou and Amaltheia I Naftiki Etaireia [2011] ECR I-1885, paragraph 40).
36. Thus, it is not for the Court, in the context of a reference for a preliminary ruling under Article 267 TFEU, to give a ruling on the interpretation of provisions of national law and to decide whether the interpretation given by the referring court of those provisions is correct (Joined Cases C-378/07 to C-380/07 Angelidaki and Others  [2009] ECR I-3071, paragraph 48 and the case-law cited).
37. Rather, under the division of jurisdiction between the European Union Courts and the national courts, the Court of Justice must take account of the factual and legislative context in which the questions put to it are set, as described in the order for reference (Case C-63/08 Pontin  [2009] ECR I-10467, paragraph 38 and the case-law cited).
38. Therefore, irrespective of the criticism expressed by the Luxembourg Government in regard to the interpretation of national law adopted by the referring court, the present reference for a preliminary ruling must be examined in the light of that court’s interpretation of that law (see, by analogy, Pontin , paragraph 38).
47. Such national legislation, which affords non-resident workers less favourable treatment than that enjoyed by workers who reside in Luxembourg, constitutes a restriction of the freedom afforded to workers by Article 45 TFEU (see, by analogy, Case C-227/03 van Pommeren-Bourgondiën  [2005] ECR I-6101, paragraph 44, and Ritter-Coulais , paragraphs 37 and 38).
48. A measure which restricts the free movement of workers can be accepted only if it pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons in the public interest. Even if that were so, application of that measure would still have to be such as to ensure achievement of the objective in question and not go beyond what is necessary for that purpose (see, inter alia, ITC, paragraph 37, and Olympique Lyonnais , paragraph 38).
49. According to settled case-law, it is for the Member States, where they adopt a measure derogating from a principle enshrined by European Union Law, to show in each individual case that that measure is appropriate for securing the attainment of the objective relied upon and does not go beyond what is necessary to attain it. The reasons invoked by a Member State by way of justification must thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State and by specific evidence substantiating its arguments (Case C-73/08 Bressol and Others  [2010] ECR I-2735, paragraph 71).
50. In the present case, the Luxembourg Government, notwithstanding the questions raised in this regard by the Court during the hearing, did not seek to describe the objective pursued by the condition of residence imposed by the national legislation at issue in the main proceedings for purposes of registration with ADEM and thus for the grant of the recruitment subsidy, limiting itself to justifying the condition of registration with that office, and therefore did not put forward any evidence whatsoever to justify that residence condition in terms of overriding reasons in the public interest protected by Article 45 TFEU.
51. In order to provide the referring court with a complete answer, it should be observed that the Court has, it is true, already ruled that it is for the Member States to choose the measures likely to attain the objectives that they pursue in the field of employment. The Court has recognised that the Member States have a broad discretion in exercising that power. In addition, it cannot be disputed that encouragement of recruitment constitutes a legitimate aim of social policy (see ITC , paragraph 39 and the case-law cited).
52. However, 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 (see ITC , paragraph 40 and the case-law cited).
53. In that regard, it should be noted, in particular, that, according to the case-law of the Court, 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, to that effect, inter alia, Case C-542/09 Commission v Netherlands  [2012] ECR, paragraphs 63, 65 and 66 and the case-law cited).