Gemeinsamer Betriebsrat EurothermenResort Bad Schallerbach GmbH v EurothermenResort Bad Schallerbach GmbH.
Date: 2019-03-13
16


As a preliminary point, it must be noted that Article 45(2) TFEU prohibits all 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 that article (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, SALK, C‑514/12, EU:C:2013:799, paragraph 23 and the case-law cited).
17


Since the entitlement to paid annual leave conferred on workers unquestionably forms part of the field of employment and work conditions, the national legislation at issue in the main proceedings therefore comes within the scope of the provisions cited in the preceding paragraph.
18


In that regard, it is settled case-law that 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, judgments of 5 December 2013, SALK, C‑514/12, EU:C:2013:799, paragraph 25 and the case-law cited, and of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 35 and the case-law cited).
19


In that context, the Court has stated that 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 workers who are nationals of other Member States more than national workers and if there is a consequent risk that it will place the worker from a different Member State at a particular disadvantage, unless it is objectively justified and proportionate to the aim pursued (see judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 36 and the case-law cited).
31


Secondly, the Commission cannot base its line of argument either, in general, on the case-law of the Court according to which, in order for a national measure to be treated as ‘indirectly discriminatory’, it is not necessary for it to have the effect of placing all nationals of the Member State in question at an advantage or of placing at a disadvantage solely nationals of other Member States (judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 45 and the case-law cited) or, in a targeted manner, on the answer given by the Court in its judgment of 5 December 2013, SALK (C‑514/12, EU:C:2013:799).
32


First, as the Advocate General observes in point 35 of his Opinion, the case-law cited in the previous paragraph is relevant only once it has been established that the national legislation at issue in the main proceedings is liable to have a greater effect on nationals of other Member States than on national workers. Since, in the present case, that is not the position, that case-law cannot serve as a basis for finding that the legislation must be regarded as being indirectly discriminatory.
33


Secondly, the case which gave rise to the judgment of 5 December 2013, SALK (C‑514/12, EU:C:2013:799), concerned the employees of a regional authority whose legislation at issue sought to allow mobility within a group of specific employers and not to reward the loyalty of an employee towards a particular employer. It follows that the reasoning of the Court in that judgment cannot be transposed to the national legislation at issue in the main proceedings in the present case, since the specific objective of that national legislation is to reward a worker’s loyalty towards his current employer.
36


In that regard, it must be noted that, admittedly, Article 45 TFEU and all of the Treaty provisions on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the European Union, and preclude measures which might place EU nationals at a disadvantage when they wish to pursue an activity in the territory of a Member State other than their Member State of origin. In that context, nationals of the Member States have in particular the right, which they derive directly from the Treaty, to leave their Member State of origin to enter the territory of another Member State and reside in that State in order to pursue an activity there (judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 33 and the case-law cited).
37


However, primary EU law cannot guarantee to a worker that the move to a Member State other than his Member State of origin will be neutral in terms of social security, since, given the disparities between the Member States’ schemes and legislation, such a move may be more or less advantageous for the person concerned in that regard (judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 34 and the case-law cited).
38


EU law guarantees only that workers active in a Member State other than their Member State of origin are subject to the same conditions as workers of that other Member State (judgment of 23 January 2019, Zyla, C‑272/17, EU:C:2019:49, paragraph 45 and the case-law cited).
40


Contrary to what is claimed by the works council of Eurothermen and the Commission, the national legislation at issue in the main proceedings is not of such a kind as to deter Austrian workers who wish to leave their current employer in order to work for an employer in another Member State, while at the same time hoping subsequently to return to their original employer. It should be noted, as the Advocate General observes in points 60 to 62 of his Opinion, that such an argument is based on a set of circumstances which are too uncertain and indirect for that legislation to be capable of being regarded as liable to hinder the free movement of workers (see, to that effect, judgment of 27 January 2000, Graf, C‑190/98, EU:C:2000:49, paragraph 25).