Clean Car Autoservice GesmbH v Landeshauptmann von Wien.
Date: 1998-05-07
11 On 10 August 1995, Clean Car lodged an administrative appeal against that decision with the Landeshauptmann von Wien, submitting that the person appointed as manager now had a residence in Austria and that, in any event, since the accession of the Republic of Austria to the European Union, residence anywhere in the European Union was sufficient to satisfy the statutory requirements.
17 It should be borne in mind, first of all, that Articles 1 to 3 of Regulation No 1612/68 merely clarify and give effect to the rights already conferred by Article 48 of the Treaty (see, to that effect, Case C-419/92 Scholz v Opera Universitaria di Cagliari [1994] ECR I-505, paragraph 6).
19 Whilst those rights are undoubtedly enjoyed by those directly referred to - namely, workers - there is nothing in the wording of Article 48 to indicate that they may not be relied upon by others, in particular employers.
20 It must further be noted that, 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.
21 Those rules could easily be rendered nugatory if Member States could circumvent the prohibitions which they contain merely by imposing on employers requirements to be met by any worker whom they wish to employ which, if imposed directly on the worker, would constitute restrictions on the exercise of the right to freedom of movement to which that worker is entitled under Article 48 of the Treaty.
24 It is, furthermore, clear from, in particular, the judgment in Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraphs 84 to 86, that justifications on grounds of public policy, public security or public health, as envisaged in Article 48(3) of the Treaty, may be relied upon not only by Member States in order to justify limitations on freedom of movement for workers under their laws, regulations or administrative provisions but also by individuals in order to justify such limitations under agreements or other measures adopted by persons governed by private law.  Thus, if an employer may rely on a derogation under Article 48(3), he must also be able to rely on the same principles under, in particular, Article 48(1) and (2).
27 The Court has consistently held that the rules of equal treatment prohibit not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, achieve in practice the same result (see, inter alia, Case C-266/95 Merino García v Bundesanstalt für Arbeit [1997] ECR I-3279, paragraph 33).
28 It is true that a provision such as Paragraph 39(2) of the GewO 1994 applies without regard to the nationality of the person to be appointed as manager.
29 However, as the Court has already held (see, inter alia, Case C-279/93 Finanzamt Köln-Altstadt v Schumacker [1995] ECR I-225, paragraph 28), national rules under which a distinction is drawn on the basis of residence are liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreigners.
30 A requirement that nationals of the other Member States must reside in the State concerned in order to be appointed managers of undertakings exercising a trade is therefore such as to constitute indirect discrimination based on nationality, contrary to Article 48(2) of the Treaty.
31 It would be otherwise only if the imposition of such a residence requirement were based on objective considerations independent of the nationality of the employees concerned and proportionate to a legitimate aim pursued by the national law (see, to that effect, Case C-15/96 Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-0000, paragraph 21).
40 As regards the justification on grounds of public policy, also envisaged in Article 48(3) of the Treaty, the Court has already held (Case 30/77 R v Bouchereau [1977] ECR 1999) that in so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse to the concept of public policy as used in that provision presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the fundamental interests of society.