ECJ Freedom of movement for persons – Workers – Equal treatment – Promotion on grounds of seniority – Collective agreement applicable to public sector employees taking into account only periods of employment completed in the national public service but not periods of comparable employment completed in the public service of another Member State – Discrimination on grounds of nationality – Justification – None (EC Treaty, Art. 48; Council Regulation No 1612/68, Art. 7(1) and (4))
Freedom of movement for persons – Workers – Equal treatment – Clause in a collective agreement contrary to the principle of non-discrimination – De jure nullity – Obligations of the national court (EC Treaty, Art 48; Council Regulation No 1612/68, Art. 7(1) and (4))
Article 48 of the Treaty and Article 7(1) and (4) of Regulation No 1612/68 on freedom of movement for workers within the Community preclude a clause in a collective agreement applicable to the public service of a Member State which provides for promotion on grounds of seniority for employees of that service after eight years’ employment in a salary group determined by that agreement without taking any account of previous periods of comparable employment completed in the public service of another Member State. Such a clause is such as to infringe the principle of non-discrimination laid down by those provisions in that the conditions for promotion on grounds of seniority manifestly work to the detriment of migrant workers who have spent part of their careers in the public service of another Member State. As regards activities not falling within the scope of Article 48(4) of the Treaty, the clause cannot be justified either by arguments based on the specific characteristics of employment in the public service or, given the multiplicity of legally separate employers, by the desire to reward employee loyalty.
A clause in a collective agreement entailing discrimination contrary to Article 48 of the Treaty and to Article 7(1) of Regulation No 1612/68 is null and void by virtue of Article 7(4) of that regulation. Without requiring or waiting for that clause to be abolished by collective negotiation or by some other procedure, the national court must therefore apply the same rules to the members of the group disadvantaged by that discrimination as those applicable to the other workers.
Citations:
C-15/96, [1998] ECR I-47, [1998] EUECJ C-15/96
Links:
Cited by:
Cited – Kobler v Republik Osterreich ECJ 30-Sep-2003
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from . .
Lists of cited by and citing cases may be incomplete.
European, Employment
Updated: 03 June 2022; Ref: scu.161763