(Reference for a preliminary ruling – Free movement of persons – Article 45 TFEU – Workers – Regulation (EU) No 492/2011 – Article 7(1) – Postdoctoral senior lecturers – Limitation on the recognition of previous periods of professionally relevant service completed in another Member State – System of pay linking a higher rate of pay to the duration of employment with the current employer)
SOURCE: Court of Justice of the European Union, Annual report 2019
In the judgment in Krah, delivered on 10 October 2019, the Court held that rules of a university of a Member State which, for the purposes of grading the salaries of its postdoctoral senior lecturers, limit the account to be taken of previous periods of equivalent professional service completed by those lecturers in another Member State, constitute an obstacle to the free movement of workers, as guaranteed by Article 45 TFEU. However, Article 45 TFEU and Article 7(1) of Regulation No 492/2011 on freedom of movement for workers do not preclude such rules if the service completed in that other Member State was not equivalent, but merely beneficial to the performance of the duties of postdoctoral senior lecturer at the university in question.
In the case pending before the referring court, a German national, who holds a doctorate in history, worked for five years in a teaching post at the University of Munich. From the end of 2000, she worked at the University of Vienna, first of all in a teaching post, then as a senior lecturer and, from 1 October 2010, as a postdoctoral senior lecturer. By decision of 8 November 2011, the University of Vienna decided, for the purposes of establishing the salary grading for postdoctoral senior lecturers, to take into account a maximum of four years of previous periods of relevant professional service, without differentiating between the periods completed in other universities in Austria and those completed abroad. That four-year limit did not, however, apply to professional experience gained at the University of Vienna as a postdoctoral senior lecturer. Pursuant to that decision, the applicant’s salary grading was established on the basis of four years of previous professional experience.
In response to the question concerning the compatibility of the decision of 8 November 2011 with the principle of non-discrimination on grounds of nationality, the Court found, first of all, that that decision does not constitute discrimination based directly on nationality or indirect discrimination in respect of workers who are nationals of other Member States. However, the Court took the view that it constitutes an obstacle to the free movement of workers, guaranteed by Article 45(1) TFEU, in so far as it is liable to render the exercise of that freedom less attractive.
In that regard, the Court noted, as a preliminary point, that the decision of 8 November 2011 took into account a maximum of four years of previous periods of relevant professional service. That definition covered not only previous professional service that is equivalent or even identical to the performance of the duties of postdoctoral senior lecturers at the University of Vienna, but also any other type of professional service that is merely beneficial to the performance of those duties.
The Court ruled that limiting the taking into account of previous equivalent professional service to four years constitutes an obstacle to free circulation. That limitation is liable to deter postdoctoral senior lecturers who have accrued equivalent professional experience exceeding that period to leave their Member State of origin and to apply for such a position at the University of Vienna. Such senior lecturers would be subject to less advantageous salary conditions than those applicable to postdoctoral senior lecturers who have performed the same duties during periods of service of the same duration at the University of Vienna.
However, as regards the failure to take into account all of the experience which is merely beneficial, the Court found that there was no obstacle to the free movement of workers, since such a failure cannot produce effects that deter free movement.
As regards, finally, justification for the obstacle to free movement resulting from the taking into account, in part, of equivalent professional experience, the Court recalled that rewarding experience acquired which enables workers to improve the performance of their duties constitutes a legitimate objective of pay policy. Nevertheless, in the light of the specific circumstances of the case in the main proceedings, the decision of 8 November 2011 did not appear appropriate to ensure achievement of that objective, with the result that the Court found that it had infringed Article 45 TFEU.
(Reference for a preliminary ruling – Free movement of persons – Workers – Regulation (EU) No 492/2011 – Article 7(2) – Equal treatment – Social advantages – Article 10 – Children attending school – Directive 2004/38/EC – Article 24 – Social assistance – Regulation (EC) No 883/2004 – Article 4 – Article 70 – Special non-contributory cash benefits – Migrant worker with dependent children attending school in the host Member State)
SOURCE: Court of Justice of the European Union, Annual report 2020
In the judgment in Jobcenter Krefeld, delivered on 6 October 2020, the Court, sitting as the Grand Chamber, clarified the rights enjoyed by a former migrant worker with dependent children attending school in the host Member State, in the light of Regulations No 492/2011 and No 883/2004 and Directive 2004/38. JD is a Polish national who has lived, since 2013, with his two minor daughters in Germany, where the latter attend school. In 2015 and 2016, JD held various paid positions in that Member State before becoming unemployed. From September 2016 to June 2017, the family received, inter alia, basic social-protection benefits provided for by German legislation, namely ‘subsidiary unemployment benefits’ for JD (Arbeitslosengeld II) and ‘social allowances’ for his children (Sozialgeld). On 2 January 2018, JD again secured full-time employment in Germany.
JD applied to the competent German authority, Jobcenter Krefeld, for continued payment of those benefits for the period from June to December 2017. However, Jobcenter Krefeld rejected his application on the ground that, during the period at issue, JD had not retained his status as worker and was residing in Germany as a jobseeker. JD brought an action against that decision, which was upheld. Jobcenter Krefeld then brought an appeal before the Landessozialgericht Nordrhein-Westfalen (Higher Social Court of North Rhine-Westphalia, Germany).
After finding that the relevant social protection benefits could be classified as a ‘social advantage’ within the meaning of Regulation No 492/2011, the Court held, in the first place, that that regulation precludes national legislation which automatically and in all circumstances bars a former migrant worker and his or her children from receiving such benefits when they are entitled, under that regulation, to an independent right of residence by virtue of those children attending school.
In arriving at that conclusion, the Court first of all observed that the right of residence enjoyed by the children of a (former) migrant worker in order to safeguard their right of access to education and the derived right of residence of the parent who is their carer originally has its source in the status of that parent as a worker. However, once acquired, that right becomes an independent right and must be maintained after the loss of that status. The Court then held that persons in possession of such a right of residence also enjoy the right to equal treatment with nationals as regards the grant of social advantages, provided for by Regulation No 492/2011, even where they can no longer rely on the status of worker from which they derived their initial right of residence. That interpretation thus ensures that a person who intends to leave his or her Member State of origin with his or her family in order to travel to and work in another Member State is not exposed to the risk that, should he or she lose his or her job, the schooling of his or her children would have to be interrupted and he or she would have to return to his or her country of origin, because of his or her inability to claim the social benefits provided for in national law which would enable his or her family to have sufficient means of subsistence.
Lastly, the Court found that the host Member State cannot rely, in a case such the case at hand, on the derogation from the principle of equal treatment in relation to social assistance provided for by Directive 2004/38. That derogation makes it possible to refuse to grant assistance to certain categories of persons, such as those who enjoy, under that directive, a right of residence by virtue of seeking employment in the host Member State, in order to prevent those persons becoming an unreasonable burden on the social assistance system of that Member State. That derogation must be interpreted strictly and applies only to persons whose right of residence is based solely on that directive. In that case, it is true that the interested persons enjoy a right of residence based on that directive by virtue of the parent concerned being a jobseeker. However, since they are also able to invoke an independent right of residence under Regulation No 492/2011, that derogation cannot be relied on against them. Thus, domestic legislation which excludes them from any entitlement to social protection benefits establishes a difference in treatment in relation to social advantages as compared with nationals, which is contrary to that regulation.
In the second place, the Court held that a (former) migrant worker and his or her children, who enjoy a right of residence based on Regulation No 492/2011 and who are covered by the social security system in the host Member State, also have the right to equal treatment stemming from Regulation No 883/2004. Denying them any entitlement to the social-protection benefits at issue therefore constitutes a difference in treatment in relation to nationals. That difference in treatment is contrary to Regulation No 883/2004, since the derogation provided for in Directive 2004/38 cannot, for the same reasons as those set out by the Court in the context of Regulation No 492/2011, apply to the situation of such a worker and his or her children attending school.