(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.