Employment, Social Affairs & Inclusion

Case law - Equal treatment

The Court confirmed that the free movement of workers requires the abolition of any discrimination based on nationality between workers of the Member States. This concerns employment, remuneration and other conditions of work and employment. A rule of national law protecting workers from unfavourable consequences arising out of absence through obligations for military service must also be applied to the nationals of other Member States employed in the territory of the host State, who are subject to military service in their country of origin. Full text

This case concerned the special protection against dismissal in the case of a worker who is more than 50% incapacitated to work as a result of an industrial accident. To obtain this protection, it was required that the worker in question has his/her residence on the territory of the Member State in question. This condition was only required for migrant workers and not for national workers. The Court concluded that this requirement infringed the non-discrimination principle. Full text

In this case the Court considered that the rules regarding equality of treatment within Union law prohibit overt discrimination because of nationality. Furthermore all covert forms of discrimination which, by application of other criteria of differentiation, lead in fact to the same result are forbidden. Full text

This case concerned equal treatment as a fundamental legal provision of the Union. The Court ruled on the public service derogation based on the exercise of official authority. The Court held that for the application of this derogation there has to be a direct and specific connection with the exercise of official authority. The tasks that advocates carry out cannot be considered as being connected with the exercise of official authority since the exercise of those activities leaves intact the discretion of judicial authority and the free exercise of judicial power. Full text

This case concerns the right of EU nationals to provide services across EU borders without being discriminated against in comparison with nationals of that State. The Court’s judgment is important because it confirms the rule that service providers from any Member State must be able to compete with national service providers on a level playing field. Furthermore, even obstacles to service provisions which do not discriminate on the basis of nationality will need to be justified by the authorities of the Member State. Full text

A legal remedy may not be conditional on particular requirements as to form or procedure, which are less favourable than those applicable in proceedings brought against the administration of the Member State by its own nationals. Full text

This case concerned the access of EU nationals to education and vocational training. Access to and participation in courses of instruction and apprenticeship are not unconnected with Union law.
In this case, the Member State concerned obliged students, who are nationals of other Member States, to pay a charge or a registration fee as a condition of access to vocational training. This fee was not imposed on students who are nationals of the host Member State. This unequal treatment based on nationality must be regarded as prohibited discrimination. Full text

In this case the Court ruled that EU citizens working and residing in another Member State have the right to claim the same social advantages as nationals of that Member State.

A temporal residence requirement is incompatible with Regulation 1612/68. Such a requirement implies an additional condition imposed on workers who are nationals of a Member State. This constitutes direct discrimination on the basis of nationality. Full text

This case confirmed that discrimination on grounds of nationality is also forbidden for tourists as they are recipients of services. This prohibition means that persons may not be subject to conditions, such as residing on the territory of that State, if these conditions are not obligatory for own nationals. Furthermore the right to equal treatment may not be subject to the issue of a certificate. In this case the right to compensation for a victim of an assault had to be granted. Full text

This case confirmed that the freedom of establishment applies to nationals of a Member State irrespective of whether or not the individual also holds a non-EU nationality as well. The Court underlined that matters of nationality are within the exclusive competence of the Member States. However, as long as an individual holds the nationality of another Member State, the host Member State must accord the right. Full text

This case confirmed that the principle of (direct and indirect) non-discrimination also concerns the public service. It is applicable to any Union national who has exercised the right to freedom of movement for workers and who has been employed in another Member State. The place of residence and the nationality of this national are irrelevant. Full text

The Court confirmed that all discrimination on the ground of nationality has to be eliminated with regard to the free movement of services. Any restriction, when liable to prohibit or otherwise impede the activities of a service provider established in another Member State (where he/she lawfully provides similar services) should be abolished. This means that an EU employer is also entitled to send non-EU nationals to provide services, as temporary posted workers in another Member State, provided that: -the third country national is lawfully resident in the same Member State as his/her employer; -the employee is lawfully and habitually employed by an employer who is providing a cross-border service; -the cross-border service must be of a temporary nature. Full text

This case concerns the applicable rules regarding the international posting of an EU national. Provisions of Union law may apply to professional activities outside the Union. A Union law element can be found to exist even where the contract is concluded within the territory of the EU, but performed outside the EU territory, once the employment relationship is governed by the law of a Member State.
As a result the prohibition of discrimination based on nationality is applicable to any employment relationship which is governed by the law of a Member State. Full text

This case confirmed that the principle of freedom of workers also applies to social allowances. Migrant workers must enjoy those advantages under the same conditions as national workers.
The Court held that the rule of equal treatment prohibits all forms of discrimination. If conditions affect basically migrant workers without making a direct distinction on the basis of nationality they are indirectly discriminatory. Conditions are also considered as indirectly discriminatory if they can more easily be satisfied by national workers than by migrant workers. Such provisions can be justified if they are objective and proportionate. Full text

This is the first case on the meaning of EU Citizenship, the fundamental status of nationals of Member States. The Court ruled that nationals of a Member State can rely on their European citizenship for protection against discrimination on grounds of nationality by another Member State.
A residence permit can only have a declaratory and probative force with regard to the recognition of the right of residence. The possession of a permit may not be a requirement for the right to a benefit, if it is not required that own nationals produce any document of that kind. This would be unequal treatment. Full text

In this case, national legislation did not impose any residence requirement on the children of national workers for the financing of studies. However this requirement was applied to the children of workers who are nationals of other Member States. This was held to be discriminatory.
The principle of equal treatment prevents discrimination to the detriment of descendants who are dependent on a self-employed worker. Full text

A private (banking) undertaking may not make employment conditional upon possession of a certificate of bilingualism issued only in one province of a Member State. The principle of freedom of movement for workers which prohibits discrimination on grounds of nationality applies not only to Member States, but also to private undertakings.
It may be legitimate to require an applicant for a post to have a certain level of linguistic knowledge. The possession of a diploma may constitute a criterion for assessing that knowledge. However, the requirement to provide evidence of his/her linguistic knowledge exclusively by means of one particular diploma, issued in one particular province of a Member State, constitutes discrimination on grounds of nationality. Full text

This judgment ruled on the right of a student residing in another Member State. It confirms that discrimination on the ground of nationality is not permitted against EU citizens who have exercised their rights of free movement.
This case states that Union citizenship is destined to be the fundamental status of nationals of Member States. This enables these nationals, who find themselves in the same situation, to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for. Consequently a student can enjoy the benefit of a social advantage, as long as he/she does not become an unreasonable burden on the public finances.
Union students do not lose their Union rights if they move to another Member State to study there. It may be required from these students that they guarantee the relevant national authority that they have sufficient resources for their period of residence, that they are enrolled in a recognised educational establishment and that they are covered by sickness insurance. Full text

This case is important since the Court broadened its reasoning regarding migrating nationals of the Member States to include own nationals returning to their Member State of nationality. It follows from this judgment that it is prohibited for a Member State to discriminate against its own students who have exercised their right of free movement as students.
The national legislature may require that there is a real link between the applicant for an allowance and the geographic employment market concerned. The Court held that it would be contrary to the right of freedom of movement if a citizen, in the Member State of which he/she is a national, receives treatment less favourable than he/she would enjoy if he/she had not made use of his/her freedom of movement.
It is inequality of treatment if a Member State links the access to allowances to the condition of having obtained the required diploma in its territory. As a result, nationals educated in another Member State would be placed at a disadvantage. Full text

A host Member State may not refuse entry to a regulated profession to a national of a Member State who holds the qualifications necessary for exercise of that profession in another Member State, although he/she had not passed the national entrance examination. This would place nationals of other Member States at a disadvantage and would restrain them from exercising their rights, as workers, to the freedom of movement. This obstacle is incompatible with Union law.
The diploma obtained in one Member State has to be equivalent to the required diploma in another Member State, for employment in the hospital public service. (full text)

The Court held that rules governing a person’s surname have to comply with Union law. This case is important since it has extended the right to non-discrimination based on nationality to rules of private international law.
The principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. However, deviation from this principle of non-discrimination is possible through objective considerations independent of the nationality of the persons concerned. Moreover, it has to be proportionate to the legitimately followed objective. (full text)

The Court examined when a profession must be regarded as regulated within the meaning of Union law. This is the case if access to, or pursuit of, a professional activity is governed by laws, regulations or administrative provisions that create a system under which that professional activity is expressly reserved for those who fulfil certain conditions and access to it is prohibited to those who do not fulfil these conditions.
The host Member State must compare diplomas and take into account the differences between national legal systems. In appropriate cases, the Member State may require the national to show that he/she has acquired the learning and skill that he/she is lacking. (full text)

A worker is any person who pursues activities which are real and genuine, with the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. If activities constitute merely rehabilitation or integration for the person concerned, this cannot be regarded as a real and genuine economic activity. The national court has to examine whether the services performed are regarded as forming part of the normal labour market. (full text)

A Union citizen, who is not economically active, may rely on the non-discrimination principle where he/she has been lawfully resident in the host Member State for a certain time or possesses a residence permit. In such circumstances, Member States may make the residence of a Union citizen who is not economically active, conditional on his/her having sufficient resources.

In this case the Court confirmed that a student can rely on the right to equal treatment during his/her residence in a host Member State.
Member States may require students to guarantee that they have sufficient financial funds, so they will not become an unreasonable burden. However they may not require that those funds cover the entire period of stay.
Member States are allowed to grant assistance only to students who have demonstrated a certain degree of integration into the society of that State, for example by finding that the student has resided in the host Member State for a certain length of time. In this case the requirement of three years’ residence was allowed. (full text)

In this case the Court confirms that nationals of a Member State who are seeking employment in another Member State fall within the scope of Union law.
The Court considers that a condition, which links the grant of an allowance to the requirement that the applicant has obtained the required diploma in that Member State, can be met more easily by the nationals of that Member State. However, this difference in treatment can be justified if it is based on objective considerations which are independent of the nationality of the persons concerned and proportionate to the aim legitimately pursued by the national law.
The Court confirmed that the national legislature can require that there is a real link between the applicant for the allowance and the geographic employment market concerned. Nonetheless, it is too general and exclusive if this single condition concerns the place where the diploma of completion of secondary education was obtained. This goes beyond what is necessary for the objective followed. (full text)

In this case, the Court ruled that a national of a Member State who worked within one Member State, but had transferred his/her residence to another Member State is to be considered a frontier worker within the meaning of Regulation No 1612/68. Therefore, he/she cannot be excluded from access to the social advantages to which nationals of the Member State of origin are entitled.
The Court considers that a residence condition is indirectly discriminatory when it affects migrant workers or their spouses more than it affects national workers, and if there is a consequent risk that it will place the migrant workers or their spouses at a particular disadvantage. (full text)

In this case direct tax law is discussed. In the absence of unifying or harmonising measures at Union level, the Member States retain their competence. This does not mean that Member States are entitled to impose measures that contravene the freedoms of movement guaranteed by the Treaty. A difference in treatment in respect of a tax advantage between residents and non-residents may constitute discrimination where there is no objective difference between the situations, which would justify that difference.

By requiring that migrant workers and dependent family members have to comply with a requirement of lawful residence in the Netherlands during at least three out of the six years preceding enrolment at a higher education establishment abroad, the Netherlands has failed to fulfil its obligations under Article 45 TFEU and Article 7(2) of Regulation (EC) No 1612/68 (now Regulation (EC) No 492/2011). This requirement establishes inequality of treatment between Dutch workers and migrant workers residing in the Netherlands or employed in that Member State as frontier workers. Full text

Refusal to grant the aid to students, who are European Union citizens not residing in the Member State concerned, whose father or mother as a frontier worker works in that Member State. Such a residence condition constitutes indirect discrimination on grounds of nationality. It can be an appropriate tool for attaining the objective of increasing the number of (in casu) Luxembourg residents with a higher education degree but according to the Court of Justice the system was too exclusive in nature as it imposes a condition of prior residence. The court suggests alternative solutions such as a system of loans where the grant or reimbursement of the loan are conditional upon future work in Luxembourg or a condition according to which the recipient’s parents must have worked in the member State for a certain period of time. Full text

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