By Leo Gasteen
A Member State may make claims for payment of special length-of-service increments, denied to migrant workers on the basis of the application of a domestic law incompatible with Community law, the European Court of Justice (ECJ) has ruled.
Austrian national legislation in 2003 stated that migrants workers are not subject to the pay increments that nationals duly receive, and as such Dr. Barth was denied equal treatment from another member state, despite his resident status. Community law provides that a worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work.
According to the ECJ, the Austrian legislation in question constituted an obstacle to freedom of movement for workers prohibited by the EC Treaty, and has since been amended.
The ruling follows the 2004 case of Friedrich G. Barth, a German ‘migrant’ worker, who held a university post in Austria for more than ten years. Dr. Barth, a German national, was employed as a professor at the University of Frankfurt am Main (Germany), and then in 1987 he was appointed professor at the University of Vienna (Austria). By that appointment, he also acquired Austrian nationality.
Dr. Barth has since been made subject to the pay increment scheme, however the remuneration of his salary has only been taken into account since 2000, due to the application of a limitation rule
In its judgement the ECJ has determined that a period of 3 years and 9 months cannot be regarded as being contrary to the principle of equivalence, and that its application in the Barth case cannot be regarded as against the principle of effectiveness.
European Court of Justice – Justice and Application – Full Text
