Member states cannot discriminate on grounds of nationality when granting certain benefits to professionals residing in their territory who have excelled in their field, the Court of Justice of the European Union (CJEU) has recently affirmed. Any such discrimination will be tantamount to a breach of the fundamental right of freedom of movement of workers.
The four freedoms, namely free movement of goods, persons, services and capital, form the cornerstone of the EU’s single market. EU laws make specific provision for the fundamental right of EU nationals to work in any member state of their choice, subject to certain limited exceptions. It also strictly prohibits any discrimination based on nationality between workers of EU member states.
In practice, this means that a worker who is a national of an EU member state may not, in the territory of another EU member states, be treated differently from national workers by reason of his nationality in respect of any conditions of employment, including remuneration, dismissal and, should he become unemployed, reinstatement or re-employment. As part and parcel of this right to free movement, such a worker must also enjoy the same social and tax advantages as national workers.
The facts of this case were briefly as follows. A Czech national resident in Slovakia, who chose Czech nationality upon the dissolution of the Czech and Slovak Federative Republic, obtained gold and silver medals in the Ice Hockey European and World Championships respectively as a member of the national team of the Czechoslovak Socialist Republic. He was, however, refused an additional benefit introduced for certain high-level sportspersons who represented Slovakia, because he did not have Slovak nationality.
In addition, at the time of the accession of the Slovak Republic and the Czech Republic to the EU, the person concerned was employed in a primary school and continued in that post following accession.
The court affirmed that the benefit in question does not fall under EU laws coordinating social security systems.
The benefit in question does not fall under EU laws coordinating social security systems
The scope of such benefit was to compensate its recipients for the feats they have accomplished while representing their country in certain sport disciplines.
In fact, the benefit was financed directly by the State, not using the national social security sources of financing and regardless of the social security contributions paid by its recipients. It was also paid to a very limited number of sportspersons.
Moreover, the payment of the additional benefit was not conditional upon the right of the recipient to receive a retirement pension but only upon an application filed by the recipient. The CJEU went on to confirm that the benefit at issue in the present case was, therefore, to be considered as a form of ‘social advantage’, in terms of EU laws regulating free movement of workers.
The court took into cognisance the fact that, in this case, the individual did not exercise his right to free movement as such, since he never moved his place of residence. This notwithstanding, due to the accession to the EU of the State of which he is a national and the State in which he resides, the court considered him to have been put in the same situation as a migrant worker.
This means that EU rules regulating free movement of workers apply to him, including the right to enjoy the same social and tax advantages as national workers.
The court went on to observe that granting such compensation to migrant workers in the same way as to workers who are nationals of the host member state, may contribute to the integration of such migrants into the host member state. This would assist to achieve the objective of freedom of movement for workers. The CJEU emphasised that the benefit at issue had a dual-fold purpose: that of providing its recipients with financial security as compensation for the fact that they were unable to fully integrate into the labour market while practising a sport professionally, as well as that of conferring on such recipients a level of social prestige because of the sporting results attained.
Consequently, the court concluded that a member state which grants such a benefit to its national workers cannot refuse to grant it to workers who are nationals of other member states without discriminating on grounds of nationality.
EU law strictly prohibits any form of discrimination, be it direct or indirect, on grounds of nationality, against nationals of any EU member state who seek to exercise their fundamental right to free movement.
Any such discrimination would indeed constitute a travesty of the whole objective of living and working in a single market as is the EU.
Mariosa Vella Cardona is legal consultant in European law.