1.

The present case has as its subject matter a request submitted by the Kammergericht Berlin (Higher Regional Court, Berlin, Germany) for a preliminary ruling on the interpretation of Article 18 TFEU relating to the principle of non-discrimination on grounds of nationality and Article 45 TFEU relating to freedom of movement for workers.

2.

That request was submitted in proceedings between Mr Konrad Erzberger, a shareholder and TUI AG, a German company, concerning the composition of the company’s supervisory board. The shareholder claims, in particular, that the German legislation on employee participation in the company is incompatible with Articles 18 and 45 TFEU, in that it provides that only employees employed in a company’s establishments or in companies of the group to which the company belongs which are situated on German territory are to be entitled to vote and to stand for election as workers’ representatives on the company’s supervisory board.

3.

The question of principle central to the present case is whether, in the context of a national system of employee participation, the Member States may be required, under Articles 18 and 45 TFEU, to grant employees employed in subsidiaries established in other Member States the same right to vote and to stand for election as those enjoyed by national employees.

4.

In this Opinion, I shall set out the reasons why I consider that this question should be answered in the negative and that Articles 18 and 45 TFEU do not preclude national rules such as those at issue in the main proceedings.

5.

Paragraph 1 of the Gesetz über die Mitbestimmung der Arbeitnehmer (MitbestG) (Law on employee participation) of 4 May 1976 ( *2 ) (‘the Law on employee participation’), entitled ‘Undertakings affected’, provides in subparagraph 1:

‘In undertakings

this Law shall confer on employees a right of participation.’

6.

Paragraph 3 of the Law on employee participation, entitled ‘Employees and the undertaking’, provides in subparagraph 1:

‘The following shall be regarded as employees within the meaning of this Law

The persons referred to in Paragraph 5(2) of the Law on industrial relations shall not be employees within the meaning of this Law.’

7.

Paragraph 5 of the Law on employee participation, entitled ‘Groups of undertakings’, provides in subparagraph 1:

‘Where an undertaking … is the dominant undertaking within a group (Paragraph 18(1) of the Aktiengesets (Law on limited companies)), employees of the undertakings within the group shall be treated as employees of the dominant undertaking for the purposes of the application of this Law …’

8.

Paragraph 7 of the Law on employee participation, entitled ‘Composition of the supervisory board’, provides in subparagraph 1(3), subparagraph 2(3) and subparagraph 4: ( *3 )

‘(1)   The supervisory board of an undertaking

…

…

(2)   The members of the supervisory board representing the employees shall include

…

…

(4)   The employees of the undertakings referred to in subparagraph 2 must be at least 18 years of age and have been employed by the undertaking for one year. The year of employment with the undertaking must be increased by periods during which the worker was employed by another undertaking whose employees take part in the elections of the members of the supervisory board of that undertaking pursuant to this Law. Those periods must immediately precede the time from which the employees acquire the right to participate in the elections of the members of the supervisory board of the undertaking. The other conditions of eligibility laid down in Paragraph 8(1) of the Law on industrial relations must be satisfied.’

9.

Paragraph 10 of the Law on employee participation, entitled ‘Election of delegates’, provides in subparagraphs 1 to 3:

‘(1)   In each establishment of the company, the employees shall elect delegates by secret ballot and in accordance with the principles of proportional representation.

(2)   Employees of the undertaking who are 18 years of age or over shall be entitled to vote in the election of delegates. The second sentence of Paragraph 7 of the Law on industrial relations shall apply mutatis mutandis.

(3)   Employees referred to in the first sentence of subparagraph 2 who satisfy the conditions for eligibility to stand for election laid down in Paragraph 8 of the German Law on industrial relations shall be eligible for election as delegates.’

10.

Paragraph 7 of the Law on industrial relations, in the version resulting from the publication of 25 September 2001, ( *4 ) entitled ‘Right to vote’, provides:

‘All employees of the establishment who are 18 years of age or over shall be entitled to vote. If employees are made available by another employee in order to perform work, they shall also be entitled to vote if the period during which they are made available exceeds three months,.

11.

Paragraph 8 of the Law on industrial relations, entitled ‘Eligibility’, provides:

‘(1)   All employees with voting rights who have been employed in or principally worked for the establishment as homeworkers for six months shall be eligible for election. The said period of six months shall be deemed to include any immediately preceding period during which the employee was employed in another establishment belonging to the same company or group of companies (Paragraph 18(1) of the Law on public limited companies). Persons who as a result of a criminal conviction have been deprived of the capacity to participate in public elections shall not be eligible for election.

(2)   If the establishment has been in existence for less than six months, such employees as are employed in the establishment and fulfil the other conditions for eligibility at the announcement of the election for the works council shall be eligible, as an exception to the requirement of six months’ service under subparagraph 1.’

12.

The plaintiff in the main proceedings, Mr Erzberger, is a shareholder of the defendant, TUI, a company having its headquarters in Berlin (Germany) and in Hanover (Germany). TUI is the head of a group of companies which it controls (‘the TUI group’), which operates in the tourism sector. The TUI group is a global operator and employs around 10103 persons in Germany and around 39536 persons in the other Member States of the European Union. Neither TUI nor any other company in the TUI group has dependent branches or establishments in Member States other than that in which they have their headquarters.

13.

In accordance with the Law on employee participation, TUI’s supervisory board ( *5 ) consists of 20 members, made up of 10 members representing the shareholders and 10 members representing the employees. ( *6 )

14.

Paragraph 98 of the Law on public limited companies provides that, where there is a dispute over the statutory provisions applicable to the composition of a supervisory board, judicial proceedings may be initiated. Mr Erzberger made use of that possibility.

15.

Mr Erzberger claims, in particular, that TUI’s supervisory board was not properly constituted. He maintains that that supervisory board should have been composed only of members designated by the company’s shareholders. The German legislation on employee participation should not have been applied to composition of the supervisory board, since it constitutes an infringement of Articles 18 and 45 TFEU. Conversely, TUI contends, essentially, that that legislation is compatible with EU law.

16.

Proceedings were brought at first instance before the Landgericht Berlin (Regional Court, Berlin, Germany), which, by order of 12 May 2015, held that the German legislation on employee participation did not infringe EU law.

17.

Mr Erzberger appealed against that decision to the referring court, which expresses doubts as to the compatibility of the German legislation on employee participation with EU law.

18.

In that regard, the referring court observes that, according to the majority opinion among German legal writers and in the case-law, ( *7 )‘employee’, for the purposes of the application of the Law on employee participation, means only employees of undertakings situated on the national territory. While it does not follow from the wording of the provisions of that law, that conclusion should be inferred from an approach that combines the principle of territoriality, according to which the German social order cannot extend to the territory of other States, and the origins of that law. ( *8 )

19.

The referring court also observes that, according to the case-law of the Bundesarbeitsgericht (Federal Labour Court, Germany), ( *9 ) the Law on industrial relations, Paragraph 5(1) of which provides a definition of ‘employee’ to which Paragraph 3 of the Law on employee participation refers, ( *10 ) does not apply to establishments of German undertakings situated abroad.

20.

According to the referring court, it follows from those factors that only employees employed in Germany may elect the members of the supervisory board representing the employees, may stand for election as delegates and become members of the supervisory board. In addition, an employee is required to resign from the supervisory board when he takes up a post in another Member State, even if he continues to be employed by the German company or by another undertaking in the same group.

21.

The referring court considers it possible that the German legislation on employee participation will give rise to discrimination on grounds of nationality, within the meaning of Article 18 TFEU, in that, unlike employees employed in Germany, those employed in another Member State, who presumably will not as a rule be Germans, cannot vote for or be elected to the defendant’s supervisory body and, consequently, are not sufficiently represented on its supervisory body. The referring court considers that no sufficient justification in that regard can be identified.

22.

In any event, the referring court considers it conceivable that the German legislation on employee participation is incompatible with freedom of movement for workers, provided for in Article 45 TFEU. Thus, owing to the risk that a member of a supervisory body will lose his status, that legislation may, where appropriate, deter employees from applying for posts which are actually offered and, to that end, from moving freely on the territory of the Member States.

23.

On that basis, the Kammergericht Berlin (Higher Regional Court, Berlin) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is it compatible with Article 18 TFEU (principle of non-discrimination) and Article 45 TFEU (freedom of movement for workers) for a Member State to grant the right to vote and stand as a candidate for the employees’ representatives in the supervisory body of a company only to those workers who are employed in establishments of the company or in companies of the group within the national territory?’

24.

Written observations were submitted by Mr Erzberger, TUI, the Betriebsrat der TUI AG/TUI Group Services GmbH, Franz Jakobi and Others and Vereinte Dienstleistungsgewerkschaft ver.di (together ‘the Betriebsrat der TUI and Others’) — Vereinigung Cockpit e.V having adopted the observations of the Betriebsrat der TUI and Others —, the German and Austrian Governments and the European Commission. At the hearing on 24 January 2017, Mr Erzberger, TUI, the Betriebsrat der TUI and Others, the German, French, Luxembourg, Netherlands and Austrian Governments, the EFTA Surveillance Authority and the Commission presented their oral observations.

25.

As a preliminary point, TUI maintains that the Court does not have jurisdiction to answer the question for a preliminary ruling, since the situation at issue in the main proceedings does not fall within the scope of EU law.

26.

In that context, TUI observes, in particular, that as the plaintiff in the main proceedings, Mr Erzberger, is a shareholder and not an employee of the defendant, he is not affected by what are alleged to be the discriminatory or restrictive effects of the German legislation concerned, a point which has also been made by the Betriebsrat der TUI and Others and the Luxembourg and Austrian Governments.

27.

I would observe, in that regard, that it is settled case-law that the Court does not have jurisdiction to give a preliminary ruling with regard to legislation which lies outside the scope of EU law and where the subject matter of the dispute is not connected in any way with any of the situations contemplated by the provisions of the Treaties. ( *11 )

28.

However, the Court may refuse to rule on a question referred for a preliminary ruling referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( *12 )

29.

That is not the case here.

30.

While it is a fact that, as a shareholder of TUI, the plaintiff in the main proceedings, Mr Erzberger, is not affected by the German provisions on employee participation, it is apparent from the decision for referral that he made use of his right, laid down in national law, ( *13 ) to initiate judicial proceedings in the event of a dispute over the statutory provisions governing the composition of the supervisory board, claiming, in particular, that those provisions do to apply to the composition of TUI’s supervisory board, on the ground that they are contrary to EU law. In addition, the referring court takes the view that its decision on the action brought by Mr Erzberger depends on the answer that the Court will give to the question referred to it. In fact, according to the referring court, if the German legislation on employee participation should be inapplicable in whole or in part, because it infringes EU law, Mr Erzberger’s action would have to be upheld in full or in part.

31.

It follows that the interpretation of Articles 18 and 45 TFEU sought by the referring court has a direct link with the subject matter of the main proceedings.

32.

In those circumstances, I consider that the Court has jurisdiction to answer the question referred to it.

33.

By its question, the referring court wonders about the compatibility of the German legislation on employee participation ( *14 ) with Articles 18 and 45 TFEU, in a number of respects.

34.

The referring court wonders whether, with respect to employees of the TUI group employed in Member States other than Germany, that legislation gives rise to discrimination on grounds of nationality, since, unlike employees of the group employed in Germany, the former employees are not entitled to vote for or to stand for election as representatives of the employees within the supervisory board of the parent company of the group (TUI).

35.

In that regard, it should be noted that TUI has no dependent branches or establishments in other Member States. ( *15 ) The analysis set out in this Opinion does not therefore refer to a situation in which the employee is employed in an establishment or a dependent branch in a Member State other than that in which the company is established. On the other hand, it is necessary to determine whether legislation such as that at issue in the main proceedings gives rise to discrimination against employees of the TUI group employed in the subsidiaries of the group established in other Member States. ( *16 )

36.

Furthermore, the referring court wonders whether, with respect to employees of the TUI group employed in Germany, the German legislation constitutes a restriction of freedom of movement for workers, since, owing to the risk that they will lose the right to vote and to stand for election, that legislation might deter those employees from applying for or accepting a post in another Member State, or make such a move less attractive.

37.

The question for a preliminary ruling thus refers to two different situations concerning two categories of employees, which must be clearly distinguished in the interpretation of the relevant provisions of EU law.

38.

It should be noted that the question submitted by the referring court refers to both Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, and Article 45 TFEU, on freedom of movement for workers.

39.

It is settled case-law that Article 18 TFEU is intended to apply independently only to situations governed by EU law in respect of which the Treaty lays down no specific prohibition of discrimination. ( *17 ) As it is, in respect of freedom of movement for workers, the principle of non-discrimination is given specific effect by Article 45(2) TFEU. ( *18 )

40.

There would thus be no need for the Court to give a ruling with regard to Article 18 TFEU if Article 45 TFEU were applicable in the present case.

41.

I would state, at this stage, that in my view Article 45 TFEU does not apply to employees of the TUI group employed outside Germany, but that it may in my view apply to employees of the group employed in Germany.

42.

It should be observed at the outset that Article 45(2) TFEU provides that freedom of movement for workers is to entail the abolition of any discrimination based on nationality between workers of the Member States as regards their employment, remuneration and other conditions of work and employment. ( *19 )

43.

It follows from the Court’s case-law that the concept of ‘other conditions of work and employment’ must be interpreted as having a broad scope in so far as that article provides for equal treatment in all matters directly or indirectly related to the exercise of an activity as an employee in the host Member State. ( *20 )

44.

In those circumstances, I consider that the right to vote for and to stand for election as representatives of employees on the company’s supervisory board, as provided for in the German legislation concerned, falls within the scope of ‘other conditions of work and employment’ within the meaning of Article 45(2) TFEU. ( *21 ) Under that legislation, the right to vote and to stand for election depends specifically on whether a person is an ‘employee’ within the meaning of that legislation. ( *22 ) It therefore has a direct relationship with the exercise of an activity as an employee in Germany.

45.

In order for Article 45 TFEU to be applicable in the present case, the main proceedings must still have a connection to one of the situations referred to in that provision.

46.

TUI, the Betriebsrat der TUI and Others and the German Government deny that Article 45 TFEU is applicable in the present case, relying, in essence, on the lack of a cross-border element. On the other hand, Mr Erzberger, the EFTA Surveillance Authority and the Commission maintain that such an element is indeed present, in particular since an employee of a German company who takes up a post in another Member State loses his right to vote and to stand for election to the supervisory board, even though he continues to be employed by that company.

47.

I observe that, as regards the question of the applicability of Article 45 TFEU, it is necessary to distinguish two categories of employee to whom the question for a preliminary ruling relates, namely employees of the TUI group employed in subsidiaries established in Member States other than Germany, and employees of that group employed in Germany. ( *23 )

48.

As regards the employees of the TUI group employed in subsidiaries established in Member States other than Germany, it must be stated that those employees are not necessarily persons who have made use of their right to freedom of movement under Article 45 TFEU. In fact, it is highly likely that that category of employees will include a large number of persons who are nationals of or residents in the Member State in which the subsidiary is established and in which they exercise their activity as an employee.

49.

However, to recognise that Article 45 TFEU was applicable to such persons, who have never made use of their right to freedom of movement and who, moreover, have no connection with the employment market of the Member State whose legislation is disputed, on the sole ground that the subsidiary by which they are employed is controlled by a company established in that Member State, would to my knowledge have no precedent in the case-law of the Court on freedom of movement for workers. ( *24 )

50.

The Court has held that all the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the European Union, and preclude measures which might place such nationals at a disadvantage when they wish to pursue an economic activity in the territory of a Member State other than their Member State of origin. In that context, nationals of the Member States have in particular the right, which they derive directly from the Treaty, to leave their Member State of origin in order to enter the territory of another Member State and reside there in order to pursue an economic activity there. ( *25 )

51.

Article 45 TFEU thus ensures, in broad terms, freedom of movement in two respects. First, the nationals of the Member States are entitled, under that article, to be treated in the same way as national workers on the employment market of the host Member State. ( *26 ) Second, that provision prohibits the Member State of origin from unduly restricting its nationals’ right to leave its territory in order to pursue an economic activity in another Member State. ( *27 )

52.

The situation of the employees of the TUI group employed by subsidiaries established in other Member States does not correspond to either of those situations if they have never exercised their right to freedom of movement. ( *28 ) The application of Article 45 TFEU to those employees would therefore involve a significant extension of the scope of that article. ( *29 )

53.

From a teleological viewpoint, I find it difficult to see how the objective of Article 45 TFEU might justify such an extension of the scope of that provision. In fact, I consider that the cross-border nature of the relationships within a group of companies does not in any way detract from the fact that the situation of those workers is in reality purely domestic, since all the factors that determine their employment situation are confined to within a single Member State. ( *30 )

54.

By way of example, I consider that the situation of an employee employed by the French subsidiary of the TUI group is purely internal to the French Republic. That employee is thus employed in France by a French company formed under French law, ( *31 ) the law which also generally governs his contract of employment ( *32 ) and, more generally, his conditions of employment. ( *33 ) In that regard, the location of the ownership or control of the company by which that employee is employed has no impact on his employment situation, which de facto can be fully assimilated to that of other employees employed in France.

55.

In those circumstances, I consider that the fact that the company which employs the employee is owned or controlled by a company established in another Member State is not in itself sufficient to constitute a connection with either of the situations contemplated by Article 45 TFEU. In other words, freedom of movement for workers cannot be affected by the fact that the employer is acquired by a company established in another Member State: from the point of view of the employee’s situation, that acquisition constitutes an external factor unconnected with the acts of the employee. ( *34 )

56.

That conclusion cannot be called in question by the arguments put forward by Mr Erzberger in support of his assertion that employees employed in TUI’s subsidiaries in other Member States are directly affected by the decisions of TUI’s supervisory board ( *35 ) and, moreover, that the exclusion of those employees from the German system of employee participation leads to the interests of the national employees being overrepresented within the supervisory board, which would be particularly problematic where decisions to set up or close establishments in other Member States are taken. ( *36 )

57.

In fact, without prejudging the relevance of those considerations in the national political context, it must be stated that they are not capable of bringing situations which have no connection with freedom of movement for workers within the scope of Article 45 TFEU.

58.

Having regard to the foregoing, I consider that Article 45 TFEU does not apply to the employees of the TUI group employed in the subsidiaries of the group situated in other Member States. ( *37 )

59.

Furthermore, I observe that, contrary to what Mr Erzberger and the Commission seem to claim, Article 18 TFEU cannot apply to those employees either. As the Court has consistently held, the principle of non-discrimination enshrined in that article cannot be applied to situations which are wholly internal to a Member State and which are in no way connected to any situations envisaged by EU law. ( *38 )

60.

As regards the employees of the TUI group employed in Germany, I consider, on the other hand, that, contrary to the assertions of TUI and the German Government, Article 45 TFEU may be applicable.

61.

I consider that the present situation is indeed one of those referred to in Article 45 TFEU, when an employee of the TUI group employed in Germany leaves or wishes to leave that Member State in order to take up a post in a subsidiary belonging to the group established in another Member State.

62.

Unlike TUI, I consider that that is not a purely hypothetical occupational prospect, of such a kind as to render Article 45 TFEU inapplicable. ( *39 ) Quite to the contrary, in the case of a group of companies operating across borders, such as the group of which the defendant forms part, ( *40 ) the possibility that an employee will be transferred, either on his own initiative, or at the request of his employer, between two companies belonging to the group situated in different Member State seems to me to be perfectly conceivable.

63.

Nor am I able to subscribe to the argument on which the German Government appears to rely, namely that Article 45 TFEU does not apply to employees of the TUI group employed in Germany, since Article 45(3)(c) TFEU affords only to workers the right to stay in a Member State for the purpose of employment ‘in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action’.

64.

In that regard, it should be noted that paragraph 3 of Article 45 TFEU is intended not to define the scope of that article, but, rather, to specify the content of the right to freedom of movement in the event that that article should in fact be applicable. ( *41 )

65.

Last, I observe that, contrary to what TUI and the German Government appear to claim, the lack of harmonisation at European Union level in relation to employee participation cannot have any impact on the applicability of Article 45 TFEU in the main proceedings.

66.

While it is true that, in the absence of such harmonisation, ( *42 ) the Member States are, in principle, free to determine the degree of employee involvement in the management of companies operating on their respective territories, they must exercise that competence in compliance with EU law and, in particular, in compliance with the Treaty provisions on freedom of movement for workers. ( *43 )

67.

On the basis of the foregoing, I consider that Article 45 TFEU applies with respect to employees of the TUI group employed in Germany when they leave or wish to leave that Member State in order to take up a post in a subsidiary affiliated to the group situated in another Member State.

68.

It is therefore necessary, having regard to that scenario, to ascertain whether legislation such as that at issue in the main proceedings is compatible with Article 45 TFEU. On the other hand, there is no need to examine that legislation in the light of Article 18 TFEU. ( *44 )

69.

In the analysis which follows, I shall set out the reasons why I consider that such legislation does not restrict freedom of movement for workers (section 4(a)). In the alternative, I shall explain the reasons why I consider that any restrictive effects of such legislation are justified by overriding reasons in the public interest (section 4(b)).

70.

It should be borne in mind that, according to the settled case-law of the Court, even if, according to their wording, the rules on freedom of movement for workers are intended, in particular, to secure the benefit of national treatment in the host State, they also preclude the State of origin from obstructing the freedom of one of its nationals to accept and pursue employment in another Member State. ( *45 )

71.

In that connection, the Court has made clear that provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned. ( *46 ) The Court has further stated that Article 45 TFEU militates against any measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by European Union nationals of the fundamental freedoms guaranteed by the Treaty. ( *47 )

72.

Relying on that case-law, Mr Erzberger, the EFTA Surveillance Authority and the Commission maintain that the exclusion of employees of the TUI group employed in other Member States from the Germany system of employee participation entails a restriction of freedom of movement for workers within the meaning of Article 45 TFEU. In their submission, the fact that an employee employed in Germany loses his right to vote and to stand in the elections of employees’ representatives within the supervisory board of the parent company of the group, if he is transferred to a subsidiary of the group established in another Member State, might deter him from using his right to freedom of movement or, at least, render the exercise of that right less attractive. That applies in particular in the case of employees who have already been elected to the supervisory board, since those employees must relinquish their seat on that board when they transfer to a subsidiary established in another Member State. ( *48 )

73.

TUI, the Betriebsrat der TUI and Others and the German, Luxembourg, Netherlands and Austrian Governments maintain that there is no restriction of freedom of movement for workers.

74.

I note at the outset, that, according to the wording of Article 45(3)(c) TFEU, the right to freedom of movement for workers enshrined in that provision consists, in particular, in the right to ‘stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action’. ( *49 )

75.

A migrant worker thus benefits, under Article 45 TFEU, from equal treatment with national workers in the host Member State, and may therefore pursue an economic activity in accordance with the rules of that Member State. On the other hand, Article 45 TFEU does not grant that worker the right to ‘export’ the conditions of employment which he enjoys in his Member State of origin to another Member State. As Advocate General Fennelly observed in his Opinion in Graf, ‘in the normal case, the migrant worker must take the national employment market as he finds it’. ( *50 )

76.

Quite logically, it has consistently been held that Article 45 TFEU is not concerned with any disparities in treatment which may result, between Member States, from divergences existing between the laws of the various Member States, so long as the latter affect all persons subject to them in accordance with objective criteria and without regard to their nationality. ( *51 ) The Court has likewise held, with regard to Article 18 TFEU, that the application of national legislation cannot be held contrary to the principle of non-discrimination merely because other Member States allegedly apply rules which are less strict. ( *52 )

77.

The Court has also held that EU primary law can offer no guarantee to an insured person that moving to a Member State other than his Member State of origin will be neutral in terms of social security, since, given the disparities between the Member States’ social security schemes and legislation, such a move may be to the advantage of the person concerned in terms of social protection or not, depending on the circumstances. ( *53 ) To my mind, that reasoning can be directly transposed to the Member States’ systems of employment participation. In that regard, I would point out that the right to vote and to stand for election as representatives of employees on the company’s supervisory board, as provided for in the German legislation concerned, constitutes in my view a condition of work and employment within the meaning of Article 45(2) TFEU. ( *54 )

78.

It follows, to my mind, that an employee who leaves Germany in order to pursue an economic activity in another Member State cannot retain, under Article 45 TFEU, the benefit of the rights to participate provided for in the German legislation. On the other hand, he will benefit in that Member State from rights to participate in so far as the legislation of that Member State confers such rights on him.

79.

In the present case, however, the question arises whether those findings also apply where an employee is transferred within a group of companies. In other words, it must be determined whether an employee who is transferred from one company to another, when those companies are established in different Member States but belong to the same group, may rely on Article 45 TFEU in order to retain, following his transfer, certain employee participation rights within the parent company of that group conferred on him by the legislation of his Member State of origin. That is essentially the contention of Mr Erzberger, the EFTA Surveillance Authority and the Commission.

80.

I consider that that question should be answered in the negative.

81.

In effect, I can find no basis in the Treaties or in the case-law of the Court on which to draw a distinction between an employee who changes his employment between two unconnected companies established in different Member States and an employee who is transferred between two companies belonging to the same group of companies but established in different Member States. From the aspect of freedom of movement for workers, each case involves moving from one Member State to another, with all the attendant implications for the employee, including, in particular, a change in the applicable conditions of employment. As already stated, the cross-border nature of the group of companies does not alter the fact that the employment situation of the employee is mainly determined according to the legislation of the Member State in which the activity as employee is carried out. ( *55 )

82.

While I am sympathetic to the idea that any worker employed by a group of companies should benefit, within the EU, from the same rights of participation within that group, irrespective of the location of his place of employment, it should be stated that, as EU law currently stands, the involvement of employees in the management of the national companies of the Member States has not been harmonised at EU level. ( *56 ) In the absence of such harmonisation, I consider that the question whether employees of the group employed in other Member States should or should not be included in the national employee participation system is a matter of choice for the Member States. ( *57 )

83.

In other words, I consider that, as EU law currently stands, the Member States are not required under Article 45 TFEU to grant employees who leave their territory in order to pursue an economic activity in another Member State the same participation rights as those enjoyed by employees employed on the national territory, but that they remain free to do so on the basis of their national law. ( *58 )

84.

I therefore conclude that legislation, such as that at issue in the main proceedings, which provides that only employees employed in the establishments of a company or in companies of the group situated on national territory have a right to vote and to stand for election as representatives of the employees within the company’s supervisory board does not constitute a restriction of freedom of movement for workers within the meaning of Article 45 TFEU.

85.

In the interest of completeness, and in case the Court should rule that national legislation, such as that at issue in the main proceedings, does entail a restriction of freedom of movement for workers, within the meaning of Article 45 TFEU, I shall set out in the following section the reasons why I consider that such a restriction would in any event be justified. ( *59 )

86.

In accordance with the Court’s case-law, a national measure which is liable to restrict freedom of movement for workers, an effect which is in principle prohibited by Article 45 TFEU, cannot be accepted unless it pursues one of the legitimate aims listed in the Treaty or is justified by overriding reasons in the public interest. Even so, application of that measure still has to be such as to ensure achievement of the objective in question and must not go beyond what is necessary for that purpose. ( *60 )

87.

In the present case, none of the legitimate objectives expressly set out in Article 45(3) TFEU has been relied on by the parties to the main proceedings and the interested parties who have submitted observations to the Court. ( *61 ) On the other hand, those parties and interested parties rely on overriding reasons in the public interest, in the event that the Court should find that the German legislation at issue entails a restriction of freedom of movement for workers within the meaning of Article 45 TFEU.

88.

TUI and the German and Austrian Governments rely, essentially, on justification derived from the principle of territoriality, as recognised in international law and in EU law. ( *62 ) It follows from that principle that the competence of the German legislature is limited to German territory, which precludes employees employed in other Member States being included in the German employee participation system. The French Government is of the view, rather, that the present case provides the Court with the opportunity to define a new overriding reason in the public interest, based on the need to recognise the diversity of the Member States’ social models for employee representation. In a similar vein, the Betriebsrat der TUI and Others refer to Article 4(2) TEU, under which the Union is to respect the national identities of the Member States. Last, the Commission contends that the need to ensure the proper functioning of the rules on employee participation could justify a restriction of freedom of movement for workers, which would be a matter for the national courts to determine. ( *63 )

89.

Mr Erzberger and the EFTA Surveillance Authority, on the other hand, take the view that the overriding reasons in the public interest put forward in the present case cannot justify the restriction of freedom of movement for workers that would be the consequence of the legislation at issue. That position, it seems to me, is shared by the referring court. ( *64 )

90.

It should be stated at the outset that in the context of the present case the principle of territoriality is put forward as an obstacle to the German system of employee participation being applied to employees employed outside Germany. It is claimed that it follows from that principle that the German legislature does not have the necessary legislative competence to include those employees in that system.

91.

As may be seen from the analysis set out above, I consider that the Federal Republic of Germany is not required, under Article 45 TFEU, to grant employees who leave its territory in order to pursue an economic activity in another Member State, the same rights of participation as those enjoyed by employees employed in Germany according to the German legislation at issue. ( *65 ) In case the Court should hold that that legislation does entail a restriction of freedom of movement for workers, within the meaning of Article 45 TFEU, I consider, however, that the principle of territoriality does not prevent the Federal Republic of Germany from including employees who leave its territory in its employee participation system.

92.

The principle of territoriality has been recognised by the Court as a legitimate objective capable of justifying a restriction of freedom of movement, in particular in the context of national rules on taxation that constitute a barrier to the freedom of establishment laid down in the Treaty. ( *66 ) In that regard, that principle has often been taken into account together with another legitimate objective, namely that of preserving the allocation between the Member States of the power to impose taxes. ( *67 ) In that context, the Court has held that the purpose of the principle of territoriality is to establish, in the application of EU law, the need to take into account the limits on the Member States’ powers of taxation. ( *68 )

93.

I seriously doubt that the case-law on taxation can be transposed to the present situation.

94.

First, in the field of taxation, the principle of territoriality, as recognised by the Court, is intended to resolve specific problems in that field, including the problem of eliminating double taxation, ( *69 ) and to prevent situations that could jeopardise the right of the Member State of origin to exercise its powers of taxation in relation to activities carried out within its territory. ( *70 )

95.

However, in the context of an employee participation system such problems do not arise. I therefore consider that there is nothing to prevent an employee employed by a subsidiary established in a Member State other than that in which the parent company is situated from benefiting from ‘double representation’, namely within the subsidiary, under the legislation of the Member State of employment, and within the parent company, in accordance with the legislation of the Member State in which the latter is established.

96.

Second, contrary to the contention of TUI and the German and Netherlands Governments, I consider that the inclusion in the German employee participation system of employees employed in other Member States does not as such entail an interference with the sovereignty or the legislative powers of other Member States. Like the EFTA Surveillance Authority and the Commission, I consider that the question as to which employees may participate in the elections of the members of the supervisory board of a German company is wholly within the competence of the German legislature. ( *71 ) In other words, there is no conflict of competence. ( *72 )

97.

In those circumstances, I consider that the exclusion from the German employee participation system of employees employed in other Member States cannot be regarded as an emanation of the principle of territoriality.

98.

The German Government is of the view, however, that the question of extraterritoriality arises in the context of the German employee participation system, because, in the context of the electoral regulation, ( *73 ) that system imposes certain obligations at the level of the organisation and conduct of the elections, on all companies belonging to the group of companies and also on the employees taking part in the elections. ( *74 ) Thus, on the basis of that regulation, the elections to the supervisory board of the German company would not be organised centrally by the management of that company, but rather on a decentralised basis by the employees themselves within each company of the group. Since the subsidiaries established in other Member States and their employees are not subject to German law, the German legislature would be unable to impose obligations on them in accordance with the electoral regulation and, consequently, to include them in the German employee participation system.

99.

I therefore note that it is the specific conception of the German employee participation system and, in particular, the obligations arising under the electoral regulation, that, in the German Government’s view, prevent employees employed in other Member States from being included in that system. The exclusion of those employees is therefore not an absolute requirement linked with the limits of the legislative power of the German legislature, but, rather, the consequence of certain choices made by that legislature concerning, in particular, the rules governing the conduct of elections. ( *75 )

100.

It is therefore appropriate to ask whether the legislation at issue in the main proceedings might be justified by the objective of ensuring the participation of employees in the company, in accordance with the national social, economic and cultural particularities, as, in essence, the French Government and the Betriebsrat der TUI and Others claim. ( *76 )

101.

It should be noted that, whereas the Betriebsrat der TUI and Others rely on Article 4(2) TEU, ( *77 ) under which the Union is to respect the identities of Member States inherent in their fundamental political and constitutional structures, that provision has not been invoked by the German Government. ( *78 )

102.

The German Government states, however, that the German legislation on employee participation and the provisions of the electoral regulations that actually govern the elections of the members of the supervisory board representing the employees are adapted to the German business, societal and trade union structures and that that legislation serves not only the interests of employees but rather the general interest, in that it is intended to ensure cooperation and integration by also taking into consideration interests other than the specific direct interests. ( *79 ) At the hearing, the German Government further stated that employee participation is a central element of the culture of cooperation in Germany and that it constitutes the statutory development of the freedom to form and join trade unions and permits the exercise of that freedom, which is guaranteed by the Grundgesetz (Basic Law). ( *80 )

103.

In those circumstances, I hesitate to characterise the German employee participation system as an element of national identity, within the meaning of Article 4(2) TEU. There can be no doubt, however, in my view, that that system constitutes an essential element of the German employment market and — more broadly — of the German social order.

104.

Next, it should be observed that employee participation in the management of the company constitutes a legitimate objective from the aspect of EU law. ( *81 ) However, EU law recognises the diverse forms of national rules and practices in the area of social policy ( *82 ) and, more particularly, as regards the way in which workers are involved in decision-making within companies. ( *83 ) As EU law currently stands, it leaves to the Member States the choice whether or not to adopt legislation on employee participation within companies and the task of determining the procedures of their respective employee participation systems. ( *84 )

105.

As regards the particularities of the German employee participation system, it should be observed that that system is characterised by a particularly high degree of employee involvement in the management of the company. ( *85 ) At the same time, that system provides, under the electoral regulation, ( *86 ) for relatively complex procedures, consisting of several procedural stages, designed to ensure the smooth conduct of elections of representatives of the employees and to ensure free, fair and secret elections of the members of the supervisory board who represent the employees. ( *87 ) In that context, the German Government states that the German employee participation system is conceived on the basis of the principle that the organisation and conduct of the elections of representatives of the employees are entrusted to employees, who must themselves make the necessary arrangements, within each company of the group, and cooperate with the trade unions and the companies of the group.

106.

I consider that, in the context of such a national employee participation system, such considerations in relation to the arrangements and conduct of the elections reflect certain legitimate economic and social policy choices, which, as EU law currently stands, are a matter for the Member States. ( *88 ) I am therefore of the view that legislation such as that at issue in the main proceedings is justified by the objective of ensuring employee participation within the company, in accordance with the national social, economic and cultural particularities.

107.

I consider, moreover, that that legislation is proportionate to that objective, that is to say, that it is appropriate for ensuring the actual participation of employees within the company, in accordance with the national social, economic and cultural particularities, and that it does not go beyond what is necessary to achieve that objective.

108.

In that regard, I recall that the Court has already explained that it is not indispensable for a restrictive measure to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected and that, on the contrary, the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from that adopted by another Member State. ( *89 )

109.

In addition, it should be acknowledged that it is not possible to bring employees employed outside Germany within the personal scope of the German employee participation system without having to modify the fundamental characteristics of that system. Such an extension of the German system would assume that responsibility for arranging and conducting the elections would have to be transferred from the employees and companies of the group to the management of the German parent company, which would run counter to the principles on which the system is based.

110.

While it is possible in practice, as the Commission suggests, to require the parent company to confer, for the composition of its supervisory board, a right to vote and to stand for election on employees employed in other Member States, in the exercise of its decisive influence on the companies of the group, I consider that the Member States are not required under EU law to choose such approach in the context of their systems of employee involvement within companies.

111.

In those circumstances, I consider that, in the event that the Court should find that national legislation, such as that at issue in the main proceedings, entails a restriction of freedom of movement for workers within the meaning of Article 45 TFEU, it would be necessary to consider, as EU law currently stands, that the maintenance of such legislation is justified, in so far as it reflects certain legitimate economic and social policy choices that are a matter for the Member States.

112.

Having regard to all of those factors, I consider that Article 45 TFEU does not preclude legislation, such as that at issue in the main proceedings, under which only employees employed in the establishments of a company or in companies of the group situated on the national territory have a right to vote and to stand for election as representatives of employees on the supervisory board of that company.

113.

In the light of the foregoing considerations, I propose that the Court should answer the question referred by the Kammergericht Berlin (Higher Regional Court, Berlin, Germany) as follows:

Articles 18 and 45 TFEU must be interpreted as meaning that they do not preclude legislation, such as that at issue in the main proceedings, which provides that only employees employed in the establishments of a company or in the companies of the group situated on national territory have a right to vote and to stand for election as employee representatives on the supervisory board of that company.