Opinion of Mr Advocate General Fennelly delivered on 16 September 1999. - Volker Graf v Filzmoser Maschinenbau GmbH. - Reference for a preliminary ruling: Oberlandesgericht Linz - Austria. - Freedom of movement of workers - Compensation on termination of employment - Refusal where a worker terminates his contract of employment in order to take a job in another Member State. - Case C-190/98.
European Court reports 2000 Page I-00493
I - Introduction
1. The present case gives the Court an opportunity to define further the scope of its ruling in Bosman on the application of Article 48 of the EC Treaty (now, after amendment, Article 39 EC) to restrictions on the freedom of movement of workers which are not discriminatory on grounds of nationality. It raises the question whether a worker's loss, upon voluntary resignation in order to take up employment in another Member State, of a contingent statutory right to compensation by his employer payable upon forced resignation, dismissal or retirement is capable of constituting such a restriction, where the amount of any such compensation is related to the length of the worker's period of continuous service with his former employer. In addressing that question, a number of basic issues must be resolved, in particular: the definition of a prohibited non-discriminatory restriction on the freedom of movement of workers: whether its restrictive effects must be in some way conditional on the exercise of freedom of movement; whether it must affect access to an economic activity or can also arise from regulation of its exercise; whether its effect must be to prevent workers exercising their rights or simply to deter or hamper them in so doing; whether its restrictive effects must be of a certain level of gravity or intensity; whether its preventive or dissuasive effects must be direct or may be indirect; and whether these burdensome effects must be certain or may be merely contingent. In seeking to resolve these issues, particular regard must be had to the broader question whether the Court's more developed case-law on the free movement of goods, including the judgment in Keck and Mithouard limiting the application of some of its earlier pronouncements, can furnish useful guidance.
II - Factual and legal context
The national law
2. The relevant compensation provisions of Paragraph 23 of the Angestelltengesetz (Austrian Law on Employees; hereinafter the AngG) state as follows:
(1) If the employment relationship has continued uninterruptedly for three years, the employee shall be entitled to a compensation payment on termination of that relationship. That payment shall amount to twice the salary due to the employee for the last month's employment and after five years' service shall increase to three times, after ten years' service to four times, after 15 years' service to six times, after 20 years' service to nine times and after 25 years' service to 12 times the monthly salary. (...)
(7) There shall ... be no entitlement to compensation if the employee gives notice, leaves prematurely for no important reason or bears responsibility for his premature dismissal. (...)
3. Paragraph 23a of the AngG provides that a right to compensation shall also exist in the case of a continuous employment relationship of at least ten years' duration which ceases upon termination by the employee of the contract of employment because the employee has reached retirement age (65 years in the case of a man, 60 in that of a woman), because of early retirement, or due to incapacity or reduced capacity for work. It appears that compensation payments under Paragraphs 23 and 23a of the AngG are subject to favourable tax treatment, so that the sums actually received by beneficiaries considerably exceed the normal net salary for the number of months on the basis of which compensation is calculated.
4. Article 26 of the AngG sets out the circumstances in which the premature termination of the employment relationship by an employee does not deprive him of the right to compensation on the terms outlined immediately above. As the Court points out in its judgment in Gruber, delivered earlier this week, all of these important reasons for termination relate either to working conditions in the employing undertaking or to behaviour on the part of the employer by virtue of which continued work there is impossible.
The national proceedings
5. The plaintiff in the main proceedings, Mr Graf (hereinafter the plaintiff), is a German national. He was employed in Austria by the defendant, Filzmoser Maschinenbau GmbH (hereinafter the defendant), from 3 August 1992. He gave notice of termination of the employment relationship on 29 February 1996, with effect from 30 April 1996, and on 1 May 1996 he commenced employment with an undertaking in Germany. The plaintiff sought payment of two months' salary under the terms of Paragraph 23(1) of the AngG, which was refused by the defendant, in reliance on Paragraph 23(7). The plaintiff brought proceedings seeking the disputed payment before the Landesgericht Wels (Regional Court, Wels), which declined to grant the order sought, whereupon he appealed to the Oberlandesgericht Linz (Higher Regional Court, Linz, hereinafter the national court).
6. The plaintiff argued before the Landesgericht Wels that the limitation on the right to compensation in Paragraph 23(7) of the AngG principally affected migrant workers who voluntarily gave up existing employment in order to move to another Member State, thereby giving rise to indirect discrimination, and that it constituted, in any event, a disproportionate financial penalty amounting to a restriction on the mobility of workers which was not objectively justified. The defendant submitted that Paragraph 23(7) of the AngG was not discriminatory in effect, because most of those affected were and remained national residents. Furthermore, it was not designed to regulate access to the labour market, did not amount to a prohibition and did not prevent or deter persons from taking up employment in other Member States. It had, instead, the twin social aims of protecting workers from dismissal and of promoting employee loyalty.
7. The Landesgericht Wels found that Paragraph 23(7) of the AngG did not either discriminate on grounds of nationality or impose any impediment on the movement of persons across borders which was more severe than a restriction on comparable internal mobility. The loss of compensation in the present case did not result in a perceptible non-discriminatory restriction on mobility - it was not comparable to the transfer fee at issue in Bosman, which was fixed at so high a level that no employer would pay it, but was merely one factor to be included, in the same way as any other loss of social security benefits, in the overall assessment of the balance of financial advantage undertaken by a worker when deciding whether to change employment. Furthermore, any restrictive effect was objectively justified by the social aims of providing transition payments for employees who unexpectedly lose their jobs and of protecting older workers through the higher cost of dismissing them.
8. On appeal, the plaintiff submitted that the Court had not required in Bosman that restrictions of freedom of movement be perceptible. The national court stated that national residents were chiefly affected by the rule, so that there was no indirect discrimination against workers willing to migrate to work in other Member States. It doubted whether denial of compensation in cases of voluntary termination of employment by the employee was necessary to the achievement of the social-policy objectives mentioned by the Landesgericht, and observed that, on the one hand, employees were often neither faultless nor taken by surprise when dismissed by their employer and, on the other, workers might often have perfectly legitimate reasons voluntarily to change employment. It was also unsure of the test to be applied in identifying non-discriminatory restrictions on worker mobility which came within the scope of the Treaty - the Court stated in Bosman that a worker should not be preclud[ed] or deter[red] from exercising his fundamental right, but also referred to its judgment in Kraus, where it defined as restrictions any national rule which is simply liable to hamper or to render less attractive the exercise of such freedom of movement.
9. As a result of its doubts in this regard, the national court suspended the proceedings before it and referred the following question to the Court for a preliminary ruling pursuant to Article 177 of the EC Treaty (now Article 234 EC):
Does Article 48 of the EC Treaty preclude national provisions under which an employee who is a national of a Member State is not entitled to compensation on termination of his employment relationship simply because he himself gave notice terminating that relationship in order to take up employment in another Member State?
III - Observations submitted to the Court
10. Written and oral observations were submitted by the plaintiff, the defendant, the Italian Republic and the Commission. Written observations were also submitted by the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Austria and the United Kingdom of Great Britain and Northern Ireland.
IV - Arguments and analysis
A - Discrimination on grounds of nationality
11. The plaintiff reiterated his argument that Paragraph 23(7) of the AngG constituted indirect discrimination on grounds of nationality. The defendant, the Commission and the Member States which submitted observations all take a contrary view. They deny that Paragraph 23(7) of the AngG has any discriminatory effects, in that it is indistinctly applicable and principally affects employees who voluntarily terminate their contracts of employment without leaving Austria. Furthermore, several of them argued that the national court had expressly stated in its order for reference that it was not indirectly discriminatory.
12. It is self-evident that Paragraph 23(7) of the AngG does not contain any direct discrimination on grounds of nationality. The national court did not, in fact, comment on the question of indirect discrimination on grounds of nationality, observing only that the AngG did not particularly penalise persons migrating to work in other countries. However, there is no evidence to suggest that it principally affects in practice persons of non-Austrian nationality. Therefore, I shall now turn to question whether Paragraph 23(7) none the less constitutes a non-discriminatory restriction on the free movement of workers.
B - Non-discriminatory restrictions - Arguments
13. In the alternative, the plaintiff submitted that the case was comparable to Bosman, as it was immaterial whether a worker suffered a financial loss by virtue of changing employers or, as in that case, the new employer was obliged to make a payment in order to engage the worker. Thus, Paragraph 23(7) of the AngG also constituted a non-discriminatory restriction on freedom of movement. He also questioned whether the avowed objectives of the AngG - promoting employee fidelity and easing the transition from one post to another upon dismissal - justified such a restriction.
14. Regarding whether Paragraph 23(7) of the AngG constitutes a non-discriminatory restriction on the freedom of movement of workers, the other observations submitted may be divided into two groups. The defendant states the objective of Article 39 EC to be the removal of obstacles to movement arising from internal frontiers rather than deregulation and the encouragement of mobility for its own sake. Thus, only measures which render impossible or excessively difficult, in law or in fact, the taking up of employment in another Member State are prohibited by Article 39 EC. Examples include measures which impose greater disadvantages upon taking up economic activity in another Member State than in the State of application, as well as indistinctly applicable requirements for access to a profession or other economic activity which are more burdensome for non-domestic workers if account is not taken of their existing qualifications and skills. On the other hand, national measures whose restrictive effect on a trans-frontier change of employment is entirely neutral, having regard to their identical effects on changes of employment within the Member State in question, cannot be classified as restrictions prohibited by Article 39 EC. Otherwise, the scope of application of that provision would be impossibly broad and would extend to national rules on workplace incentives, pension schemes and employee protection as well as to any measure which made employment in a given Member State more attractive by ensuring a high level of remuneration or of job security.
15. On the other hand, the Commission (expressly or implicitly supported by the Member States which submitted observations) accepts that the judgments in Kraus and Bosman, as well as that, in the related field of establishment, in Gebhard, make clear that the prohibition on non-discriminatory obstacles to free movement of workers or of self-employed persons extends beyond measures with specific burdensome effects on trans-frontier mobility. However, despite the broad language used in those judgments to describe such restrictions, it counsels against extending the Treaty prohibition to all national provisions which might dissuade a worker from exercising his rights of free movement. In contrast, Bosman involved rules which expressly prevented a worker taking up employment as a footballer in another Member State. The Commission, Denmark, Italy and the United Kingdom all urge the Court, in various terms, to follow the advice of Advocate General Lenz in Bosman by expressly adopting a distinction, borrowed from Keck, between national rules regulating access to the labour market and those which merely govern the exercise of a particular activity, such as employee protection, pay scales, working conditions and so on.
16. Furthermore, the Commission argues that, before any distinction between access to and exercise of economic activity as an employed person even needs to be addressed, it should be established that there is a direct connection between the allegedly restrictive national rule and the decision to exercise the right of free movement in order to take up employment in another Member State. Germany submitted observations in a similar vein.
17. On a somewhat different note, both Austria and the United Kingdom posit tests based on the gravity or intensity of an alleged restriction. The amount of money at issue in the present case bears no comparison to the transfer fee demanded in Bosman. It can be treated, not as an effective prohibition on changing jobs, but as just one of many factors to be weighed in the balance by a worker considering such a step.
C - The significance of Keck
18. I would like to state at the outset, in response to the last question posed in paragraph 1 above, that, in my view, the Court's case-law in the field of free movement of goods, including Keck, furnishes useful guidance on the application of Article 48 of the EC Treaty (now, after amendment, Article 39 EC). I will make a few preliminary observations about the development of the Keck case-law before examining the more immediate issues raised by the present case regarding the mobility of workers. I should add, however, that analogies between the two fields are rarely perfect and that, in particular, the reasoning in Keck can only be extended to the field of freedom of movement of workers if it is reduced to its essential elements, shorn of the more rigid and formalist distinctions - between product rules and certain selling arrangements - which are specific to the process of production and distribution of goods. Persons are not products and the process of migration for the purposes of employment or establishment abroad, including preparation therefor, cannot be so neatly divided into (mass) production and marketing stages. Furthermore, the dichotomy between product and selling rules is not exhaustive of the range of possible restrictions even in the field of trade in goods.
19. The formal distinction between product rules and selling arrangements is less important than the motivation which led to its adoption, which was to identify the circumstances in which different types of rules have the same undesired effect, that is, to affect access to the market. Thus, the Court singled out national provisions regarding certain selling arrangements, such as the rules against below-cost sales at issue in that case, because if such rules were indistinctly applicable and affected the marketing of all products in the same manner, in law and in fact, they were not, in the Court's view, of a nature either to prevent the access of imported products to the market or to impede their access any more than they did that of domestic products. Thus, they did not fall within the scope of the test set out in Dassonville, whereby Article 30 of the EC Treaty (now, after amendment, Article 28 EC) applied to all national rules liable to hinder trade between Member States either directly or indirectly, actually or potentially. For present purposes, Keck is most significant because it represents a reappraisal by the Court of its previous attempts to apply a test of great generality - that in Dassonville - in a uniform fashion to the definition of barriers to trade in goods. This had resulted in national rules which were neither discriminatory nor particularly restrictive of trade, such as those on shop opening hours, being subjected to the same prohibition and analysis of possible justification as national rules, such as product rules, which by the very fact of disparities in national regulation imposed serious impediments on the free movement of goods. It was reasonable for the Court to respond by developing presumptions, in the light of experience and of its knowledge of market behaviour, regarding the likely effects of different types of regulation on the achievement of the ultimate objective of Article 28 EC: the establishment of an internal market to which products from the different Member States have both equal and, subject to qualifications in the public interest, free access. Such presumptions should not, however, be conclusive. It is legitimate for the Court to develop presumptions about the market effects of different broadly defined categories of rules, provided that, in concrete cases, the validity of the presumption may be tested against the underlying criterion of market access, rather than automatically being taken as being sufficient in itself to dispose of the case. Such an approach would temper and refine the application of a broad uniform definition of restrictions such as that in Dassonville through a concrete assessment of the market effects of what are perceived to be more marginal types of regulation, while providing guidance both to national regulators and to economic actors as to the likely judicial response to such regulations.
20. It is not necessary, for the purposes of the present case, to examine the reliability of the Court's presumption in Keck that national provisions regarding selling arrangements will not affect importers' access to the market in the absence of direct or covert discrimination. As it happens, the Court has more recently applied the formal criteria in Keck with a relatively light touch in cases where it considers market access to be materially threatened. In Dior, the Court held that national rules which permitted the holders of trademarks or copyright to prevent parallel importers from advertising the reselling of goods came within the scope of Article 28 EC because access to the market would consequently be appreciably more difficult. The national rules could equally have been used, it seems, to prevent the advertising of goods which had escaped the domestic selective distribution system and the Court made no reference to differences in treatment of domestic and imported goods. (It may, however, have taken the view that such rules have a greater effect in fact on imports.) In another instance where the Court accepted that an advertising rule applicable to all traders - the total ban on television advertising directed at children in De Agostini - might have a greater impact on products from other Member States, it did so because the importer involved in the case stated that such advertising was the only available form of promotion enabling it to penetrate the market in question, without even referring to the position of domestic producers. Thus, it would appear that national rules can be deemed to have unequal effects in fact on the marketing of imported and domestic products and, thus, on their access to the market simply by virtue of the fact that new (imported) products have greater need of promotional opportunities than (domestic) products which are well established in the market - a result similar to that which would arise from the direct application of the test of substantial impact on market access suggested by Advocate General Jacobs in Leclerc-Siplec. Furthermore, in Alpine Investments, the Court held that Keck could not be applied by analogy to a non-discriminatory national regulation which deprived operators of a rapid and direct technique (but not necessarily the only technique) for marketing and contacting potential clients in other Member States - cold calling - because it directly affected access to the market in services.
D - Discrimination on grounds of migration
21. I now turn to address directly the interpretation of the prohibition in Article 39 EC of obstacles to the free movement of workers and its possible application to Paragraph 23(7) of the AngG. Article 39(2) EC expressly provides for the prohibition of discrimination against workers on grounds of nationality, without having to determine the precise effects of any such discrimination on their access to the labour market. However, as this case relates to an alleged barrier to exit from a Member State in order to migrate to work elsewhere in the Community, it is necessary to advert not only to the Court's well-established case-law regarding the prohibition of overt or covert discrimination on grounds of nationality, but also to what might be called its case-law in respect of discrimination on grounds of migration. This case-law demonstrates that the guarantee of freedom of movement for workers within the Community in Article 39 EC also entails the prohibition of national measures which distinguish, not according to nationality, but according to whether a person engages in uninterrupted economic activity in his country of origin, on the one hand, or, on the other, either moves to another country to work in an employed or self-employed capacity or works in more than one country at a time, to the prejudice of those who thereby exercise their right of free movement. Examples of direct discrimination of this type include the national rules at issue in Commission v France, Stanton, Wolf, Masgio, Daily Mail, Ramrath, ICI and Terhoeve. This category will normally merge with that of covert discrimination on grounds of nationality in the case of measures applied to migrant workers by a receiving State, because of the presumption that foreign workers are principally affected thereby. In the case of differentiated treatment by the State of origin of migrant workers, no such presumption applies, so the two categories are more readily distinguishable.
22. Paragraph 23(7) of the AngG cannot be placed in this category of rule. Its application does not depend, in any way, on the exercise of Community-law freedom of movement or on any other trans-frontier element: the payment of compensation is denied irrespective of the intended destination of the worker who voluntarily terminates his contract without serious grounds and it is guaranteed irrespective of the subsequent movements of a worker dismissed by his employer. Furthermore, there is no evidence to suggest that the national court erred in stating that mostly national residents are affected by the rule, so that its application does not give rise even to covert discrimination on grounds of subsequent migration, i.e. as between workers who emigrate and those who prefer to remain in Austria upon termination, voluntary or otherwise, of their employment contracts.
23. It is, none the less, useful to note for the purposes of the discussion which follows that, as in the case of discrimination on grounds of nationality, the Court has also declined to formulate any test based on the material consequences for freedom of movement of differentiated treatment of migrant workers and of natural and legal persons exercising the right of establishment relative to those who remain in their Member State of origin. In the case of a prohibition, as was alleged in Daily Mail, the consequences are fairly clear, but in other cases, the Court has refrained from assessing the likely effect, if any, of the disadvantage in question on the prospective migrant's calculations: the difference in treatment was enough to establish a presumption that the national rule was one which could in fact preclude or deter or hinder a national of a Member State from exercising his Community-law rights.
E - Other types of non-discriminatory restriction
24. Three other broad types of restriction on the freedom of movement of workers or of self-employed persons can be identified in the Court's case-law, which I refer to as neutral restrictions because the rules in question have been indistinctly applicable, have not expressly created distinctions on the basis of the exercise of freedom of movement and have been treated by the Court as being neutral in their effects as regards the nationality of the persons affected. These are - (1) national rules which limit an economic operator - typically a member of a liberal profession - to a single place of establishment; (2) national rules regarding qualifications for posts or professional activities, as well as those concerning recognition of qualifications which are not formally required for a specific economic activity; and (3) national rules which create a barrier to workers taking up new employment by requiring that the prospective employer pay a fee equivalent to several years' salary to the worker's former employer, even after the expiry of the worker's contract of employment with the latter.
25. With regard to the first type of restriction, the Court has approached such rules in the field of establishment on the presumption that they are not discriminatory on grounds of nationality and has held that they none the less restrict the freedom of establishment because that freedom is not confined to the right to create a single establishment within the Community, but extends expressly to the setting up of agencies, branches or subsidiaries in another Member State. The national rules could, therefore, be condemned as a direct denial of freedom of movement through a formal prohibition of one possible manner of exercising that freedom. In these circumstances, the fact that freedom of establishment within the Member State in question was similarly restricted was not, apparently, viewed as being relevant.
26. It would be possible to approach the second type of restrictive national rule, regarding qualifications, as a type of disguised discrimination on grounds of nationality or migration, in so far as migrants are much less likely than domestic economic actors to possess qualifications which conform exactly, without the need for further verification, to the criteria laid down. This would also be consistent with the case-law regarding the taking into account of prior work experience. However, the Court has indicated that such rules constitute restrictions on freedom of establishment and the free movement of workers even in the absence of discrimination on grounds of nationality. An analogy may be drawn with the application in the field of goods of indistinctly applicable national product rules or of duplicated checks on compliance with common product standards regarding health and safety, which in both cases subject the market access of imported goods to a dual regulatory regime and whose place within the scope of application of Article 28 EC remains, accordingly, assured after the decision in Keck.
27. The third, Bosman-type class of restriction may be compared with that in Klopp in that it directly affects a step in the exercise of free movement, that is, the change or taking up of employment. Furthermore, this is, in the case of free movement of workers, an essential step and not, as in Klopp, merely one possible manner of exercising the Treaty rights in question.
28. These three classes of non-discriminatory restrictions on freedom of movement share the attribute of being formal restrictions on access to economic activity in a Member State. Conditions are prescribed by law or regulation non-compliance with which constitutes an absolute bar to taking up the activity in question. In this regard, only Choquet and Kraus are exceptional, in that they relate to rules which, depending on the circumstances, could constitute handicaps rather than absolute bars to access to certain economic activities. In Kraus, the German degree-recognition rules at issue did not themselves make access to any activity contingent on securing such recognition, but the Court pointed out that possession of a postgraduate academic title could be a prerequisite for access to certain professions and could facilitate access to a profession or economic activity in other contexts. In Choquet, the Court observed that rules regarding recognition of driving licences exerted an influence, both direct and indirect, on the exercise of rights relating to free movement and, in particular, that possession of a driving licence duly recognised by the host State could affect the actual pursuit of a large number of occupations for employed or self-employed persons.
F - A general test?
29. In a number of the more recent cases, the Court has defined non-discriminatory restrictions in terms reminiscent of those used in respect of rules which either discriminate on grounds of nationality or result in different treatment on the basis of the exercise of freedom of movement. In Kraus, the Court stated that Articles 48 and 52 preclude any national measure governing the conditions under which an academic title obtained in another Member State may be used, where that measure, even though it is applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by Community nationals ... of fundamental freedoms guaranteed by the Treaty. In Gebhard, the Court subjected the application of national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty to conditions of non-discrimination and of proportionate pursuit of general-interest requirements. Finally, in Bosman, the Court set out the following test:
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 therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned.
The Court added that Article 39 EC also limits the application of national rules which impede the freedom of movement of nationals of that State wishing to engage in gainful employment in another.
30. The present case essentially concerns the scope of these broadly drawn definitions of neutral restrictions on freedom of movement. As I stated above, national provisions which discriminate overtly or covertly on grounds of nationality or which differentiate between persons according to whether they have exercised such rights give rise automatically to the conclusion that the enjoyment of those rights is prejudiced as a result, even if the likely prejudice is small in a given case relative to the remaining advantages of migration. Similarly, in my view, in cases where access to the employment market is barred by neutral formal requirements, which are contrary to the express guarantees of the Treaty regarding the manner of exercise of freedom of movement (as in Klopp) or which effectively subject migrants to duplicate requirements or to overburdensome recognition procedures (as in the qualifications cases) or which require payment of a fee in order to exercise a Treaty right (as in Bosman), the resulting prejudice to the exercise of Treaty rights is evident. One can state that such rules impede, deter, preclude or render less attractive the exercise of freedom of movement. This language should not, however, be mistaken for a test of general application. The imposition of conditions regarding entry to the market or the taking up of economic activity is itself sufficient to establish the existence of a restriction, even if the condition can be relatively easily satisfied (this being an element in determining whether or not the restriction is justified). The same, broadly speaking, can probably also be said of formal conditions imposed regarding matters which are intimately connected with successful access to the market, such as those governing recognition of a qualification which is necessary or beneficial to the exercise of many professional activities.
G - The limits of a general test
31. It would be possible to construe the broadly worded tests quoted above from Kraus, Gebhard and Bosman as relating solely to the sorts of formal conditions of access to the employment market which were at issue in those and the other cases discussed at paragraphs 24 to 28 above. On the other hand, the Court did not advert expressly to any such limitation of the scope of application of the criteria it laid down in those cases. If, however, it were proposed to treat as restrictions on the exercise of freedom of movement neutral national rules which allegedly preclude, deter, impede, hinder or render less attractive such exercise simply by raising material barriers, for example, by establishing commercial and regulatory conditions in the market in question which are less enticing than in other Member States, or by offering benefits which would be lost in the event that a worker changed employment, those criteria could not be applied in the same way as in the case of a formal condition. Prejudice to the exercise of the freedom of movement of workers or self-employed persons cannot be automatically presumed in all cases where an apparently burdensome national regulation of economic activity, or the loss of a benefit in the case of a change in economic activity, is at issue. Such an approach would be equivalent to applying the Dassonville test, in its most far-reaching construction, to freedom of movement of persons. Where an alleged obstacle to freedom of movement does not result from a formal condition of market participation but is instead alleged to arise from some neutral material barrier or disincentive deriving from national regulations, the prejudice to the exercise of Community-law rights must be established.
32. In my view, if the possibility of treating such national rules as restrictions on freedom of movement were admitted, the appropriate criterion would be that which has already been employed by the Court in Bosman and in Alpine Investments in order to reject the application by analogy to certain national rules in the field of the free movement of persons of the approach adopted in Keck to national provisions governing selling arrangements for goods: that, proposed by the Commission in this case, of a direct effect on access to the market in question of the worker or self-employed person concerned. Although the Court did not have occasion in either case to state whether fulfilment of this criterion was essential in all cases to establish the existence of a prohibited neutral obstacle to free movement, this appears to me to be necessary if the Treaty is not to be exploited as a means of challenging any national rules whose effect is simply to limit commercial freedom. Thus, neutral national rules could only be deemed to constitute material barriers to market access, if it were established that they had actual effects on market actors akin to exclusion from the market. As in the case of rules regarding selling arrangements in the case of goods, there can be no presumption that neutral national commercial regulations, or those governing pay scales, social protection and other matters of concern to workers, have this effect. In the normal case, the migrant worker must take the national employment market as he finds it. The same holds true for neutral national rules which are alleged to affect the worker's decision as to whether or not to leave a Member State in order to take up an economic activity in another. This is especially important as regards such possible exit restrictions because the number of formal restrictions on leaving a post is likely to be extremely limited relative to those applicable to taking up employment. If the Court established, in principle, that such material disincentives could, in certain cases, constitute restrictions on freedom of movement, aggrieved persons should be required to reverse that presumption by demonstrating that a particular rule has, in all the circumstances, such a burdensome and deterrent effect on market access as to constitute a direct denial of such access. It is, of course, implicit in such an approach that the existence of the alleged material denial of market access must be ascertained by reference to the circumstances of the particular complainant.
33. My analysis is, I think, similar to that of Advocate General Lenz in Bosman, where he sought to establish a distinction between national rules regarding access to the market and those merely governing the exercise of an economic activity. Advocate General Alber has expressed a different view to Advocate General Lenz in Lehtonen, arguing, by reference to Keck, that rules regarding the exercise of a profession are closer to product rules than to those regarding selling arrangements, in that they directly affect citizens, who may thus have to take into account different rules and to acquire new skills every time they migrate from one Member State to another. However, I think that the apparent disagreement arises in part from a different understanding of what is meant by rules governing the exercise of an economic activity. According to the scheme I have outlined above on the basis of the case-law, in particular that governing qualifications, national provisions which require certain skills of economic actors and thus tend to subject migrant workers to a dual regulatory regime are more readily classifiable as formally affecting access or, at the very least, as in Kraus and Choquet, as being sufficiently closely bound up with market access as to be subjected to a similar regime.
H - The present case
34. However, it is not necessary, in my view, for the Court to take a stance in the present case on the question whether such neutral material deterrents or impediments to workers' exercise of free movement constitute, in principle, restrictions on such movement prohibited (subject to possible justification) by Article 39 EC. It seems clear to me that Paragraph 23(7) of the AngG does not satisfy the necessary conditions, outlined immediately above, for the potential application of any such prohibition, that is, its effects on the decision to terminate an employment contract, however direct, are not such as to restrict access to, or, in this case, exit from, a national labour market. This conclusion is not affected by the small size of the amounts of money involved relative to those in a case like Bosman. In different circumstances, a rule denying a worker the equivalent of almost three months' net salary could be taken to have a powerful effect on his calculations. I reach this conclusion because it cannot be said that the AngG in any real sense denies this sum to the plaintiff. It provides for a compensation payment when a certain contingency - unprovoked dismissal by the employer - materialises. The potential benefit of compensation for actual or constructive dismissal linked to his years of service is denied to the plaintiff upon voluntary termination of his contract in order to work in another Member State in the same way as he is denied the benefit of the Austrian system of compensation for damage arising from industrial accidents because he leaves employment there before such an accident occurs. The fact that the amount of potential compensation in the former case is linked to his salary and period of service, thereby rewarding those who remain with a single firm, does not take away from the fact that, at the time of his resignation from the firm, no such right to compensation has crystallised. The effect of the loss of a merely potential and uncertain right is, in my view, far too tenuous, remote and uncertain to constitute a restriction on free movement.
35. The fact that a worker can benefit, upon retirement after ten years' employment with a single employer, from a compensation payment based on his salary and years of service does not alter my conclusion. Such a right was very far from vesting in the plaintiff in the present case, who had worked with the defendant for less than four years. Even the potential enjoyment of that contingent right was subject to another, different contingency, namely, that the plaintiff would remain with the same Austrian employer for a further period of over six years. It is not necessary, in the circumstances of the present case, to comment on how the application of Article 23a of the AngG might affect the calculations of a worker who satisfied its conditions.
36. I conclude, therefore, that the denial to the plaintiff by Paragraph 23(7) of the AngG of a right to compensation upon his voluntary termination of his employment contract does not constitute a restriction on his exercise of the freedom of movement of workers. As a result, it is not necessary to examine the arguments regarding whether any such restriction might be justified in the present case by reference to social or employment policy or to the public interest in employee loyalty.
V - Conclusion
37. In the light of the foregoing analysis, I recommend that the Court respond to the question referred by the Oberlandesgericht, Linz, as follows:
A national rule which deprives a worker, who voluntarily terminates his employment relationship, of a benefit which he would have received if he had been dismissed or if he had terminated his employment for grave reasons does not constitute a restriction on the freedom of movement of workers prohibited by Article 48 of the EC Treaty (now, after amendment, Article 39 EC), where the application of the national rule in question is in no way dependent on the worker actually exercising such freedom of movement in order to take up employment in another Member State.