Being one of the four fundamental freedoms of the European Union’s internal market, the free movement of persons as defined by Art. 45 TFEU (AEUV) grants all citizens of the member states the right to work cross-border as well as protecting them from any discrimination compared to domestic workers. If a national provision is incompatible with one of the four freedoms it must be disapplied. However, according to the Court of Justice of the European Union (CJEU) these freedoms only apply in cases with a foreign connection. The consequence may be that national regulations might not apply to foreigners due to incompatibility with European law, yet residents of a member state might not be able to refer to these freedoms, if the issue does not show any foreign connection. This phenomenon is called reverse discrimination.
According to these principles the federal labour court (Bundesarbeitsgericht, BAG) ruled (23 February 2017 – docket number: 6 AZR 843/15) that a national Collective Bargaining Agreement (CBA) which prioritized working experience gained at the employer in comparison to equivalent times at other employers when it came to grouping employees, did not violate the European regulation on free movement as stated in Art. 45 TFEU and Art. 7 of the EU Regulation 492/2011.
In this case the plaintiff had been employed as a kindergarten teacher by the defendant state since 2014 and received remuneration in accordance with the remuneration grade of the respective CBA she was assigned to. Prior to this employment the plaintiff had been employed by different employers in Germany since 1997. She held that the section of the CBA, according to which an employee was assigned to a higher remuneration grade if he had working experience with the same employer compared to the equivalent time worked at other employers, was a violation of the right of free movement and therefore she was entitled to higher remuneration.
The federal labour court ruled that in cases where employees have only worked in Germany and have not gained any qualifications in other member states of the European Union, the section of the CBA does not show a sufficient foreign connection. In accordance with the rulings of the CJEU the scope of the European regulations on free movement is not opened up in such cases. Furthermore, there are no national provisions preventing the privileged treatment of professional experience with the same employer. Therefore the plaintiff was not entitled to higher remuneration.