C-190/98

GRAF

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 16 September 1999 *

I — Introduction 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 1. The present case gives the Court an the Court's more developed case-law on the opportunity to define further the scope of free movement of goods, including the its ruling in Bosman 1 on the application of judgment in Keck and Mithouard 2limiting Article 48 of the EC Treaty (now, after the application of some of its earlier amendment, Article 39 EC) to restrictions pronouncements, can furnish useful on the freedom of movement of workers guidance. 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 II — Factual and legal context 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 The national law 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; 2. The relevant compensation provisions of Paragraph 23 of the Angestelltengesetz * Original language: English. 1 — Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others (hereinafter 2 — Joined Cases C-267/91 and C - 2 6 8 / 9 1 [1993] ECR I-6097, 'Bosman') [1995] ECR I-4921. hereinafter 'Keck'.

5. The plaintiff in the main proceedings, 3. Paragraph 23 a of the AngG provides Mr Graf (hereinafter 'the plaintiff), is a that a right to compensation shall also German national. He was employed in exist in the case of a continuous employ- Austria by the defendant, Filzmoser ment relationship of at least ten years' Maschinenbau GmbH (hereinafter 'the duration which ceases upon termination by defendant'), from 3 August 1992. He gave the employee of the contract of employ- notice of termination of the employment ment because the employee has reached relationship on 29 February 1996, with 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 3 — Case C-249/97 Gabriele Gruber v Silhouette International reduced capacity for work. It appears that Schmied [1999] ECR I-5295, paragraph 32.

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6. The plaintiff argued before the Land- esgericht 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 indir- ect discrimination, and that it constituted, in any event, a disproportionate financial 8. On appeal, the plaintiff submitted that penalty amounting to a restriction on the the Court had not required in Bosnian that mobility of workers which was not objec- restrictions of freedom of movement be tively justified. The defendant submitted perceptible. The national court stated that that Paragraph 23(7) of the AngG was not national residents were chiefly affected by discriminatory in effect, because most of the rule, so that there was no indirect those affected were and remained national discrimination against workers willing to residents. Furthermore, it was not designed migrate to work in other Member States. It- to regulate access to the labour market, did doubted whether denial of compensation in not amount to a prohibition and did not cases of voluntary termination of employ- prevent or deter persons from taking up ment by the employee was necessary to the employment in other Member States. It achievement of the social-policy objectives had, instead, the twin social aims of mentioned by the Landesgericht, and protecting workers from dismissal and of observed that, on the one hand, employees promoting employee loyalty. were often neither faultless nor taken by

'Does Article 48 of the EC Treaty preclude n a t i o n a l p r o v i s i o n s u n d e r w h i c h an 11. The plaintiff reiterated his argument employee who is a national of a Member that Paragraph 23(7) of the AngG consti- State is not entitled to compensation on tuted indirect discrimination on grounds of termination of his employment relationship nationality. The defendant, the Commis- simply because he himself gave notice sion and the Member States which sub- terminating that relationship in order to mitted observations all take a contrary take up employment in another Member view. They deny that Paragraph 23(7) of State?' the AngG has any discriminatory effects, in that it is indistinctly applicable and princi- pally affects employees who voluntarily 4 — Case C-19/92 Kraus v Land Baden-Württemberg (herein- terminate their contracts of employment after 'Kraus') [1993] ECR I-1663. w i t h o u t leaving Austria. Furthermore,

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13. In the alternative, the plaintiff submit- 6 — See the Opinion of Advocate General Tesauro in Case C-292/92 Hünermund v Landesapothekerkammer ted that the case was comparable to Bos- Baden-Württemberg (hereinafter 'Hünermund') [1993] man, as it was immaterial whether a ECR I-6787 regarding the objective of Article 30 of the EC Treaty (now, after amendment, Article 28 EC). 7 — Bosman, loc. cit., paragraph 96; in the sphere of establish- ment, see Case 107/83 Ordre des Avocats au Barreau de Paris v Klopp (hereinafter 'Klopp') [1984] ECR 2971; 5 — See, further, paragraph 22 below. Case 96/85 Commission v France [1986] ECR 1475.

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OPINION O F M R FENNELLY — CASE C-190/98

16. Furthermore, the Commission argues that, before any distinction between access to and exercise of economic activity as an e m p l o y e d p e r s o n even n e e d s t o be addressed, it should be established that 15. On the other hand, the Commission there is a direct connection between the (expressly or implicitly supported by the allegedly restrictive national rule and the Member States which submitted observa- decision to exercise the right of free move- tions) accepts that the judgments in Kraus ment in order to take up employment in and Bosman, as well as that, in the related another Member State. Germany submitted field of establishment, in Gebbard, make observations in a similar vein. clear that the prohibition on non-discrimi- natory obstacles to free movement of w o r k e r s or of self-employed persons extends beyond measures with specific burdensome effects on trans-frontier mobi- lity. However, despite the broad language 17. On a somewhat different note, both Austria and the United Kingdom posit tests 8 — Case C-10/90 Masgio [1991] ECR I-1119; Case 143/87 Stanton v INASTI [1988] ECR 3877; Case C-53/95 Inasti v Kemmier [1996] ECR I-703; Case C-272/94 Guiot [1996] ECR I-1905. 10 — See, for example, Bosnian, loc. cit., paragraph 96; Case 9 — Case 222/86 UNECTEF v Heylens and Others [1987] C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e E C R 4 0 9 7 ; C a s e C - 3 4 0 / 8 9 Vlassopoulou [1991] Vrocuratori di Milano (hereinafter 'Gebhard') [1995] ECR I-2357; Case 16/78 Choquet [1978] ECR 2293. ECR I-4165.

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C — The significance of Keck 19. The formal distinction between pro- duct 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, 18. I would like to state at the outset, in to affect access to the market. Thus, the response to the last question posed in Court singled out national provisions paragraph 1 above, that, in my view, the regarding certain selling arrangements, Court's case-law in the field of free move- such as the rules against below-cost sales ment of goods, including Keck, furnishes at issue in that case, because if such rules useful guidance on the application of were indistinctly applicable and affected Article 48 of the EC Treaty (now, after the marketing of all products in the same amendment, Article 39 EC). I will make a manner, in law and in fact, they were not, few preliminary observations about the in the Court's view, of a nature either to development of the Keck case-law before prevent the access of imported products to examining the more immediate issues the market or to impede their access any raised by the present case regarding the more than they did that of domestic mobility of workers. I should add, however, products. 11 Thus, they did not fall within that analogies between the two fields are the scope of the test set out in Dassonville, rarely perfect and that, in particular, the whereby Article 30 of the EC Treaty (now, reasoning in Keck can only be extended to after amendment, Article 28 EC) applied to the field of freedom of movement of work- all national rules liable to hinder trade ers if it is reduced to its essential elements, between Member States either directly or shorn of the more rigid and formalist indirectly, actually or potentially. 12 For distinctions — between product rules and certain selling arrangements — which are 11 — Keck, loc. cit., paragraphs 16 and 17. specific to the process of production and 12 — Case 8/74 Procureur du Roi v Dassonville (hereinafter distribution of goods. Persons are not 'Dassonville') 11974] ECR 837, paragraph 5.

present purposes, Keck is most significant such as that in Dassonville through a because it represents a reappraisal by the concrete assessment of the market effects Court of its previous attempts to apply a of what are perceived to be more marginal test of great generality — that in Dasson- types of regulation, while providing gui- ville — in a uniform fashion to the defini- dance both to national regulators and to tion of barriers to trade in goods. This had economic actors as to the likely judicial resulted in national rules which were response to such regulations. neither discriminatory nor particularly restrictive of trade, such as those on shop opening hours, being subjected to the same prohibition and analysis of possible justifi- cation 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. 13 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 30: the establishment of an internal market to which products from the differ- ent Member States have both equal and, subject to qualifications in the public 20. It is not necessary, for the purposes of interest, free access. Such presumptions the present case, to examine the reliability should not, however, be conclusive. It is of the Court's presumption in Keck that legitimate for the Court to develop pre- national provisions regarding selling sumptions about the market effects of arrangements will not affect importers' different broadly defined categories of access to the market in the absence of rules, provided that, in concrete cases, the direct or covert discrimination. As it hap- validity of the presumption may be tested pens, the Court has more recently applied against the underlying criterion of market the formal criteria in Keck with a relatively access, rather than automatically being light touch in cases where it considers taken as being sufficient in itself to dispose market access to be materially threatened. of the case. Such an approach would In Dior, the Court held that national rules temper and refine the application of a which permitted the holders of trademarks broad uniform definition of restrictions or copyright to prevent parallel importers from advertising the reselling of goods came within the scope of Article 30 because access to the market would conse- quently be 'appreciably more difficult'. 14 The national rules could equally have been

used, it seems, to prevent the advertising of only technique) for marketing and contact- goods which had escaped the domestic ing potential clients in other Member States selective distribution system and the Court — cold calling — because it directly made no reference to differences in treat- affected access to the market in services. 17 ment 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 D — Discrimination on grounds of migra- case stated that such advertising was the tion only available form of promotion enabling it to penetrate the market in question, without even referring to the position of domestic producers. 1 5Thus, it would appear that national rules can be deemed to have unequal effects in fact on the 21. I now turn to address directly the marketing of imported and domestic pro- interpretation of the prohibition in Arti- ducts and, thus, on their access to the cle 48 of obstacles to the free movement of market simply by virtue of the fact that new workers and its possible application to (imported) products have greater need of Paragraph 23(7) of the AngG. Article 48(2) promotional opportunities than (domestic) EC expressly provides for the prohibition products which are well established in the of discrimination against workers on market — a result similar to that which grounds of nationality, without having to would arise from the direct application of determine the precise effects of any such the test of substantial impact on market discrimination on their access to the labour access suggested by Advocate General market. However, as this case relates to an Jacobs in Leclerc-Siplec. 16 Furthermore, alleged barrier to exit from a Member State in Alpine Investments, the Court held that in order to migrate to work elsewhere in Keck could not be applied by analogy to a the Community, it is necessary to advert non-discriminatory national regulation not only to the Court's well-established which deprived operators of a rapid and case-law regarding the prohibition of overt direct technique (but not necessarily the or covert discrimination on grounds of nationality, 18 but also to what might be

called its case-law in respect of discrimina- grounds of nationality in the case of tion on grounds of migration. 19 This case- measures applied to migrant workers by a law demonstrates that the guarantee of receiving State, because of the presumption freedom of movement for workers within that foreign workers are principally the Community in Article 48 also entails affected thereby. 28 In the case of differen- the prohibition of national measures which tiated treatment by the State of origin of distinguish, not according to nationality, migrant workers, no such presumption but according to whether a person engages applies, so the two categories are more in uninterrupted economic activity in his readily distinguishable. 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 move-

and it is guaranteed irrespective of the 23 — Loc. cit. subsequent movements of a worker dis- 24 — Case 81/87 The Queen v Treasury and Commissioners of missed by his employer. Furthermore, there Inland Revenue, ex parte Daily Mail and General Trust plc (hereinafter 'Daily Mail') [1988] ECR 5483, especially is no evidence to suggest that the national paragraph 16. The case related to the requirement of the consent of the United Kingdom tax authorities for a court erred in stating that mostly national company resident there for tax purposes to cease to be so residents are affected by the rule, so that its resident, by moving its central management and control to another Member State, in circumstances where it none the application does not give rise even to covert less sought to maintain its legal personality and status as a discrimination on grounds of subsequent United Kingdom company. The Court found that the national rules at issue did not constitute a restriction on migration, i.e. as between workers who freedom of establishment because the relationship between the place of incorporation of a company and its centre of emigrate and those who prefer to remain in management and control was still a matter governed by national law (paragraphs 23 and 24). Austria upon termination, voluntary or 25 — Loc. cit. otherwise, of their employment contracts. 26 — Case C-264/96 ICI v Colmer (HMIT) (hereinafter 'ICI') [1998] ECR I-4695. 2 7 — Case C-18/95 F.C_ Terhoeve v Inspecteur van de Belas- tingdienst Particulieren/Ondernemingen Buitenland (here- 28 — The two categories could be distinguished only if it were inafter 'Terhoeve') [1999] ECR I-345. For an example of shown that the majority of migrant workers in a country an unremedied problem of this nature, see, however, were in fact returned emigrants of that Member State's Case 368/87 Hartmann Troiani v Landesversicherungsan- nationality, as may, for example, be the case in Ireland at stalt Rheinprovinz [1989] ECR 1333. the moment.

25. With regard to the first type of restric- tion, the Court has approached such rules

32 — Klopp, loc. cit; Case 96/85 Commission v France, loc. cit., E — Other types of non-discriminatory paragraphs 13 and 14; Case C-351/90 Commission v Luxembourg [19921 ECR I-3945, paragraph 19 et seq. restriction 33 — Case 71/76 Thieffry v Conseil de l'Ordre des Avocats à la Cour de Paris (hereinafter 'Thieffry') [1977] ECR 765; Heylens, loc. cit.: Case C-379/87 Groener v Minister for Education and the City of Dublin Vocational Education Committee (hereinafter 'Groener') [1989] ECR 3 9 6 7 ; Vlassopoulou, loc. cit.; Gebhard, loc. cit.; Case C-234/97 Maria Teresa Fernández de Bobadilla v Museo Nacional del Prado and Others [1999] ECR I-4223. 24. Three other broad types of restriction 34 — Kraus, loc. cit.; Choquet, loc. cit. One could also add cases regarding non-recognition of work experience in other on the freedom of movement of workers or Member States for promotion or other purposes, such as Scholz v Opera Universitaria di Cagliari and Cinzia of self-employed persons can be identified Porcedda, loc. cit., and Schöning-Kougebetopoulou v Freie in the Court's case-law, which I refer to as und Hansestadt Hamburg, loc. cit., but tne Court has analysed these as cases of covert discrimination on grounds neutral restrictions because the rules in of nationality. question have been indistinctly applicable, 35 — Bosman, loc. cit.; see also the Opinion of Advocate General Cosmas of 18 M a y 1999 in Joined Cases C-51/96 and C-191/97 Christelle Deliège v Asbl Ligue Francophone de Judo et Disciplines Associées and Others (hereinafter 'Deliège'), awaiting judgment; regarding a 2 9 — See footnote 24 above. different formal non-discriminatory obstacle to changing employment, see the Opinion of Advocate General Alber 30 — Masgio, loc. cit., paragraph 18; Terhoeve, loc. cit., para- of 22 June 1999 in Case C-176/96 Jyri Lehtonen and graphs 39 and 40. Castors Canada Dry Namur-Braine v Federation Royale 31 — Daily Mail, loc. cit., paragraph 16; ICI, loc. cit., para- Belge des Sociétés de Basketball et Asbl Basket Liga-ligue graph 2 1 . Basket Belgium, awaiting judgment.

27. The third, Bosman-type class of restric- 26. It would be possible to approach the tion may be compared with that in Klopp second type of restrictive national rule, in that it directly affects a step in the regarding qualifications, as a type of dis- exercise of free movement, that is, the guised d i s c r i m i n a t i o n on g r o u n d s of change or taking up of employment. Fur- nationality or migration, in so far as migrants are much less likely than domestic economic actors to possess qualifications 39 — See most clearly Vlassopoulou, loc. cit., paragraph 15; this which conform exactly, without the need also emerges from an a contrario reading or Groener, loc. cit., paragraph 19, requiring that such rules be for further verification, to the criteria laid proportionate and non-discriminatory; see, to similar effect, Kraus, loc. cit., paragraph 32, and Gebbard, loc. - down. This would also be consistent with cit., paragraph 37. Cf. the views of Advocate General the case-law regarding the taking into Mayras in Thieffry, loc. cit., at p. 790, and of Advocate General Van Gerven in Kraus. The covert discrimination account of prior work experience. How- argument is obviously more enticing in cases where the actual origin of the qualifications directly determined the ever, the Court has indicated that such rules question of their recognition, as in Thieffry, Cboquet, loc. cit., and Kraus. constitute restrictions on freedom of estab- 40 — This is the accepted reason for the application of Article 30 lishment and the free movement of workers to such rules, rather than the argument that imported products are covertly discriminated against by any national product rules because they are inherently less likely to comply with them. See, for example, Case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Köln v 36 — Klopp, loc. cit., paragraph 14. Mars (hereinafter 'Mars') [1995] ECR I-1923, para- 37 — Klopp, loc. cit., paragraph 19. graph 13. 38 — Although Article 39 EC is not as explicit in this respect as 41 — The Court referred in Choquet, loc. cit., paragraph 8, to Article 52 EC, I presume that a national rule confining the need to avoid duplication of tests already taken; this workers to a single post, without the possibility of has been a continuing theme of the qualifications case-law additional part-time work either in that State or elsewhere, since Heylens, loc. cit.; see most recently Fernández de would come within the scope of that article. Bobadilla, loc. cit., paragraphs 32 to 34.

28. These three classes of non-discrimina- tory restrictions on freedom of movement F — A general testi share the attribute of being formal restric- tions 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. 42 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 29. In a number of the more recent cases, Kraus, the German degree-recognition rules the Court has defined non-discriminatory at issue did not themselves make access to restrictions in terms reminiscent of those any activity contingent on securing such used in respect of rules which either recognition, but the Court pointed out that discriminate on grounds of nationality or possession of a postgraduate academic title result in different treatment on the basis of could be a prerequisite for access to certain the exercise of freedom of movement. In professions 43 and could facilitate access to Kraus, the Court stated that 'Articles 48 a profession or economic activity in other and 52 preclude any national measure contexts. 44 In Choquet, the Court observed governing the conditions under which an that rules regarding recognition of driving academic title obtained in another Member licences exerted an influence, both direct State may be used, where that measure, and indirect, on the exercise of rights even though it is applicable without dis- relating to free movement and, in particu- crimination on grounds of nationality, is lar, that possession of a driving licence duly liable to hamper or to render less attractive the exercise by Community nationals... of fundamental freedoms guaranteed by the 42 — See Bosman, loc. cit., paragraphs 94 to 103, discussed Treaty'. 46 In Gebhard, the Court subjected further below. On the usefulness of a distinction between the application of 'national measures liable restrictions on access to an economic activity and restric- tions on its exercise, as proposed by Advocate General to hinder or make less attractive the Lenz in Bosman, see further below. Klopp-type rules are also barriers to exit, that is, to establishment elsewhere, by exercise of fundamental freedoms guaran- a person already established in a Member State applying such rules. 43 — Loc. cit., paragraph 20. 44 — Ibid., paragraph 2 3 ; see also paragraphs 18, 19, 21 and 45 — Loc. cit., paragraph 4. 46 — Loc. cit., paragraph 32, emphasis added.

teed by the Treaty' to conditions of non- covertly on grounds of nationality or which discrimination and of proportionate pur- differentiate between persons according to suit of general-interest requirements. 47 whether they have exercised such rights Finally, in Bosman, the Court set out the give rise automatically to the conclusion following test: 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 'Provisions which preclude or deter a contrary to the express guarantees of the national of a Member State from leaving Treaty regarding the manner of exercise of his country of origin in order to exercise his freedom of movement (as in Klopp) or right to freedom of movement therefore which effectively subject migrants to dupli- constitute an obstacle to that freedom even cate requirements or to overburdensome if they apply without regard to the nation- recognition procedures (as in the qualifica- ality of the workers concerned.' 48 tions 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 exer- cise of freedom of movement. This lan- The Court added that Article 39 EC also guage should not, however, be mistaken for limits the application of national rules a test of general application. The imposi- which impede the freedom of movement tion of conditions regarding entry to the of nationals of that State wishing to engage market or the taking up of economic in gainful employment in another. 49 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 30. The present case essentially concerns regarding matters which are intimately the scope of these broadly drawn defini- connected with successful access to the tions of neutral restrictions on freedom of market, such as those governing recogni- movement. As I stated above, national tion of a qualification which is necessary or provisions which discriminate overtly or beneficial to the exercise of many profes- sional activities. 5 0

31. It would be possible to construe the 32. In my view, if the possibility of treating broadly worded tests quoted above from such national rules as restrictions on free- Kraus, Gebbard and Bosman as relating dom of movement were admitted, the solely to the sorts of formal conditions of appropriate criterion would be that which access to the employment market which has already been employed by the Court in were at issue in those and the other cases Bosman and in Alpine Investments in order discussed at paragraphs 24 to 28 above. to reject the application by analogy to On the other hand, the Court did not certain national rules in the field of the free advert expressly to any such limitation of movement of persons of the approach the scope of application of the criteria it adopted in Keck to national provisions laid down in those cases. If, however, it governing selling arrangements for goods: were proposed to treat as restrictions on the that, proposed by the Commission in this exercise of freedom of movement neutral case, of a direct effect on access to the national rules which allegedly preclude, market in question of the worker or self- deter, impede, hinder or render less attrac- employed person concerned. 51 Although tive such exercise simply by raising material the Court did not have occasion in either barriers, for example, by establishing com- case to state whether fulfilment of this mercial and regulatory conditions in the criterion was essential in all cases to market in question which are less enticing establish the existence of a prohibited than in other Member States, or by offering neutral obstacle to free movement, this benefits which would be lost in the event appears to me to be necessary if the Treaty that a worker changed employment, those is not to be exploited as a means of criteria could not be applied in the same challenging any national rules whose effect way as in the case of a formal condition. is simply to limit commercial freedom. 52 Prejudice to the exercise of the freedom of Thus, neutral national rules could only be movement of workers or self-employed deemed to constitute material barriers to persons cannot be automatically presumed market access, if it were established that in all cases where an apparently burden- they had actual effects on market actors some national regulation of economic akin to exclusion from the market. As in activity, or the loss of a benefit in the case the case of rules regarding selling arrange- of a change in economic activity, is at issue. ments in the case of goods, there can be no Such an approach would be equivalent to applying the Dassonville test, in its most far-reaching construction, to freedom of 51 — See Bosman, loc. cit., paragraph 103; Alpine Investments, loc. cit., paragraph 38. movement of persons. Where an alleged 52 — See Keck, loc. cit., paragraph 14. Advocate General Cos- obstacle to freedom of movement does not mas takes the same view on the need for a test of market access in his Opinion in Deliège, loc. cit., paragraphs 65 result from a formal condition of market and 66.

presumption that neutral national commer- ent view to Advocate General Lenz in cial regulations, or those governing pay Lehtonen, 54 arguing, by reference to Keck, scales, social protection and other matters that rules regarding the exercise of a of concern to workers, have this effect. In profession are closer to product rules than the normal case, the migrant worker must to those regarding selling arrangements, in take the national employment market as he that they directly affect citizens, who may finds it. The same holds true for neutral thus have to take into account different national rules which are alleged to affect rules and to acquire new skills every time the worker's decision as to whether or not they migrate from one Member State to to leave a Member State in order to take up another. However, I think that the apparent an economic activity in another. This is disagreement arises in part from a different especially important as regards such possi- understanding of what is meant by rules ble exit restrictions because the number of governing the exercise of an economic formal restrictions on leaving a post is activity. According to the scheme I have likely to be extremely limited relative to outlined above on the basis of the case-law, those applicable to taking up employment. in particular that governing qualifications, If the Court established, in principle, that national provisions which require certain such material disincentives could, in certain skills of economic actors and thus tend to cases, constitute restrictions on freedom of subject migrant workers to a dual regula- movement, aggrieved persons should be tory regime are more readily classifiable as required to reverse that presumption by formally affecting access or, at the very demonstrating that a particular rule has, in least, as in Kraus and Chaquet, as being all the circumstances, such a burdensome sufficiently closely bound up with market and deterrent effect on market access as to access as to be subjected to a similar constitute a direct denial of such access. It regime. 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.

present case on the question whether such tenuous, remote and uncertain to constitute neutral material deterrents or impediments a restriction on free movement. 55 to workers' exercise of free movement constitute, in principle, restrictions on such movement prohibited (subject to possible justification) by Article 48. It seems clear to me that Paragraph 23(7) of the AngG does not satisfy the necessary conditions, out- lined immediately above, for the potential application of any such prohibition, that is, its effects on the decision to terminate an 35. The fact that a worker can benefit, employment contract, however direct, are upon retirement after ten years' employ- not such as to restrict access to, or, in this ment with a single employer, from a case, exit from, a national labour market. compensation payment based on his salary This conclusion is not affected by the small and years of service does not alter my size of the amounts of money involved conclusion. Such a right was very far from relative to those in a case like Bosman. In vesting in the plaintiff in the present case, different circumstances, a rule denying a who had worked with the defendant for worker the equivalent of almost three less than four years.

such an accident occurs. The fact that the amount of potential compensation in the 36. I conclude, therefore, that the denial to former case is linked to his salary and the plaintiff by Paragraph 23(7) of the period of service, thereby rewarding those who remain with a single firm, does not 55 — See, for example, Case C-379/92 Peralta [1994] take away from the fact that, at the time of ECR I-3453, paragraph 24; Case C-69/88 Krantz [1990] his resignation from the firm, no such right ECR I-583, paragraph 11; Case C-93/92 CMC Motorrad- center [1993] ECR I-5009, paragraph 12; Case C-67/97 to compensation has crystallised. The effect Anklagemyndigheden v Ditlev Bluhme [1998] ECR I-8033, paragraph 22; Case C-412/97 ED v Italo of the loss of a merely potential and Fenocchio [1999] ECR I-3845, paragraph 11; see also the uncertain right is, in my view, far too comments of Advocate General Jacobs at paragraphs 57 and 58 of his Opinion in Alpine Investments, op. cit., and my comments at paragraph 19 of my Opinion in Ankla- gemyndigheden v Ditlev Bluhme.

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