Saturday, May 5, 2012

Clean Car Auto Services v. Landeshauptmann Von Wien case brief

Clean Car Auto Services v. Landeshauptmann Von Wien

FACTS
-Austrian Trade Code requires legal entities to have manager resident in Austria.
-P applied to be registered, application was rejected b/c manager was a resident of Berlin at the time, although he was seeking to live in Austria.

ISSUE:  Does residence requirement for company managers constitute indirect discrimination under TFEU 45?

HOLDING:  Requirement that nationals of other states must reside in state in order to be appointed a manager constitutes discrimination based on nationality under TFEU 45.

APPLICATION 
-Here the law applies without regard to the nationality of the person to be appointed as manager.  Court says that national rules under with a distinction is drawn on basis of residence are liable to operate to the detriment of nationals of other member states.
-Court says the residence requirement would be okay if based on objective criteria independent of nationality of employees, and proportionate to a legitimate aim pursued by national law.

D's ARGUMENT:  Residence requirement justified objectively by the needs to ensure that manager could act effectively.  (court disagrees).

Three Criteria for whether an employment relationship exists:  "The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration."

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