European Court of Justice – July 2023

Isolated employee ordered by the national health authority

European Court of Justice – July 2023

Social security – Regulation (EC) No 883/2004 – Article 3(1)(a) – Concept of ‘sickness benefits’ – Scope – Freedom of movement for workers – Article 45 TFEU – Regulation (EC) No 492/2011 – Article 7(2) – Social advantages – Difference in treatment – Justifications – COVID-19 – Isolation of employees ordered by the national health authority – Compensation of those employees by the employer – Reimbursement of the employer by the competent authority – Exclusion of frontier workers required to isolate under a measure taken by the authority of their State of residence).

ECJ, 15 June 2023, Case C 411/22, Thermalhotel Fontana Hotelbetriebsgesellschaft gmbh.


Article 3(1)(a) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems:

-must be interpreted as meaning that compensation, financed by the State, which is due to workers for the pecuniary disadvantages caused by the impediment to their employment during their isolation as persons infected with, suspected of being infected with, or suspected of being contagious with COVID-19 does not constitute a ‘sickness benefit’, referred to in that provision, and does not therefore come within the scope of that regulation.

Article 45 TFEU and Article 7 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union:

-must be interpreted as precluding legislation of a Member State under which the granting of compensation for loss of earnings suffered by workers as a result of isolation ordered following a positive COVID-19 test result is subject to the condition that the imposition of the isolation measure be ordered by an authority of that Member State under that legislation.

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