C-225/85
ECLI:EU:C:1987:36
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COMMISSION v ITALY
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 27 January 1987 *
Mr President, autonomous government agency having Members of the Court, legal personality and answering to the President of the Council of Ministers. It is responsible inter alia for the coordination of the activities of the State in the various A — The facts scientific fields, for drawing up technical standards, compiling bibliographic and documentary material and for conducting 1. The facts of the infringement research of its own. proceedings with which I am to deal today are as follows:
5. Where necessitated by particular 2. On 20 March 1975 the Italian Republic requirements of scientific research, the CNR issued Law No 70 on new rules relating to may under Article 36 (1) of Law No 70 of public corporations and the terms of 1975 recruit foreign staff for advanced employment of staff. It is provided among research under contract; however, the other things in Article 36 (3) and (4) of that maximum duration of such contracts is five law that persons employed under contract years. by the Consiglio nazionale delle ricerche (CNR) who have the requisite qualifications and fulfil the prescribed requirements should be given established posts. If that 6. To date, the provisions of Article 36 (3) should not be possible owing to a lack of and (4) of Law No 70 have not been posts, the staff concerned should be kept on applied to foreign researchers working for under contracts for an indefinite period and the CNR; in the view of the Italian auth receive the remuneration laid down for the orities, such workers, being foreign corresponding established posts. nationals, were not entitled to be estab lished. Instead, the researchers in question continued to be employed under contracts of limited duration. 3. Article 5 (3) of Law No 70 refers to the legal rules in force in the civil service with regard to recruitment requirements. Those rules include the provisions of the Staff Regulations for Civil Servants, Article 2 of 7. In 1981 the CNR attempted to maintain which provides that Italian nationality is a in employment researchers from other requirement for appointment as a civil Member States of the Community at least servant. on the basis of contracts of indefinite duration; however, that came up against resistance on the part of the supervisory bodies, which maintained that Italian 4. Under Order No 82 of 1 March 1945, nationality was also a requirement in the taking the place of a law, the CNR is an case of contracts of indefinite duration.
* Translated from the German.
OPINION OF MR LENZ — CASE 225/85
8. In 1983 a number of researchers brought 13. Since the defendant complied neither an action against the CNR before the with the Commission's letter of 2 August Tribunale Amministrativo Regionale 1984 putting it on formal notice nor with its (Regional Administrative Court) of Lazio reasoned opinion issued under Article 169 following the conclusion of new of the EEC Treaty on 18 March 1985, the employment contracts for a limited period. Commission brought this action before the Those actions were dismissed. One Court of Justice. researcher appealed to the Consiglio di Stato (Council of State); the appeal is still pending. 14. The Commission claims that the Court should
9. The fact that researchers who are nationals of other Member States are not (a) Declare that by discriminating, as established has a series of consequences as regards conditions of work and far as they are concerned. employment, against researchers working for the Consiglio nazionale delle ricerche who are nationals of other 10. In the first place, their posts are less Member States in favour of researchers secure than those of their Italian colleagues, of Italian nationality working for that since the contracts of employment same body, the Italian Republic has concluded with them from time to time are failed to fulfil its obligations under only for a limited period. Secondly, they Article 48 of the EEC Treaty and cannot be promoted since participation in Article 7 (1) and (4) of Regulation the competitions leading to promotion is (EEC) No 1612/68 of the Council of 15 restricted to Italian nationals. October 1968;
(b) Order the Italian Republic to pay the 11. However, it has not been possible to costs. establish definitely whether there is also discrimination with regard to remuneration, since it has not been made absolutely clear 15. In its defence the Italian Republic does what is meant by 'ricostruzione della not formally contest the Commission's carriera' (career rebuilding) which is alleged claims. It merely points out that the to have given rise to a difference in researchers concerned have been kept on remuneration. under contracts for a limited period and that their remuneration corresponds to that of researchers holding established posts. For 12. In view of this state of affairs the the rest, efforts are being made to enable Commission of the European Communities established posts to be given to the has brought an action for failure to fulfil its researchers in question. Consequently the obligations against the Italian Republic. It action is unnecessary. considers that the contested rules infringe the prohibition of discrimination set out in Article 48 of the EEC Treaty and Article 7 of Regulation (EEC) No 1612/68 of the 16. The Italian Republic repeats this Council of 15 October 1968 on freedom assertion in the rejoinder where it also of movement for workers within the points out that the Italian Government has Community. 1 prepared a bill designed to enable researchers who are nationals of other 1 — OJ English Special Edition 1968 (II), p. 475. Member States to be given established posts.
COMMISSION v ITALY
17. In the rejoinder, however, the Italian researchers of Italian nationality. In Republic claims that the Court should addition, they are disqualified from taking dismiss the application and order the part in the competitions which must be applicant to pay the costs. passed in order to be promoted.
18. In the course of the oral proceedings the Italian Republic substantiated its claim 23. It must first be considered whether the that the application should be dismissed. It prohibition of discrimination set out in referred to the tasks of the CNR and main Article 48 (2) of the EEC Treaty is tained that the employment contracts of the applicable to the researchers from other researchers in question do not fall within Member States of the Community or the scope of Article 48 of the EEC Treaty whether the researchers' posts at the CNR as a result of the exception provided for in must be regarded as employment in the Article48 (4), which stipulates that Article public service and hence the prohibition of 48 is not to apply to employment in the discrimination set out in Article 48 (2) of public service. the EEC Treaty does not apply as a result of Article 48 (4).
19. Officials employed by the CNR might reach the highest positions in that agency, which served the general interest of the 24. It must be observed in that connection State. Consequently, there was justification that, according to the Court's judgment of 2 for requiring those officials to be of Italian 12 February 1974 in Case 152/73, the nationality. scope of the exception set out in Article 48 (4) of the EEC Treaty cannot be determined by the nature of the legal relationship between the employee and the 20. In so far as it is necessary, I shall employing administration. As the Court has consider the parties' other arguments in the recently held in its judgment of 3 June 1986 body of my Opinion; for the rest, reference in Case 307/84, 3 access to certain posts is made to the Report for the Hearing. cannot be limited by reason of the fact that in a given Member State the persons appointed to such posts are governed by staff regulations which provide for estab B — Opinion lishment. To make the application of Article 48 (4) of the EEC Treaty dependent upon the legal nature of the relationship between 21. In the light of the findings made in the the employee and the administration would written and oral procedures it appears that enable the Member States to extend at will researchers who are nationals of other the number of posts covered by the Member States are treated differently from exception laid down in that provision and Italian researchers in at least two respects. hence to determine the scope of Community law unilaterally. That might result in a particular activity's being subject to different
22. Their employment relationship is 2 — Judgment of 12 February 1974 in Case 152/73 Sotgiu v governed by contracts concluded for a Deutsche Bundespost [1974] ECR 153. limited period and is therefore less secure 3 — Judgment of 3 June 1986 in Case 307/84 Commission of the European Communities v French Republic [19861 ECR 1725 than the employment situation of at p. 1734.
OPINION OF MR LENZ — CASE 225/85
rules in different Member States by virtue of 27. That view cannot be accepted, since the Article 48 of the EEC Treaty; that cannot role of a public body is not sufficient be permitted under Community law. evidence in itself that all its staff are involved in the exercise of powers conferred by public law and in the discharge of functions whose purpose is to safeguard the general interests of the State. Granted, the administrative organs and higher echelons of the CNR may be responsible for such tasks; however, the Italian Republic did not 25. As the Court stated in particular in its contest the Commission's claim that the judgment of 17 December 1980 in Case researchers concerned are actually engaged 149/79 4 in examining whether particular in research work. In particular, the Italian activities fall within the ambit of Republic has not shown that the researchers employment in the public service within the in question are responsible for management meaning of Article 48 (4), it must be duties in the laboratories or for advising the considered 'whether or not the posts in State on scientific questions. Furthermore, question are typical of the specific activities one cannot dismiss the Commission's of the public service in so far as the exercise argument that it is possible to infer from the of powers conferred by public law and fact that the researchers had already been responsibility for safeguarding the general employed by the CNR for some time that interests of the State are vested in it'. In its the Italian Republic impliedly admits that judgment of 3 July 1986 in Case 66/85, 5in the general interests of the State or exclusive which the Court adhered to the wording tasks of the public authorities are not quoted above from the judgment in Case involved in this case. 149/79, it was held that both the said conditions, namely the exercise of powers conferred by public law and the discharge of functions whose purpose is to safeguard the general interests of the State, must be present at the same time, the national court having expressed the view that it would be sufficient if only one of the two conditions were to be fulfilled.
28. Furthermore, according to the case-law of the Court no case for the applicability of Article 48 (4) can be based on the argument that researchers from other Member States would, if established, qualify under national law for promotion to the highest echelons 26. During the oral proceedings the Italian of the CNR. The Court has already rejected Republic argued on the grounds of the role that argument in its judgment of 17 played by the CNR that researchers 6 December 1980 in Commission v Belgium. working for it fell within the exception According to that judgment the exception provided for in Article 48 (4) of the EEC provided for in Article 48 (4) as regards Treaty. employment in the public service applies only to certain posts in the public service, 4 — Judgment of 17 December 1980 in Case 149/79 Commissioni Belgium [1980] ECR 3881. not to the public service as a whole. 5 — Judgment of 3 July 1986 in Case 66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121 at p. 2139. 6 — Loc. cit, paragraph 20 et seq.
COMMISSION v ITALY
29. Accordingly the posts at the CNR fall respects to the terms of employment as in principle within the scope of the officials which are restricted to Italian prohibition of discrimination set out in nationals. Article 48 (2) of the EEC Treaty. 31. It should therefore be held that by 30. If researchers who are nationals of discriminating, as regards conditions of other Member States are placed in a worse work and employment, against researchers position than national research workers in working for the Consiglio nazionale delle the manner described solely on account of ricerche who are nationals of other Member their nationality, this constitutes an States in favour of researchers of Italian infringement of the said prohibition of nationality working for the same body, the discrimination. That finding is not upset by Italian Republic has failed to fulfil its obli the fact that the researchers in question have gations under Article 48 (2) of the EEC so far been kept on under contracts for a Treaty and Article 7 (1) and (4) of Regu limited period, since they have not been lation (EEC) No 1612/68 of the Council of employed on terms which correspond in all 15 October 1968.
C — Conclusion
32 On those grounds I propose that the Court should uphold the application and order the Italian Republic to pay the costs.