C-33/88

ALLUÉ AND ANOTHER v UNIVERSITÀ DEGLI STUDI DI VENEZIA

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 14 February 1989 *

Mr President, of intellectual services, that is to say for Members of the Court, work as self-employed persons, and not contracts of employment. According to the rules applicable to such contracts, it is up to the person concerned to deduct from his remuneration the amounts necessary for the subsequent payment of social security A — The facts contributions; by contrast, in the case of employed persons it is the employer who is responsible for paying a substantial part of such contributions.

1. In the proceedings for a preliminary ruling on which I am giving my opinion today, the national court has submitted to the Court a number of questions of 4. This administrative practice has, Community law which it considers however, since been condemned by the necessary to enable it to assess the Italian courts, which regarded the contracts employment relationship of foreign- in question as contracts of employment and language assistants in Italian universities. held that social security cover should be provided.

9. It must be stated, however, in this connection that the concept of 'worker' is not defined by reference to the national B — Assessment of the preliminary questions laws of the Member States but has a Community meaning. ' As this concept defines the scope of freedom of movement, one of the fundamental principles of the Community, it must according to the Whether foreign-language assistants are judgments of the Court be interpreted workers broadly and in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment 7. Before considering the first question relationship is that for a certain period of asked by the national court, namely whether time a person performs services for and the exception provided for the public service under the direction of another person, in 2 in Article 48(4) precludes the applicability of return for which he receives remuneration. Article 48(2) of the EEC Treaty, it must first be considered whether foreign- language assistants are workers within the meaning of Article 48 of the EEC Treaty. There might be some doubt as to whether they are in view of the national practice of concluding contracts for 'independent work' 10. As the Court has been informed that with such persons and making them foreign-language assistants perform their responsible for obtaining social security teaching duties under the supervision and in cover. accordance with the instructions of the professors, I am entitled to assume for purposes of my opinion that foreign- language assistants are workers within the meaning of the EEC Treaty. However, it is 8. In the proceedings before the Court it for the national court to examine and was pointed out that the competent national decide this question within the scope of its courts have not accepted the form of jurisdiction. contract recommended by the Italian Ministry of Public Education and have 1 — Judgment of 23 March 1982 in Case 53/81 D. M. Levin v Staatssecretaris van Justitie [1982] ECR 1035, in particular recognized foreign-language assistants as p. 1049. workers. The national court which referred 2 — See judgment of 3 July 1986 in Case 66/85 Lawrie-Blum v Land of Baden-Württemberg [1986] ECR 2139, in particular the case to the Court seems also to be p. 2144.

12. I must accept that view. The Court has Consequently, I need only examine the consistently held 3that Article48(4) of the question whether there is discrimination on EEC Treaty excludes from the ambit of grounds of nationality. paragraphs (1) to (3) of Article 48 those posts which involve direct or indirect participation in the exercise of powers conferred by public law and in the discharge of functions whose purpose is to safeguard Whether there is discrimination within the the general interests of the State or of public meaning of Article 48(2) of the EEC Treaty authorities and which therefore require a special relationship of allegiance to the State on the part of persons occupying them and reciprocity of rights and duties which form the foundation of the bond of nationality. 14. In examining this question, it should The posts excluded from paragraphs (1) to first be stated that the national rules at issue (3) of Article 48 are therefore confined to in this case are not expressly based on the those which, having regard to the tasks and criterion of nationality. On the contrary, the responsibilities involved, are apt to display decisive factor is the mother tongue of the the characteristics of the specific activities of foreign-language assistants, so that even the public service in the spheres described Italian nationals may be affected by the above. 4 rules.

13. All these characteristics do not seem to 15. However, the existence of discrimi­ be displayed in the present case. In nation cannot be ruled out in principle, since the principle of equal treatment in the 3 — See judgments of 17 December 1980 and 26 May 1982 in Case 149/79 Commission v Belgium [1980] ECR 3881, in Treaty prohibits not only oven discrimi- particular p. 3900, and (1982] ECR 1845; and judgments of 3 July 1986 in Case 66/85 loc at. and of 16 June 1987 in Case 225/85 Commission v Italian Republic [1987] ECR 5 — See Report for the Hearing, part III, point 3.1, also, obser- 2625 vations of the agent of the Italian Republic at the hearing 4 — Judgment of 3 July 1986, loc. cit., p. 2147. on 14 December 1988.

19. Apart from 'lecturers on contracts', who are engaged on the basis of a one-year contract for services, which may be renewed no more than twice, the teaching and 17. As this means that 75 % at least of the research staff (lecturers, assistant lecturers assistants of foreign mother tongue — if not and university researchers) have permanent more — are nationals of other States and posts which are filled by competition. In therefore also nationals of other Member addition — as was stated by the represen­ States of the European Communities tative of the Italian Government at the (hereinafter referred to as 'Community hearing — contracts of employment are nationals'), it may be concluded that the concluded according to the general rule of national rule at issue here results in Italian labour law for an indeterminate Community nationals being treated period. differently. There are three different aspects of such difference in treatment, as described by the national court: the conclusion of a contract limited to one academic year, the limit imposed on the duration of the entire employment relationship and, in so far as this is still the case, the refusal to pay the 20. The special rules applicable to foreign- employer's social security contributions. language assistants are justified by the Italian Government first on the ground that it is easier to obtain such a post because there is no competitive recruitment procedure. Moreover, it states that the universities have to be in a position to adjust the number of foreign-language assistants 18. It must now be considered whether this whom they employ according to the difference in treatment can be justified; it is changing needs of the students and to the varying funds available to them in the 6 — See judgment of 15 October 1969 in Case 15/69 Württembergische Milchverwertung-Südmilch AG v Ugliola annual budget. Furthermore, the Italian [1969] ECR 363, in particular p. 369; judgment of 12 State is concerned to ensure that the February 1974 in Case 172/73 Sotgiu vDeutsche Bundespost [1974] ECR 153, in particular p. 164. foreign-language assistants employed have

21. Since the plaintiffs in the main proceedings have not asked to be treated in the same way as any category of other 24. As has been stated during the procedure university staff in Italy, or even to be given before the Court, without being contested, the status of civil servants, but are only general Italian labour law enables an contesting the restriction on the duration of employer to adjust his staff to his needs their contracts, I do not consider it even in the framework of contracts of necessary to compare their legal status with employment for an indeterminate period; he that of other university staff or to consider could therefore dismiss foreign-language the questions raised by the representative of assistants employed for an indeterminate the Italian Government as regards the period if they were no longer needed. A Italian law relating to civil servants. It is fluctuating need for foreign-language sufficient to refer to the general rule of assistants therefore does not preclude the labour law in Italy, whereby employment conclusion of a contract of employment for contracts may be concluded for an indeter­ an indeterminate period. minate period even where there is no competitive recruitment procedure.

25. The same applies to the argument that the paucity of funds granted annually does not permit the conclusion of contracts for an indeterminate period. It has not been 22. Consequently, it is unnecessary to shown that the conclusion of contracts for examine the different recruitment an indeterminate period — which could be conditions, and in particular the competitive terminated — should give rise to higher recruitment procedure for university staff; costs than contracts for a determinate moreover, there is no apparent reason why period, or why that should be the case. the Italian authorities could not have a competitive recruitment procedure for foreign-language assistants as well.

The non-payment of the employer's social security contributions

28. It therefore follows that the total ban on renewing contracts at the end of a five-year period does not seem justified. 31. It has already been established that Furthermore, there is an Italian adminis­ assistants of foreign mother tongue are trative practice whereby the five-year workers within the meaning of Article 48 of restriction on the employment of foreign- the EEC Treaty and must therefore, under language assistants applies in each case only Article 3 of Regulation No 1408/71, 7be to a single university. It is therefore treated in the same way as nationals of the permissible for the persons in question to be State in whose territory they reside. A re-employed at the end of the five-year difference in treatment would be contrary to period, albeit after their ability has been that provision. reassessed. It therefore seems that the interest in ensuring that the separation from 7 — Regulation (EEC) No 1408/71 on the application of social the country of origin should last no longer security schemes to employed persons, to self-employed persons and members of their families moving within the than five years does not have the Community, in the version appearing in Annex I to Regu­ importance which might be attributed to it. lation (EEC) No 2001/83 of 2 July 1983, OJ 1983, L 230, p. 6.

ALLUÉ AND ANOTHER v UNIVERSITÀ DEGLI STUDI DI VENEZIA

C — Conclusion

32. Consequently, I propose that the Court should answer the questions submitted to it by the Pretura unificata, Venice, as follows: