C-213/90

1. In this case, the Cour de Cassation, Luxembourg, has asked the Court for a 3. The Chambre des Employés Privés is a preliminary ruling on the following 'chambre professionnelle', or occupational question: guild. It was established, along with a number of other such bodies, by a Law of 4 April 1924 ('the Law'). The number of guilds was increased in 1964 and there is now a guild for all occupations except the liberal professions. Any person who 'Are Articles 7, 48, 117, 118, 118a and 189, exercises within the territory of the Grand second paragraph, of the EEC Treaty and Duchy an occupation which falls within the Articles 7 and 8 of Regulation (EEC) jurisdiction of a guild is automatically and N o 1612/68 of the Council, or any one of compulsorily affiliated to that guild. those provisions, to be interpreted as pro- hibiting national legislation of a Member State of the Community from requiring payment of a contribution from a foreign employee who is a national of a Member State and who is compulsorily affiliated to 4. The functions of the Chambre des an occupational guild while refusing him the Employés Privés are outlined in the first right to take part in the election of the paragraph of Article 38 of the Law. persons composing the guild, which right is According to that provision, the task of the reserved to nationals?' Chambre is to promote the establishment of organizations and the provision of services aimed at improving the conditions of private employees, to give its opinion on draft legis- lation and to collect information and 2. That question has arisen in the course of produce statistics. Under the second a dispute between the Chambre des paragraph of Article 38, the Chambre also Employés Privés and the Association de has the right to propose legislation on any Soutien aux Travailleurs Immigrés ('ASTI') matter falling within its jurisdiction. The over the compatibility with Community law Government is obliged to examine any such of certain provisions of Luxembourg legis- proposals and to submit them to the lation concerning the rights and obligations Chambre des Députés (the parliament of the of the Chambre. In order to explain the Grand Duchy). Under the third paragraph nature of the dispute, it is necessary for me of Article 38, the Chambre des Employés to describe briefly the principal features of Privés must be asked for its opinion prior to the contested legislation. the adoption of laws and ministerial and

— protecting the interests of private employees and in particular ensuring the observance of legislation and regulations relating to such employees; 7. Occupational guilds are entitled under Article 3 of the Law to take certain steps to cover their expenses. In its original form, Article 3 authorized the guilds to levy a charge or subscription on their 'électeurs', — supervising the observance of individual that is on all those who had the right to and collective contracts of employment; vote in elections for membership of the guild concerned. However, even in the 1920s the working population of the Grand Duchy included a high proportion of — giving its opinion prior to the adoption foreigners. The effect of Article 3, as orig- by the Chambre des Deputes of laws inally drafted, was therefore to exclude concerning private employees; from the obligation to contribute a large number of those who were affiliated to the guilds.

— presenting observations to the Chambre des Deputes on public expenditure relating to private employees; and

8. One way to overcome this difficulty would have been to extend the right to vote — making proposals on the supervision of to all those who were affiliated to a vocational training for private particular guild, regardless of their employees. nationality. Instead, by a Law of 3 June 1926, the term 'électeurs' in Article 3 was replaced by the term 'ressortissants', or affiliates. The result was to break the link established by the Law between the right to 6. The Chambre des Employés Privés is vote and the obligation to contribute. composed of 20 members and 20 alternate Henceforth, any person who was affiliated members, who are elected for a term of five to an occupational guild could be required years. Members may stand for re-election. to contribute to the expenses of that guild,

regardless of whether he had the right to Community law, but a majority of its vote in membership elections or to stand as members took the view that, as a matter of a candidate in such elections. principle, nationals of other Member States and of third countries should be allowed to participate in the activities of occupational guilds on the same basis as Luxembourg nationals. O n 23 October 1990, the Commission issued a reasoned opinion 9. Under a Grand-Ducal Regulation of 3 pursuant to Article 169, but it has not yet February 1982, the contributions payable by commenced proceedings before the Court. those who are affiliated to the Chambre des Employés Privés are collected from employers, who may deduct the appropriate amount from the salaries paid to their employees. In 1987, ASTI refused to pay contributions amounting to LFR 350 per person in respect of three employees who The issues before the Court were nationals of other Member States. ASTI objected to being required to contribute on its employees' behalf to an organization in which, it claimed, the employees concerned had no right to participate. The sum due was paid instead to 11. It is not entirely clear from the order the Luxembourg Red Cross. The Chambre for reference whether the national court is instituted proceedings against ASTI before seeking guidance only on the compatibility the Tribunal de Paix, which, by judgment of with Community law of provisions such as 13 October 1989, ordered ASTI to pay the those governing the right to vote in sum claimed to the Chambre. ASTI elections for membership of the Chambre appealed against that judgment to the Cour des Employés Privés, or whether it is also de Cassation, which has referred to the requesting a ruling on the legality of Court the question set out above. provisions such as those relating to the right to stand as a candidate in such elections. Most of the argument before the Court has, however, been concerned with the right to vote and it may well turn out to be unnecessary in these proceedings for the 10. In the meantime, the Commission began legality of the provisions governing the right to investigate the compatibility with to stand as a candidate to be resolved. This Community law of the Luxembourg legis- is because the issue which the referring lation concerning occupational guilds. A court is called upon to decide is essentially letter of formal notice under Article 169 of whether Community law prevents the the Treaty was sent to the Luxembourg Chambre from enforcing payment of contri- Government on 27 November 1989. On 20 butions from workers falling within its juris- February 1990, the Luxembourg diction who are nationals of other Member Government asked the Conseil d'État for its States. If this Court decides that provisions advice on the matters raised in the of national law such as those governing the Commission's letter. The opinion of the right to vote at issue in the main action are Conseil d'État was delivered to the incompatible with Community law and that Government on 10 October 1990. The payment of the contributions due under Conseil d'État was divided on the compati- national law cannot be enforced, the bility of the contested legislation with national court will not need to consider, in

13. I will begin by considering the first sentence of Article 8 of Regulation N o 1612/68 ('the regulation'), with which much of the argument in these proceedings has been concerned. Article 8 (as amended by Regulation N o 312/76, Official Journal 1976 L 39, p. 2) provides as follows: 12. It is common ground that the three employees in respect of whom ASTI refused to pay contributions are affiliated to the Chambre des Employés Privés and that they are workers within the meaning of Article 'A worker who is a national of a Member 48 of the Treaty. It is not therefore State and who is employed in the territory necessary in these proceedings to consider of another Member State shall enjoy whether national legislation such as that at equality of treatment as regards membership issue in the main action is compatible with of trade unions and the exercise of rights the Treaty rules on the right of estab- attaching thereto, including the right to vote lishment and the freedom to provide and to be eligible for the administration or services, even though the affiliates of some management posts of a trade union; he may occupational guilds may fall within the be excluded from taking part in the scope of those provisions rather than that of management of bodies governed by public the rules on the free movement of workers. law and from holding an office governed by Of the provisions of Community law public law. Furthermore, he shall have the mentioned in the question referred to the right of eligibility for workers' represen- Court, only Article 48 of the Treaty and tative bodies in the undertaking. The Articles 7 and 8 of Regulation N o 1612/68 provisions of this Article shall not affect (Official Journal, English Special Edition laws or regulations in certain Member 1968 (II), p. 475) are therefore relevant. It States which grant more extensive rights to is not necessary to consider separately the workers coming from the other Member prohibition against discrimination on States.' grounds of nationality laid down in Article 7 of the Treaty since, in the context of the free movement of workers, effect is given to that prohibition by Article 48 of the Treaty: see Case 36/74 Walrave v Union Cycliste 14. This provision may be regarded as a lex Internationale [1974] ECR 1405, paragraph specialis which gives effect, within its field of 6. The Court's case-law makes it clear that application, to the principle of non-discrimi- Article 7 'applies independently only to situ- nation laid down in Articles 7 and 48 of the ations governed by Community law in Treaty. It will be apparent, however, that it regard to which the Treaty lays down no is only the first sentence of Article 8 of the specific prohibition of discrimination': see regulation which is relevant in these Case 305/87 Commission v Greece [1989] proceedings. The essential question is ECR 1461, paragraph 13; Case C-10/90 whether a body such as the Chambre des Masgio v Bundesknappscba.fi, judgment of 7 Employés Privés constitutes a trade union March 1991, paragraph 12. within the meaning of the first part of that

18. As far as the Chambre des Employés Privés is concerned, the view expressed in 16. I do not, however, consider any of version A of the opinion of the Conseil those factors conclusive. The concept of a d'État is supported by the terms of Article trade union for the purposes of Article 8 38. The first paragraph of that article states must clearly be given a Community meaning essentially that the task of that Chambre is and cannot be limited by the national laws to protect the interests of workers falling of any one of the Member States. I note within its jurisdiction. It is true that the that the French text of Article 8 appears to Chambre is given a formal role in the legis- be more widely framed than the English lative process, but it is difficult to resist the text, although this is not true of some of the conclusion that the fulfilment of that role is other language versions. None the less, merely one of the ways in which the since the first part of the first sentence of Chambre is empowered to fulfil its primary Article 8 is intended to promote the funda- function, which is to improve the conditions mental principle of freedom of movement of the workers who are affiliated to it. for workers, that provision should not in my view be confined to trade unions in any strict sense.

19. I therefore take the view that, although a body such as the Chambre is not a trade union in the strict sense, it must none the 17. It is apparent from Article 38 of the less be considered, in the light of its Law that several of the functions attributed objectives, an analogous organization and to the Chambre des Employés Privés would that accordingly it falls within the scope of in other Member States be carried out by the first part of the first sentence of Article trade unions. The Luxembourg Government 8 of the regulation.

20. The Luxembourg Government and the 22. The derogation contained in the first Chambre argue that, even if the Chambre sentence of Article 8 of the regulation may does constitute a trade union for the be regarded as a development of the purposes of Article 8, the contested legis- principle underlying Article 48(4) of the lation is nonetheless justified unäer the Treaty, according to which 'The provisions second part of the first sentence of that of this Article shall not apply to employment

Moreover, in Case be applicable to the right to stand as a 149/79 Commission v Belgium [1980] ECR candidate should that issue need to be 3881, paragraph 10, the Court said that addressed). The essential question, as far as Article 48(4) covered 'posts which involve the right to vote is concerned, is accordingly direct or indirect participation in the whether the electors of a body such as an exercise of powers conferred by public law occupational guild may be said to take part and duties designed to safeguard the general in the management of a body governed by interests of the State or of other public public law. authorities'. The Court explained that 'Such posts in fact presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality'. In view of the parallel between Article 48(4) of the Treaty and the derogation contained

Moreover, the relevant part of Article 8 of the regu- lation does not in my view constitute a general limitation on all the rights granted to migrant workers by the regulation which 23. The Luxembourg Government has, in go beyond Article 48 of the Treaty. The seeking to justify the exclusion of way in which Article 8 is drafted and the non-nationals from the right to vote, place of the derogation within the article as emphasized the right of the Chambre des a whole indicate that migrant workers may Employés Privés to make legislative be excluded from the activities mentioned proposals on matters falling within its juris- only where the right to take part in them diction and the Government's obligation to would otherwise arise as an incident of consult it prior to the adoption of certain membership of a trade union or of some legislation.

I - 3522

ASTI

lative process does not empower it to bind are in my view ousted. If, however, I had either the Government or the legislature. reached the conclusion that Article 8 was Moreover, as the Commission points out, its not applicable, then I would have taken the function is not to intervene in the general view that the right to vote in elections for interests of the nation as a whole, but in the membership of a body such as the Chambre specific interests of the occupational group des Employés Privés constituted a social for which it is responsible. I do not advantage within the meaning of Article therefore consider that the functions of the 7(2). Chambre can be said to 'presume . . . the existence of a special relationship of allegiance to the State' (see Commission v Belgium, already cited) such as to justify the exclusion of nationals of other Member States from the right to vote in membership 25. The Court stated in Case 32/75 Cristini elections. N o r are occupational guilds v SNCF [1975] ECR 1085, paragraph 12, 'entrusted . . . with responsibility for safe- that 'the reference to "social advantages" in guarding the general interests of the State' Article 7(2) cannot be interpreted restric- (see Case 149/79 Commission v Belgium tively'. It followed, the Court said, that, 'in (No 2) [1982] ECR 1845, paragraph 7). In view of the equality of treatment which the any event, the influence enjoyed by electors provision seeks to achieve, the substantive is in my view too remote for it to be said area of application must be delineated so as that they take part in the management of to include all social and tax advantages, the guild concerned. I do not therefore whether or not attached to the contract of consider that the derogation contained in employment... ' (ibid, paragraph 13). the first sentence of Article 8 of the regu- Similarly, in Case 207/78 Ministère public v lation is applicable in this case. It follows Even [1979] ECR 2019, paragraph 22, the that legislation such as that in issue in the Court explained that: main action is incompatible with Article 8.

enjoyed by nationals of the host State but The effect of the incompatibility denied to migrant workers (see e.g. Cristini, above; Case 65/81 Reina v Landeskreditbank Baden-Württemberg [1982] ECR 33; Case 28. It remains to be examined whether the 137/84 Ministère public v Mutsch [1985] incompatibility with Community law of ECR 2681). In Case 59/85 Netherlands v withholding from workers who are nationals Reed [1986] ECR 1283, Article 7(2) was of other Member States the right to vote in held to extend to a worker's right to apply elections for membership of a body such as for permission for his unmarried companion the Chambre des Employés Privés means to reside with him, where that companion is that contributions due under national law to not a national of the host State. The Court such a body cannot be recovered. That noted that extending that right to the result must in my view be regarded as a migrant worker 'can assist his integration in corollary of the direct effect of Regulation the host State and thus contribute to the N o 1612/68, with which I consider legis- achievement of freedom of movement for lation such as that at issue in the main workers' (paragraph 28). action to be incompatible (on the direct effect of the regulation, see Case 167/73 Commission v French Republic [1974] ECR 359; Case 36/75 Rutili v Minister for the Interior [1975] ECR 1219; Case 118/75 Watson and Belmann [1976] ECR 1185).

I - 3524

ASTI

Conclusion

30. In the light of the clear view I have reached on the incompatibility with Regu- lation No. 1612/68 of national legislation excluding migrant workers from the right to vote in elections for membership of a body such as the Chambre des Employés Privés, and on the consequences of that incompatibility in the circum- stances of the main action, it is not necessary for me to consider the effect of the prohibition on discrimination laid down in Article 48(2) of the Treaty or the legality of a rule excluding migrant workers from the right to stand as candidates in such elections.

31. I am therefore of the opinion that the question referred by the Cour de Cassation should be answered as follows:

(1) It is incompatible with Article 8 of Regulation No. 1612/68 for the legislation of a Member State to exclude workers who are nationals of other Member States and who are affiliated to an occupational guild such as the Chambre des Employés Privés from the right to vote in elections for membership of the guild on the ground of their nationality.