C-4/91
ECLI:EU:C:1991:404
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O P I N I O N OF MR LENZ — CASE C-4/91
O P I N I O N OF M R ADVOCATE GENERAL LENZ delivered on 22 O c t o b e r 1991 *
Mr President, (1) — If he does not have French Members of the Court, nationality.'
A — Introduction 3. Access to posts involving duties intended to be performed by civil servants is thus inevitably denied to the nationals of all other States, including those of the Member States of the European Communities. 1. The reference for a preliminary ruling submitted by the Tribunal Administratif (Administrative Court), Paris, concerns the classification in Community law of the legal position of qualified secondary school 4. The plaintiff in the main proceedings is a teachers in French public educational estab- German national who completed her studies lishments. In so far as those teachers are to in France. Her application for admission to be regarded as workers within the meaning an external competition leading to a of Article 48 of the EEC Treaty, the Certificate of Aptitude as a Secondary question posed by the abovementioned School Teacher {Certificat d'Aptitude au court is relevant, since it seeks to ascertain Professorat de l'Enseignement Secondaire) in whether the employment of such a teacher German was refused on the ground of her constitutes 'employment in the public nationality. When she brought an action service' within the meaning of Article 48(4) challenging the decision to reject her of the EEC Treaty and thus escapes the application, a request for a preliminary prohibition on discrimination in Article ruling was referred to this Court. 48(2).
5. For a detailed account of the facts of the case, the relevant legal provisions and the 2. Article 5 of French Law N o 83/634 of 13 submissions and arguments of the parties, I July 1983 concerning the rights and duties refer to the Report for the Hearing. of employees in the public sector ' provides in its original version:
B — Analysis 'No-one may be appointed to the civil service:
* Original language: German. 6. Where a post is classified as being in the 1 — General Law relating to civil servants, Journal Officiel de la public service, that has the consequence, République Française, 14 July 1983, p. 2174. given the rules of law applicable to the
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public service in the Member States, that particular, of paragraph (4), which is access to that post is restricted as far as the significant for the answer to the question nationals of other Member States are referred, the Court can, meanwhile, rely on concerned. The Court has therefore already established case-law. All the parties to the repeatedly held that access to certain posts proceedings, the plaintiff in the main may not be limited by reason of the fact proceedings, the Commission and the that in a given Member State persons French Government, are therefore of the appointed to such posts have the status of unanimous opinion that the question civil servants. 2 referred must be answered in the negative, that is to say, employment as a secondary school teacher is not to be regarded as employment in the public service within the meaning of Article 48(4) of the EEC Treaty.
7. While these proceedings were pending, a law was enacted in France which, for certain occupational groups, provides an exception — which, no doubt, must also apply to secondary school teachers — to the nationality requirements in the case of the nationals of other Member States. 3 The French Constitutional Council dismissed an 10. When the criteria developed in the action brought to challenge that law by 73 case-law are applied, there is no doubt that members of the Senate. 4 a foreign-language secondary school teacher is a 'worker'. The definition of a 'worker', which depends on objective criteria, applies where 'for a certain period of time a person performs services for and under the direction of another person in return for 8. However, it is still necessary, in order to which he receives remuneration'. 5 A apply the law, to adopt implementing secondary school teacher performs services measures. Individuals are therefore still in the form of tuition, in return for which unable to rely directly on that law. The he receives remuneration. The definition is plaintiff in the main proceedings, the French therefore wholly independent of the legal Government and the Commission assume, nature of the employment relationship. 6 therefore, that from the point of view of both law and fact an interest remains in the decision to be taken in the action.
9. For the application and interpretation of 11. Further examination is therefore limited Article 48 of the EEC Treaty and, in to whether the exception laid down in Article 48(4), according to which the guar- 2 — Ste judgments in Case 307/84 Commission v France [1986] ECR 1725, paragraph 11; Case 66/85 Lawrie-Blum v Land antees of freedom of movement set out in Baden-Württemberg [1986] ECR 2121, paragraph 20; and Article 48 of the EEC Treaty are not to Case 225/85 Commission v Italy [1987] ECR 2625, paragraph 8. apply to employment in the public service, is 3 _ Law N o 91/715 of 26 July 1991, Journal Officiel de la République Française, lois el décrets, 27 July 1991, p. 9952. 5 — See Case 66/85 Lawrie-Blum, cited above, paragraph 17. 4 — Journal Officiel de ¡a République Française, 25 July 1991, p. 6 — Idem, paragraph 22. 9854.
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O P I N I O N OF MR LENZ—CASE C-4/91
applicable, first in the light of the formal application throughout the Community." aspects of appointment in the civil service That is because and secondly on material grounds due to the nature of the job itself.
'the effect of extending the exception contained in Article 48(4) to posts which, while coming under the State or other organizations governed by public law, still 12. The answer to the question has already do not involve any association with tasks been outlined in the case-law. Article 48(4) belonging to the public service properly so of the EEC Treaty, as a derogation from called, would be to remove a considerable the 'basic principle of freedom of number of posts from the ambit of the prin- movement', is to be construed in such a way ciples set out in the Treaty and to create as to limit its scope to what is strictly inequalities between Member States'2 necessary for safeguarding the interests according to the different ways in which the protected by that provision. 7 In its judgment State and certain sectors of economic life in Case 149/79» the Court held that Article are organized.' u 48(4) of the EEC Treaty
14. As I have already mentioned, the Court has declared in a number of judgments that access to certain posts may not be limited by reason of the fact that persons appointed to 'removes from the ambit of Article 48(1) to such posts have the status of civil servants. 14 (3) a series of posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests 'To make the application of Article 48(4) of the State or of other public authorities. dependent on the legal nature of the Such posts in fact presume on the part of relationship between the employee and the those occupying them the existence of a administration would enable the Member special relationship of allegiance to the State State to determine at will the posts covered and reciprocity of rights and duties which by the exception laid down by that provision.' ' 5 form the foundation of the bond of nationality.' 9
15. For a Member State to make the posts in question available to applicants who are nationals of other Member States, on other hand, in the form of an employment 13. The scope of Article 48(4) of the EEC relationship parallel to, and in a legal form Treaty must be determined on the basis of different from, the possibilities of access as the aims pursued by that article. I 0 civil servants given to its own nationals, Furthermore, the concept of public service must be given a uniform interpretation and 11 — Ibid-, paragraph 12. 12 — The emphasis is mine. 7 — Case 66/85, cited above, paragraph 26. 13 — Ibid., paragraph 11. 8 — Case 149/79 Commission v Belgium [1980] ECR 3881. 14 — See Case 307/84, cited above, paragraph 11; Case 66/85, 9 — Paragraph 10. cited above, paragraph 20; and Case 225/85, cited above, paragraph 8. 10 — Ibid., paragraph 11. 15 — Case 225/85, cited above, paragraph 8.
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provides a solution only if all the posts 19. It had already been stated in the offered are open to the nationals of other Opinion in that case that not all activities Member States and if those nationals, once connected in some way with the exercise of employed, are subject to a rule which powers conferred by public law fell within provides the same advantages and safe- the scope of the exception in Article 48(4) guards as those deriving from the status of of the EEC Treaty. In the case of members of the established staff.16 education, the distinction between occu- pations involving the exercise of powers conferred by public law for safeguarding the general interests of the State and those not to be regarded as employment in the public service within that narrowly definition could 16. The fact that certain fields of activity be drawn as follows: are reserved for the civil service, however, is in itself of no significance whatsoever with regard to the application of Article 48(4) of the EEC Treaty.
20. The basic pedagogical direction of teaching, its general structure and the estab- 17. Consequently, it is always necessary to lishment of the principles for the awarding of marks and certificates might well be consider established within the sphere of the general interests of the State. The situation is otherwise for the activity of a teacher in daily school life, which is centred on giving lessons, while the maintenance of discipline 'whether or not the posts in question are and the award of individual marks typical of the specific activities of the public constitute, at most, measures ancillary t o service in so far as the exercise of powers teaching which assume only secondary conferred by public law and responsibility importance compared with the actual ped- for safeguarding the general interests of the agogical activity. They cannot therefore State are vested in it.' ' 7 determine the nature of teaching, even if they are regarded in national law as the exercise of powers conferred by public law. 19
18. As far as the application of Article 48(4) in the case of teachers is concerned, it should be pointed out that that question also is not entirely new for the Court. The Lawrie-Blum case 18 concerned the legal 21. The Court followed those assessments position for the purposes of Community law of the occupation of teacher in the school of a Studienreferendar (trainee teacher) in system developed in the Opinion in Case Germany. 66/85. The Court concluded that the post of a Studienreferendar was not one of those 16 — Sec Case 307/84, cited above, paragraph 16. 17 _ See Case 149/79, cited above, paragraph 12; see also Case 307/84, cited above, paragraph 12. 19 — Sec Opinion in Case 66/85 Uwrie-Blum [1986] ECR 18 — Case 66/85, cited above. 2121, 2135.
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OPINION OF MR LENZ — CASE C-4/91
which, having regard to the tasks and employment in the public service within the responsibilities involved, displayed the meaning of Article 48(4) was involved, that characteristics of the specific activities of the provision could not justify discrimination public service within the meaning of the with regard to remuneration or other definition 20 established by the Court. 21 conditions of employment against workers from other Member States once they had been admitted to the public service. 24
22. In a later judgment 2 2 the issue concerned the legal position in Community law of foreign-language assistants in Italian 24. Both Lawrie-Blum1* and Alluélb universities. Their employment contracts, concerned the teaching activities of nationals unlike those of other university employees, of other Member States in their respective were for a fixed term. Referring to the mother tongues. From that point of view the judgment in the Lawrie-Blum case, the facts in those judgments correspond to the Court declared, in its judgment in Case facts in the case to be decided by the Court. 33/88, that
25. In application of the principles already developed by the Court and set out above, 'a teaching post does not involve direct or the reply to the question referred should be indirect participation in the exercise of that employment as a secondary school powers conferred by public law and in the teacher in French public educational estab- discharge of functions whose purpose is to lishments does not constitute employment in safeguard the general interests of the State the public service within the meaning of or of other public authorities and which Anicie 48(4) of the EEC Treaty. 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.' 23 Costs
23. With regard to the actual employment conditions, the Court held, on the basis of 26. The decision regarding the costs of its earlier judgments, that even if these proceedings is a matter for the national court. The costs incurred by the 20 — See Case 149/79, cited above, paragraph 12 and Case French Government and the Commission 66/85, cited above, paragraph 27; repeated in paragraph are not recoverable. 16 of this Opinion. 21 — Case 66/85, cited above, paragraphs 27 and 28. 22 — Case 33/88 Alius and Another v Univenita detli studi di 24 — Case 33/88, cited above, paragraph 8. Venezia [ 1989] ECR 1591. 25 — Case 66/85, cited above. 23 — Case 33/88, cited above, paragraph 7. 26 — Case 33/88, cited above.
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Conclusions
27. I suggest that the question referred for a preliminary ruling should be answered as follows:
'Employment as a secondary school teacher in French public educational estab- lishments does not constitute employment in the public service within the meaning of Article 48(4) of the EEC Treaty.'
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