C-272/92

My Lords, 2. The plaintiff in the main proceedings is an Italian national who, since 1 November 1986, has been employed in Germany as a foreign-language assistant at the University of Passau. The plaintiff initially entered into 1. In this case the Court is asked once more a contract of employment for one year to consider the position under Community (1 November 1986 to 31 October 1987). On law of persons employed as foreign-language 22 September 1987 she entered into a second assistants in another Member State. The case contract, under which her employment con- is a request for a preliminary ruling by the tinued for a further four-year period Arbeitsgericht Passau, which has referred the (1 November 1987 to 31 July 1991). On following questions: 10 July 1991 the university refused her request for a further renewal of her contract on the ground that, under the applicable fed- eral and Bavarian legislation, employment as '1. Where legislation of a Member State a foreign-language assistant was limited to a lays down special rules on the length of maximum period of five years. contracts in relation to the activity of foreign-language assistants, the length of such contracts being limited (Para- graph 57(b)(3) and (c)(2) of the Hochs- chulrahmengesetz ("the HRG") in con- junction with Article 27(3) of the Bayerisches Hochschullehrergesetz), 3. The plaintiff argues that such a refusal to but there is no such restriction on the extend her contract of employment beyond a length of contract for other teaching maximum period of five years is incompati- staff performing special duties (Para- ble with Article 48(2) of the Treaty. The graph 56 of the HRG), is such legisla- plaintiff refers to the judgment of the Court tion compatible with Article 48(2) of in Case 33/88 Aline and Another v Univer- the EEC Treaty? sità degli studi di Venezia [1989] ECR 1591 ('Aline I'), and submits that the princi- ples established in that judgment apply also to the circumstances of the present case. It is to be noted that the legislation at issue in the 2. Is such legislation so compatible at least Aline I case has given rise to further refer- if such a restriction is based on special ences by Italian courts: see Joined Cases objective grounds, in particular that of C-259/91, C-331/91 and C-332/91 Aline and ensuring that the instruction is topical?' Others, in which the Opinion of Advocate General Lenz was delivered on 20 January 1993. In Aline I the Court held that Article * Original language· English. 48(2) of the Treaty precludes the application

4. In what follows I shall first briefly resume the provisions of German law at issue in the 6. Provisions on the conclusion of fixed- main proceedings, and then discuss how the term contracts by institutions of higher edu- principles established in Allué I are to be cation and research are contained in the applied to such legislation. It will be recalled Hochschulrahmengesetz of 26 January that Article 48(2) of the Treaty requires the 1976 (Framework law on universities, hereaf- abolition of any discrimination based on ter 'the HRG'), as amended by Article 1 of nationality between workers of Member the Gesetz über befristete Arbeitsverträge States as regards employment, remuneration mit wissenschaftlichem Personal an Hochs- and other conditions of work and employ- chulen und Forschungseinrichtungen of ment. It may also be noted that Article 7(1) 14 June 1985 (Law on fixed-term contracts of Council Regulation (EEC) No 1612/68 of of employment with academic staff at univer- 15 October 1968 on freedom of movement sities and research institutes; BGBl. 1985 I, for workers within the Community (OJ, p. 1065). English Special Edition 1968 (II), p. 475) provides that:

7. That amendment inserted into the H R G a 'A worker who is a national of a Member series of new Paragraphs 57a to 57f. Para- State may not, in the territory of another graph 57a defines the categories of worker to Member State, be treated differently from which those new provisions apply, including national workers by reason of his nationality in particular the 'scientific and artistic assis- in respect of any conditions of employment tants' referred to in Paragraph 53 of the and work, in particular as regards remunera- HRG, the 'personnel with medical tasks' tion, dismissal, and should he become unem- referred to in Paragraph 54, and the 'teaching ployed, reinstatement or re-employment'. staff for special tasks' referred to in Para- graph 56.

9. Paragraph 57b(3) provides that an objec- tive ground exists for the engagement on a fixed-term contract of an instructor who is the native speaker of a foreign language 12. As I have already mentioned, in Aliné I where, in particular, the instructor is mainly the Court held that national provisions engaged as a foreign-language assistant imposing a time-limit on the employment of ('Lektor'). foreign-language assistants are incompatible with Community law where, in principle, no such limit is imposed in respect of other workers: see paragraph 3 above. However, in the view of the German Government the national provisions at issue in the present case can be distinguished from the provisions which were at issue in Aliné I. In the case of 10. Paragraph 57c(2) imposes a maximum the latter provisions, it appears that the period of five years for any fixed-term con- employment of workers other than foreign- tract limited on a ground mentioned in language assistants was not subject to any Paragraph 57b(2), points 1 to 4, or in Para- time-limit. As Advocate General Lenz stated graph 57b(3). Where an employee is at paragraph 19 of his Opinion in Aliné I: employed on more than one such contract with a single institution, the total period of the contracts may not exceed five years. In the case of a contract limited on the ground mentioned in Paragraph 57b(2), point 5, the maximum period of the contract is two years. Finally, Paragraph 57c(3) to (6) con- 'Apart from "lecturers on contracts", who tain various exceptions to those requirements are engaged on the basis of a one-year con- which arc not relevant in the circumstances tract for services, which may be renewed no of the present case. more than twice, the teaching and research

14. In the Commission's view, legislation of Accordingly, in Allué I there was no doubt the kind presently at issue is incompatible that foreign-language assistants were treated with Article 48(2) of the Treaty for essen- differently from other workers as regards the tially the same reasons as applied in the case time-limits imposed on their contracts of of the legislation at issue in Allué I. employment, and in particular that they were Although the German legislation, unlike the treated differently from other university Italian legislation, provides for the engage- staff. Since it was clear, equally, that that dif- ment on fixed-term contracts of other uni- ference in treatment affected a substantially versity staff as well as foreign-language assis- greater proportion of nationals from other tants, the fact remains that the circumstances Member States than Italian nationals, the in which such an engagement is permitted only question at issue in Allué I was whether may differ. As the Commission points out, in the difference in treatment could be objec- the case of foreign-language assistants tively justified. In contrast, the provisions Paragraph 57b(3) of the H R G provides that which are at issue in the present case provide employment on a fixed-term contract is for the possibility of fixed-term contracts automatically justified. In contrast, in the also in the case of university staff other than case of other university staff an objective foreign-language assistants. In particular, ground must be made out in the circum- they provide for such a possibility in the case stances of each individual case. Moreover in of other 'teaching staff for special tasks' (see Bavaria a mandatory limit of five years on Paragraphs 56 and 57a of the HRG), the the engagement of foreign-language assis- workers to whom foreign-language assistants tants is laid down, and it appears that such a are, it appears, most closely comparable. mandatory limit does not apply to other cat- egories of university staff.

'. . . the danger of their losing contact with 17. It is clear that, even in the absence of the their mother tongue is slight, in the light of provisions of Paragraph 57b(3) of the HRG, the increase in cultural exchanges and a German university would be able to improved communications, and in addition it employ language assistants on fixed-term is open to the universities in any event to contracts. The university would however be check the level of assistants' knowledge.' required to have an objective reason for doing so other than the mere circumstance that the person concerned is employed as a foreign-language assistant. Even if foreign-

Foreign- laid down by that provision in respect of any language assistants are thus less favourably one university. treated than other university employees who may be offered short-term contracts. In the case of the special rules applicable in Bavaria the difference in treatment is even more evi- dent, since as we have seen under Bavarian law there is a mandatory limit of five years 16. It seems to me to be incontestable that on the employment of foreign-language the Court's reasoning in Aline I applies assistants, but not it appears on the employ- equally in the circumstances of the present ment of other university staff.

As wc teaching staff assigned to other special tasks have seen, the reason mentioned in the sec- may be employed on fixed-term contracts ond question referred by the Arbeitsgericht, only for a reason based on their particular namely the need for an up-to-date knowl- circumstances. edge of the language, was rejected by the

Court in Allué I: see paragraph 15 above. It 20. However, it does not seem to me that a seems to me that the Court's reasoning on provision such as Paragraph 57b(3) of the that point must apply also to the mandatory H R G can be justified on such a basis. As we time-limit of five years imposed by the have seen, appointment on a fixed-term con- Bavarian legislation. Furthermore it is not tract is already permitted under German law contested that, as in the Allué I case, the less where there are objective grounds for such favourable treatment afforded by the law of an appointment. In so far as a university has the Member State in question is particularly an objective ground for employing a lan- likely to affect nationals from other Member guage assistant on a fixed-term contract, States. Such treatment amounts therefore to therefore, it is entitled to do, although any indirect discrimination contrary to Article grounds given are presumably subject to 48(2) of the Treaty. scrutiny by the national court. The unlimited discretion to make such appointments given by Paragraph 57b(3) is accordingly unneces- sary. Its only effect, in practice, is to remove any possibility of judicial review under national law of the decision not to offer a contract of indefinite duration. Even in the absence of the mandatory time-limit imposed by the Bavarian legislation, there- fore, it seems to me that provisions of the kind in question are incompatible with the prohibition of discrimination laid down by 19. Accordingly, there is no doubt in my Article 48(2) of the Treaty. opinion that legislation of the kind applica- ble in the present case, which includes a mandatory time-limit of five years, is incom- patible with the principle of equal treatment laid down by the Treaty. In the absence of a mandatory time-limit such as that imposed by Bavarian law, the question might arise whether a difference in treatment of the kind which results from the H R G itself could be justified on the ground of the need for an up-to-date knowledge of the language con- 21. It must none the less be emphasized that cerned. It will be recalled that the employment of foreign-language assis- Paragraph 57b(3) of the H R G permits, but tants on fixed-term contracts in individual does not require, a university to employ cases need not in itself be incompatible with foreign-language assistants on a fixed-term Community law where under the national contract. It might be argued that such a pro- law in question other university staff can also vision is necessary in order to give the uni- be engaged on such contracts. So far as Ger- versity a sufficient discretion to conclude man law is concerned, it must be recalled fixed-term contracts in appropriate cases. that for staff falling within Paragraphs 53 and Thus although it is clear that such a ground 54 of the H R G the fact of being engaged for cannot be used to justify a mandatory time- the first time is a sufficient ground for a limit imposed by national law, a university fixed-term contract. Community law would may well wish to have the discretion to not preclude the same provision being appoint some of its language assistants for applied to foreign-language assistants to the terms of limited duration. extent that they are comparable to staff in

Conclusion

22. I am accordingly of the opinion that the questions referred by the Arbeitsger- icht Passau should be answered as follows:

Article 48(2) of the E E C Treaty precludes the application of a provision of national law which imposes a limit on the duration of an employment relationship between universities and foreign-language assistants, or which has the effect that the employ- ment of such assistants on fixed-term contracts is automatically permitted, where in the case of other comparable workers employment for a fixed term is permitted under national law only if there is an objective ground for limiting the duration of the contract of employment.

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