C-419/92

1. In 1984 the University of Cagliari orga­ nized an open competition for the recruit­ ment of canteen assistants. One of the unsuc­ 2. On 6 May 1986 the list of successful can­ cessful candidates was Ingetraut Scholz, who didates was published. On 4 July 1986 Mrs was born a German citizen but acquired Ital­ Scholz commenced proceedings against the ian nationality by marriage. As emerges from University of Cagliari 1 before the Tribunale the case-file, the selection board appointed Amministrativo Regionale per la Sardegna. by the university decided that points were to She sought the annulment of the decision be awarded in respect of the candidates' pre­ establishing the list of successful candidates, vious employment in the public service. 2.5 arguing that the refusal to take into account points were to be awarded for each year's employment in the public service of a Mem­ service in functions similar or 'superior' to ber State other than Italy was contrary to those attaching to the posts to be filled. One Community law. The Italian court decided, point was to be awarded for each year's ser­ on 10 June 1992, to seek a preliminary ruling vice in different functions. From 1965 on the question: to 1972 Mrs Scholz had worked for the Ger­ man post office as a postal assistant, and she asked for that experience to be taken into account. The selection board took the view that only experience in the Italian public ser­ vice could be taken into account and so 'Whether Articles 7 and 48 of the EEC refused to give her any credit for her years of Treaty and Articles 1 and 3 of Regulation service with the German post office. Mrs No 1612/68 may be interpreted as preclud­ Scholz was 54th in the order of merit drawn ing, in connection with an open competition up by the selection board. It is clear from the to fill posts not falling within those covered documents before the Court that if her ser­ vice in the German post office had been

4. Mrs Scholz points out that Article 48 (2) of the Treaty prohibits 'any discrimination based on nationality between workers of the Member States as regards employment, This provision shall not apply to conditions remuneration and other conditions of work relating to linguistic knowledge required and employment'. She observes that the post for which she was a candidate lies outside the 'public service' exception provided for in 2 — Case 152/73 [1974] ECR 153. Article 48 (4) of the Treaty, in view of the 3 — OJ, English Special Edition 1968 (II), p. 475.

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8. The French Government then points out 10. However, in spite of these reservations that public authorities often pursue a policy the French Government considers that in the of internal mobility and fill vacancies by type of situation which arises in the present means of competitions in which only offic­ case a public authority must give credit for ials who are already in their service may par­ experience acquired in the public service in ticipate. If I have understood the argument another Member State as though it had been correctly, it runs as follows: The public acquired in the home State. administration must, when filling vacancies, be allowed to give preference to its existing servants, even though that will tend to favour its own nationals since most civil ser­ vants have the nationality of the Member State which employs them. To hold other­ wise would mean that if, for example, the 11. My views on the issues raised by this Italian Ministry of Health held an internal case are as follows. competition reserved to its serving officials, it would have to throw the procedure open to officials serving in the corresponding min­ istries of the other Member States. But on the assumption that public authorities may give preference to their own officials by organizing internal competitions, why should Community law permit that form of 12. Article 48 (1) of the Treaty provides that 'disguised discrimination' and yet prohibit the free movement of workers within the the practice followed by the University of Community shall be ensured by the end of Cagliari in the present case? the transitional period at the latest. Accord­ ing to Article 48 (2), the free movement of workers entails the abolition of any discrimi­ nation based on nationality between workers of the Member States as regards employ­ ment, remuneration and other conditions of work. Article 48 (4) excludes the application of those provisions to 'employment in the public service'.

nationality, a matter which I shall return expressly prohibited by Article 3 (1), second to later. indent, of Regulation No 1612/68, which — as I have already noted — prohibits the application of provisions laid down by law, regulation or administrative action or admin­ istrative practices of a Member State 'where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to 14. It is clear from the Court's existing case- keep nationals of other Member States away law that the posts in question in the present from the employment offered'. case lie outside the scope of Article 48 (4) and are therefore subject to the principles of free movement and non-discrimination. The Court has construed Article 48 (4) narrowly, holding that it covers only 'posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities'. 7The justification for excluding such posts from the principle of free move­ ment is that they 'presume on the part of 16. In the present case Mrs Scholz is clearly those occupying them the existence of a spe­ not a victim of overt discrimination, since cial relationship of allegiance to the State and the disputed practice of the selection board reciprocity of rights and duties which form does not expressly provide for a difference in 8 the foundation of the bond of nationality'. treatment between those who possess Italian Clearly, the post of canteen assistant in a nationality and those who do not. As a result university does not satisfy those criteria. of her acquisition of Italian nationality by marriage, Mrs Scholz could not in any event be a victim of overt discrimination against non-Italians. At this juncture it is convenient to point out that Mrs Scholz might have suf­ fered overt discrimination, were it not for her acquisition of Italian nationality by mar­ 15. Article 48 (2) prohibits not only overt riage: instead of wrestling with the question discrimination based on nationality but also whether her experience in the German post all forms of disguised (or covert) discrimina­ office is equivalent to experience in the Ital­ tion which, by applying other distinguishing ian post office, the selection board would 9 criteria, lead in fact to the same result. presumably have eliminated her on the Covert discrimination is in addition ground that she did not possess Italian nationality, as required by Article 2 (a) of the competition notice, a copy of which is in the case-file lodged with the Court by the 7 — Case 149/79 Commission v Belgium [1980] ECR 3881, para­ graph 10; see also Case 307/84 Commission v France [1986] Tribunale Amministrativo Regionale per la ECR 1725. Sardegna. That nationality requirement, 8 — Ibid. 9 — See most recently, Case C-111/91 Commission v Luxem- which is not of course in issue in these pro­ bourg [1993] ECR I-817. which confirmed established case- ceedings, is a flagrant breach of Article 48 in law dating back to Sotgiu v Deutsche Bundespost (cited above in note 2). the light of the case-law cited above.

It is common ground that the University of 18. Thus, the refusal to take account of Mrs Cagliari is a public body and that it must Scholz's experience in the German post therefore be regarded as part of the Italian office is in principle contrary to Article 48 State for the purposes of obligations flowing (2) of the Treaty. It also appears to be con­ from Community law. There is therefore no trary to Article 3 (1) of Regulation need to decide whether Article 48 (2) of the No 1612/68, since the 'exclusive or principal Treaty and Article 3 (1) of Regulation aim or effect' of distinguishing between No 1612/68 have horizontal direct effect, in employment in the Italian public service and the sense that even private employers are employment in the public service of another prohibited from practising discrimination Member State is to prevent the recruitment based on nationality between workers of the of nationals of other Member States. Member States.

20. As to the question whether Mrs Scholz's 19. It is well established that Article 48 (2) rights are affected by her acquisition of Ital­ of the Treaty has direct effect: Van Duyn v ian nationality, it may at first sight seem 10 Home Office. It is clear from the judgment strange that an Italian national should be 1 in Gül v Regierungspräsident Düsseldorf 1 able to invoke the prohibition of discrimina­ tion on grounds of nationality against an Italian rule or practice which discriminates against non-Italians. I am however convinced 10 — Case 41/74 [1974] ECR 1337. 11 — Case 131/85 [1986] ECR 1573. that that is indeed the case.

22. Even if Mrs Scholz had been born an Italian national and had taken up employ­ ment in the German post office in exercise of her right of free movement under Article 48, she would in my view still be entitled to ask the Italian authorities to take into account 24. Although it may not be possible to that experience as though it had been oblige private employers to take account of acquired in Italy. But it could be that the basis for that proposition lies not so much in Article 48 (2) but rather in Article 48 (1), 12 — Sec C.isc C-19/92 Kraus v Land Baden-Wiirttcmberg [1993] which — as I stated earlier — provides that ECR 1-1663, paragraphs 16 and 17, which concerned the obligation on a Member State to recognize educational 'freedom of movement for workers shall be qualifications acquired by its nationals in other Member States; sec also paragraph 19 of my Opinion in Case secured within the Community by the end C-111/91 Commission v Luxembourg (cited in note 9).

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25. It is clear from the Sotgiu judgment that covert discrimination is not prohibited by Article 48 (2) if the difference in treatment is objectively justified. Thus, if there were sound reasons for considering that the expe­ rience acquired by Mrs Scholz in the Ger­ man post office is not as relevant as experi­ ence acquired in the Italian public service, having regard to the nature of the post for which she is a candidate, the University of Cagliari might be entitled to disregard that 27. What then is the purpose of a rule under experience partially or totally. which points are awarded in respect of a can­ didate's previous employment in the public service, even though the duties performed were entirely different from those attaching to the vacant posts? It seems to me that its main purpose is to give credit to those who have shown an aptitude for public service, on the assumption that those who serve the State in its many manifestations develop a 26. In order to appraise whether the Univer­ special ethos — which may not be shared by sity's refusal to recognize experience the employees of private undertakings — acquired in another Member State is objec­ and are motivated by factors that differ tively justified it would be useful to consider essentially from those obtaining in the pri­ briefly the purpose of the rule according to vate sector. Typically, employment in the which points are awarded in respect of a can­ public service implies a willingness to accept didate's previous employment in the public relatively modest financial rewards in return service. In this regard, it is important to note for greater long-term security, together, per­ that, under the rule applied by the selection haps, with the satisfaction of rendering ser­ board, points were to be awarded even in vice to the collectivity.

28. If that is the underlying purpose of the private nature of a candidate's previous rule in question, I do not see what objective employer in another Member State, that justification there can be for disregarding a doubt could readily be resolved, for example candidate's previous employment in the pub­ on the basis of certificates issued by the lic service of another Member State. A candi­ employer in question or by the consular date who has worked in the German post authorities of the Member State in which it is office is as likely to have developed a special situated. aptitude for public service as a candidate who has worked in the Italian post office. Indeed, the suggestion that someone who has 31. As regards the possibility of filling worked in the public service in Germany is vacancies by means of internal procedures by that token less meritorious than someone reserved to the serving officials of certain who has worked in the public service in Italy government departments or public author­ is contrary to the whole spirit of Commu­ ities, I do not think that the ruling to be nity law. given in the present case need prejudge the question of the legality of such procedures. If they operate to the disadvantage of the nationals of other Member States, the issue 29. I should like finally to address briefly will perhaps be raised in some future case the concerns expressed by the French Gov­ and the Court will be able to rule on it in the ernment about the wider implications of a context of a specific factual situation. ruling that would require experience acquired in other Member States to be taken into account when posts in the public service 32. As regards the question whether pre­ are filled. vious experience acquired in another Mem­ ber State by a serving official need be taken into account when the further career of such 30. As regards first of all the difficulty of an official is considered, that question also is determining whether experience acquired in not directly raised in the present case. In another Member State was in the public sec­ view of the concerns expressed by the tor or not, I do not see how that practical French Government, it would be preferable problem can affect the application of the in my opinion to limit the ruling in the principle that Community nationals should present case to the question of discrimina­ not suffer discrimination on grounds of tory barriers placed in the way of a Commu­ nationality in the field of employment. If nity national's initial recruitment by a public there were some doubt about the public or authority of a Member State.