C-132/93
ECLI:EU:C:1994:96
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OPINION OF MR DARMON — CASE C-132/93
OPINION OF ADVOCATE GENERAL DARMON delivered on 10 March 1994 *
Mr President, the Grundgesetz has been infringed, whether Members of the Court, there is discrimination against a German national because the effect of Community law in the event is to place German nationals in a worse position as compared with nation als from other Member States'. 1. It is highly unusual for a national court, after receiving from this Court a preliminary ruling on a question referred to it for that purpose, to seek further guidance on the path to be followed in the light of the Court's decision. 1
3. The facts of this case are known to the 2. That is, however, the case with the Ar Court. I will not repeat them here and I refer 3 beitsgericht Elmshorn, which considers that in that respect both to my Opinion and the 4 the Court's judgment in Steen v Deutsche Court's judgment in the previous proceed Bundespost 2can be interpreted in two ways ings. and asks whether
'[that judgment is] to be interpreted as mean ing that the national court is precluded from applying Community law in regard to a purely domestic situation, or does it, as the legally appointed court within the meaning 4. Let it suffice to point out that, as I had of the second sentence of Article 101(1) of proposed, the Court held that a national of a the Grundgesetz (Basic Law) of the Federal Member State who has never exercised the Republic of Germany, remain entitled, where right of freedom of movement within the the European Court of Justice lacks jurisdic Community could not rely on Articles 7 tion, to examine as a preliminary question, in and 48 of the EEC Treaty with respect to a connection with a claim that Article 3(1) of situation which was purely internal to that 5 State.
* Original language: French. 1 — For an example of such a case, see the judgment in Case 3 — Points 2 to 5. C-304/90 Payless DIY [1992] ECR I-6493. 4 — Paragraphs 2 to 5. 2 — Case C-332/90 [1992] ECR I-341. 5 — Paragraphs 9 et seq.
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STEEN v DEUTSCHE BUNDESPOST
5. In other words, the Court took the view, 10. On the other hand, the novel aspect is which was also my own, that a situation of that the appraisal of such discrimination that kind was not a matter covered by Com under Community law is being compared munity law. with such an appraisal under the Member State's constitutional law. To put it plainly, can such discrimination, which is unobjec tionable under Community law — not because it is in conformity with Community law, but because it is not one of the matters covered by that law — be subject to review 6. The Court's judgment has placed the with regard to its constitutionality under court making the reference in something of a national law? Is that precluded by Commu quandary regarding the conclusions which it nity law? is to draw from it.
7. Comparing the situation of a German 11. It should be pointed out that, despite the national who could be described as non- ambiguous nature of the phrase in the order mobile, such as Mr Steen, with that of a for reference 6 'the power of the German national of another Member State who, exer courts to consider Community law "indi cising his right of free movement, applies in rectly"', the national court is not concerned Germany for the post refused to the former, to review the constitutionality of Commu the national court finds that the former is nity law, that law being, precisely, inapplic- denied the protection of Community law able to the proceedings in question. which the latter can invoke.
12. The national court asks whether the 8. The national court discerns in that differ judgment of the Court of Justice of 28 Janu ence in treatment a discrimination which has ary 1992 leaves room for a review of the its source in Community law itself, which constitutionality of the national rule in so far confers rights on a foreign worker from the as it treats a national worker in a situation Community but does not grant them to the purely internal to a Member State less national worker. favourably than nationals of other Member States who have exercised their right of free movement within the Community, Commu nity law being applicable to the latter situa tion.
9. The Court is familiar with that problem; it is the problem of reverse discrimination. 6 — Page 11 of the English translation.
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OPINION OF MR DARMON — CASE C-132/93
13. Here again, this is a question of purely 18. If that question is answered in the affir national law upon which neither Commu mative, compliance with that obligation, nity law in general, nor this Court's judg which is also a matter of domestic law, nec ment in particular, can have any effect. essarily falls outside Community law, quite simply because the obligation has nothing to do with it.
14. What in fact is the point at issue?
19. One final observation.
15. A situation falling within the scope of Community law may, because of the pri macy of that law, cause the national court to decline to apply a conflicting national rule. 20. The problem at the root of this second reference to the Court cannot be reduced to a comparison between the national 'non- mobile' worker and nationals of other Mem ber States exercising their right to free move ment.
16. That national rule will nevertheless con tinue to govern purely internal situations which do not fall within the scope of Com munity law, and that may lead to comparable situations being treated differently.
21. Although Mr Steen cannot, as the Court has held, rely on Articles 7 and 48 of the EEC Treaty, since a purely internal situation is involved, he could have invoked them against another Member State in which he exercised his right of free movement, and, as 17. The question whether, having regard to a I noted in my previous Opinion, even Member State's constitution (and in particu against his own State if he had lived, worked 7 lar the principle of equality before the law), or been trained in another Member State. there is an obligation to eliminate any reverse discrimination is a matter to be appraised solely by the constitutional court 7 — See my Opinion in Case C-332/90 [1992] ECR I-341, I-350, of that State. point 9.
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STEEN v DEUTSCHE BUNDESPOST
Conclusion
22. I therefore propose that the Court should rule as follows:
When, unlike other Community nationals who can rely on a right arising under Community law, a national of a Member State cannot take advantage of that right solely because his situation, which is a purely internal one, does not fall within the scope of Community law, that law has no effect on the conditions for the applica tion by national courts of a constitutional principle of equality before the law, those conditions being determined exclusively by the domestic law of that Member State.
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