C-123/94
ECLI:EU:C:1995:69
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OPINION OF MR ELMER — CASE C-123/94
OPINION OF ADVOCATE GENERAL ELMER delivered on 9 March 1995 *
1. In the present Treaty-infringement pro- ment of non-Greek language teachers ceedings the Commission, by application (including nationals of other Member States) lodged at the Registry of the Court of Justice in private foreign-language schools is subject on 26 April 1994, seeks a declaration that, by to more stringent conditions than is the maintaining in force the provisions of Article recruitment of Greek nationals. 70 of Decree-Law N o 2545/1940 and Decision N o 46508 of 10/17 May 1976 of the Minister for National Education and Reli- gious Affairs (as subsequently amended), the Hellenic Republic has failed to fulfil its obli- gations under Article 48(2) of the E C Treaty and Article 3(1) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. '
The Commission has also pointed out, in its reply to a question put by the Court, that Article 70 of Decree-Law N o 2545/1940 requires teachers in private schools to have the same specific qualifications as those 2. Before the Commission instituted the required for recruitment to a similar post in proceedings, it sent to the defendant a letter an institute of public education. Under Arti- of formal notice on 1 July 1992, followed by cle 18(1) of Presidential Decree N o a reasoned opinion on 26 August 1993. 611/27/6-15/7/1977 on recruitment of, inter alia, officials to State and other public bod- ies, including schools, a person cannot be recruited as an official unless he or she is a Greek national. The Commission refers in this connection to the Greek Government's replies to the questions put by the Court in Case 147/86, 2 in which the Greek Govern- 3. The Commission argues that it follows ment confirmed that the above rules require from the above provisions that the recruit- teachers in private schools to be Greek nationals.
* Original language: Danish. 1 — OJ, English Special Edition 1968 (II), p. 475; original refer- 2 — Judgment in Case 147/86 Commission v Greece [1988] ence JO 1968 L 257, p. 2. ECR 1637.
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COMMISSION v GREECE
4. The Hellenic Republic has not denied in 5. It is thus not disputed that the defendant the present case that the rules in question are Member State has failed to fulfil its obliga- at variance with Community law. tions under Community law.
It is also clear from the Court's established In its submissions to the Court, however, the case-law 3 that the subject-matter of pro- Hellenic Republic has stated that a Presiden- ceedings brought under Article 169 of the tial Decree amending the disputed rules to EC Treaty is set out in the Commission's ensure that the conditions imposed on reasoned opinion. Even in the case where a nationals of other Member States will in Treaty infringement ceases while the case is future be identical to those imposed on pending before the Court, there continues to Greek nationals has already been signed by be an interest in maintaining the action with the ministers responsible and now awaits sig- a view to establishing the basis of the liabil- nature by the President of the Republic and ity which a Member State may, as a result of subsequent publication, for which reason it the Treaty infringement, incur in respect of argues that the case no longer serves any other Member States, the Community or pri- purpose. vate individuals.
Conclusion
6. F o r t h e above reasons I p r o p o s e that the C o u r t s h o u l d rule as follows:
(1) B y maintaining in force t h e provisions of Article 70 of D e c r e e - L a w N o 2545/1940 a n d D e c i s i o n N o 46508 of 10/17 M a y 1976 of t h e Minister f o r N a t i o n a l E d u c a t i o n a n d Religious Affairs (as s u b s e q u e n t l y a m e n d e d ) , t h e H e l - lenic R e p u b l i c has failed t o fulfil its obligations u n d e r Article 48(2) of t h e E C Treaty a n d Article 3(1) of Regulation ( E E C ) N o 1612/68 of t h e C o u n c i l .
(2) T h e Hellenic R e p u b l i c is o r d e r e d t o p a y t h e costs of t h e p r o c e e d i n g s .
3 — See, inter alia, the judgment in Case C-37/93 Commission v Belgium [1993] ECR 1-6295.
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