C-214/94

BOUKHALFA v BUNDESREPUBLIK DEUTSCHLAND

OPINION OF ADVOCATE GENERAL LÉGER delivered on 14 November 1995 *

1. Can a national of a Member State who is of employment of the latter are, pursuant to employed in the embassy of another Mem­ Paragraph 33 of the GAD , 'determined by ber State in a non-member country rely on reference to ... the law of the host country the Community provisions relating to the and local practice. Employment and social principle of non-discrimination on ground of security conditions shall be guaranteed to nationality? This, in essence, is the question them taking account of the local situation.' referred to the Court by the Bundesarbeits­ gericht in connection with a dispute the fac­ tual and legal context of which is as follows.

4. The rules referred to by the latter provi­ sion apply to Ms Boukhalfa, the plaintiff in 2. The German Gesetz über den Auswärti­ the main proceedings. gen Dienst (Law on the Diplomatie Service, 'GAD' ) provides that the staff of German foreign representations consists of employees posted from the Ministry and non-posted employees. The latter are called 'local employees'.

6. By letter of 19 November 1991 she pro­ not rely on the abovementioned Community tested against the application to her of the provisions because the present case was out­ rules applying to local employees of non- side their territorial ambit, which was limited German nationality and claimed that she by Article 227 of the EC Treaty to the Mem­ should be treated by her employer, the Fed­ ber States of the European Union. eral Republic of Germany ('the defendant in the main proceedings'), in the same way as local employees of German nationality cov­ ered, under Paragraph 32 of the GAD , by the more favourable rules of the Collective Agreement of 28 September 1973 governing the conditions of employment of German non-posted employees employed in foreign 9. The first instance court allowed Ms representations of the Federal Republic of Boukhalfa's claim, but it was dismissed by Germany ('the Collective Agreement'). the Landesarbeitsgericht (Higher Labour Court) on appeal by the defendant. An appeal on a point of law was then lodged with the Bundesarbeitsgericht (Federal Labour Court), which took the view that the distinction between German local employees and those of foreign nationality might be justified in German law, but was uncertain as 7. As the Federal Republic of Germany to the possibility of discrimination based on refused to grant her claim, she referred the nationality contrary to Community law. It 4

12. It will be convenient at this stage to examine briefly the second point, which is 10. The question before the Court today is not in formal terms part of the question an important one. Beyond the limited con­ before the Court, as the examination of it by text of the question from the national court, the national court will be relevant only if the the reply to be given by the Court of Justice pertinent Community provisions are actually may be of concern to all Community per­ applicable. sonnel employed in a non-member country in the foreign representation of a Member 5 State of which they are not nationals. This is why the question could be reworded in more general terms: are the Community rules concerning freedom of movement for 13. Article 48(2) of the Treaty reads as fol­ workers, particularly the rules prohibiting lows: discrimination based on nationality as regards conditions of work and employment, applicable to the situation of workers who are Community nationals and are employed in a non-member State in the foreign repre­ sentation of a Member State of which they are not nationals? '[Freedom of movement for workers] shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.'

11. As may be anticipated, the national court's reasoning in this case breaks down into two parts, the second of which does not really give rise to any difficulty. First of all, it 14. Article 7(1) and (4) of Regulation No is necessary to ascertain whether the Com­ 1612/68 is worded as follows: munity provisions are applicable ratione ter- ritorii to a situation of that kind. If so, it will be necessary to determine, in relation to each situation, whether the worker in question has any grounds for complaining of discrimi­ nation based on nationality. '1 . A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from 5 — See point 12 et seq., of the Commission's observations. national workers by reason of his nationality

17. The plaintiff in the main proceedings is undoubtedly a 'worker who is a national of a 15. These two provisions give effect to the Member State' within the meaning of those 6 provisions, a term which, as the Court has 'fundamental right' of Community workers to freedom of movement. Article 48(2) of the consistently held, has a Community meaning 7 Treaty is a more specific form of the general and is not to be defined under national law. principle of the prohibition of discrimination As a passport office assistant employed in an on grounds of nationality laid down by Arti­ embassy, she pursues an activity which is cle 6 of the EC Treaty in that it grants effective and genuine, for and under the migrant workers equality of treatment with direction of another person, in return for nationals of the host country 'as regards which she receives remuneration. 8Further­ employment, remuneration and other condi­ more, the nature of the employment rela­ tions of work and employment'. Article 7 of tionship (whether private or public-law) is Regulation No 1612/68 for its part refers to the general principle (paragraph 1) and adds in paragraph 4 that any clause of a collective 7 — Case 41/74 Van Duyn [1974] ECR 1337. 8 — For the term 'worker', which the Court has construed widely, see Case 197/86 Brown v Secretary of State for Edu- cation [1988] ECR 3205, paragraph 21, and Case C-357/89 Raulin v Minister van Onderwijs en Wetenschap- 6 — See the preamble to Regulation No 1612/68. pen [1992] ECR I-1027, paragraph 10.

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9 — See Case 66/85 Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121. 10 — See the provisions of the GAD referred to in point 2 of this 11 — See Case 225/85 Commission v Italy [1987] ECR 2625, Opinion. paragraph 11.

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21. Having established this, it is now neces­ 24. In this connection it is necessary to see sary to ascertain whether the Community whether there is a criterion of territoriality, provisions are applicable to her situation, as in the strict geographical sense, for the appli­ otherwise discrimination could not be shown cation of Community law. In support of this to exist. argument, before the national court the defendant in the main proceedings cited Article 227 of the Treaty, paragraph 1 of which is worded as follows:

Applicability of Community law

'This Treaty shall apply to the Kingdom of Belgium, the Kingdom of Denmark, the Fed­ eral Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the 22. This is the real problem raised by the Grand Duchy of Luxembourg, the Kingdom case. The whole difficulty arises, of course, of the Netherlands, the Republic of Austria, from the foreign element: the fact that the the Portuguese Republic, the Republic of employment relationship exists in a country Finland, the Kingdom of Sweden and the which is not a member of the European United Kingdom of Great Britain and Union. Clearly the problem would not arise Northern Ireland.' if the same relationship existed in one of the Member States. There would be no question that the Community rules would apply to the situation of a Belgian employee in the German Embassy in France, for example.

law area'. It is common ground that the 28. Article 227 merely states, giving a very buildings of a foreign representation cannot concise list, that the EC Treaty applies to the be regarded as forming part of the national Member States. Although territory is one of territory of the State represented. At most the elements of the standard definition of the such premises are inviolable and have immu­ state in public international law (and Regu­ nity pursuant to Article 22(1) and (3) of the lation No 1612/68 refers to it almost system­ Vienna Convention of 18 April 1961 on Dip­ atically in each article, which applies 'in the 13 15 lomatic Relations. In any case a foreign territory of another Member State' or 16 representation is always situated on the terri­ 'within the Community' it is only one of a 17 tory of the host State, as emphasized by number of elements of the definition. Article 21 of the Vienna Convention:

29. It should also be observed that the body '1 . The receiving State shall either facilitate of the Treaty itself contains provisions which the acquisition on its territory, in accordance are applicable outside Community territory with its laws, by the sending State of pre­ in the strictly geographical sense. Thus Part mises necessary for its mission or assist the Four of the EC Treaty, concerning associa­ latter in obtaining accommodation in some 14 tion of the overseas countries and territories, other way.' provides for the same treatment as that laid down by the Treaty, for example, in trade with those non-member countries (Article 132) or in relation to the abolition of cus­ toms duties applying to trade with them (Article 133).

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which implements the principle of Union here, they all set out a fundamental obliga­ citizenship outside Community frontiers: tion to treat the nationals of all the Member States in the same way as those of the State concerned. Thus they meet the more general aim of promoting a feeling of belonging to a common entity enshrined in the frequently used phrase 'people's Europe', and in the 'Every citizen of the Union shall, in the ter­ 'citizenship of the Union' added to the EC 19 ritory of a third country in which the Mem­ Treaty by the European Union Treaty. ber State of which he is a national is not rep­ What would be the effects of such a feeling resented, be entitled to protection by the of belonging or such citizenship if they dis­ diplomatic or consular authorities of any appeared once the geographical borders of Member State, on the same conditions as the the Union were crossed? nationals of that State.'

30. It may also be noted that, unlike Article 32. Therefore it must be concluded that, 'in 227 of the Treaty, Articles 198, paragraph 1, providing that the EEC Treaty applies to the of the Euratom Treaty and Article 79 of the States party to it, Article 227 defines the ECSC Treaty expressly limit the application sphere of application of the rules laid down of each of these treaties strictly to the 'terri­ by or pursuant to the Treaty, without refer­ tory' of the Member States. In my opin­ 18 ence to the basis of State territorial sover­ ion, the absence of any reference to this eignty. Therefore the geographical dimension term in Article 227 should not be regarded as of the Community legal system is more than a mere oversight on the part of the drafts­ the sum of the territories of the Member men, who after all took care to refer to it in 20 States, which it undoubtedly includes'. the other treaties.

35. The Court's case-law should be briefly 'Although Article 5 of Regulation No summarized so as to elicit the principles 2141/70 is applicable only to a geographi­ which will shed light on the present prob­ cally limited fishing area, it none the less fol­ lem. lows from Article 102 of the Act of Acces­ sion, from Article 1 of the said regulation and moreover from the very nature of things that the rule-making authority of the Com­ munity ratione materiae also extends — in so far as the Member States have similar 36. One of the first cases setting out these authority under public international law — 22 principles raised the question of the extent to to fishing on the high seas.' which the principle of non-discrimination on grounds of nationality (Articles 48, 59 and, 24 alternatively, 7 of the EEC Treaty) may be applied to legal relationships in the context of the activities of a world sports federation (the Union Cycliste Internationale).

34. This same position is the starting-point of the Court's settled case-law relating to the particular subject-matter of the present case — freedom of movement for workers out­ side the borders of the Union. The Court has The Court's reply in the judgment of held that: 25 12 December 1974 in Case 36/74 amounts to a statement of principle:

'the mere fact that a worker's activities are 'By reason of the fact that it is imperative, carried out outside the Community is not the rule on non-discrimination applies in sufficient to exclude the application of the judging all legal relationships in so far as Community rules on the free movement of 23 these relationships, by reason either of the workers'. place where they are entered into or of the

Finally the Court set out, for the benefit of the court making the reference, the first cir­ cumstantial factors likely to show the exist­ 37. The judgment of 12 July 1984 in the ence of a 'sufficiently close fink': 27 Prodest case provided an opportunity to confirm and also to clarify this case-law. The question there was whether a Belgian national residing in France and employed by a French temporary employment firm could claim, pursuant to Regulation No 1612/68, 'In a case such as this, a link of that kind can that he continued to be covered by the be found in the fact that the Community French general social security scheme for the worker was engaged by an undertaking duration of his assignment in Nigeria. The established in another Member State and, for Court noted first that: that reason, was insured under the social security scheme of that State, and in the fact that he continued to work on behalf of the Community undertaking even during his 3 posting to a non-member country.' 0

'In principle such a case comes within the scope of the Community provisions on the free movement of workers within the Com­ 28 38. The next step in this case-law was the munity.' Lopes da Veiga judgment of 27 September

26 — Paragraphs 28 and 29, emphasis added. 27 — Case 237/83 [1984] ECR 3153. 29 — Paragraph 6, emphasis added. 28 — Paragraph 5. 30 — Paragraph 7.

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1989. The Court was asked, in particular, shipping company incorporated under the whether a seaman who was a Portuguese law of the Netherlands and established in national working permanently for a Dutch that State; he was hired in the Netherlands company on board vessels flying the Dutch and the employment relationship between flag could rely on Article 7 et seq. of Regu­ him and his employer is subject to Dutch lation No 1612/68. law; he is insured under the social security system of the Netherlands and pays income 33 tax in the Netherlands.'

33 — Paragraph 17. 34 — Council Regulation of 14 June 1971 on the application of social security schemes to employed persons and their fam­ 31 — Case 9/88 [1989] ECR 2989. ilies moving within the Community, OJ, English Special 32 — Paragraph 16, emphasis added. Edition 1971 (II), p. 416.

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case such as this, a link of that kind can be 41. This review of the case-law produces the found in the fact that the Community following pointers. worker was employed by an undertaking from another Member State and, for that rea­ son, was insured under the social security 35 scheme of that State.'

42. In an employment relationship between a 'Community' undertaking and a national of another Member State the rules on free­ dom of movement for workers (particularly those prohibiting discrimination on grounds of nationality) are, of course, in principle 40. For the sake of completeness I should applicable. like to mention a recent judgment of 6 June 36 1995 in Case C-434/93 Bozkurt, in which the Court adhered to its existing position to such a point that it transposed it to the con­ verse situation of a worker who is a national of a non-member country and works for a Community undertaking: 43. Their application in principle is not affected by the fact that the work is carried out abroad, whether temporarily and occa­ sionally (Walrave and Koch judgment, Prodest judgment, cited above), or perma­ nently and exclusively (Lopes da Veiga and Aldewereld judgments, cited above).

'To ascertain whether a Turkish worker employed as an international lorry-driver belongs to the legitimate labour force of a Member State, for the purposes of Article 6(1) of Decision No 1/80, it is for the national court to determine whether the 44. The criterion for applying these rules to applicant's employment relationship retains a an employment relationship existing abroad sufficiently close link with the territory of is the existence of a 'a sufficiently close link the Member State, and, in so doing, to take with the Community'. account in particular of the place where he was hired, the territory on which the paid employment was based and the applicable national legislation in the field of employ­ 37 ment and social security law.'

— Community worker established in a Member State at the time of recruitment; 47. Let me stress that this list is merely an indication of the factors to which the 38 national court may 'in particular' refer. It should be noted that this list is by no means exhaustive. Furthermore, it does not seem to — establishment of the employer in the me that the existence of one or another of Member State of which he is a national; these factors is decisive. At most the situa­ tion always involves an employment rela­ tionship between a Community national and an undertaking which is a national of another Member State, the work being done — employer subject to the legal system of a in a non-member country for that undertak- Member State; ing. Finally it should be observed, in the light of the most recent developments in the case-law, particularly the Aldewereld judg­ ment, that the number of elements is not decisive. It is not a matter of drawing up two

— employment relationship governed by the law of the Member State of which the 38 — These words appear in the Lopes da Veiga and the Bozkurt employer is a national; judgments in paragraphs 17 and 24 respectively.

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lists, one containing the elements in favour present case discloses various factors militat­ of a link, the other those militating against it, ing against there being a close link: and weighing one against the other. Rather it is necessary in each particular case to ascer­ tain whether the factors in favour of a link exist.

— the plaintiff's contract of employment was concluded in a non-member country;

BOUKHALFA v BUNDESREPUBLIK DEUTSCHLAND

51. However, it seems to me that there are GAD . In sum, this means that she is subject other factors in the case which suggest that 'a to the legal system of a Member State. sufficiently close link with the Community' exists.

54. It seems to me that this last point is deci­ sive. It is also confirmed by other factual findings relating to the characteristics of the employment relationship which may there­ fore be found in most employment relation­ 52. Some of them have already been formu­ ships of Community nationals employed in a lated in the Court's case-law. non-member country in the foreign repre­ sentation of a Member State of which they are not a national. Therefore the following factual elements seem to me likely to be new factors to which the national court may refer.

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be held that all the factors which the Court function of such missions consists, according has formulated in relation to the employer to Article 3 of the Vienna Convention, in: — his place of establishment, the legal sys­ tem applying to him — are present when the employer is the State itself. In a situation of this kind a 'climate' of connection with the legal system of that State is inevitably indi­ cated. '(a) representing the sending State in the receiving State;

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footing, diplomatic relations with other sov­ law apply not only in the territory of the ereign States and is represented vis-à-vis Member States [...] but also in any place those other States, is certainly one of the sur­ where, in accordance with international law, est criteria of the sovereignty of a State. they exercise certain "sovereign rights", even 45 if limited ones'.

59. The various factors listed above show 62. My conclusion does not conflict with the that a Member State, in its capacity of Court's case-law either. I have already employer, exercises its sovereignty and its pointed out that the legal system of a Mem­ jurisdiction over the contracts of employ­ ber State — both that to which the employer ment which it concludes with Community is subject and that governing the contract of nationals working for it in its foreign repre­ employment — is one of the criteria to sentations situated in non-member countries. which the Court suggests that national courts should refer when seeking a 'sufficiently close link'.

44 — V. Coussirat-Coustère, op. cit., point 12. 45 — J.-L. Dewost, op. cit., p. 255.

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concept should lead to citizens of the Union present, it is impossible to imagine some being treated absolutely equally, irrespective local German employees being treated differ- of their nationality. Such equal treatment ently from other local German employees in should be manifested in the same way as the same situation. So why should it be pos- among nationals of one and the same State, sible in the case of a local employee with Consequently, in a situation such as the Belgian nationality?

64. Therefore I propose that the Court give the following reply to the question from the national court:

Article 48(2) of the EC Treaty and Article 7(1) and (4) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as meaning that the principle of non­ discrimination on grounds of nationality applies to the conditions of employment of citizens of the European Union employed by a Member State in one of its for­ eign representations in a non-member country in so far as such conditions of employment, which are subject to the jurisdiction and the sovereignty of the Member State represented, retain a sufficiently close link with the Community.