C-15/96

2. Dr Schöning-Kougebetopoulou, a Greek national, has been employed since 1 August 1993 as a specialist doctor by the City of Hamburg. She occupies the post of an Ang- estellte, that is to say, a contractual employee not having the status of Beamte (an estab­ lished official). As such her employment relationship is governed, under the terms of 4. Before taking up employment with the her contract of employment, by the Bundes- City of Hamburg Dr Schöning-Kougebeto­ Angestelltentarifvertrag (Federal Collective poulou spent the period from 1 October Wage Agreement for Contractual Employ­ 1986 to 31 August 1992 working as a special­ ees, hereinafter 'the BAT'). ist doctor in the Greek public service. She considers that, by disregarding that experi­ ence for the purposes of her grading, the * Original language: English. City of Hamburg contravened Article 48 of 1 — Regulation (EEC) No 1612/68 of the Council of 15 October the Treaty and Article 7(1) and (4) of Regu­ 1968 on freedom of movement for workers within the Com­ munity, OJ, English Special Edition 1968 (II), p. 475. lation No 1612/68.

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OPINION OF MR JACOBS — CASE C-15/96

'1 . Is there an infringement of Article 48 of 6. The national court notes that, although the EC Treaty and Article 7(1) and (4) of the BAT does not discriminate directly on Regulation (EEC) No 1612/68 of the Coun­ grounds of nationality, the condition for cil on freedom of movement for workers access to Salary Group la cannot be fulfilled within the Community where a collective abroad but only by nationals and foreigners agreement for the public service provides for working in Germany. The national court promotion on grounds of seniority after considers that the proportion of foreigners eight years' service only in a particular salary among those adversely affected by the rule is bracket provided for by the collective wage

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SCHÖNING-KOUGEBETOPOULOU v FREIE UND HANSESTADT HAMBURG

agreement in force for all employees in the 8. The Court has received written and oral public service of the Federal Republic of argument from Dr Scheming-Kougebeto- Germany ("the BAT") and therefore does poulou, the French and German Govern­ not take account of comparable activities car­ ments and the Commission. The Spanish ried out in the public service of another Government, although not presenting writ­ Member State of the EC? ten observations, was represented at the hearing. In addition the Court, in response to a written question put to the Member States, received replies from the Austrian, Danish, Finnish, French, German, Greek, Irish, Luxembourg, Netherlands, Spanish, Swedish and United Kingdom Governments.

Question 1 2. If the reply to question 1 is in the affirma­ tive:

'Accordingly, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable 12. In my view it is clear that the BAT irrespective of nationality, they affect essen­ arrangements work to the particular detri­ tially migrant workers (see Case 41/84 Pinna ment of migrant workers. Any specialist v Caisse d'Allocations Familiales de la Savoie doctor who has spent part of his career in [1986] ECR 1, paragraph 24; Case 33/88 the public service of another Member State Allué and Another v Università degli Studi incurs the disadvantage that his employment di Venezia [1989] ECR 1591, paragraph 12; in that Member State can never be taken into and Le Manoir, paragraph 11) or the great account for grading purposes. By contrast majority of those affected are migrant work­ any specialist doctor who has been continu­ ers (see Case C-279/89 Commission v United ously employed under the BAT is entitled to Kingdom [1992] ECR 1-5785, paragraph 42, have the whole period of his employment as and Case C-272/92 Spotti v Freistaat Bayern a doctor taken into account. [1993] ECR I-5185, paragraph 18), where they are indistinctly applicable but can more easily be satisfied by national workers than by migrant workers (see Commission v Luxembourg, paragraph 10, and Case C-349/87 Paraschi v Landesversicherungsan- stalt Württemberg [1991] ECR I-4501, para­ graph 23) or where there is a risk that they 13. Of the public servants who spend their may operate to the particular detriment of careers in Germany, it is only those who migrant workers (see Case C-175/88 Biehl v move from non-BAT to BAT employment Administration des Contributions [1990] who are liable to incur the same disadvantage ECR 1-1779, paragraph 14, and Case as migrant workers. Such persons are likely C-204/90 Bachmann v Belgium [1992] ECR to represent a small proportion of German I-249, paragraph 9). public servants. The broad scope of the BAT allows public servants extensive mobility

14. The fact that owing to the hiatuses between the arrangements applicable to the different categories of staff some German public servants suffer the same disadvantage as migrant workers scarcely justifies denying all migrant workers who take up employ­ ment in the German public sector the advan­ tages enjoyed by an entire — and apparently the largest — category of German public ser­ vants. 16. In the present proceedings two — con­ flicting — lines of argument have been put forward in order to show that the BAT arrangements are objectively justified. On the one hand, the French and Spanish Gov­ ernments, developing the arguments of the 5 national court, consider that restrictions on mobility are justified by considerations spe­ 15. The untenability of the German Govern­ cific to public service. The German Govern­ ment's position is particularly clear if one ment, on the other hand, contends that the considers what the position would be if the BAT can be compared to collective agree­ ments in the private sector and even denies that it is exclusively a public service arrange­ ment. Its purpose is to promote a stable 4 — For example, the German Government's reply to the Court's written questions states that the Land Berlin, although no longer subject to the BAT, has concluded a specific collective agreement adopting the collective conventions concluded under the BAT by the body representing the other Länder, the Tarifgemeinschaft deutscher Länder. 5 — Set out at paragraph 6 above.

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OPINION OF MR JACOBS — CASE C-15/96

workforce by rewarding loyalty to BAT ing this issue is the Court's ruling in Scholz. employers viewed collectively. I shall con­ There a public body, namely an Italian uni­ sider those arguments in turn. versity, based its selection criteria for appointment to a post as a university canteen assistant partly on length of previous employment in the public service. The Court held that the failure by the university to take account of experience gained by the appli­ Public service justification cant in the public service of another Member State (the German post office) constituted unjustified indirect discrimination.

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SCHÖNING-KOUGEBETOPOULOU v FREIE UND HANSESTADT HAMBURG

paid more highly from the start by virtue of those obtaining in the private sector. Typi­ more flexible grading rules. According to the cally, employment in the public service Spanish Government, to require Member implies a willingness to accept relatively State A to take account of the latter employ­ modest financial rewards in return for ee's experience in Member State B would be greater long-term security, together, perhaps, to assimilate years of service that were not with the satisfaction of rendering service to comparable. the collectivity. Promotion may be viewed in part as a reward for such service.

21. The French Government nevertheless 23. Notwithstanding the potential difficulty suggested at the hearing that the interest in in defining the limits of public service, I free movement and the integrity of national therefore accept the French Government's public services might be reconciled in cases suggestion that a Member State may restrict such as the present, first, by requiring that periods of qualifying employment to those the employment of the migrant worker completed in public service. However, as I should have been in a public service or a noted in my Opinion in Scholz, I do not body pursuing public-service aims and, sec­ think the special ethos of public service can ondly, by requiring a comparison of the justify the disregarding of periods of public functions performed, the level of qualifica­ service completed in another Member State. tions required and the level of remuneration.

States, ranging from a highly flexible system of motivation. The fact that a public servant based on individually determined remunera­ was subject to different conditions in the tion in Sweden to the rather more rigid sys­ public service of another Member State can­ tems applied in France, Spain and Germany. not justify non-recognition of periods of It appears that in a number of Member employment in the service of that State. To States, including Austria, Denmark, the accept that would be to allow a Member Netherlands, Sweden and the United King­ State to place a migrant worker at a perma­ dom, relevant previous experience, including nent disadvantage by comparison with experience gained in another Member State, national public servants simply because he is taken into account, at least to some extent, benefited, or may have benefited, from a upon initial appointment but length of ser­ more flexible career structure in the past. It vice plays no automatic role in future grad­ would serve to compartmentalize national ing. In other Member States, in particular public services and constitute a significant France, Germany, Luxembourg and Spain, obstacle to public sector mobility in the length of service plays a formal role in sub­ Community. sequent grading and salary progression. Moreover, it appears that at present no or little account is taken of previous employ­ 10 ment in another Member State; an appar­ ent exception is Greece which, although also applying a system of automatic advancement, 1 recently adopted a law 1expressly providing for periods completed in the public service of another Member State to be taken into account for the purposes of advancement.

Loyalty to an employer or group of employers

30. The German Government replies that it is conceivable that a number of private employers might collectively agree on arrangements such as those of the BAT. At the hearing it gave the example of two car 28. The German Government has not manufacturers who enter into a collective sought to rely on considerations specific to agreement with the relevant unions under public sector employment. It argues that, by which they each agree to provide, in their rewarding loyalty for continuous service, the loyalty schemes, for recognition of service BAT rule does no more than a private under the other company. employer or a number of private employers collectively would do. Indeed the German Government has sought to show that the BAT is also in part a private sector arrange­ ment.

31. However, such an agreement — on the assumption that it were able to withstand scrutiny under Article 85 of the Treaty — 29. I agree with the Commission that would not, in the absence of a single arrangements adopted by an undertaking (or employer, involve the rewarding of loyalty in group of undertakings in common owner­ any normal sense of the word. Service with a ship) in order to reward employees for long competitor can hardly be thought of as dem­ service do not necessarily entail unjustified onstrating loyalty to one's employer. At the discrimination. However, as the Commission very least its sole purpose could not be to points out, it is difficult to see how the reward loyalty since that purpose would be arrangements under the BAT can be equated better served by agreements specific to each with the rewarding of loyalty by a specific employer.

35. On this question I share the Commis­ sion's view that guidance may be sought from the Court's case-law on sex discrimi­ nation, in particular the judgments in 12 13 McDermott and Cotter and Van Cant. By virtue of Article 7(4) of Regulation No 1612/68 the BAT rule is null and void in so far as it lays down or authorises discrimina­ tory conditions for workers who are nation­ als of other Member States. It will be for the 33. Finally, the German Government's asser­ parties to the BAT to make the necessary tion that the BAT is in part a private sector amendments to it in order to eliminate the arrangement casts doubt on whether it discrimination. However, until such amend­ would even be lawful to restrict qualifying ments are made the rules applied to the periods of employment to those completed advantaged group provide the only appropri­ in the public sector. However, the national ate point of reference. court's questions are posited on the basis that the BAT is a public sector agreement, and in any event it seems clear that 12 — Case 286/85 McDermott and Cotter v Minister for Social Dr Schöning-Kougebetopoulou's previous Welfare and Attorney-General [1987] ECR 1453, paragraph employment as a doctor was in the Greek 19 of the judgment. 13 — Case C-154/92 Van Cant v Rijksdienst voor Pensionen public service. [1993] ECR I-3811, paragraph 20 of the judgment.

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SCHÖNING-KOUGEBETOPOULOU v FREIE UND HANSESTADT HAMBURG

36. As the Commission points out, it will Kougebetopoulou. The BAT requires eight be necessary for the national court in such years' employment as a doctor for promo­ circumstances to examine the equivalence tion to Group la, and it appears to be com­ of the periods of service completed in the mon ground that the years of service for public service of the other Member State. which she seeks recognition were spent as a However, there appears to be no dispute on doctor in the Greek public service. that issue in relation to Dr Schöning-