C-187/96

COMMISSION v GREECE

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 11 December 1997 *

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Republic communicated its opinion to the in this respect, it is proceeding with its action Commission in a letter of 10 March 1994. in full. Considering that the view expressed was contrary to the aforementioned principle, the Commission, on 18 May 1995, delivered a reasoned opinion with which Greece was to comply within a period of two months. O n 24 August 1995, in response to that opinion, At the hearing, the representative of the the Greek Government put forward the view Greek Government read out a decision which it had already expressed when submit- adopted by the Ministry of Culture on 31 ting its observations on the alleged infringe- October 1997, which recognises the years of ment, stating that the contested provisions service which the individual who had lodged were not intended to discriminate between the complaint with the Commission com- Greek nationals or between national and for- pleted at the Nice Municipal Orchestra, and eign workers, and that, in any event, they did stated that the Law adopted in 1997 already not produce discriminatory effects. provides for the recognition by the Greek authorities of periods served in the public service of other Member States, for the pur- poses of pay and seniority.

The Commission stated at that hearing that, 5. When the period laid down for the Hel- while the new legislation does represent a lenic Republic to comply with the reasoned significant step forward in this sphere, there opinion had expired, the Commission are still points which are unclear and that, in brought this action. any event, the new legislation does not have retroactive effect.

1. The years of service taken into account for the purposes of advancement on the sal- ary scale laid down in Article 3, for the award of the seniority increment provided for in Article 9 and for determining the remuneration of the employees listed in (d) Years of service performed in the armed Article 15(2) of the Law shall be as follows: forces, the security forces or the harbour police, as a professional soldier, volun- teer or person re-enlisting after subtrac- tion of the period during which the employee would have served as a con- script or reservist if he had not been engaged as a member of the armed forces (a) Years of service completed in a public (whether as a professional or volunteer service or for legal persons governed by or after re-enlistment); public law or for local authorities under a contract of employment governed by public law;

(e) Any years of service taken into account (b) Years of service for one of those bodies, before the entry into force of this Law under a contract of employment gov- as an essential condition for appoint- erned by private law, in so far as they are ment ...; treated as pensionable by the competent local agency or have been taken into account for the purposes of grading or 2 — This wording, and that of paragraphs (c), (f) and (g) of this any increase in salary; article, comes from Law No 1810/88.

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(f) Years of service performed in socialist The Community provisions countries by repatriated political refu- gees;

9. The Commission accuses the Hellenic Republic of failing to fulfil its obligations (g) Years of service as a teacher in private under Articles 5 and 48 of the Treaty and schools. Article 7(1) of Regulation N o 1612/68, which are worded as follows:

2. Such freedom of movement [for workers applied without any distinction on the basis within the Community] shall entail the abo- of nationality, they do, in fact, entail covert lition of any discrimination based on nation- discrimination in that they are liable to put ality between workers of the Member States mainly nationals of the other Member States as regards employment, remuneration and at a disadvantage. For although a Member other conditions of work and employment. State's recognition, as years of employment in public service, of only those years com- pleted in its own public service, and refusal to recognise years of employment in the public service of another Member State is neutral from the point of view of Commu- ...' nity law, it is only apparently so, since that distinguishing criterion works mainly to the disadvantage of national workers of other Member States who have worked succes- sively in one or more of the Member States and then in Greece, as the requirement to 'Article 7 [of Regulation N o 1612/68] have worked in the national public service will, in fact, be met only by workers of Greek 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 national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remunera- The Commission considers that the con- tion, dismissal, and should he become unem- tested Greek legislation, in failing to provide ployed, reinstatement or re-employment. for the possibility of taking into account employment in the public service of another Member State, also constitutes an obstacle to the free movement of Greek nationals in so far as it is capable of deterring them from moving to other Member States in order to ...' take up employment there.

In the reply, the Commission points out that the contested Greek provisions are to be regarded as contrary to Community law only in so far as they do not provide for the recognition of previous service performed in It considers the contested legislation to be another Member State as an employee of the justified on several grounds. First, because it public service, of a legal person incorporated is not always easy to determine whether under public law or of a local authority, employment in another Member State con- solely because that service was not per- stitutes employment in the public service, formed in the national public service, and since the boundaries between the private sec- that the other conditions imposed indepen- tor and the public sector differ from one dently of the State in which the person con- Member State to another, as do the charac- cerned worked do not form part of the teristics and legal effects of an employment subject-matter of its action. It adds that the relationship, which makes comparison diffi- 'like treatment' principle does not mean that cult. Secondly, because difficulties may arise any previous period of employment in the when it comes to deciding whether experi- public service of another Member State must ence acquired in the public service of another automatically be recognised; rather, it Member State is the same as that acquired in requires the competent authorities to con- the State in which the service in question is duct a thorough examination of the service to be taken into account; for, although the performed in another Member State as com- Commission's position seems fair for certain pared with that recognised by the national individual cases, it leaves a wide margin of legislation. discretion, with a risk of arbitrary situations and fundamental inequalities in relation to salary increases, career development and pro- motion.

12. O n examining the contested legislation, I note that the conditions which public employees in Greece must fulfil in order for previous years served in the public service — 14. It is indisputable that the Greek legisla- understood in the broad sense — to be rec- tion which I am examining does not provide ognised for the purposes of salary and for the possibility of taking years of service seniority differ according to whether the performed in another Member State being employment relationship of the person con- taken into account for the aforementioned cerned was governed by public law or by purposes. It is also a fact that it does not lay private law and, in the latter case, depending down any prohibition in that respect. In on whether the employee worked for a body practice, as the Commission has stated, with- governed by public law or for a legal person out being contradicted by the Hellenic governed by private law. Republic, recognition is denied if the service was not performed in Greece, subject to the exceptions provided for teaching staff employed in Greek schools abroad and for political refugees, who do not form part of the subject-matter of these proceedings. 13. If the employment relationship was gov- erned by public law, previous years of ser- vice are recognised automatically. If, on the other hand, it was governed by private law, recognition of such service for the aforemen- tioned purposes is subject to certain condi- tions: 15. The question to be determined is whether a Member State is required, by Articles 5 and 48 of the Treaty and by Article 7 of Regulation N o 1612/68, to take — if the years of service were performed for into account, for the benefit of Member State a public body, they are recognised only nationals, including its own, employed in its where the competent institution regards public service, years which they may have them as pensionable or, alternatively, worked in the public service of another where they have been taken into account Member State, for the purposes of pay and for the purpose of grading or any salary seniority, on the same basis as it takes into increase; account years worked in its own service.

17. Neither the contested legislation nor its implementation by the national authorities Only if such provisions are justified by applies the criterion of nationality as a basis objective considerations independent of the for differentiating when regulating recogni- nationality of the workers concerned and tion of previous service. N o t even residence they are proportionate to the legitimate aim is so used, though it must be acknowledged pursued by the national law is the position that, given the country's geographical loca- otherwise. 6 tion, it would be difficult to imagine anyone having been previously employed in the Greek public service without residing in Greece. I do take the view, however, like the Commission, that it may entail covert dis- crimination and constitute an obstacle to the free movement of persons. 19. I note that, in addition to the aforemen- tioned conditions for the recognition of pre- vious service, there is in practice another condition, which is that the service must have been performed in Greece. It is an objective condition which applies without 18. In 1974 the Court of Justice ruled that distinction to national workers and to work- '... the rules regarding equality of treatment, ers of other Member States and which, again, both in the Treaty and in Article 7 of Regu- lation N o 1612/68, forbid not only covert 4 — Case 152/73 Sotgiu y Deutsche Bundespost [1974] ECR 153, paragraph 11; and Case 33/88 Allué and Another v Univer- sità degli studi di Venezia [1989] ECR 1591, paragraph 11. 3 — Case C-419/92 Scholz [1994] ECR I-505, paragraph 9; and 5 — Case C-237/94 O'Flynn v Adjudication Officer [1996] ECR Case C-443/93 Vougiaukas v IKA [1995] ECR I-4033, para- I-2617, paragraph 18. graph 38. 6 — Ibidem, paragraph 19.

21. It follows from Article 16(a), (b) and (c) It seems useful to point out for these pur- of Law N o 1505/84 that, for the aforemen- poses that in Scholz 8 the Court of Justice has tioned purposes, recognition of previous already held that the refusal to take into con- service is in any event granted to public sideration employment in the public service employees if the contract binding them to of another Member State of a German the public service was governed by public national who had acquired Italian nationality law and, subject to certain conditions, if they by marriage, for the purposes of the award worked in the public service under a contract

7 — CaseC-349/87 Paraschi [1991] ECR I-4501, paragraph 24. 9 — Opinion of Advocate General Jacobs, delivered on 17 July 8 — Cited above at footnote 3, paragraph 11. 1997 in Case C-15/96, pending.

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governed by private law or were employed as pensionable serves to unify the worker's by a legal person incorporated under private pension rights, thus ensuring that he is not law. adversely affected as a result of having changed employer.

Those conditions are very disparate and are not applied cumulatively. As I noted earlier, one of them has to do with social security 23. If those are the purposes of the legisla- and requires that the competent institution at tion under examination, I can find no objec- the same time recognise that the period of tive justification for limiting recognition of service is pensionable; the other concerns previous service in a public service, whether appraisal of the experience acquired in the governed by the rules of public or private performance of previous functions, and law, to service performed in the Member requires the previous service to have been State in question and refusing to recognise taken into account for the purposes of service performed under identical or similar appointment, assignment to a post, grading circumstances and schemes in another Mem- or any increase in salary. ber State.

26. With regard to the first contention, I would point out that the Court of Justice recognised the direct effect of Article 48 of With regard to recognition of pension rights the Treaty as early as 1974, which means that of migrant workers, it should be pointed out this article confers on individuals rights that, in its judgment in Vougioukas, 12 the which the national courts must protect and Court took the view that national legislation that it imposes on Member States a precise which provides that only periods of employ- obligation which does not require the adop- ment completed in national public hospitals, tion of any further measure on the part and not comparable periods completed in either of the Community institutions or of public hospitals in other Member States, may the Member States, and which leaves them, be recognised as pensionable, may dissuade a in relation to its implementation, no discre- Community worker from exercising his right tion. 13 to freedom of movement.

discrimination on grounds of nationality in the free movement of Greek nationals them- the field of employment. Any doubt regard- selves, who may be deterred from exercising ing the correspondence between one scheme their right to freedom of movement when and another can readily be resolved by cer- they learn that, if they move to another tificates issued by the employer in question Member State in order to work there, with or by the appropriate consular authorities. 14 the intention of returning to their country of origin and working in the national public service, the years which they spend abroad will be completely 'lost' as regards the appraisal of the experience they have acquired and their seniority, which in turn will subsequently affect their salary. The Court has stated in this respect that '... the provisions of the Treaty relating to freedom of movement for persons are intended to facilitate the pursuit by Community citizens 28. I would also point out that a Member of occupational activities of all kinds State may not use an alleged or actual diffi- throughout the Community, and preclude culty to justify its failure to fulfil its obliga- measures which might place Community tions under Community law. The only legiti- citizens at a disadvantage when they wish to mate excuse accepted by the Court as pursue an economic activity in the territory justification for an infringement is, of course, of another Member State'. 16 the absolute impossibility for the Member State to fulfil its obligations. 15

Costs

— Order the Hellenic Republic to pay the costs.

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