C-195/98

3. It appears that Austria employs at the federal level approximately 40 000 school teachers about 13 500 of whom are con- tractual teachers (Vertragslehrer). The fed- eral government also employs approxi- mately 10 000 university teaching person- 2. In Austria there are two categories of nel about 1 500 of whom are contractual personnel working for federal public autho- teaching assistants (Vertragsassistenten). rities: the first consists of civil servants According to the applicant in the main proceedings, some 75 000 further teachers are employed at the level of the different * Original language: English. federal states (Bundesländer). Their status 1 — Council Regulation (EEC) No 1612/68 of 15 October 1968 is governed by laws of the Bundesländer on freedom of movement for workers within the Commu- nity, OJ English Special Edition 1968 (II) p. 475. which are similar to the federal laws.

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8. In the main p r o c e e d i n g s the Gewerkschaftsbund seeks a declaration 5. The applicant in the main proceedings, that certain categories of contractual tea- Österreichischer Gewerkschaftsbund, chers and teaching assistants employed by Gewerkschaft öffentlicher Dienst (herein- the respondent are entitled to have the after 'the Gewerkschaftsbund') is a trade following periods of previous employment union representing, among others, employ- taken into account from the date of their ees in the public sector. classification in the relevant pay scale, or from 1 January 1994 if later, namely those completed in States which now belong to the European Union or the European Economic Area in teaching posts in public or State-recognised schools, colleges and universities or in the civil service or for other public-law entities which must be 6. The respondent is the Republic of Aus- regarded as equivalent to Austrian local tria in its capacity as employer of contrac- authorities. Those periods of employment tual teachers and contractual teaching should be taken into account in accordance assistants. with the principles laid down in Paragraph

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26 of the VBG applicable to previous 11. Against that background the Oberster periods of service for Austrian authorities Gerichtshof has referred the following or in teaching posts in Austria. questions for a preliminary ruling:

If Question 1 is answered in the affirma- tive, 10. The Gewerkschaftsbund seeks the declaration in a special form of procedure which is governed by Paragraph 54(2) to (5) of the Arbeits- und Sozialgerichtsgesetz (Law on Labour and Social Courts, here- inafter the 'ASGG'). According to those 2. Does Article 48 of the EC Treaty or provisions certain employers' and employ- any other provision of Community law, ees' bodies may bring an action before the in particular Article 7 of Council Reg- Oberster Gerichtshof against other employ- ulation No 1612/68, preclude the use ers' or employees' bodies for a declaration of different methods for determining concerning rights or legal relationships the qualifying date for advancement which relate to a factual situation indepen- purposes, which affects the classifica- dent of any particular named person. That tion of contractual teachers and teach- procedure will also be discussed in more ing assistants employed by the defen- detail below. dant within the relevant pay scale, in

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Question 1: Admissibility If Questions 1 and 2 are answered in the affirmative,

14. With its first question, the national 3. Are periods completed in institutions in court wishes to know whether its request Member States comparable to the said for a preliminary ruling is admissible. Its institutions to be taken into account doubts arise from the special character of without temporal limitation?' the procedure.

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Nature of proceedings 18. The Oberster Gerichtshof decides as a court of first and final instance. It appears from the order for reference and more specifically its introductory section that when sitting in those cases it is composed of five members, three permanent judges of the Oberster Gerichtshof and two knowl- 15. The Oberster Gerichtshof describes the edgeable lay members. nature of the main proceedings, as provided for in Paragraph 54(2) to (5) of the ASGG, as follows.

19. As regards procedure, the Oberster Gerichtshof must base its legal assessment on the facts alleged by the applicant with- out further examination. Nor may the 16. The object of the proceedings is a applicant's assertion that the decision is of declaration that rights or legal relationships importance for at least three employers or which concern a factual situation indepen- employees be examined further. The dent of any particular named person exist respondent may not dispute the facts or do not exist. The application must alleged by the applicant and may submit concern a point of substantive law in the only legal arguments. field of employment law disputes as defined by the ASGG. The point of law in question must be of importance for at least three employers or employees.

26. The Oberster Gerichtshof expresses doubts about the judicial nature of the 23. The proceedings are contentious, the proceedings at issue and consequently parties being the applicant and the respon- about the admissibility of its request for a dent. Interested third parties may submit preliminary ruling. observations. The applicant determines whether to bring proceedings and the parties determine their scope.

27. The applicant Gewerkschaftsbund, the Austrian Government and the Commission 24. The final decision is binding on the consider that the questions referred are parties. They cannot make a second appli- admissible and that the first question cation for a declaration relating to the same should be answered in the affirmative. factual situation and raising the same legal The proceedings before the Oberster questions. Gerichtshof present, in their view, the essential elements of true judicial proceed- ings.

25. Although the decision is in no way binding on other courts, it is obviously intended to have persuasive authority on 28. According to Austria as respondent the parallel proceedings concerning individual Court is not competent to reply to the first

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question. Referring to Grogan, 2ERT 3and issue was whether the case before the Commission v Germany 4it argues that the referring court was of a hypothetical or question whether it is appropriate for a contrived nature. national court to decide cases at first and final instance lies outside the scope of Community law.

33. In the order for reference the Oberster Gerichtshof explains that in the past it has taken the view that the procedure provided for in Paragraph 54(2) to (5) of the ASGG 30. A further source of possible confusion did not correspond to the traditional image is the national court's reference to the two of judicial decision-making. In its view, it Foglia v Novello 6judgments. There the was rather an opinion on the law, clothed in the appearance of a judicial decision. It therefore regarded those provisions as 2 — Case C-159/90 Society for the Protection of Unborn questionable on constitutional grounds Children Ireland [1991] ECR I-4685. 3 — Case C-260/89 ERT [1991] ECR I-2925. and in particular because it was seised in 4 — Case C-62/90 Commission v Germany [1992] ECR I-2575. such cases as a court not of final instance 5 — Case C-177/94 Perfili [1996] ECR I-161. but of first and only instance. We are also 6 — Cases 104/79 [1980] ECR 745 and 244/80 [1981] ECR 3045. told that the Austrian Verfassungsgerichts-

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38. I therefore turn to the core of the matter, namely the function which the 36. The case-law on the judicial nature of a Oberster Gerichtshof performs in the main given national procedure or decision argu- proceedings. In that regard, it is settled ably forms part of a broader body of case- case-law that a national court may refer a law on the concept of 'court or tribunal' within the meaning of Article 177. In that 11 — Case 61/65 Vaassen v Beambtenfonds Mijnbedrijf [1966] ECR 261. 7 — Cases 104/79 and 244/80, cited in note 6. 12 — See, for example, Case C-54/96 Dorsch Consult v Bun- desbaugesellschaft Berlin [1997] ECR I-4961, paragraph 8 — Case 318/85 [1986] ECR 955. 23 of the judgment. 9 — Case 138/80 [1980] ECR 1975. 13 — See, for example, Case C-416/96 Eddline El-Yassini [1999] 10 — Case C-111/94 [1995) ECR I-3361. ECR I-1209, paragraph 17 of the judgment.

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question to the Court only if there is a case by the fact that the Oberster Gerichtshof pending before it and if it is called upon to decides as a court of first and final instance. give judgment in proceedings intended to lead to a decision of a judicial nature. 14

39. Many elements of the procedure at The nature of the dispute issue are typical of judicial proceedings: the Oberster Gerichtshofs jurisdiction under Paragraph 54(2) to (5) of the ASGG is compulsory in the sense that either party may bring a case before the Oberster Gerichtshof irrespective of the objections 42. The first question is thus whether the of the other; the procedure is governed by Oberster Gerichtshof decides on real cases law; it is inter partes and the parties meaning legal disputes of a judicial nature determine the scope of the proceedings; in and whether it does so in a procedure of a its decision the court applies rules of labour judicial nature. and social law rather than principles of fairness.

proceedings are limited by rules designed to 47. Collective rights of action are an prevent the courts from giving advisory equally common feature of modern judicial opinions in hypothetical cases and to avoid systems. They are mostly encountered in unnecessary litigation. areas such as consumer protection, labour law, unfair competition law or protection of the environment. The law grants asso- ciations or other representative bodies the right to bring cases either in the interest of persons which they represent or in the public interest. This furthers private en- forcement of rules adopted in the public 45. The Court has therefore never refused interest and supports individual complai- to deal with a reference merely because the nants who are often badly equipped to face questions were referred in declaratory pro- well organised and financially stronger ceedings. 15 In a borderline case the Court opponents. The danger of abuse of such held: 'Although the main actions seek a collective rights of action is again normally declaratory remedy and, having the aim of tackled by national procedural rules. Con- preventing infringement of a right under sequently, the Court has never objected to threat, must necessarily be based on national rules providing for such collective hypotheses which are, by their nature, rights of action and in practice often deals uncertain, such actions are none the less with questions referred in proceedings permitted under national law, as inter- brought by interested associations. 17 preted by the referring court. Consequently, the questions submitted by that court meet an objective need for the purpose of settling disputes properly brought before it.' 16

54. In the first situation courts normally refuse to deal with the case. Thus, a Scottish judge once said: 'Our Courts have 50. The Oberster Gerichtshof thus does not consistently acted on the view that it is their decide disputes related to a concrete case function in the ordinary run of contentious involving clearly identified persons. It is litigation to decide only live, practical expected to decide disputes related to a set questions, and that they have no concern of at least three factual situations which with hypothetical, premature or academic raise the same legal problem. The idea is to questions, nor do they exist to advise extrapolate from that set of actual situa- litigants as to the policy which they should tions 'typical' but abstract facts. adopt in the ordering of their affairs. Courts are neither a debating club nor an advisory bureau....' 18

acting as a 'moot court'. It is felt that the the judgment's authority is that the courts resources of the judiciary are mis-allocated dealing with the 'real' cases may distinguish where the hypothetical situation might them on the facts. I am therefore satisfied never occur. Finally, there is the fear that that a representative action of the present an issue which in practice will arise, if at kind, based on typical but abstract facts, is all, only in the future may be prejudged on in principle of a judicial nature. the wrong basis. That in turn would considerably weaken the authority of judi- cial decision-making. The Court of Justice has therefore held with regard to its own activities that its duty under Article 177 of the Treaty is not that of delivering advisory opinions on general or hypothetical ques- tions but of assisting in the administration of justice in the Member States. 19 57. That conclusion is not affected by the admittedly unusual rules of evidence — the fact that the Oberster Gerichtshof must base its legal assessment on the typical facts alleged by the applicant without further examination, that the applicant's assertion with regard to the decision's importance for at least three employers or employees must also not be examined further and that the respondent is thus confined to legal argu- ments.

59. I conclude therefore on that point that the procedure under scrutiny and the cases decided under it are in principle of a 62. The Oberster Gerichtshofs decision judicial nature. thus has the typical features of a test case judgment: the decision is important not so much because of its direct legal conse- quences but for its indirect significance in other cases.

The nature of the decision

63. I do not think that judgments with such 60. Is the final decision which the Oberster effects can be treated as non-binding advi- Gerichtshof is called upon to take equally sory opinions for the purposes of Arti- of a judicial nature? cle 177 of the Treaty. First, they are at least legally binding on the parties to the pro- ceedings. Furthermore, where ordinary national procedures have been used by one of the parties in order to bring a test case and the national court has then 61. It is well established that references in referred questions for a preliminary ruling, procedures ending with non-binding legal the Court has never hesitated to reply to opinions are in principle inadmissible. 20 As those questions. 21 I do not think that the already stated, the real purpose of the Court's attitude can be different where the procedure at issue is to provide strong national procedure is specifically designed persuasive authority for parallel proceed- to encourage cases similar to test cases in ings concerning individual employers and their effects. Indeed such proceedings may employees. In that regard several of those be highly desirable in the interest of proce- dural economy.

64. A comparison with the effects of pre- tive protection of the rights of individuals liminary rulings under Article 177 of the which they derive from Community law. Treaty may also be appropriate. The main Those considerations for the effectiveness objective of the preliminary ruling proce- of Article 177 of the Treaty have always dure is to achieve uniform interpretation been an underlying reason for the Court and application of Community law in all accepting references from bodies of a cases raising identical issues. Nevertheless, disputed judicial nature. 22 Furthermore, since such a ruling is binding at least for the and particularly in the circumstances of referring jurisdiction, there can be no doubt the present case, Article 177(3) of the about its judicial nature. Treaty must be borne in mind: that provi- sion obliges courts or tribunals against whose decisions there is no judicial remedy to make references and pursues a goal very similar to the one emphasised by the case- law just quoted.

65. Accordingly, the Oberster Gerichtshofs final decisions are also of a judicial nature.

67. Accordingly, the request for a prelimin- ary ruling is admissible.

A court of first and final instance

72. According to Paragraph 26(1) and (2) of the VBG previous periods of employ- ment in the service of an Austrian public authority, public teaching institution or 69. The VBG applies, according to Para- publicly recognised private teaching insti- graph 1(1) thereof, to all persons who are tution are automatically treated as preced- in a private-law employment relationship ing in their entirety the date on which the with the federal State. Part I of the VBG person concerned is engaged as a contrac- contains inter alia in Paragraphs 8a to 26 tual employee. the general rules on their remuneration. According to Paragraph 37 of the VBG, contractual teachers are contractual civil servants, to which many of the general provisions on remuneration apply. The same follows with regard to contractual teaching assistants from Paragraph 51(1) of the VBG. 73. Other previous periods of employment, namely periods completed abroad or in Austria in an institution not covered by Paragraph 26(2) of the VBG (e.g. a private bank), are taken into account in full only where it is in the public interest to do so and with the consent of the Federal Min- ister for Finance; such consent is given only if such periods are 'of special importance 70. The monthly remuneration due to a for the successful deployment' of the con- contractual public servant who falls within tractual public servant (Paragraph 26(1) a given pay scale and who is classified and (3) of the VBG). Where those periods within that pay scale in a given pay group do not fulfil those conditions they are taken varies according to pay steps. Once classi- into account to the extent of one half if the fied in a pay group a contractual teacher or service as Austrian contractual employee teaching assistant advances every two years started not later than 30 April 1995 (under to the next pay step provided for in respect the former version of Paragraph 26(3) of of him. That advancement is determined, the VBG); they are taken into account to unless otherwise provided, by the qualify- the extent of one half in so far as the ing date for advancement purposes which periods do not exceed a total of three years, in turn is to be ascertained in accordance if the service started after that date (under with the contentious rule, Paragraph 26 of the current version of Paragraph 26(3) of the VBG. the VBG).

74. According to the Austrian case-law courts that the division by the authorities of submitted by the applicant, the authorities' periods of previous employment or studies decisions on the incorporation of those into periods the whole of which and other periods of employment are subject to periods only part of which are taken into judicial review. The decisions have to be account is lawful where a certain period taken in the framework of a regular sufficed to acquire the knowledge and administrative procedure. According to experience necessary for successful deploy- that case-law the public interest referred ment. to in Paragraph 26(3) of the VBG lies in the fact that Austrian public entities benefit — without having to bear the costs of educa- tion and practical training — from quali- fied new employees who are immediately able to operate competently. 76. According to the parties the legislation at issue appears to be linked to Arti- cle 21(4) of the Austrian Constitution which guarantees employment mobility between the federal, regional and local public service. In that context the second sentence of Article 21(1) of the Austrian Constitution lays down the so-called Homogenitätsprinzip (principle of homo- geneity) according to which regional public service regulations may not differ from parallel federal laws or regulations to an extent which would seriously hamper 75. It appears furthermore that with regard mobility within the public service as guar- to the criterion of 'special importance for anteed by the aforesaid Article 21(4). successful deployment' the authorities have to establish what activities or studies were actually performed, how long they lasted and what knowledge and abilities were acquired. They must then establish what tasks actually had to be performed by the 77. Are the rules at issue compatible with applicant in the course of the first six the principle of freedom of movement for months of his new employment in Austria, workers? to what extent he was more successful in his new employment than other employees without similar previous experience and whether there was a causal link between such experience and such success. Where all those elements speak in favour of the 78. Under Article 48(1) of the EC Treaty person concerned and where without his freedom of movement for workers was to previous experience he would have been be secured by the end of the transitional considerably less successful in his new period at the latest. Under Article 48(2) employment, his previous activity is of such freedom of movement entails the 'special importance' for his successful abolition of any discrimination based on deployment within the meaning of the nationality between workers of the Mem- VBG. It has also been held by Austrian ber States as regards employment, remu-

83. Austria as respondent maintains, first, that contractual teachers and teaching assistants are covered by the concept of 'employment in the public service' within the meaning of Article 48(4) of the Treaty. 80. The Gewerkschaftsbund and the Com- Secondly, it contests the relevance of the mission consider that the rule at issue Court cases on which the applicant relies 23 infringes the Treaty. Both claim that Arti- since they concerned different factual situa- cle 26 of the VBG results in indirect tions and legal issues. Thirdly, it emphasises discrimination on grounds of nationality that public employers in Austria are linked against workers from other Member States. by the constitutional principle of homoge- In their view, neither the differences neity. Therefore, it is said, the element of between national pay schemes and qualifi- rewarding loyalty plays a greater role than cations of teachers nor the existence of the it would in the absence of that principle. constitutional rules facilitating employment mobility within the Austrian public sector 23 — Case C-419/92 Scholz (1994] ECR I-505; Case C-19/92 can justify the difference of treatment with Kraus v Land Baden-Württemberg [1993] ECR I-1663; regard to the periods of employment taken Case C-15/96 Schönning-Kougebetopoulon v Freie und Hansestadt Hamburg [1998] ECR I-47; Case C-187/96 into account. Commission v Greece [1998] ECR I-1095.

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84. The Austrian Government concedes 88. Austria as respondent infers from that the exception in Article 48(4) is not Commission v Greece 25 that contractual applicable and that there is a prima facie teachers and teaching assistants are covered restriction of freedom of movement for by the concept of 'public service' within the workers. None the less, in its view, such a meaning of Article 48(4). The same is said restriction is justified. It also invokes the to follow from the Austrian classification of constitutional principle of homogeneity. their activities as Hoheitsverwaltung (administration through exercise of public authority).

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90. Moreover, the present case is not about 92. Ratione materiae Article 48(2) of the eligibility for or access to 'employment in Treaty prohibits discrimination 'as regards the public service' but merely about the employment, remuneration and other con- determination of seniority for the purposes ditions of work and employment'. Arti- of calculating remuneration. It is well cle 7(1) of Regulation No 1612/68 prohi- established that, once a Member State has bits discrimination 'in respect of any con- admitted workers from other Member dition of employment and work, in parti- States to its public service, Article 48(4) cular as regards remuneration, dismissal, cannot justify discriminatory measures and should he become unemployed, rein- against them with regard to remuneration statement or re-employment'. or other conditions of employment, even if employment in the public service within the meaning of that provision is involved. 29 I agree therefore with the referring court which found it difficult to understand why the applicant Gewerkschaftsbund excluded from its application in the main proceed- ings contractual teachers exercising a school management or supervisory func- 93. The present case concerns a rule on the tion. taking into account of previous periods of employment for the determination of the qualifying date for advancement purposes of contractual public servants. That date itself is decisive for the calculation of seniority. Seniority in turn matters because any contractual public servant who belongs to a given pay group within a given pay scale moves after two years to the next pay step.

96. The position is not affected by the 98. The rules under scrutiny therefore fall Commission's recent proposal for a Regu- within the scope ratiotie materiae of Arti- lation amending Regulation No 1612/68 32 cle 48(2) of the Treaty and Article 7(1) of which proposes introducing the following Regulation No 1612/68. new Article 7(5):

99. Is the prohibition of discrimination on '5. Where working conditions, professional grounds of nationality with regard to advancement or certain advantages accor- remuneration infringed? ded to workers depend, in a Member State, on the occurrence of certain facts or events, any comparable facts or events which have

30 — C a s e 15/69 Südmilch v Ughola [1969] ECR 363, para- graph 5 of the judgment. 100. Obviously there is no direct discrimi- 31 — Case C-15/96 Seboning-Kougebetopoulou v Freie und Hansestadt Hamburg and Case C-187/96 Commission v nation on grounds of nationality. The Greece, both cited in note 23. provision does not distinguish between 32 — Proposal for a European Parliament and Council Regula- tion amending Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community, submitted by the Commission on 14 October 1998, OJ 1998 C 394, p. 1. 33 — Preamble, recital 4.

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workers of different nationalities but portionate to a legitimate aim which it between periods of employment completed pursues. 35 in certain Austrian institutions and other periods of employment. Periods in those Austrian institutions may also have been completed by workers of other Member States since under Austrian law — and that has been emphasised by the Austrian 103. At issue is a provision which distin- Government — equal access to employ- guishes between periods of employment ment for foreign teachers is guaranteed completed in specified institutions in Aus- and provisions for the recognition of for- tria and other periods of previous employ- eign diplomas are in place. ment. The distinguishing criterion used has both an institutional and a territorial dimension.

102.A national provision must be regarded 105. Where previous periods of employ- as indirectly discriminatory if, first, it is ment have been completed in the service of intrinsically liable to affect migrant work- one of the categories of employers listed in ers more than national workers with a Paragraph 26(2) of the VBG, the applicable consequent risk that it will place the former regime depends on the Member State in at a particular disadvantage and, secondly, which those periods have been completed. it is not based on objective considerations independent of nationality or is not pro- 35 — See to that effect Case C-237/94 O'Flynn v Adjudication Officer [1996] ECR I-2617, paragraph 20 of the judgment; Case C-57/96 Meints v Minister van Landbouw, Natuur- 34 — Case 152/73 Sotgiu, cited in note 28, paragraph 11 of the beheer en Visserij [1997] ECR I-6689, paragraph 45; Case judgment; Case C-35/97 Commission v France [1998] C-15/96 Scböning-Kougebetopoulou, cited in note 23, ECR I-5325, paragraph 37; indirectly already in Case paragraph 21; Case C-35/97 Commission v France, cited in 15/69 Siidmilcb v Ugliola, cited in note 30, paragraph 6. note 34, paragraph 38.

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108. In Schöning-Kougebetopoulou 38 a doctor's classification within a given pay group depended on whether previous periods of employment had been completed with an employer covered by a public 112. In the two other cases, however, sector collective agreement. which concerned remuneration, the Court applied Article 48(2) of the EC Treaty and Article 7(1) of Regulation No 1612/68 in 36 — See, for example, C-443/93 Vougioukas v IKA [1995] ECR parallel. I will follow the latter approach. I-4033 and more recently Case C-360/97 Nijhuis v Bestuur van het Landelijk Instituut Sociale Verzekeringen [1999] ECR I-1919. 37 — Case C-419/92, cited in note 23. 38 — Case C-15/96, cited in note 23. 39 — Case C-187/96, cited in note 23.

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116. It is obvious that with regard to 40 — Case 1/78 Kenny v Insurance Officer [1978] ECR 1489, remuneration in the public service the paragraph 18 of the judgment.

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41 — C a s e C-187/96 Commission v Greece, cited in note 23, 123. The first part of the indirect discrimi- paragraph 22 of the judgment. 42 — Case 1/78 Kenny v Insurance Officer, cited in note 40, nation test having been completed, the next paragraph 18 of the judgment. issue is whether the provision under scru-

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tiny is based on objective considerations cally into account. They cannot justify a independent of the nationality of the difference of substantive requirements. employees concerned and whether it is They cannot explain why periods comple- proportionate to its legitimate aims. ted abroad must be of 'special importance' whereas periods completed in Austria need not. Even where a Member State is entitled to assess the comparability of facts or events which occurred in another Member State, the use of double or in other words discriminatory standards is prohibited. 124. The main argument invoked by the Austrian Government is the basic difference between the situation at Community level where diversity of public service laws prevails and the situation within Austria where the constitutional principle of homo- geneity guarantees harmonised remunera- tion systems and public sector mobility.

127. The Austrian Government's second argument is that contrary to the situation in Schöning-Kougebetopoulou the objec- tive of rewarding loyalty plays a greater role in the Austrian context where employ- 125. First, I must point out an inconsis- ers are linked by the principle of homo- tency in that argument with regard to geneity. teachers who were previously employed by Austrian private schools. It seems to me that they are not covered by the constitu- tional guarantee of job mobility and their employers are not obliged to comply with the homogeneity principle. None the less, they seem to benefit from the more favour- able regime.

132. None of the parties has argued that 130. Thirdly and most importantly, given the real purpose of the Austrian rules is to the multiplicity of employers potentially reward and encourage either loyalty to the concerned — the Austrian Federation, the public service in its entirety or a particular Bundesländer, the communes and even kind of public service ethos. Such an publicly recognised private schools — the argument could not in any event in my purpose of the rule cannot be the desire to view succeed because it can provide no reward employee loyalty to a particular objective justification for disregarding employer. 43 On the contrary, it is apparent periods of previous employment in the from the Austrian constitutional rules that public service of another Member State. 44 with regard to periods of employment completed in Austria the system is designed to afford maximum mobility within a group of legally separate employers.

133. The last argument advanced by the Austrian Government concerns the conse- 131. While I do not question the legitimacy quences of an obligation automatically to of such an objective, I cannot see why a incorporate periods completed abroad. discriminatory restriction of the mobility of Such an obligation, it is said, would migrant workers within the Community is constitute a one-sided burden on those necessary or even useful in order to further States whose pay systems take into account mobility within the Austrian public service. previous periods of employment in the In my view the Austrian Constitution's goal public service. In its view, a supplementary burden could arise where contractual pub-

134. I would stress at the outset that the critical issue in the present case is not the duty automatically to take into account periods of employment completed abroad but the Community law prohibition on relying on discriminatory substantive requirements when doing so. In any event, first, Austria appears to be just one of many 135. Nothing thus indicates that Paragraph Member States to rely with regard to its 26 of the VBG, in so far as it distinguishes public service on a pay system which takes between periods completed in certain Aus- account of previous periods of public trian institutions and periods completed in service employment. 45 Secondly, burden- similar institutions in other Member States, some financial consequences for a Member is based on objective and legitimate con- State, which moreover have not been siderations independent of the nationality substantiated, are never a valid justification of the migrant workers involved. Accord- for infringements of a fundamental free- ingly, the provision at issue must be regar- dom. 46 Thirdly, pension rights of civil ded as infringing the prohibition of indirect servants are not at issue in the present discrimination on grounds of nationality as proceedings: the provision under scrutiny regards conditions of work or employment contained in Article 48(2) of the EC Treaty a n d A r t i c l e 7(1) of R e g u l a t i o n 45 — See my Opinion in Case C-15/96 Schöning-Kougebeto- No 1612/68. poulou, cited in note 23, paragraph 24. 46 — See, for example, Case 238/82 Duphar and Others v Netherlands [1984] ECR 523, paragraph 23 of the judgment. 47 — Council Regulation of 29 June 1998, OJ 1998 L 209 p. 1.

137. It is well established that the Treaty 138. I accordingly conclude that rules of a rules on free movement of persons not only Member State on the taking into account of forbid discrimination by a Member State previous periods of employment for the against nationals of other Member States determination of contractual teachers' and but also preclude national legislation which teaching assistants' pay infringe Article 48 might place Community citizens at a dis- of the EC Treaty and Article 7(1) of advantage when they wish to pursue an Regulation No 1612/68 where more oner- economic activity in the territory of ous requirements are imposed with regard another Member State. 48 With regard to to periods completed in other Member workers, the basis for that proposition lies States than with regard to periods comple- not so much in Article 48(2) or in Arti- ted in comparable institutions in that cle 7(1) of Regulation No 1612/68 but Member State. rather in the more general rule of Arti- cle 48(1) which protects freedom of move- ment for workers as such. 49 In both Scholz and Commission v Greece 50 the Advocate General considered that unconditional refusal to recognise periods of employment completed abroad constituted an obstacle to freedom of movement since it deterred persons from taking up employment in Question 3: Temporal limitation

48 — C a s e 143/87 Stanton v INASTI [1988] ECR 3877, paragraph 13 of the judgment; Joined Cases 154/87 a n d 155/87 RSVZ v Wolf and Others [1988] ECR 3897, paragraph 13; Case C-370/90 Smgh [1992] ECR I-4265, paragraphs 16 and 23. 49 — Sec my Opinion in Case C-419/92 Scholz, cited in note 23, paragraph 22. 139. At issue is whether, where a Member 50 — Cited in note 23. State is required to take into account

141. Article 2 of the Act concerning the conditions of accession of the Kingdom of 144. The question is thus whether in taking Norway, the Republic of Austria, the any decision on comparability the receiving Republic of Finland and the Kingdom of Member State must take into account all Sweden and the adjustments to the Treaties periods of employment independently of on which the European Union is founded 51 whether they have been completed before (hereinafter 'the Act of Accession') provides accession. The answer seems clear. Discri- that, from the date of accession, the mination against nationals of other Mem- provisions of the original Treaties are to ber States is prohibited, in the absence of be binding on the new Member States and transitional provisions, with immediate are to apply in those States under the effect from the date of accession to the conditions laid down in those Treaties and European Union. Previous periods of in the Act of Accession. employment will necessarily have been completed before accession. In the absence of transitional provisions, those periods of employment must therefore necessarily be taken into account.

142. In view of the fact that the Act of Accession contains no transitional provi- sions with regard to the application of Article 48 of the EC Treaty or Article 7(1) of Regulation No 1612/68, those provi- 145. An analogy can be made with the sions must be regarded as being immedi- principle of equal pay for men and women ately applicable and binding on Austria

52 — Case C-122/96 Saldanha and MTS v Hiross [1997] ECR 51 — OJ 1994 C 241, p. 21. I-5325, paragraph 14 of the judgment.

148. That result is not affected by judg­ ments such as Andersson 55 or Tsiotras. 56 In Andersson two former employees of a Swedish undertaking which was declared insolvent before the accession of Sweden to the European Union tried to rely on Council Directive 80/987/EEC of 20 Octo­ ber 1980 on the approximation of laws of the Member States relating to the protec­ tion of employees in the event of the insolvency of their employer in combina­ 146. Parallels exist also with regard to the tion with the principles established in recognition of diplomas. The Court in its 57 Francovich. In Tsiotras a Greek national 53 case-law and the Community legisla­ who before his country's accession to the 54 ture have never made the host Member Community had worked in Germany, but State's obligations with regard to recogni­ who on the date of accession was unem­ tion dependent on whether diplomas were ployed, who remained afterwards unem-

53 — Implicit for example in Case C-340/89 Vlassoļnmlont 11991] ECR I - 2 3 5 7 . 55 — Case C-321/97 Andersson and Wàkeràs-Andersson v Sľensha Suiten, judgment of 15 June 1999. 54 — See. for example. Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition 56 — Case C-171/91 Tsmtras v Landeshauptstadt Stuttgart of higher-education diplomas awarded on completion of [1993] ECR I-2925. professional education and training of at least three vears' 57 — Joined Cases C-6/90 and C-9/90 Franconch and Others duration, OJ 1989 L 19 p. If,. [1991] ECR I-5357.

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OPINION OF MR JACOBS — CASE C-195/98

149. In both judgments however the ratio- nale was that Community law rights cannot be acquired before accession and as a consequence cannot be recognised after accession when the conditions for their acquisition or existence are no longer in place. The present case is different since it does not concern recognition of Commu- nity law rights allegedly acquired before 152. I accordingly conclude that periods accession but discriminatory treatment of completed in institutions in other Member migrant workers with regard to their cur- States comparable to the Austrian institu- rent status which itself is the consequence tions enumerated in Paragraph 26(2) of the of past events governed by the laws of their VBG must be taken into account without respective Member States of origin. any temporal limitation; the periods to be taken into account therefore include any such periods completed before the acces- sion of Austria to the European Union.

150. It follows that, where the Austrian authorities take decisions on the recogni- tion of previous periods of employment, all such periods have to be taken into account, even those completed before the date of accession.

151. I do not consider that a different result can be reached with regard to Austrian workers having completed relevant periods of employment in other Member States. 58 — Compare Case C-107/94 Asscher v Staatssecretaris van financiën [1996] ECR I-3089, paragraph 32 of the When such a worker returns to his home judgment.

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Conclusion

153. The substantive questions referred by the Oberster Gerichtshof, Austria, should therefore in my opinion be answered as follows: