Avis juridique important

Judgment of the Court of 2 July 1996. - Commission of the European Communities v Grand Duchy of Luxemburg. - Failure of a Member State to fulfil its obligations - Freedom of movement for persons - Employment in the public service. - Case C-473/93. European Court reports 1996 Page I-03207

Summary Parties Grounds Decision on costs Operative part

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1. Actions for failure to fulfil obligations ° Pre-litigation procedure ° Purpose ° Setting of time-limits for the Member State concerned ° Requirement of reasonable time-limits ° Criteria for assessment

(EEC Treaty, Art. 169)

2. Freedom of movement for persons ° Derogations ° Employment in the public service ° Public sectors of research, education, health, inland transport, posts and telecommunications and the water, gas and electricity distribution services ° Nationality requirement for posts not involving participation in the exercise of powers conferred by public law or the safeguarding of the general interests of the State ° Not permissible ° Justification ° Preservation of national identity ° Not acceptable

(EEC Treaty, Art. 48; Treaty on European Union, Art. F(1); Council Regulation No 1612/68, Art. 1)

1. In an action for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections raised by the Commission. That dual purpose requires that the Commission allow the Member State a reasonable period in which to reply to the letter of formal notice and to comply with a reasoned opinion, or, where appropriate, to prepare its defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case.

A period of four months given to a Member State in order to comply with a reasoned opinion issued by the Commission cannot be regarded as unreasonable where that Member State was informed of the Commission' s position nearly three years before receiving formal notice from the Commission and that period is, moreover, twice as long as the period normally allowed.

2. A Member State which, in the public sectors of research, education, health, inland transport, posts and telecommunications and in the water, gas and electricity distribution services, does not restrict the requirement of possession of its nationality to civil servants' and public employees' posts involving direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities, fails to fulfil its obligations under Article 48 of the Treaty and Article 1 of Regulation No 1612/68 on freedom of movement for workers within the Community. Since the generality of the posts in those sectors are remote from the specific activities of the public service, the fact that some posts in those sectors may, in certain circumstances, be covered by Article 48(4) of the Treaty cannot justify a Member State' s making all those posts in general subject to a nationality condition.

In a sector such as education, the exclusion of nationals of other Member States from all the posts in the sector cannot be justified by considerations relating to preservation of national identity since that interest, whose safeguarding is a legitimate interest, recognized by Article F(1) of the Treaty on European Union, can still be effectively safeguarded otherwise than by a general exclusion and since nationals of other Member States, like nationals of the Member State concerned, must in any event fulfil all the conditions required for recruitment, in particular those relating to training, experience and language knowledge.

In Case C-473/93,

Commission of the European Communities, represented by Dimitrios Gouloussis, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Grand Duchy of Luxembourg, represented by Alain Lorang, of the Luxembourg Bar, 12-14 Avenue Emile Reuter,

defendant,

APPLICATION for a declaration that, by maintaining a nationality requirement in relation to workers who are nationals of other Member States as regards access to civil servants' or public employees' posts in the public sectors of research, teaching, health, inland transport, posts and telecommunications, and in the water, gas and electricity distribution services, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 48 of the EEC Treaty and Articles 1 and 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968 (II), p. 475),

THE COURT,

composed of: G.C. Rodríguez-Iglesias, President, C.N. Kakouris, D.A.O. Edward, J.-P. Puissochet and G. Hirsch (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida, P.J.G. Kapteyn, C. Gulmann, J.L. Murray, P. Jann (Rapporteur), H. Ragnemalm, L. Sevón and M. Wathelet, Judges,

Advocate General: P. Léger,

Registrar: D. Louterman-Hubeau, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 23 January 1996,

after hearing the Opinion of the Advocate General at the sitting on 5 March 1996,

gives the following

Judgment

1 By application lodged at the Court Registry on 17 December 1993, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by maintaining a nationality requirement in relation to workers who are nationals of other Member States as regards access to civil servants' or public employees' posts in the public sectors of research, teaching, health, inland transport, posts and telecommunications, and in the water, gas and electricity distribution services, the Grand Duchy of Luxembourg had failed to fulfil its obligations under Article 48 of the EEC Treaty and Articles 1 and 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968 (II), p. 475).

2 Article 48(1) to (3) of the EEC Treaty, which is now the EC Treaty, lays down the principle of the free movement of workers and the abolition of all discrimination based on nationality between workers of the Member States. Article 48(4) of the Treaty provides that the provisions of this article are not to apply to employment in the public service. According to the case-law of the Court, Article 48(4) covers posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities and thus presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality. On the other hand, the Article 48(4) exception does not cover posts which, whilst coming under the State or other organizations governed by public law, still do not involve any association with tasks belonging to the public service properly so called (judgment in Case 149/79 Commission v Belgium [1980] ECR 3881, paragraphs 10 and 11).

3 As regards Articles 1 and 7 of Regulation No 1612/68, these provisions lay down the rule of equal treatment in access to employment, on the one hand, and in its exercise, on the other.

4 Having found that, in certain Member States, a large number of posts regarded as belonging to the public service had no connection with the exercise of powers conferred by public law or with the safeguarding of the general interests of the State, the Commission decided in 1988 to implement a "strategy" on the basis of Communication 88/C 72/02: Freedom of movement of workers and access to employment in the public service of the Member States ° Commission action in respect of the application of Article 48(4) of the EEC Treaty (OJ 1988 C 72, p. 2). In that communication, the Commission reminded the Member States to give nationals of other Member States access to posts in bodies responsible for administering commercial services, such as public transport, supply of electricity and gas, airlines and shipping lines, posts and telecommunications, and in radio and television companies, public health care services, State education and research for non-military purposes conducted in public establishments. The Commission considered that the functions involved in posts falling in those areas would only in very rare cases be covered by the exception provided for in Article 48(4) of the Treaty.

5 Pursuant to that strategy, on 5 January 1988 the Commission sent the Grand Duchy of Luxembourg a letter reminding it to take the measures needed for abolishing the nationality condition which that State applies to access to employment in the areas listed above. In a letter of 30 October 1990 the Grand Duchy replied that it did not envisage taking any special measures of the kind desired.

6 On 12 March 1991, the Commission sent the Luxembourg Government six formal letters concerning the areas of research, education, health, inland transport, posts and telecommunications and water, gas and electricity distribution. In those letters the Commission requested the Luxembourg Government to submit its observations within a period of six months.

7 On 4 May 1992 the Luxembourg Government replied that it was maintaining its previous position because the principle of free movement of workers was already widely applied in the areas in question.

8 On 14 July 1992, the Commission issued six reasoned opinions regarding the areas concerned, each giving the Luxembourg Government a period of four months in which to comply. When no reply was received to those opinions, the Commission brought this action.

9 According to the documents before the Court, in the Grand Duchy of Luxembourg the areas with which the Commission' s application is concerned come within the public service. In all those areas, Luxembourg nationality is in principle required as a qualification for all the posts, whether they are occupied by established civil servants, servants with like status or employees serving under a contract of employment.

10 This principle is laid down in the second paragraph of Article 11 of the Luxembourg Constitution, which provides that only Luxembourgers may occupy civil and military posts, in Article 3(a) of the Law of 27 January 1972 laying down the rules governing State employees, in Article 2(1)(a) of the amended Law of 16 April 1979 laying down the general regulations applicable to State officials, in Article 2(1)(a) of the Law of 24 December 1985 laying down the general regulations applicable to commune officials, in Article 3(a) of the Grand-Ducal Regulation of 26 May 1975 bringing the rules governing commune employees into line with those governing State employees, in Article 2(1) of the Staff Regulations of Luxembourg Railways, which provide, however, for derogations in the cases laid down by international agreements and where there are no candidates of Luxembourg nationality, subject to authorization from the Government.

11 The same condition is also laid down by Article 24 of the Law of 10 August 1992 on the conversion of the Posts and Telecommunications Office into the "Posts and Telecommunications Enterprise", which provides for the General Regulations applicable to civil servants and State employees to be applied to its servants, and by Article 2(b) of the Grand-Ducal Regulation of 11 August 1974 laying down the conditions for the admission, appointment and promotion of State paramedical staff.

12 Finally, it would appear from Articles 4 and 5 of the Law of 9 March 1987 on the organization of technological research and development in the public sector that nationals of other Member States may take up a post in research only if, by way of exception, the body, government department or public higher education establishment or university employing them does not require Luxembourg nationality.

13 By way of exception, this condition is not imposed on staff of the Luxembourg Hospital Centre, a public establishment having a management governed by private law, or on teaching staff at the Luxembourg University Centre.

14 In all the cases in which the requirement of Luxembourg nationality is laid down, it is framed in general terms, without any distinction according to the nature of the duties entailed by, or the hierarchical level of, the posts in question.

15 The Commission contends that in all the areas with which its application is concerned the functions involved in the posts subject to the nationality condition are generally too remote from the specific activities of the public service for them to be covered virtually without exception by the derogation provided for in Article 48(4) of the Treaty. The Grand Duchy of Luxembourg could not therefore require Luxembourg nationality for all posts in those areas. As for the special posts having such a relation with the specific activities of the public service, it is for the defendant government to demonstrate the existence of such a relationship.

16 The Grand Duchy of Luxembourg does not deny that in Luxembourg posts in the areas in question are generally restricted to its own nationals. However, for a number of reasons it does not consider that it should be found to be in breach of its obligations.

Admissibility

17 First of all, the Grand Duchy of Luxembourg challenges the admissibility of the Commission' s action on the ground that the Commission gave it a period of only four months in which to comply with the reasoned opinions. That period was manifestly insufficient to allow it to carry out the major reform demanded, which required it to overhaul its administrative system starting at its very roots.

18 In response, the Commission maintains first of all that the period of four months given in the reasoned opinions was exceptionally long since the usual period allowed is only one or two months. The Commission goes on to point out that the entire pre-litigation procedure lasted more than 33 months, not to mention the fact that at the time when that procedure commenced the Grand Duchy of Luxembourg had long been aware of the Commission' s intentions because of the strategy it had announced. Finally, the Grand Duchy never asked for the period to be extended but always insisted that it would not amend its legislation.

22 Furthermore, the Grand Duchy of Luxembourg had been aware of the Commission' s position since 18 March 1988 when it published Communication 88/C 72/02, mentioned above, which was therefore nearly three years before it received the letters, dated 12 March 1991, giving it formal notice, which in turn allowed it a period of six months.

23 In the replies which it gave to the Commission the Grand Duchy of Luxembourg made it clear that it was not going to carry out any legislative reforms.

24 In those circumstances the four-month period imposed by the reasoned opinions cannot be regarded as unreasonable. The action is therefore admissible.

Substance

25 On the substance, the Grand Duchy of Luxembourg submits first of all that Article 48(4) of the Treaty must be interpreted in an "institutional" sense so that the exception which it lays down should cover all posts which under national law constitute public service posts, including those involving purely executory, technical or manual duties if they are performed for the State or for public authorities. Only nationals can be depended on to show the special degree of integrity and trustworthiness which must be capable of being required of civil servants and public employees.

26 With regard to that argument, it suffices to refer to the Court' s settled case-law according to which the concept of public service within the meaning of Article 48(4) of the Treaty requires uniform interpretation and application throughout the Community and cannot therefore be left entirely to the discretion of the Member States (see, in particular, the judgment in Case 152/73 Sotgiu [1974] ECR 153 and the judgment in Case 149/79 Commission v Belgium, cited above, paragraphs 12 and 18).

27 So, in order to determine whether posts fall within the scope of Article 48(4) of the Treaty, it is necessary to consider whether or not the posts in question typify the specific activities of the public service in so far as it exercises powers conferred by public law and has responsibility for safeguarding the general interests of the State or of other public bodies. For that reason, the criterion for determining whether Article 48(4) of the Treaty is applicable must be functional and must take account of the nature of the tasks and responsibilities inherent in the post, in order to ensure that the effectiveness and scope of the provisions of the Treaty on freedom of movement of workers and equal treatment of nationals of all Member States is not restricted by interpretations of the concept of public service which are based on domestic law alone and which would obstruct application of Community rules (judgment in Case 307/84 Commission v France [1986] ECR 1725, paragraph 12).

29 The Commission states in this regard that in Communication 88/C 72/02 it examined the posts in the various areas concerned in the light of the criteria laid down by the Court for the interpretation of Article 48(4) of the Treaty. That examination led it to conclude that those posts are too remote from the specific activities of the public service to be covered in general by the Article 48(4) exception. In those circumstances, it must be entitled in principle to exclude application of that provision in all the areas concerned by these proceedings without any preliminary post-by-post examination being necessary.

30 The Commission also claims that it found that the activities performed in the areas in question either existed in the private sector, too, or could be performed in the public sector without being subject to a nationality condition.

31 The Court observes in this regard that, as the Luxembourg Government itself admits, the generality of posts in the areas of research, health, inland transport, posts and telecommunications and in the water, gas and electricity supply services are remote from the specific activities of the public service because they do not involve direct or indirect participation in the exercise of powers conferred by public law or duties designed to safeguard the general interests of the State or of other public authorities (see, in particular, as regards the area of health, the judgment in Case 307/84 Commission v France, and, as regards research for civil purposes, the judgment in Case 225/85 Commission v Italy [1987] ECR 2625.

32 As regards the area of education, the Luxembourg Government submits in particular that teachers must be Luxembourg nationals in order to transmit traditional values and that, in view of the size of the country and its specific demographic situation, the nationality requirement is therefore an essential condition for preserving Luxembourg' s national identity. Its identity could not be preserved if the majority of teachers came from other States of the Community. In the case of primary and secondary school teachers, the Luxembourg Government points out that these teachers perform non-commercial functions which do actually entail safeguarding the general interests of the State.

34 For the same reasons, the same applies to primary school teachers.

36 Consequently, the protection of national identity cannot justify exclusion of nationals of other Member States from all the posts in an area such as education, with the exception of those involving direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities.

37 Thirdly, the Grand Duchy of Luxembourg refers to the second paragraph of Article 11 of its Constitution, according to which only Luxembourg nationals may occupy civil and military posts, save where a Law makes an exception in an individual case. Being a supreme rule of domestic law, that provision precludes the breach of obligations alleged by the Commission from being found.

39 Fourthly, the Grand Duchy of Luxembourg relies on Article 13 of the European Convention on Establishment of 13 December 1955, which provides: "Any Contracting Party may reserve for its own nationals the exercise of public functions or of occupations connected with national security or defence, or make the exercise of these occupations by aliens subject to special conditions." The Grand Duchy points out that this Convention has been signed by most of the Member States, including the Grand Duchy.

41 Fifthly, the Luxembourg Government refers to Article 61 of the Treaty instituting the Benelux Economic Union of 3 February 1958, according to which the Contracting Parties maintain the right to reserve the exercise of, inter alia, official posts, public functions or professions to their own nationals. It argues that, since, as is clear from Article 233 of the EEC Treaty, that provision leaves room for the Benelux Treaty, Article 61 of that Treaty precludes Article 48(4) of the EEC Treaty from being interpreted in the way advocated by the Commission.

42 As the Court held in its judgment in Case 105/83 Pakvries [1984] ECR 2101, paragraph 11, the aim of Article 233 of the Treaty is to prevent the application of Community law from causing the disintegration of the Benelux Union or from hindering its development. It therefore enables the three Member States concerned to apply, in derogation from the Community rules, the rules in force within their union in so far as that union is further advanced than the common market.

43 In so far as it grants nationals of other Member States access to all posts in the public service, except those involving exercise of powers conferred by public law, Community law goes further than Article 61 of the Benelux Treaty, on the assumption, however, that this provision must indeed be interpreted in the way suggested by the Grand Duchy of Luxembourg. Consequently, Article 61 of the Benelux Treaty cannot prevent the alleged breach of obligations from being found.

44 Finally, the Grand Duchy of Luxembourg draws attention to its special demographic situation. It states that its tiny population, the attraction which civil servants' and public employees' posts continue to have in this country, as well as the economic crisis may cause a massive influx of workers from other Member States who would monopolize the vacant posts so that the very future of the country could be put in question. That is why the States which signed the EEC Treaty on 25 March 1957 adopted the Protocol on the Grand Duchy of Luxembourg which, in Article 2, provides that: "When framing the regulations on freedom of movement for workers provided for in Article 48(3) of this Treaty, the Commission shall take account, as regards the Grand Duchy of Luxembourg, of the special demographic situation in that country". The Grand Duchy argues that this provision should also apply in this case.

45 In this regard, it is sufficient to state that Article 2 of that Protocol allowed the Grand Duchy of Luxembourg to request specific changes, required by its special demographic situation, to be made upon enactment of the regulations for implementing freedom of movement for workers. However, the existence of that right cannot authorize it unilaterally to exclude workers from other Member States from entire areas of occupational activity.

46 It follows from the foregoing considerations that the Grand Duchy of Luxembourg may not generally make all posts in the areas concerned subject to a nationality condition without exceeding the limits of the exception provided for by Article 48(4) of the Treaty.

47 The fact that some posts in those areas may, in certain circumstances, be covered by Article 48(4) of the Treaty cannot justify such a general prohibition (see also the two judgments delivered on this same date in Case C-173/94 Commission v Belgium and Case C-290/94 Commission v Greece).

48 In those circumstances, in order to give full effect to the principles of freedom of movement for workers and equal treatment in access to employment, the Grand Duchy of Luxembourg was obliged to open the areas in question to nationals of other Member States by restricting application of the nationality condition to only those posts which actually involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interest of the State or of other public authorities.

49 As regards the basis of the action, it must be observed that Article 7 of Regulation No 1612/68 concerns conditions of exercise of employment and not access to it. However, only access by nationals of other Member States to employment is at issue in this case. No breach of obligations can therefore be found on the basis of Article 7 of Regulation No 1612/68.

50 It must accordingly be declared that, in not restricting the requirement of Luxembourg nationality to access to civil servants' and public employees' posts involving direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities in the public sectors of research, education, health, inland transport, posts and telecommunications, and in the water, gas and electricity distribution services, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 48 of the Treaty and Article 1 of Regulation No 1612/68.

On the request for a period of grace

Costs

53 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Grand Duchy of Luxembourg has failed in its submissions it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, in not restricting the requirement of Luxembourg nationality to access to civil servants' and public employees' posts involving direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities in the public sectors of research, education, health, inland transport, posts and telecommunications, and in the water, gas and electricity distribution services, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 48 of the EEC Treaty and Article 1 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community;

2. Orders the Grand Duchy of Luxembourg to pay the costs.