61985J0225

++++

1 . FREE MOVEMENT OF PERSONS - EXCEPTIONS - EMPLOYMENT IN THE PUBLIC SERVICE - CONCEPT - RESEARCHERS

( EEC TREATY, ART . 48 ( 4 ) )

2 . FREE MOVEMENT OF PERSONS - EXCEPTIONS - EMPLOYMENT IN THE PUBLIC SERVICE - ADMISSION OF NATIONALS ONLY TO POSTS INVOLVING PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE - WHETHER PERMISSIBLE - EXCLUSION OF NATIONALS OF OTHER MEMBER STATES FROM EMPLOYMENT IN THE PUBLIC SECTOR GENERALLY - NOT PERMISSIBLE

( EEC TREATY, ART . 48 ( 4 ) )

3 . FREE MOVEMENT OF PERSONS - EXCEPTIONS - EMPLOYMENT IN THE PUBLIC SERVICE - EXERCISE OF THE DEROGATION WAIVED BY A MEMBER STATE - CONSEQUENCES - PROHIBITION OF DISCRIMINATION

( EEC TREATY, ART . 48 ( 2 ) AND ( 4 )); REGULATION OF THE COUNCIL NO 1612/68, ART . 7 ( 1 ) AND ( 4 ) )

1 . RESEARCH POSTS AT THE NATIONAL RESEARCH CENTRE OF A MEMBER STATE DO NOT CONSTITUTE EMPLOYMENT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) OF THE EEC TREATY WHERE THEY DO NOT INVOLVE THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW OR THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE .

2 . COMMUNITY LAW DOES NOT PROHIBIT A MEMBER STATE FROM RESERVING FOR ITS OWN NATIONALS THOSE POSTS WITHIN A CAREER BRACKET IN THE PUBLIC SECTOR WHICH INVOLVE PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW OR THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE . HOWEVER, THE POSSIBILITY THAT NATIONALS OF OTHER MEMBER STATES MIGHT BE EXCLUDED FROM PROMOTION OR TRANSFER TO CERTAIN POSTS MUST NOT HAVE THE EFFECT OF DEBARRING THEM GENERALLY FROM POSTS WHICH ARE NOT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) OF THE TREATY .

3 . ONCE A MEMBER STATE HAS PERMITTED NATIONALS OF OTHER MEMBER STATES TO OCCUPY POSTS CONSTITUTING EMPLOYMENT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) OF THE TREATY, DISCRIMINATORY TREATMENT OF THOSE PERSONS AS REGARDS REMUNERATION OR OTHER CONDITIONS OF EMPLOYMENT WILL CONSTITUTE AN INFRINGEMENT OF ARTICLE 48 ( 2 ) OF THE TREATY AND ARTICLE 7 ( 1 ) AND ( 4 ) OF REGULATION NO 1612/68 .

IN CASE 225/85

COMMISSION OF THE EUROPEAN COMMUNITIES, RERRESENTED BY ENRICO TRAVERSA, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF THE COMMISSION' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

ITALIAN REPUBLIC, RERRESENTED BY LUIGI FERRARI BRAVO, HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS, ACTING AS AGENT, ASSISTED BY OSCAR FIUMARA, AVVOCATO DELLO STATO, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT BY DISCRIMINATING, AS REGARDS CONDITIONS OF WORK AND EMPLOYMENT, AGAINST NATIONALS OF OTHER MEMBER STATES WORKING FOR THE CONSIGLIO NAZIONALE DELLE RICERCHE ( CNR ) ( NATIONAL RESEARCH COUNCIL ) IN FAVOUR OF RESEARCHERS OF ITALIAN NATIONALITY WORKING FOR THAT BODY, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 48 OF THE EEC TREATY AND ARTICLE 7 ( 1 ) AND ( 4 ) OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SRECIAL EDITION 1968 ( II ), P . 475 ),

THE COURT

COMPOSED OF : Y . GALMOT, PRESIDENT OF CHAMBER, ACTING AS PRESIDENT OF THE COURT, C . KAKOURIS AND F . SCHOCKWEILER, PRESIDENTS OF CHAMBERS, T.*KOORMANS, G . BOSCO, U . EVERLING AND J.C . MOITINHO DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : C.O . LENZ

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 2 OCTOBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 27 JANUARY 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 23 JULY 1985 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY DISCRIMINATING, AS REGARDS CONDITIONS OF WORK AND EMPLOYMENT, AGAINST NATIONALS OF OTHER MEMBER STATES WORKING FOR THE CONSIGLIO NAZIONALE DELLE RICERCHE ( NATIONAL RESEARCH COUNCIL, HEREINAFTER REFERRED TO AS "THE CNR ") IN FAVOUR OF RESEARCHERS OF ITALIAN NATIONALITY WORKING FOR THAT BODY, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 48 OF THE EEC TREATY AND ARTICLE 7 ( 1 ) AND ( 4 ) OF REGULATION ( EEC ) NO 1612/68

OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT OF WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ).

2 ARTICLE 36 ( 3 ) OF ITALIAN LAW NO 70 OF 20 MARCH 1975 ( GAZZETTA UFFICIALE DELLA REPUBBLICA ITALIANA NO 87 OF 2 APRIL 1975 ) PROVIDES THAT STAFF EMPLOYED UNDER CONTRACT BY THE CNR ON THE DATE OF THAT LAW' S ENTRY INTO FORCE ( 3 APRIL 1975 ) ARE TO BE APPOINTED TO ESTABLISHED POSTS PROVIDED THAT THEY HAVE THE REQUISITE QUALIFICATIONS AND FULFIL THE PRESCRIBED REQUIREMENTS . ARTICLE 36 ( 4 ) PROVIDES THAT, IN THE ABSENCE OF ESTABLISHED POSTS, STAFF EMPLOYED UNDER CONTRACT ARE TO CONTINUE TO BE ENGAGED FOR AN INDEFINITE PERIOD AND TO RECEIVE THE SAME REMUNERATION AS ESTABLISHED STAFF OF THE CORRESPONDING LEVEL . IN BOTH CASES "ACCOUNT SHALL BE TAKEN OF PREVIOUS YEARS OF SERVICE FOR THE PURPOSE OF CALCULATING PERIODICAL INCREASES IN SALARY ".

3 IN ADDITION, ARTICLE 5 ( 3 ) OF LAW NO 70 REFERS TO THE "LEGAL RULES IN FORCE IN THE CIVIL SERVICE WITH REGARD TO RECRUITMENT REQUIREMENTS ". THESE INCLUDE THE PROVISIONS CONCERNING THE REGULATIONS FOR CIVIL SERVANTS ( DECRETO DEL PRESIDENTE DELLA REPUBBLICA NO 3 OF 10 JANUARY 1957, GAZZETTA UFFICIALE DELLA REPUBBLICA ITALIANA, ORDINARY SUPPLEMENT TO GAZZETTA UFFICIALE NO 22 OF 25 JANUARY 1957 ), ARTICLE 2 OF WHICH PROVIDES THAT : "ANY PERSON WHO SATISFIES THE FOLLOWING GENERAL CONDITIONS MAY BE APPOINTED A CIVIL SERVANT : ( 1 ) POSSESSION OF ITALIAN NATIONALITY ...".

4 THE COMMISSION, CONSIDERING THAT THE ABOVEMENTIONED NATIONALITY REQUIREMENT FOR RESEARCHERS APPLYING FOR ESTABLISHED POSTS ( OR, WHERE SUCH POSTS ARE TEMPORARILY UNAVAILABLE, FOR

CONTINUED EMPLOYMENT FOR AN INDEFINITE PERIOD ) WAS CONTRARY TO ARTICLE 48 OF THE TREATY AND TO REGULATION NO 1612/68, BROUGHT THIS ACTION AGAINST THE ITALIAN REPUBLIC FOR FAILURE TO FULFIL ITS OBLIGATIONS .

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

6 THE FIRST QUESTION RAISED BY THIS APPLICATION IS WHETHER RESEARCHERS' POSTS AT THE CNR ARE TO BE REGARDED AS BEING "EMPLOYMENT IN THE PUBLIC SERVICE" TO WHICH THE RULE PROHIBITING DISCRIMINATION SET OUT IN ARTICLE 48 ( 2 ) OF THE EEC TREATY DOES NOT APPLY BY VIRTUE OF ARTICLE 48 ( 4 ).

7 IN DECIDING THIS QUESTION IT MUST BE BORNE IN MIND THAT, AS A DEROGATION FROM THE FUNDAMENTAL PRINCIPLE THAT WORKERS IN THE COMMUNITY SHOULD ENJOY FREEDOM OF MOVEMENT AND NOT SUFFER DISCRIMINATION, ARTICLE 48 ( 4 ) MUST BE CONSTRUED IN SUCH A WAY AS TO LIMIT ITS SCOPE TO WHAT IS STRICTLY NECESSARY FOR SAFEGUARDING THE INTERESTS WHICH THAT PROVISION ALLOWS THE MEMBER STATES TO PROTECT .

8 AS THE COURT HAS ALREADY STATED, MOST RECENTLY IN ITS JUDGMENT OF 3 JULY 1986 IN CASE 66/85 LAWRIE-BLUM V LAND BADEN-WUERTTEMBERG (( 1986 )) ECR 2121 AT P . 2139, ACCESS TO CERTAIN POSTS MAY NOT BE LIMITED BY REASON OF THE FACT THAT IN A GIVEN MEMBER STATE PERSONS APPOINTED TO SUCH POSTS HAVE THE STATUS OF CIVIL SERVANTS . TO MAKE THE APPLICATION OF ARTICLE 48 ( 4 ) DEPENDENT ON THE LEGAL NATURE OF THE RELATIONSHIP BETWEEN THE

EMPLOYEE AND THE ADMINISTRATION WOULD ENABLE THE MEMBER STATE TO DETERMINE AT WILL THE POSTS COVERED BY THE EXCEPTION LAID DOWN IN THAT PROVISION .

9 IT MUST BE HELD THAT THE CONDITIONS DEFINED IN THE COURT' S CASE-LAW, IN PARTICULAR IN THE JUDGMENT OF 17 DECEMBER 1980 IN CASE 149/79 COMMISSION V BELGIUM (( 1980 )) ECR 3881, WHICH A POST MUST SATISFY IN ORDER FOR IT TO BE REGARDED AS EMPLOYMENT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) OF THE EEC TREATY ARE NOT FULFILLED IN THIS CASE . SIMPLY REFERRING TO THE GENERAL TASKS OF THE CNR AND LISTING THE DUTIES OF ALL ITS RESEARCHERS IS NOT SUFFICIENT TO ESTABLISH THAT THE RESEARCHERS ARE RESPONSIBLE FOR EXERCISING POWERS CONFERRED BY PUBLIC LAW OR FOR SAFEGUARDING THE GENERAL INTERESTS OF THE STATE . ONLY THE DUTIES OF MANAGEMENT OR OF ADVISING THE STATE ON SCIENTIFIC AND TECHNICAL QUESTIONS COULD BE DESCRIBED AS EMPLOYMENT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ). HOWEVER, IT HAS NOT BEEN ESTABLISHED THAT THOSE DUTIES WERE CARRIED OUT BY CNR RESEARCHERS .

10 AS TO THE ITALIAN GOVERNMENT' S ARGUMENT THAT IF FOREIGN RESEARCHERS WERE TO BECOME PART OF THE CNR' S PERMANENT STAFF, IT WOULD NOT BE POSSIBLE TO DENY THEM ACCESS, BY PROMOTION, TO THE HIGHER MANAGERIAL POSTS OF THAT BODY, IT IS SUFFICIENT TO POINT OUT THAT COMMUNITY LAW DOES NOT PROHIBIT A MEMBER STATE FROM RESERVING FOR ITS OWN NATIONALS THOSE POSTS WITHIN A CAREER BRACKET WHICH INVOLVE PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW OR THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE . HOWEVER, AS THE COURT HAS ALREADY STATED IN THE JUDGMENT OF 17 DECEMBER 1980, CITED ABOVE, THE POSSIBILITY THAT NATIONALS OF OTHER MEMBER STATES MIGHT BE EXCLUDED FROM PROMOTION OR TRANSFER TO CERTAIN POSTS MUST NOT

HAVE THE EFFECT OF DEBARRING THEM GENERALLY FROM POSTS WHICH ARE NOT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) OF THE TREATY .

11 FURTHERMORE, AS THE COURT HELD IN ITS JUDGMENT OF 12 FEBRUARY 1974 IN CASE 152/73 SOTGIU V DEUTSCHE BUNDESPOST (( 1974 )) ECR 153, EVEN IF EMPLOYMENT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) IS INVOLVED, THAT PROVISION CANNOT JUSTIFY DISCRIMINATORY MEASURES WITH REGARD TO REMUNERATION OR OTHER CONDITIONS OF EMPLOYMENT AGAINST WORKERS FROM OTHER MEMBER STATES ONCE THEY HAVE BEEN ADMITTED TO THE PUBLIC SERVICE .

12 IT THEREFORE FALLS TO BE DETERMINED WHETHER THE NON-APPLICATION OF THE PROVISIONS OF THE AFOREMENTIONED ITALIAN LAW NO 70 CONSTITUTES DISCRIMINATION CONTRARY TO ARTICLE 48 ( 2 ) OF THE TREATY AND TO ARTICLE 7 ( 1 ) AND ( 4 ) OF REGULATION NO 1612/68 .

13 IN THIS REGARD IT MUST BE OBSERVED THAT THE SITUATION OF RESEARCHERS WHO ARE NATIONALS OF OTHER MEMBER STATES IS DISCRIMINATORY BY COMPARISON WITH THAT OF ITALIAN RESEARCHERS, PARTICULARLY AS REGARDS JOB SECURITY, SINCE THEY ARE EMPLOYED BY THE CNR UNDER CONTRACTS OF LIMITED DURATION AND THEY HAVE NO GUARANTEE THAT THOSE CONTRACTS WILL BE RENEWED . MOREOVER, IT MUST BE NOTED THAT THE FACT THAT RESEARCHERS WHO ARE NATIONALS OF OTHER MEMBER STATES HAVE NO CAREER STRUCTURE MAKES IT IMPOSSIBLE FOR THEM TO MOVE TO HIGHER GRADES AND HAS AN IMPACT ON THEIR PAY AND RETIREMENT PENSIONS . CONSEQUENTLY, THOSE RESEARCHERS DO NOT ENJOY A SYSTEM ENTAILING ADVANTAGES AND GUARANTEES EQUIVALENT TO THOSE DERIVING FROM THE STATUS RESERVED FOR ITALIAN NATIONALS .

14 IN THOSE CIRCUMSTANCES, IT MUST BE HELD THAT BY

DISCRIMINATING, AS REGARDS CONDITIONS OF WORK AND EMPLOYMENT, AGAINST RESEARCHERS WORKING FOR THE CONSIGLIO NAZIONALE DELLE RICERCHE WHO ARE NATIONALS OF OTHER MEMBER STATES IN FAVOUR OF RESEARCHERS OF ITALIAN NATIONALITY WORKING FOR THAT BODY, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 48 OF THE EEC TREATY AND ARTICLE 7 ( 1 ) AND ( 4 ) OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 .

COSTS

15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE ITALIAN REPUBLIC HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

On those grounds,

THE COURT

hereby :

( 1 ) Declares that by discriminating, as regards conditions of work and employment, against researchers working for the Consiglio nazionale delle ricerche who are nationals of other Member States in favour of researchers of Italian nationality working for that body, the Italian Republic has failed to fulfil its obligations under Article 48 of the EEC Treaty and Article 7 ( 1 ) and ( 4 ) of Regulation ( EEC ) No 1612/68 of the

Council of 15 October 1968;

( 2 ) Orders the Italian Republic to pay the costs .