Keywords
Summary

Keywords

1. Preliminary rulings - Reference to the Court - Court or tribunal of a Member State within the meaning of Article 177 of the Treaty (now Article 234 EC) - Definition - Oberster Gerichtshof ruling under a specific procedure intended to determine in the abstract whether there is a right without reference to any individual dispute - Covered

(EC Treaty, Art. 177 (now Art. 234 EC))

2. Freedom of movement for persons - Workers - Equal treatment - Seniority - Recognition of previous periods of service for the purposes of determining the pay of contractual teachers - Stricter requirements applicable to periods spent in comparable institutions of other Member States - Covert discrimination - Not permissible - Account to be taken without temporal limitation

(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC); Council Regulation No 1612/68, Art. 7(1) and (4))

Summary

1. In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty (now Article 234 EC), which is a question governed by Community law alone, the Court takes into account a number of factors, such as whether the body concerned is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.

In exercising functions such as those provided for under a specific procedure intended to determine in the abstract whether there is a right without reference to any individual dispute, the Oberster Gerichtshof constitutes a court or tribunal within the meaning of Article 177 of the Treaty. Although the Oberster Gerichtshof is not ruling on disputes in a specific case involving identified persons and must base its legal assessment on the facts alleged by the applicant without further examination, and although the decision is declaratory in nature and the right to bring proceedings is exercised collectively, the procedure in question is none the less intended to result in a decision that is judicial in character. In particular, the final decision is binding on the parties who cannot make a second application for a declaration relating to the same factual situation and raising the same legal questions.

( see paras 24, 29-30, 32 and operative part 1 )

2. Article 48 of the Treaty (now, after amendment Article 39 EC) and Article 7(1) and (4) of Regulation No 1612/68 on freedom of movement for workers within the Community preclude a national rule concerning the account to be taken of previous periods of service for the purposes of determining the pay of contractual teachers and teaching assistants, where the requirements which apply to periods spent in other Member States are stricter than those applicable to periods spent in comparable institutions of the Member State concerned. That provision, which operates to the detriment of migrant workers who have spent part of their career in another Member State is liable to breach the principle of non-discrimination enshrined in Article 48 of the Treaty and Article 7(1) and (4) of Regulation No 1612/68.

Moreover, where a Member State is obliged to take into account, in calculating the pay of contractual teachers and teaching assistants, periods of employment in certain institutions in other Member States comparable to the national institutions, such periods must be taken into account without any temporal limitation.

( see paras 44, 51, 56 and operative part 2-3 )