61990J0332

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Freedom of movement for persons - Workers - Provisions of the Treaty - Not applicable in a situation purely internal to a Member State

(EEC Treaty, Arts 7 and 48)

Since the provisions of the Treaty on freedom of movement for persons cannot be applied to activities which are confined in all respects within a single Member State, a national of a Member State who has never exercised the right of freedom of movement within the Community may not rely on Articles 7 and 48 of the Treaty as against the Member State of which he is a national with respect to the conditions governing his recruitment to a post in the territory of that State.

In Case C-332/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by Arbeitsgericht (Labour Court) Elmshorn for a preliminary ruling in the proceedings pending before that court between

Volker Steen

and

Deutsche Bundespost

on the interpretation of Articles 48 and 7 of the EEC Treaty,

THE COURT (Second Chamber),

composed of: F.A. Schockweiler, President of the Chamber, G.F. Mancini and J.L. Murray, Judges,

Advocate General: M. Darmon,

Registrar: J.A. Pompe, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Mr Steen, by Werner Schulte and Ruediger Paulsen, and by Brigitta Zwolski, respectively Bezirksvorsitzender, Secretary and Assessorin in the Deutsche Postgewerkschaft, Bezirksverwaltung, Schleswig-Holstein,

- the Deutsche Bundespost, by Franz Dolleschel, Postoberrat, Oberpostdirektion, Kiel,

- the Federal Republic of Germany, by Ernst Roeder and Joachim Karl, Regierungsdirektor and Oberregierungsrat in the Ministry for the Economy, respectively, acting as Agents,

- the Commission of the European Communities, by Goetz zur Hausen, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Steen, represented by Reinhard Mendel, Rechtsanwalt, Hamburg, the Federal Republic of Germany and the Commission, at the hearing on 22 October 1991,

after hearing the Opinion of the Advocate General at the sitting on 5 November 1991,

gives the following

Judgment

1 By order of 28 September 1990, which was received at the Court on 26 October 1990, the Arbeitsgericht Elmshorn referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 7 and 48(4) of the EEC Treaty.

2 Those questions were raised in proceedings between Volker Steen, a German national, and the Deutsche Bundespost (hereinafter referred to as "the Bundespost") in relation to a post of employment designated by the code Dp A7 Pt/M and entitled "maintenance duties for the intermediate technical service, supervision, stores administration."

3 Mr Steen has been a manual worker with the Bundespost since 1973. In July 1985 he applied for the said post. Since an order of the Federal Minister for Posts and Telecommunications of 14 May 1985, access to employment in the intermediate technical service is subject to a two-year training course during which the trainee is employed under a contract and to his making a written declaration in which he undertakes to accept, upon the conclusion of his training and on passing a test, appointment as a civil servant.

4 After making that declaration in July 1985, Mr Steen began his period of training for the post Dp A7 Pt/M under the contractual system. After passing the test for the intermediate technical service in October 1987, Mr Steen revoked his declaration of July 1985 and stated that he wished to continue to be employed in the aforementioned post under the contractual system. At that time the remuneration which Mr Steen received in post Dp A7 Pt/M was more than that which he would have received in the same post if he had been assigned to it with the status of civil servant.

5 Following Mr Steen' s refusal to be appointed as a civil servant, the Bundespost transferred him on 12 November 1987 to a post of manual worker in a salary group lower than that in which the post Dp A7 Pt/M was classified. Mr Steen brought an action against that decision to transfer him. He maintained that in so far as access to posts in the civil service is reserved to German nationals they alone were not able to occupy, as contractual employees, a post such as that at issue for an indefinite period and thereby suffered discrimination, within the meaning of Articles 7 and 48 of the Treaty, in relation to nationals of other Member States.

6 It was in that context that the national court referred the following questions to the Court for a preliminary ruling:

"1. Is the employment at the Deutsche Bundespost in a post entitled 'maintenance, supervision, stores administration' employment in the public service within the meaning of Article 48(4) of the EEC Treaty?

2. If Question 1 is answered in the negative:

(a) Is a German national to whom the abovementioned post is offered only as a post for a civil servant (Beamte) entitled to argue that Article 7 and Article 48(2) of the EEC Treaty have been infringed on the ground that that post would have to be offered to a national of another Member State on the basis of a contract of employment, where employment as a civil servant results inter alia in the payment of a lower monthly remuneration than employment under a contract of employment and in the loss of the right to strike?

(b) Is a German national to whom the abovementioned post is offered only as a post for a civil servant entitled to argue that Article 48 of the EEC Treaty has been infringed on the ground that, in order to take up an equivalent post under a contract of employment, he would be obliged to leave the Federal Republic of Germany and go to another Member State (negative restriction on free movement)?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8 It should first be pointed out that Article 48(2) of the Treaty constitutes the implementation, in the sphere of freedom of movement for workers, of the general prohibition of discrimination on grounds of nationality laid down in Article 7 of the Treaty. Any rules incompatible with Article 48 are therefore also incompatible with Article 7 of the Treaty.

9 A problem of discrimination within the meaning of Article 48 of the Treaty arises, however, only in relation to the attitude of a Member State towards workers from other Member States who wish to pursue their activities in that State. As the Court has consistently held (see, most recently, the judgment in Case C-41/90 Hoefner and Another v Macrotron [1991] ECR I-1979, paragraph 37), the provisions of the Treaty on freedom of movement cannot be applied to activities which are confined in all respects within a single Member State and the question whether that is the case depends on findings of fact which are for the national court to make.

10 The facts, as established by the national court in its order for reference, show that the present case relates to a dispute between the German Bundespost and a German national, who has never exercised the right of freedom of movement within the Community, concerning recruitment to a post in the Federal Republic of Germany.

11 There is nothing in such a situation to link it with any of the situations governed by Community law in the sphere of freedom of movement for workers.

12 Accordingly, the reply to be given to the preliminary questions should be that a national of a Member State who has never exercised the right of freedom of movement within the Community may not rely on Articles 7 and 48 of the EEC Treaty with respect to a situation purely internal to that State.

Costs

13 The costs incurred by the German Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Arbeitsgericht Elmshorn, by order of 26 October 1990, hereby rules:

A national of a Member State who has never exercised the right of freedom of movement within the Community may not rely on Articles 7 and 48 of the EEC Treaty with respect to a situation purely internal to that State.