61983J0180

1 . PRELIMINARY RULINGS - SUBMISSION OF QUESTIONS TO THE COURT - RELEVANCE OF QUESTIONS RAISED - NEED FOR A PRELIMINARY RULING - APPRAISAL BY THE NATIONAL COURT

( EEC TREATY , ART . 177 )

2 . FREE MOVEMENT OF PERSONS - WORKERS - PROVISIONS OF THE TREATY - SITUATIONS INTERNAL TO A MEMBER STATE - NOT COVERED

( EEC TREATY , ART . 48 )

1 . AS REGARDS THE DIVISION OF JURISDICTION BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY , IT IS FOR THE NATIONAL COURT , WHICH IS ALONE IN HAVING DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS PUT FORWARD BY THE PARTIES AND WHICH MUST ASSUME THE RESPONSIBILITY OF GIVING JUDGMENT IN THE CASE , TO ASSESS , WITH FULL KNOWLEDGE OF THE MATTER BEFORE IT , THE RELEVANCE OF THE QUESTIONS OF LAW RAISED BY THE DISPUTE BEFORE IT AND THE NEED FOR A PRELIMINARY RULING SO AS TO ENABLE IT TO GIVE JUDGMENT .

2 . ARTICLE 48 OF THE EEC TREATY DOES NOT APPLY TO SITUATIONS WHICH ARE WHOLLY INTERNAL TO A MEMBER STATE , SUCH AS THAT OF A NATIONAL OF A MEMBER STATE WHO HAS NEVER RESIDED OR WORKED IN ANOTHER MEMBER STATE . SUCH A PERSON MAY NOT RELY ON ARTICLE 48 TO PREVENT THE APPLICATION TO HIM OF LEGISLATION OF HIS OWN COUNTRY , DENYING HIM ACCESS TO A PARTICULAR KIND OF VOCATIONAL TRAINING .

IN CASE 180/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARBEITSGERICHT ( LABOUR COURT ) REUTLINGEN , FEDERAL REPUBLIC OF GERMANY , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

HANS MOSER ,

PLAINTIFF ,

AND

LAND BADEN-WURTTEMBERG ,

DEFENDANT ,

ON THE INTERPRETATION OF ARTICLE 48 OF THE EEC TREATY ,

1 BY ORDER DATED 18 AUGUST 1983 , WHICH WAS RECEIVED AT THE COURT ON 22 AUGUST 1983 , THE ARBEITSGERICHT ( LABOUR COURT ) REUTLINGEN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF ARTICLE 48 OF THE EEC TREATY .

2 THE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN HANS MOSER , A GERMAN NATIONAL , AND THE AUTHORITIES OF THE LAND BADEN-WURTTEMBERG ( HEREINAFTER REFERRED TO AS ' ' THE LAND ' ' ) REGARDING THE LATTER ' S REFUSAL TO ALLOW MR MOSER TO UNDERTAKE THE POST-GRADUATE TRAINING NECESSARY TO SECURE ENTRY , AFTER PASSING THE SECOND STATE EXAMINATION , TO THE POST OF TEACHER AT PRIMARY- AND SECONDARY-SCHOOL LEVEL .

3 IT IS APPARENT FROM THE ORDER MAKING THE REFERENCE THAT THE LAND BASED ITS REFUSAL ON THE FACT THAT , CONTRARY TO THE REQUIREMENTS OF THE LAND ' S LEGISLATION REGARDING ACCESS TO EMPLOYMENT IN THE PUBLIC SERVICE , THERE WAS INSUFFICIENT CERTAINTY AS REGARDS MR MOSER ' S LOYALTY TO THE BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY , BY REASON OF HIS MEMBERSHIP OF THE GERMAN COMMUNIST PARTY .

4 THE MATTER WAS BROUGHT BEFORE THE ARBEITSGERICHT REUTLINGEN , WHICH TOOK THE VIEW THAT THE LAND ' S REFUSAL MIGHT DEPRIVE MR MOSER OF THE POSSIBILITY OF APPLYING FOR TEACHING POSTS IN SCHOOLS IN MEMBER STATES OTHER THAN THE FEDERAL REPUBLIC OF GERMANY . ACCORDING TO THE NATIONAL COURT , THE ALLOCATION OF SUCH A POST MIGHT BE EXCLUDED IN THE CASE OF PERSONS WHO , LIKE MR MOSER , HAD BEEN UNABLE TO COMPLETE THE PRESCRIBED POST-GRADUATE TRAINING . THE ARBEITSGERICHT THEREFORE RAISED THE QUESTION WHETHER THE LAND ' S LEGISLATION WAS COMPATIBLE WITH THE PRINCIPLE OF FREE MOVEMENT OF WORKERS CONTAINED IN ARTICLE 48 OF THE TREATY . IN THOSE CIRCUMSTANCES , IT STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT :

' ' ( A ) DOES THE TERM ' WORKERS ' WITHIN THE MEANING OF ARTICLE 48 ( 2 ) OF THE EEC TREATY INCLUDE PERSONS WHO , HAVING TAKEN THE FIRST STATE EXAMINATION FOR PRIMARY AND SECONDARY SCHOOL TEACHERS , APPLY TO COMPLETE POST-GRADUATE TRAINING FOR THE SECOND STATE EXAMINATION FOR PRIMARY AND SECONDARY SCHOOL TEACHERS IN A CAPACITY OTHER THAN THAT OF AN OFFICIAL AND WHO HAVE ALREADY BEEN ASSIGNED TO A TRAINING COLLEGE FOR TEACHING PRACTICE?

( B)IF QUESTION ( A ) IS ANSWERED IN THE AFFIRMATIVE :

DOES THE DEFENDANT ' S REFUSAL TO EMPLOY A TRAINEE TEACHER FOR POST-GRADUATE TRAINING FOR THE SECOND STATE EXAMINATION FOR PRIMARY AND SECONDARY SCHOOL TEACHERS ON A CONTRACTUAL BASIS OUTSIDE THE SPHERE OF THE PUBLIC ADMINISTRATION CONSTITUTE DISCRIMINATION BASED ON NATIONALITY AS REGARDS OTHER CONDITIONS OF WORK AND EMPLOYMENT WITHIN THE MEANING OF ARTICLE 48 ( 2 ) OF THE EEC TREATY?

( C)IF QUESTION ( B ) IS ANSWERED IN THE NEGATIVE :

DOES THE DEFENDANT ' S REFUSAL TO EMPLOY A TRAINEE TEACHER ON A CONTRACTUAL BASIS OUTSIDE THE SPHERE OF THE PUBLIC ADMINISTRATION IN ORDER TO ENABLE HIM TO COMPLETE THE SECOND STATE EXAMINATION FOR PRIMARY AND SECONDARY SCHOOL TEACHERS ON THE GROUND THAT HE IS A MEMBER OF THE GERMAN COMMUNIST PARTY CONSTITUTE AN INFRINGEMENT OF ARTICLE 48 ( 3 ) ( A ) AND ( B ) OF THE EEC TREATY?

' '

5 IN THE OBSERVATIONS WHICH IT HAS SUBMITTED TO THE COURT , THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY EXPRESSES DOUBTS AS TO THE JURISDICTION OF THE COURT TO GIVE A RULING ON THE QUESTIONS SUBMITTED BY THE ARBEITSGERICHT SINCE , IN ITS OPINION , A REPLY TO THOSE QUESTIONS IS NOT REQUIRED FOR DETERMINATION OF THE DISPUTE .

6 AS THE COURT HAS CONSISTENTLY HELD , IN PARTICULAR IN ITS JUDGMENT OF 14 FEBRUARY 1980 ( ONPTS V DAMIANI , CASE 53/79 ( 1980 ) ECR 273 ), AS REGARDS THE DIVISION OF JURISDICTION BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY , IT IS FOR THE NATIONAL COURT , WHICH IS ALONE IN HAVING A DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS PUT FORWARD BY THE PARTIES AND WHICH MUST ASSUME THE RESPONSIBILITY OF GIVING JUDGMENT IN THE CASE , TO ASSESS , WITH FULL KNOWLEDGE OF THE MATTER BEFORE IT , THE RELEVANCE OF THE QUESTIONS OF LAW RAISED BY THE DISPUTE BEFORE IT AND THE NEED FOR A PRELIMINARY RULING SO AS TO ENABLE IT TO GIVE JUDGMENT .

7 THE GERMAN GOVERNMENT POINTS OUT , HOWEVER , THAT IN ITS JUDGMENT OF 16 DECEMBER 1981 ( CASE 244/80 FOGLIA V NOVELLO ( 1981 ) ECR 3045 ) THE COURT HELD THAT IT DID NOT CONSIDER ITSELF TO HAVE JURISDICTION TO REPLY TO QUESTIONS OF INTERPRETATION SUBMITTED BY A NATIONAL COURT WITHIN THE CONTEXT OF PROCEDURAL DEVICES ARRANGED BY THE PARTIES IN ORDER TO INDUCE THE COURT TO GIVE ITS VIEWS ON CERTAIN PROBLEMS OF COMMUNITY LAW WHICH DID NOT CORRESPOND TO AN OBJECTIVE REQUIREMENT INHERENT IN THE RESOLUTION OF A DISPUTE .

8 IN THIS INSTANCE , HOWEVER , NOTHING HAS EMERGED TO SUPPORT THE CONCLUSION THAT THE PRESENT CASE IS ONE OF THE EXCEPTIONAL CASES REFERRED TO IN THE ABOVE-MENTIONED DECISION .

9 THE GERMAN GOVERNMENT ALSO STATED THAT THE ORDER MAKING THE REFERENCE IS BASED ON A MANIFEST ERROR REGARDING THE PURPOSE AND THE SCOPE OF THE PROVISIONS OF COMMUNITY LAW REFERRED TO THEREIN . IN THAT CONNECTION IT EMPHASIZES THAT MR MOSER IS A GERMAN NATIONAL AND HAS NEVER WORKED OR RESIDED IN A MEMBER STATE OTHER THAN THE FEDERAL REPUBLIC OF GERMANY . CONSEQUENTLY , HIS SITUATION FALLS ENTIRELY OUTSIDE THE SCOPE OF ARTICLE 48 OF THE TREATY , OF WHICH AN INTERPRETATION IS SOUGHT .

10 IT MUST HOWEVER BE STATED THAT THE CIRCUMSTANCES RELIED UPON BY THE GERMAN GOVERNMENT RELATE TO THE SUBSTANCE OF THE QUESTIONS SUBMITTED BY THE NATIONAL COURT . CONSEQUENTLY , WHILST THEY MAY BE RELEVANT TO AN ANSWER TO THOSE QUESTIONS , THEY ARE NOT RELEVANT IN DETERMINING WHETHER THE COURT HAS JURISDICTION TO RULE ON THE REQUEST FOR A PRELIMINARY RULING .

11 THE OBJECTIONS RAISED BY THE GERMAN GOVERNMENT REGARDING THE JURISDICTION OF THE COURT CANNOT THEREFORE BE UPHELD .

12 IN THE THREE QUESTIONS SUBMITTED TO THE COURT THE ARBEITSGERICHT ASKS ESSENTIALLY WHETHER ARTICLE 48 OF THE TREATY COVERS A SITUATION SUCH AS THAT IN WHICH MR MOSER FINDS HIMSELF AND , MORE PARTICULARLY , WHETHER A PERSON IN SUCH A SITUATION MAY RELY ON ARTICLE 48 TO PREVENT THE APPLICATION TO HIM OF LEGISLATION , SUCH AS THAT IN FORCE IN THE LAND , BY VIRTUE OF WHICH PERSONS AS REGARDS WHOSE LOYALTY TO THE BASIC LAW THERE IS INSUFFICIENT CERTAINTY ARE DENIED ACCESS TO THE VOCATIONAL TRAINING NECESSARY TO ENABLE THEM TO BECOME TEACHERS IN PRIMARY AND SECONDARY EDUCATION .

13 THE REPLY TO THOSE QUESTIONS DEPENDS , IN THE FIRST PLACE , ON THE DETERMINATION OF THE SCOPE OF ARTICLE 48 OF THE TREATY .

14 IN THAT CONNECTION IT MUST BE POINTED OUT THAT , AS THE COURT HELD IN ITS JUDGMENT OF 28 MARCH 1979 ( CASE 175/78 SAUNDERS ( 1979 ) ECR 1128 ), THAT PROVISION AIMS , IN IMPLEMENTATION OF THE GENERAL PRINCIPLE LAID DOWN IN ARTICLE 7 , TO ABOLISH IN THE LEGISLATION OF THE MEMBER STATES PROVISIONS REGARDING EMPLOYMENT , REMUNERATION AND OTHER CONDITIONS OF WORK AND EMPLOYMENT BY VIRTUE OF WHICH A WORKER WHO IS A NATIONAL OF ANOTHER MEMBER STATE IS SUBJECT TO MORE SEVERE TREATMENT OR IS PLACED IN AN UNFAVOURABLE SITUATION IN LAW OR IN FACT AS COMPARED WITH THE SITUATION OF A NATIONAL IN THE SAME CIRCUMSTANCES .

15 IT FOLLOWS THAT THE PROVISIONS OF THE TREATY CONCERNING THE FREE MOVEMENT OF WORKERS AND PARTICULARLY ARTICLE 48 CANNOT BE APPLIED TO SITUATIONS WHICH ARE WHOLLY INTERNAL TO A MEMBER STATE , IN OTHER WORDS WHERE THERE IS NO FACTOR CONNECTING THEM TO ANY OF THE SITUATIONS ENVISAGED BY COMMUNITY LAW .

16 THE CASE DESCRIBED BY THE NATIONAL COURT CONCERNS , AS THE GERMAN GOVERNMENT HAS CORRECTLY POINTED OUT , A GERMAN NATIONAL WHO HAS ALWAYS LIVED AND MAINTAINED HIS RESIDENCE IN THE FEDERAL REPUBLIC OF GERMANY AND WHO CONTESTS THE REFUSAL BY THE GERMAN AUTHORITIES TO ALLOW HIM ACCESS , UNDER THE LEGISLATION OF THAT STATE , TO A PARTICULAR KIND OF VOCATIONAL TRAINING .

17 IN ORDER TO ESTABLISH A CONNECTION WITH THE COMMUNITY PROVISIONS , MR MOSER CLAIMED IN THE OBSERVATIONS WHICH HE SUBMITTED TO THE COURT THAT THE APPLICATION TO HIM OF THE GERMAN LEGISLATION IN QUESTION , BY MAKING IT IMPOSSIBLE FOR HIM TO COMPLETE HIS TRAINING AS A TEACHER , ENTAILS THE RESULT THAT HE IS PRECLUDED FROM APPLYING FOR TEACHING POSTS IN SCHOOLS IN THE OTHER MEMBER STATES .

18 THAT ARGUMENT CANNOT BE UPHELD . A PURELY HYPOTHETICAL PROSPECT OF EMPLOYMENT IN ANOTHER MEMBER STATE DOES NOT ESTABLISH A SUFFICIENT CONNECTION WITH COMMUNITY LAW TO JUSTIFY THE APPLICATION OF ARTICLE 48 OF THE TREATY .

19 IT FOLLOWS THAT THERE IS NO FACTOR CONNECTING A PERSONAL SITUATION OF THE KIND REFERRED TO BY THE NATIONAL COURT WITH THE PROVISIONS OF COMMUNITY LAW ON THE FREE MOVEMENT OF WORKERS .

20 IT MUST THEREFORE BE HELD IN REPLY TO THE QUESTIONS SUBMITTED BY THE NATIONAL COURT THAT ARTICLE 48 OF THE EEC TREATY DOES NOT APPLY TO SITUATIONS WHICH ARE WHOLLY INTERNAL TO A MEMBER STATE , SUCH AS THAT OF A NATIONAL OF A MEMBER STATE WHO HAS NEVER RESIDED OR WORKED IN ANOTHER MEMBER STATE , AND THAT SUCH A PERSON CANNOT RELY ON ARTICLE 48 TO PREVENT THE APPLICATION TO HIM OF THE LEGISLATION OF HIS OWN COUNTRY .

COSTS

21 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE ARBEITSGERICHT REUTLINGEN BY ORDER OF 18 AUGUST 1983 , HEREBY RULES :

ARTICLE 48 OF THE EEC TREATY DOES NOT APPLY TO SITUATIONS WHICH ARE WHOLLY INTERNAL TO A MEMBER STATE , SUCH AS THAT OF A NATIONAL OF A MEMBER STATE WHO HAS NEVER RESIDED OR WORKED IN ANOTHER MEMBER STATE . SUCH A PERSON MAY NOT RELY ON ARTICLE 48 TO PREVENT THE APPLICATION TO HIM OF THE LEGISLATION OF HIS OWN COUNTRY .