61992J0272

++++

Freedom of movement for persons ° Workers ° Equal treatment ° Conditions of employment ° Exemption, exclusively for foreign-language assistants, from the obligation to justify recourse to fixed-term contracts of employment by objective reasons ° Disguised discrimination ° Not permissible

(EEC Treaty, Art. 48(2))

Article 48(2) of the Treaty precludes the application of national law according to which posts for foreign-language assistants must or may be the subject of employment contracts of limited duration whereas, for other teaching staff performing special duties, recourse to such contracts must be individually justified by an objective reason.

Since the great majority of foreign-language assistants are foreign nationals, such a difference of treatment is such as to place them at a disadvantage by comparison with nationals of the host country and therefore constitutes indirect discrimination, prohibited by Article 48(2) of the Treaty, unless it is justified by objective reasons, which do not include the need to ensure up-to-date instruction.

In Case C-272/92,

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

Maria Chiara Spotti

and

Freistaat Bayern

on the interpretation of Article 48(2) of the EEC Treaty,

THE COURT,

composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida and D.A.O. Edward, (Presidents of Chambers), R. Joliet, F.A. Schockweiler, F. Grévisse, M. Zuleeg and J.L. Murray, Judges,

Advocate General: F.G. Jacobs,

Registrar: J.-G. Giraud,

after considering the written observations submitted on behalf of:

° the plaintiff in the main proceedings, by Annette Kaehler, Rechstanwaeltin, Frankfurt am Main,

° the German Government, by Ernst Roeder, Ministerialrat in the Federal Ministry for Economic Affairs, acting as Agent,

° the Commission of the European Communities, by Dimitrios Gouloussis, Legal Adviser, and Roberto Hayder, a representative of the Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 12 May 1993,

gives the following

Judgment

1 By order of 27 May 1992, received at the Court on 15 June 1992, the Arbeitsgericht (Labour Court) Passau referred to the Court for a preliminary ruling under Article 177 of the Treaty two questions on the interpretation of Article 48(2) of the EEC Treaty.

2 Those questions were raised in proceedings between Maria Chiara Spotti and Freistaat Bayern (Free State of Bavaria).

3 The plaintiff was employed by the University of Passau from 1 November 1986 until 31 July 1991 as a foreign-language assistant, under two employment contracts. The first contract, concluded on 22 October 1986, covered the period from 1 November 1986 to 31 October 1987 and the second, concluded on 22 September 1987, covered the period from 1 November 1987 to 31 July 1991.

4 The limitation of the duration of the employment relationship was justified in Clause 1(2) of the second contract in the following terms:

"to ensure continuity of cultural exchange, to prevent loss of contact with the country of origin in order to ensure up-to-date instruction, taking into account periods spend outside the country of origin since 1 November 1986 (one year) in calculating the maximum legal length of employment. Engagement to teach foreign languages as provided for in Paragraph 57b(3) of the HRG".

5 The university refused her request for an extension of her contract beyond 31 July 1991 and the plaintiff sought a review under paragraph 22 of the Gesetz zur Ausfuehrung des Gerichtsverfassungsgesetzes (Law implementing the Law on the Courts System). The application was unsuccessful and the plaintiff then instituted proceedings before the Arbeitsgericht Passau for a declaration that her employment relationship was not for a limited duration.

6 Considering that there were serious doubts as to the compatibility of the German legislation concerning contracts of employment for foreign-language assistants with Article 48(2) of the EEC Treaty, the Arbeitsgericht Passau decided to stay the proceedings and to refer the following questions to the Court:

"1. Where legislation of a Member State lays down special rules on the length of contracts in relation to the activity of foreign-language assistants, the length of such contracts being limited (Paragraphs 57b(3) and 57c(2) of the Hochschulrahmengesetz (' the HRG' ) in conjunction with Article 27(3) of the Bayerische Hochschullehrergesetz), but there is no such restriction on the length of contract for other teaching staff performing special duties (Paragraph 56 of the HRG), is such legislation compatible with Article 48(2) of the EEC Treaty?

2. Is such legislation so compatible at least if such a restriction is based on special objective grounds, in particular to ensure that the instruction is topical?"

7 Paragraph 57b and 57c of the Hochschulrahmengesetz (Framework Law on Higher Education, hereinafter "the HRG") were inserted by the Gesetz ueber befristete Arbeitsvertraege mit wissenschaftlichem Personal an Hochschulen und Forschungseinrichtungen (Law on fixed-term contracts of employment with academic staff at higher-education and research establishments) of 14 June 1985.

8 Paragraph 57b(1) provides that the conclusion of fixed-term contracts of employment in the cases mentioned in Paragraph 57a must be justified on an objective ground. Paragraph 57b(2) lists various such objective grounds applicable to the engagement of scientific and artistic assistants as referred to in Paragraph 53 and staff with medical duties as referred to in Paragraph 54, namely where: (1) the contract serves the further training or education of the person concerned, (2) the remuneration is to be paid out of budgetary resources allocated for activities of limited duration, (3) the person is engaged with a view to acquiring or temporarily contributing special knowledge or experience, (4) the funding is supplied by an external source, or (5) it is the first engagement of the person concerned as a scientific or artistic assistant.

9 Paragraph 57b(3) provides:

"An objective ground also exists for the engagement on a fixed-term contract of an instructor performing special duties who is a speaker of a foreign language where the instructor is mainly engaged to teach foreign languages (as a 'foreign language assistant' )."

10 According to Paragraph 57c(2) of the same law, such fixed-term contracts of employment may be concluded for a maximum period of 5 years, which is also the maximum limit where several contracts have been concluded between the same foreign-language assistant and the same university.

11 Paragraph 27(3) of the "Bayerisches Hochschullehrergesetz" (Bavarian Law on Teachers in Higher Education, hereinafter "the BayHSchLG", provides:

"Teachers performing special duties shall be appointed as established staff with the grade of senior lecturer in higher education or specialized lecturer.

Teachers performing special duties may also be recruited as non-established staff under a fixed-term contract, in particular if:

1. the general conditions for the recruitment of established staff are not met;

2. they are employed as foreign-language assistants.

Foreign-language assistants may not be employed for a period exceeding five years."

12 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the legal background, the facts of the case in the main proceedings 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.

13 By the questions submitted the national court seeks first to ascertain whether Article 48(2) of the EEC Treaty precludes the application of a national rule under which foreign-language assistants must or may be employed under contracts of limited duration whereas, for other teaching staff performing special duties, recourse to such contracts must be justified by an objective reason in each case.

14 The Court has held in Case 33/88 Allué and Another v Università degli Studi di Venezia [1989] ECR 1591 that Article 48(2) of the EEC Treaty precludes the application of a provision of national law imposing a limit on the duration of the employment relationship between universities and foreign-language assistants where there is, in principle, no such limit with regard to other workers.

15 The German Government considers that this case-law cannot be applied where, as in the present case, the national legislation allows not only foreign-language assistants but also other categories of staff to be engaged under fixed-term contracts of employment.

16 It should be pointed out, in that regard, that the conclusion of a fixed-term contract of employment with the other categories of staff referred to by the German Government, namely scientific assistants, staff with medical duties, other teaching staff performing special duties and auxiliary scientific staff, is permitted only if it can be justified on an objective ground. According to the national court, where the legal provisions fail to specify any such objective grounds, the validity of the contract of employment is dependent, in principle, upon an examination of the individual characteristics of each employment relationship to determine whether or not the time-limit is justified in the light of the principles developed by the case-law.

17 For foreign-language assistants, however, Paragraph 57b(3) of the HRG provides for the possibility that the duration of the contract of employment may be limited solely on the ground of the nature of their activity and Paragraph 27(3) of the BayHSchLG lays down that employment contracts for foreign-language assistants are always to be for a fixed period.

18 Since the great majority of foreign-language assistants are foreign nationals, this difference of treatment is such as to place them at a disadvantage by comparison with German nationals and consequently constitutes indirect discrimination, prohibited by Article 48(2) of the EEC Treaty, unless it is justified for objective reasons.

19 In that connection, the national court asks, secondly, whether those rules are justified to the extent that they are necessary in order to guarantee up-to-date instruction. It refers to the case-law of the Bundesarbeitsgericht (Federal Labour Court) concerning the legislation in force prior to the law of 14 June 1985, according to which such a necessity constituted an objective reason for limiting the duration of contracts for foreign-language assistants.

20 As the Court decided in Allué, paragraph 14, the need to ensure up-to-date instruction cannot justify the imposition of a time-limit on the employment contracts of foreign-language assistants. The danger of such assistants' losing contact with their mother tongue is slight in the light of the increase in cultural exchanges and improved communications, and in addition it is open to the universities in any event to check the level of the assistants' knowledge.

21 Accordingly, it should be stated in reply to the questions from the national court that Article 48(2) of the EEC Treaty precludes the application of national law according to which posts for foreign-language assistants must or may be the subject of employment contracts of limited duration whereas, for other teaching staff performing special duties, recourse to such contracts must be individually justified by an objective reason.

Costs

22 The costs incurred by the German Government and 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 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 Passau by order of 27 May 1992, hereby rules:

Article 48(2) of the EEC Treaty precludes the application of national law according to which posts for foreign-language assistants must or may be the subject of employment contracts of limited duration whereas, for other teaching staff performing special duties, recourse to such contracts must be individually justified by an objective reason.