61990J0213

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Free movement of persons - Workers - Equal treatment - Exercise of trade-union rights - National legislation excluding foreign workers from taking part in the election of members of an occupational guild to which they are compulsorily affiliated - Not permissible - Justification based on the participation in some circumstances in the exercise of powers conferred by public law - None

(Regulation No 1612/68 of the Council, Art. 8(1) )

Article 8(1) of Regulation No 1612/68 constitutes a particular expression of the principle of non-discrimination in the specific field of workers' participation in trade-union organizations and activities and its scope cannot be limited on the basis of considerations relating to the legal form of the body in question. On the contrary, the exercise of the trade-union rights referred to in that provision extends beyond the bounds of trade-union organizations in the strict sense and includes, in particular, the participation of workers in bodies which, while not being, in law, trade-union organizations, perform similar functions as regards the defence and representation of workers' interests.

That provision must therefore be interpreted as meaning that it precludes legislation refusing workers the right to vote in elections of members of an occupational guild to which they are compulsorily affiliated, to which they must pay contributions, which is responsible for defending the interests of affiliated workers and which performs a consultative function in the legislative field. Neither the legal nature of the guild in question under national law nor the fact that certain of its functions could involve participation in the exercise of powers conferred by public law can justify the exclusion of workers from other Member States from participation in the election of members of that guild.

In Case C-213/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour de Cassation of Luxembourg for a preliminary ruling in the proceedings pending before that court between

Association de Soutien aux Travailleurs Immigrés (ASTI)

and

Chambre des Employés Privés

on the interpretation of Articles 7, 48, 117, 118, 118a and the second paragraph of Article 189 of the EEC Treaty, and Articles 7 and 8 of Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475),

THE COURT,

composed of: G.F. Mancini, President of Chamber, acting as President, T.F. O' Higgins and G.C. Rodríguez Iglesias, (Presidents of Chamber), Sir Gordon Slynn, R. Joliet, F.A. Schockweiler and F. Grévisse, Judges,

Advocate General: F.G. Jacobs,

Registrar: D. Louterman, Principal Administrator,

after considering the written observations submitted on behalf of:

- ASTI, by G. Thomas, of the Luxembourg Bar,

- the Chambre des Employés Privés, by A.T. Ries, of the Luxembourg Bar,

- the Luxembourg Government, by M. J. Zahlen, Government Adviser in the Ministry of Labour, acting as Agent,

- the Commission of the European Communities by D. Gouloussis, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Luxembourg Government, represented by L. Schiltz, of the Luxembourg Bar, ASTI, the Chambre des Employés Privés and the Commission at the hearing on 14 March 1991,

after hearing the Opinion of the Advocate General at the sitting on 8 May 1991,

gives the following

Judgment

1 By judgment of 12 July 1990, which was received at the Court on 17 July 1990, the Cour de Cassation (Court of Cassation) of Luxembourg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 7, 48, 117, 118, 118a and the second paragraph of Article 189 of the EEC Treaty, and of Articles 7 and 8 of Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475), which was amended by Council Regulation (EEC) No 312/76 of 9 February 1976 (Official Journal 1976 L 39, p. 2).

2 The question arose in proceedings between the Association de Soutien aux Travailleurs Immigrés (Association for the Support of Immigrant Workers, hereinafter referred to as "ASTI") and the Chambre des Employés Privés (Chamber of Private Employees).

3 The Chambre des Employés Privés was established by the Luxembourg Law of 4 April 1924 establishing occupational guilds on an elective basis. That law also established guilds for agriculture, small craft industries, trade and employment. The Law of 12 February 1964 established the guild for civil and public servants so that all occupations were covered, with the exception of the liberal professions. The Law confers on the occupational guilds the general task of protecting the interests of their members, that is to say the persons affiliated to them.

4 The occupational guilds are entitled to submit to the Government proposals which it must examine and place before the Chamber of Deputies. The Legislature is required to seek the opinion of the occupational guilds on all laws, decrees and regulations affecting them.

5 Under Article 6 of the 1924 Law only persons holding Luxembourg nationality may elect the members of the guilds. By virtue of Article 3, as amended by the Law of 3 June 1926, the guilds may, in order to cover their expenses, levy a contribution on their members by means of a deduction by the employers from wages or salaries. Before the law was thus amended the contribution could be levied only on the persons having a right to vote.

6 By letter addressed to the Chambre des Employés Privés on 17 March 1987, ASTI informed it that in its capacity as employer and with the agreement of its three foreign employees, who were nationals of other Member States, it had decided not to pay the contributions to that guild on the ground that it appeared illogical to it to contribute to an organization on behalf of employees who were excluded from it.

7 The Chambre des Employés Privés brought proceedings before the Tribunal de Paix (Magistrate' s Court), Luxembourg which, by judgment of 13 October 1989, ordered ASTI to pay the contributions which it had not paid. ASTI appealed against that judgment to the Cour de Cassation (Court of Cassation), Luxembourg, which, by judgment of 12 July 1990, stayed the proceedings until the Court of Justice had given a preliminary ruling on the following question:

"Are Articles 7, 48, 117, 118, 118a and the second paragraph of 189 of the EEC Treaty and Articles 7 and 8 of Regulation (EEC) No 1612/68 of the Council, or any one of those provisions, to be interpreted as prohibiting national legislation of a Member State of the Community from requiring payment of a contribution from a foreign employee who is a national of a Member State and who is compulsorily affiliated to an occupational guild while refusing him the right to take part in the election of the persons composing the guild, which right is reserved to nationals?"

8 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.

9 In the light of the grounds of the judgment making the reference and the argument presented at the hearing before the Court, the question referred by the national court must be understood as seeking to ascertain whether Community law precludes national legislation refusing foreign workers the right to vote in elections of members of an occupational guild to which they are compulsorily affiliated, to which they must contribute, which is responsible for defending the interests of affiliated workers and which has a consultative function in the legislative field.

10 It is apparent from the documents before the Court that the persons affiliated to the Chambre des Employés Privés are workers. Consequently, the question whether the difference in treatment between nationals and foreigners referred to above is compatible with Community law must be considered on the basis of the provisions concerning freedom of movement of workers and not of Article 7 of the Treaty, since that article is of autonomous application only in situations governed by Community law for which the Treaty does not provide any specific rules on non-discrimination (see, most recently, the judgment in Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119)

11 In the field of freedom of movement for workers the fundamental principle of non-discrimination on grounds of nationality is laid down in Article 48(2) of the Treaty. The principle is restated in the fifth and sixth recitals in the preamble to Regulation No 1612/68 and in several individual provisions of that regulation, in particular Articles 7 and 8, which are referred to in the question put by the national court.

12 The latter provision, which is the most specific, should be examined first.

13 According to the first subparagraph of Article 8(1)

"A worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, including the right to vote and to be eligible for the administration or management posts of a trade union; he may be excluded from taking part in the management of bodies governed by public law and from holding an office governed by public law. Furthermore, he shall have the right of eligibility for workers' representative bodies in the undertaking".

14 In contrast to the Commission and ASTI, the Luxembourg Government disputes the applicability of that provision to a case such as that in the main proceedings on the ground that the occupational guild in question constitutes an institutionalized form of representation regulated by statute, that affiliation is compulsory, and that it is therefore different from independent trade-union structures.

15 It should be pointed out that the scope of Article 8(1), a provision which constitutes a particular expression of the principle of non-discrimination in the specific field of workers' participation in trade-union organizations and activities, cannot be limited on the basis of considerations relating to the legal form of the body in question.

16 On the contrary, the exercise of the trade-union rights referred to in that provision extends beyond the bounds of trade-union organizations in the strict sense and includes, in particular, the participation of workers in bodies which, while not being, in law, trade-union organizations, perform similar functions as regards the defence and representation of workers' interests.

17 It follows that the right to participate in elections to a body such as the Chambre Professionnelle des Employés Privés, whose general task, which is to safeguard the interests of the workers affiliated to it, and most of whose functions are characteristic of those of trade-union organizations, must be regarded as a right attaching to membership of a trade-union within the meaning of the abovementioned provision, without there being any need to adopt a view on the question whether such an occupational guild is a trade-union organization.

18 The Luxembourg Government argues, in the alternative, that such an occupational guild in any event falls within the derogation contained in Article 8(1), since it is a body governed by public law and, through its consultative role, is associated with the exercise of powers conferred by public law.

19 In that regard, it should be observed that, as may already be seen from the judgment in Case 149/79 Commission v Belgium [1980] ECR 3881, paragraph 15, the exclusion from "taking part in the management of bodies governed by public law and from holding an office governed by public law" laid down in Article 8(1) of Regulation No 1612/68 corresponds to the derogation contained in Article 48(4) of the Treaty and merely permits workers from other Member States to be debarred in some circumstances from certain activities which involve participation in the exercise of powers conferred by public law.

20 Consequently, the exclusion of workers from other Member States from the right to vote in elections to the occupational guilds can be justified, under Article 8(1), neither by the legal nature of the guild in question under national law nor by the fact that certain of its functions could involve participation in the exercise of powers conferred by public law.

21 The reply to be given to the question referred to the Court must therefore be that Article 8(1) of Regulation No 1612/68 must be interpreted as meaning that it precludes national legislation refusing foreign workers the right to vote in elections of members of an occupational guild to which they are compulsorily affiliated, to which they must pay contributions, which is responsible for defending the interests of affiliated workers and which performs a consultative function in the legislative field.

Costs

22 The costs incurred by the Luxembourg 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 proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Cour de Cassation of Luxembourg, by judgment of 12 July 1990, hereby rules:

Article 8(1) of Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as meaning that it precludes national legislation refusing foreign workers the right to vote in elections for members of an occupational guild to which they are compulsorily affiliated, to which they must contribute, which is responsible for defending the interests of affiliated workers and which performs a consultative function in the legislative field.