Language of document : ECLI:EU:C:1998:101

JUDGMENT OF THE COURT (Fifth Chamber)

12 March 1998 (1)

(Failure of a Member State to fulfil its obligations — Freedom of movement forworkers — Article 48 of the EC Treaty — Article 7 of Regulation (EEC) No1612/68 — Person working in the public service of a Member State — Mutualrecognition of periods of employment in the public service of another MemberState)

In Case C-187/96,

Commission of the European Communities, represented by Maria Patakia, of itsLegal Service, acting as Agent, with an address for service in Luxembourg at theoffice of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented by Ioanna Galani-Maragkoudaki, Special DeputyLegal Adviser to the Special Department for Contentious Community Affairs of theMinistry of Foreign Affairs, and Stamatina Vodina, Special Assistant in the samedepartment, acting as Agents, with an address for service in Luxembourg at theGreek Embassy, 117 Val Sainte-Croix,

defendant,

APPLICATION for a declaration that by excluding, by regulation or administrativepractice, the taking into account of previous employment in the public service ofanother Member State for the purposes of granting to an employee in Greek publicservice a seniority increment and of grading him on the salary scale, on the soleground that that previous employment was not performed in Greek public service,the Hellenic Republic is in breach of its obligations under Community law, inparticular under Articles 5 and 48 of the EC Treaty and Article 7(1) of Regulation(EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement forworkers within the Community (OJ, English Special Edition 1968 (II), p. 475),

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet,D.A.O. Edward (Rapporteur), P. Jann and L. Sevón, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,


Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 20 November 1997,

after hearing the Opinion of the Advocate General at the sitting on 11 December1997,

gives the following

Judgment

1.
    By application lodged at the Court Registry on 3 June 1996, the Commission of theEuropean Communities brought an action under Article 169 of the EC Treaty fora declaration that by excluding, by regulation or administrative practice, the takinginto account of previous employment in the public service of another Member Statefor the purposes of granting to an employee in Greek public service a seniorityincrement and grading him on the salary scale, on the sole ground that thatprevious employment was not performed in Greek public service, the HellenicRepublic is in breach of its obligations under Community law, in particular underArticles 5 and 48 of the EC Treaty and Article 7(1) of Regulation (EEC) No1612/68 of the Council of 15 October 1968 on freedom of movement for workerswithin the Community (OJ, English Special Edition 1968 (II), p. 475).

The relevant provisions

2.
    Article 7(1) of Regulation No 1612/68 provides:

'A worker who is a national of a Member State may not, in the territory of anotherMember State, be treated differently from national workers by reason of hisnationality in respect of any conditions of employment and work, in particular asregards remuneration, dismissal, and should he become un-employed, reinstatementor re-employment.‘

3.
    Article 16(1) of Greek Law No 1505/84 on the pay scale for public service staff, asamended by Law No 1810/88 ('the contested legislation‘), provides:

'Years of employment conferring entitlement to a salary increase and the seniorityallowance

1.    The years of employment taken into account for the purposes of progressionon the salary scale laid down in Article 3, the award of the seniority incrementprovided for in Article 9 and the determination of employees' salary provided forin Article 15(2) of the Law shall be the following:

(a)    Years of employment completed in the public service or for legal personsgoverned by public law or local authorities under a contract of employmentgoverned by public law;

(b)    Years of employment for the abovementioned bodies, under a contract ofemployment governed by private law, in so far as they are treated aspensionable by the competent local agency or have been taken into accountfor the purposes of grading or any increase in salary;

(c)    Years of employment for legal persons governed by private law which havebeen taken into account on the basis of special provisions relating toappointment, posting, grading or any other increase in salary, or which aretreated as pensionable by the competent local agency (...) periods ofemployment completed by teachers in schools in Cyprus and in recognisedGreek schools abroad, and a maximum period of eight years, in so far asthe relevant provisions require a ”qualification” period for the purpose ofappointment. This ”qualification” may consist of a period of employmentor of time spent acquiring specialist knowledge or experience;

(d)    Years of service in the armed forces, security forces or harbour police as aprofessional or volunteer or after re-enlistment, after subtraction of theperiod during which the employee would have served as a conscript orreservist if he had not been engaged as a member of the armed forces(whether as a professional or volunteer or after re-enlistment);

(e)    Years of employment taken into account before the entry into force of thisLaw as an essential condition for appointment (...);

(f)    Years of employment in socialist countries by repatriated political refugees;

(g)    Years of employment as an instructor in private schools.‘

4.
    Under Article 3 of special collective agreement No 128 of 10 October 1989, thoseprovisions are applicable to staff employed under a private-law contract in thepublic sector or by legal persons governed by public law.

Pre-litigation procedure

5.
    The contested legislation was brought to the Commission's attention by a complaintlodged by a Greek national who since April 1986 has worked as a musician in theThessalonika orchestra, which is a legal person governed by public law, under anemployment contract governed by private law. Previously he had worked for fiveyears for the Nice Municipal Orchestra (France).

6.
    The person concerned complained that the Greek authorities had refused to takeaccount of his five years' employment in France for the purposes of his grading onthe salary scale and the award of additional seniority, whereas that period wouldhave been taken into account if it had been served in a municipal orchestra inGreece.

7.
    By letter of 13 November 1991 the Commission requested the Greek authoritiesto provide it with information concerning the matters raised in the complaint. Theyreplied that the individual's period of employment in France had not been takeninto account because this would be contrary to the legislation at issue.

8.
    Taking the view that that legislation was contrary to the requirements ofCommunity law, the Commission, by letter of 5 October 1993, gave the HellenicRepublic formal notice to submit its observations within a period of two months.

9.
    The Commission was not satisfied by the answer given by letter of 10 March 1994,and so on 18 May 1995 it sent the Hellenic Republic a reasoned opinion requestingit to comply therewith within two months of its notification.

10.
    By letter of 24 August 1995 the Hellenic Republic repeated its argument that it wasnot the purpose of the contested legislation to create discrimination between Greeknationals or between Greek workers and nationals of other Member States andthat, in any event, they had no discriminatory effect.

11.
    At the end of the period prescribed for the Hellenic Republic to comply with thereasoned opinion, the Commission brought this action.

Substance

12.
    In the Commission's view, the contested legislation contravenes in two respects theprinciple of freedom of movement for workers set out in both Article 48 of theTreaty and Article 7(1) of Regulation No 1612/68.

13.
    First, even though the wording of the contested legislation is 'neutral‘, its actualeffect is to discriminate indirectly on the basis of nationality. Its provisions are suchas to place migrant workers at a particular disadvantage, since they are deniedrecognition of periods of employment which they have completed in the publicservices of other Member States on the sole ground that those periods were notspent in Greek public administration.

14.
    Second, the Commission maintains that this unconditional refusal to recognise suchperiods constitutes an obstacle to the freedom of movement of Greek workers inthat it could also discourage them from exercising that freedom.

15.
    The Hellenic Republic considers that the problem of treating periods ofemployment in the public service of another Member State like those completedin Greek administration can be resolved only by the adoption of rules atCommunity level.

16.
    It argues that it is not always easy to establish whether activity carried out inanother Member State was carried out in public service or not, because theboundary between the public sector and the private sector varies from one MemberState to another. Furthermore, comparing the tasks which a worker performed inthe public services of two Member States may in practice give rise to difficulties.

17.
    The Court must observe, first of all, that the derogation contained in Article 48(4)of the EC Treaty, by virtue of which the provisions concerning freedom ofmovement for workers do not apply 'to employment in the public service‘, doesnot apply in the present case since that provision merely provides for the possibilityfor Member States to exclude nationals of other Member States from access tocertain posts in the public service (Case C-248/96 Grahame and Hollanders vBestuur van de Nieuwe Algemene Bedrijfsvereniging [1997] ECR I-0000, paragraph32). The exception does not concern the factors which a Member State takes intoaccount when determining conditions governing the pay of a worker who hasalready been admitted into its public service.

18.
    The Court has consistently held that the equal treatment rule laid down in Article48 of the EC Treaty and in Article 7 of Regulation No 1612/68 prohibits not onlyovert discrimination by reason of nationality but also all covert forms ofdiscrimination which, by the application of other distinguishing criteria, lead in fact

to the same result (see, inter alia, Case C-57/96 Meints v Minister van Landbouw,Natuurbeheer en Visserij [1997] ECR I-0000, paragraph 44).

19.
    Unless it is objectively justified and proportionate to its aim, a provision of nationallaw must be regarded as indirectly discriminatory if it is intrinsically liable to affectmigrant workers more than national workers and if there is a consequent risk thatit will place the former at a particular disadvantage (Meints, cited above, paragraph45).

20.
    It is clear from the documents before the Court that the provisions of the contestedlegislation, at least in their application, render it absolutely impossible for periodsof employment in the public service of a Member State other than the HellenicRepublic to be taken into account for the purposes of a worker's salary scalegrading and the grant of a seniority increment, whereas periods of employmentalready completed in Greek public service are, in certain cases, taken into account.

21.
    That rule, which plainly operates to the detriment of migrant workers who havespent part of their working life in the public service of a Member State other thanthe Hellenic Republic, is therefore such as to contravene the principle of non-discrimination enshrined in Article 48 of the Treaty and Article 7(1) of RegulationNo 1612/68.

22.
    Consequently, even in the absence of specific Community legislation on this matter,it is for the Hellenic Republic to establish, at the request of the person concerned,whether or not the post he held in another Member State is equivalent to a postin Greek public service which is taken into account for the purposes of salary scalegrading and the grant of a seniority increment. The fact that the Member State inquestion considers that in practice it is difficult to carry out that comparison cannotin any circumstances justify its refusal to do so.

23.
    Since the Hellenic Republic has not adduced any other evidence which couldprovide objective justification for the discriminatory treatment of migrant workersto which the Commission objects, it must be declared that by excluding, byregulation or administrative practice, the taking into account of previousemployment in the public service of another Member State for the purposes ofgranting to an employee in Greek public service a seniority increment and ofgrading him on the salary scale, on the sole ground that the previous employmentwas not performed in Greek public service, the Hellenic Republic is in breach ofits obligations under Community law, in particular under Article 48 of the ECTreaty and Article 7(1) of Regulation No 1612/68.

Costs

24.
    Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs, if they have been applied for. Since the HellenicRepublic has been unsuccessful and the Commission has applied for costs, thedefendant must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1.    Declares that by excluding, by regulation or administrative practice, thetaking into account of previous employment in the public service of anotherMember State for the purposes of granting to an employee in Greek publicservice a seniority increment and of grading him on the salary scale, on thesole ground that the previous employment was not performed in Greekpublic service, the Hellenic Republic is in breach of its obligations underCommunity law, in particular under Article 48 of the EC Treaty and Article7(1) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 onfreedom of movement for workers within the Community;

2.    Orders the Hellenic Republic to pay the costs.

Gulmann
Wathelet
Edward

            Jann                            Sevón

Delivered in open court in Luxembourg on 12 March 1998.

R. Grass

C. Gulmann

Registrar

President of the Fifth Chamber


1: Language of the case: Greek.