Opinion of the Advocate General — ECLI:EU:C:1997:380
Date: 1997-07-17
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the Court's case-
law on indirect discrimination in the context
of Article 48 of the Treaty is to be found in
the recent case of O'Flynn, 2 where the
Court held:
'Accordingly, conditions imposed by
national law must be regarded as indirectly
discriminatory where, although applicable
irrespective of nationality, they affect essen­
tially migrant workers (see Case 41/84 Pinna
v Caisse d'Allocations Familiales de la Savoie
[1986] ECR 1, paragraph 24; Case 33/88
Allué and Another v Università degli Studi
di Venezia [1989] ECR 1591, paragraph 12;
and Le Manoir, paragraph 11) or the great
majority of those affected are migrant work­
ers (see Case C-279/89 Commission v United
Kingdom [1992] ECR 1-5785, paragraph 42,
and Case C-272/92 Spotti v Freistaat Bayern
[1993] ECR I-5185, paragraph 18), where
they are indistinctly applicable but can
more easily be satisfied by national workers
than by migrant workers (see Commission
v Luxembourg, paragraph 10, and Case
C-349/87 Paraschi v Landesversicherungsan­
stalt Württemberg [1991] ECR I-4501, para­
graph 23) or where there is a risk that they
may operate to the particular detriment of
migrant workers (see Case C-175/88 Biehl v
Administration des Contributions [1990]
ECR 1-1779, paragraph 14, and Case
C-204/90 Bachmann v Belgium [1992] ECR
I-249, paragraph 9).
It is otherwise only if those provisions are
justified by objective considerations inde­
pendent of the nationality of the workers
concerned, and if they are proportionate to
the legitimate aim pursued by the national
law (see, to that effect, Bachmann, para­
graph 27; Commission v Luxembourg, para­
graph 12; and Joined Cases C-259/91,
C-221/91 and C-332/91 Allué and Others v
Università degli Studi di Venezia [1993]
ECR 1-4309, paragraph 15).' 3
12. In my view it is clear that the BAT
arrangements work to the particular detri­
ment of migrant workers. Any specialist
doctor who has spent part of his career in
the public service of another Member State
incurs the disadvantage that his employment
in that Member State can never be taken into
account for grading purposes. By contrast
any specialist doctor who has been continu­
ously employed under the BAT is entitled to
have the whole period of his employment as
a doctor taken into account.
13. Of the public servants who spend their
careers in Germany, it is only those who
move from non-BAT to BAT employment
who are liable to incur the same disadvantage
as migrant workers. Such persons are likely
to represent a small proportion of German
public servants. The broad scope of the BAT
allows public servants extensive mobility
2 — Case C-237/94 O'Flynn v Chief Adjudication Officer [1996]
ECR 1-2617. 3 — Paragraphs 18 and 19 of the judgment.
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SCHÖNING-KOUGEBETOPOULOU v FREIE UND HANSESTADT HAMBURG
between German public service employers
without any pay disadvantage. Moreover, it
cannot be suggested that all doctors who are
public servants in non-BAT employment are
actually disadvantaged by the BAT rule.
Most employees not covered by the BAT
will be subject to their own — in some cases
superior — career arrangements, such as the
regulations applicable to officials or to other
collective agreements or contractual arrange­
ments specific to their employer. 4 By con­
trast the BAT rule works to the disadvantage
of every migrant worker joining the German
public service.
14. The fact that owing to the hiatuses
between the arrangements applicable to the
different categories of staff some German
public servants suffer the same disadvantage
as migrant workers scarcely justifies denying
all migrant workers who take up employ­
ment in the German public sector the advan­
tages enjoyed by an entire — and apparently
the largest — category of German public ser­
vants.
15. The untenability of the German Govern­
ment's position is particularly clear if one
considers what the position would be if the
BAT rule were repeated in the arrangements
applicable in the case of other public-service
employers or categories of staff. On the Ger­
man Government's analysis none of the
arrangements considered individually would
be discriminatory owing to the existence of
other categories of staff and public-service
employers not covered by the arrangements;
yet the cumulative effect would be to place
migrant workers at a disadvantage for the
purposes of grading in the entire German
public sector.
Whether the rules are objectively justified
16. In the present proceedings two — con­
flicting — lines of argument have been put
forward in order to show that the BAT
arrangements are objectively justified. On
the one hand, the French and Spanish Gov­
ernments, developing the arguments of the
national court, 5 consider that restrictions on
mobility are justified by considerations spe­
cific to public service. The German Govern­
ment, on the other hand, contends that the
BAT can be compared to collective agree­
ments in the private sector and even denies
that it is exclusively a public service arrange­
ment. Its purpose is to promote a stable
4 — For example, the German Government's reply to the Court's
written questions states that the Land Berlin, although no
longer subject to the BAT, has concluded a specific collective
agreement adopting the collective conventions concluded
under the BAT by the body representing the other Länder,
the Tarifgemeinschaft deutscher Länder. 5 — Set out at paragraph 6 above.
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OPINION OF MR JACOBS — CASE C-15/96
workforce by rewarding loyalty to BAT
employers viewed collectively. I shall con­
sider those arguments in turn.
Public service justification
17. It is first of all common ground that the
post of specialist doctor is outside the scope
of Article 48(4) of the Treaty. The Court has
held that that provision applies solely to
posts which 'presume on the part of those
occupying them the existence of a special
relationship of allegiance to the State and
reciprocity of rights and duties which form
the foundation of the bond of nationality'. 6
In any event Article 48(4) cannot permit dis­
crimination on the grounds of nationality,
for instance in pay or working conditions, if
in fact a non-national is appointed to the
post in question. 7
18. One cannot therefore in the present case
speak of allegiance to the State in the above
sense. There nevertheless remains the ques­
tion whether the BAT rule can be justified
by the particular features of public service
employment. The starting point in consider­
ing this issue is the Court's ruling in Scholz. 8
There a public body, namely an Italian uni­
versity, based its selection criteria for
appointment to a post as a university canteen
assistant partly on length of previous
employment in the public service. The Court
held that the failure by the university to take
account of experience gained by the appli­
cant in the public service of another Member
State (the German post office) constituted
unjustified indirect discrimination.
19. The French and Spanish Governments
consider, however, that the ruling in Scholz
relating to appointment to a post in the pub­
lic service cannot be transposed to the
present case, which concerns grading. They
argue that under systems such as theirs pub­
lic service entails the undertaking of recipro­
cal obligations by employee and employer.
In the absence of harmonised regulations on
career structures and pay, recognition of
public service completed in another Member
State would disrupt their public service
structures.
20. At the hearing the Spanish Government
gave the example of two teachers or doctors
employed in different Member States. The
employee in Member State A must wait
patiently for a number of years for his pay to
increase automatically according to length of
service; the employee in Member State B is
6 — Case 149/79 Commission v Belgium [1980] ECR 3881, para­
graph 10 of the judgment; Case 307/84 Commission v France
[1986] ECR 1725, paragraph 12.
7 — Case 152/73 Sotgiu vDeutsche Bundespost [1974] ECR 153,
paragraph 4 of the judgment. 8 — Case C-419/92 [1994] ECR I-505.
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SCHÖNING-KOUGEBETOPOULOU v FREIE UND HANSESTADT HAMBURG
paid more highly from the start by virtue of
more flexible grading rules. According to the
Spanish Government, to require Member
State A to take account of the latter employ­
ee's experience in Member State B would be
to assimilate years of service that were not
comparable.
21. The French Government nevertheless
suggested at the hearing that the interest in
free movement and the integrity of national
public services might be reconciled in cases
such as the present, first, by requiring that
the employment of the migrant worker
should have been in a public service or a
body pursuing public-service aims and, sec­
ondly, by requiring a comparison of the
functions performed, the level of qualifica­
tions required and the level of remuneration.
22. As I stated in my Opinion in Scholz, 9 I
am prepared to accept that public servants
share a special ethos which may be relevant
in assessing whether periods of employment
should be taken into account for the pur­
poses of recruitment and promotion in the
public service. Public servants may be moti­
vated by factors that differ essentially from
those obtaining in the private sector. Typi­
cally, employment in the public service
implies a willingness to accept relatively
modest financial rewards in return for
greater long-term security, together, perhaps,
with the satisfaction of rendering service to
the collectivity. Promotion may be viewed in
part as a reward for such service.
23. Notwithstanding the potential difficulty
in defining the limits of public service, I
therefore accept the French Government's
suggestion that a Member State may restrict
periods of qualifying employment to those
completed in public service. However, as I
noted in my Opinion in Scholz, I do not
think the special ethos of public service can
justify the disregarding of periods of public
service completed in another Member State.
24. As regards the French and Spanish Gov­
ernments' argument concerning differences
in career structures, I accept that there are
significant differences between the Member
States in the rules governing the employment
of public servants. In its abovementioned
written question, the Court asked the Mem­
ber States to state whether periods of service
completed in another Member State were
taken into account for the purposes of deter­
mining seniority in their public services. The
replies reveal considerable diversity in the
public service structures of the Member9 — See paragraphs 27 and 28 of the Opinion.
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OPINION OF MR JACOBS — CASE C-15/96
States, ranging from a highly flexible system
based on individually determined remunera­
tion in Sweden to the rather more rigid sys­
tems applied in France, Spain and Germany.
It appears that in a number of Member
States, including Austria, Denmark, the
Netherlands, Sweden and the United King­
dom, relevant previous experience, including
experience gained in another Member State,
is taken into account, at least to some extent,
upon initial appointment but length of ser­
vice plays no automatic role in future grad­
ing. In other Member States, in particular
France, Germany, Luxembourg and Spain,
length of service plays a formal role in sub­
sequent grading and salary progression.
Moreover, it appears that at present no or
little account is taken of previous employ­
ment in another Member State; 10 an appar­
ent exception is Greece which, although also
applying a system of automatic advancement,
recently adopted a law 1 1expressly providing
for periods completed in the public service
of another Member State to be taken into
account for the purposes of advancement.
25. Despite the differences in public service
structure public servants in the various
Member States perform broadly similar
functions and doubtless share similar types
of motivation. The fact that a public servant
was subject to different conditions in the
public service of another Member State can­
not justify non-recognition of periods of
employment in the service of that State. To
accept that would be to allow a Member
State to place a migrant worker at a perma­
nent disadvantage by comparison with
national public servants simply because he
benefited, or may have benefited, from a
more flexible career structure in the past. It
would serve to compartmentalize national
public services and constitute a significant
obstacle to public sector mobility in the
Community.
26. In any event, it seems to me that the
French and Spanish Governments overlook
part of the equation. It may be true that the
more flexible career structures in the public
services of some Member States may allow
higher initial salaries and more rapid promo­
tion for some public servants. However,
greater flexibility brings with it greater
demands on public servants: promotion and
even continued employment may depend to
some degree on performance. The argument
that it would be unfair to a migrant worker's
colleagues to recognise his public service in
another Member State ignores the compara­
tive disadvantages to which he may have
been subject.
10 — It appears that under a law of 16 December 1996 France
now takes account of compulsory national service com­
pleted in another Member State or EEA country for the
purposes of calculating seniority.
11 — Law No 2470 of 21 March 1997.
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SCHÖNING-KOUGEBETOPOULOU v FREIE UND HANSESTADT HAMBURG
27. It has moreover not been suggested that
the different career structures would of
themselves induce public servants to switch
from the public service of one Member State
to that of another. In any event, significant
differences in career structures may exist
between Member States even in the private
sector, particularly in the professions.
Loyalty to an employer or group of employers
28. The German Government has not
sought to rely on considerations specific to
public sector employment. It argues that, by
rewarding loyalty for continuous service, the
BAT rule does no more than a private
employer or a number of private employers
collectively would do. Indeed the German
Government has sought to show that the
BAT is also in part a private sector arrange­
ment.
29. I agree with the Commission that
arrangements adopted by an undertaking (or
group of undertakings in common owner­
ship) in order to reward employees for long
service do not necessarily entail unjustified
discrimination. However, as the Commission
points out, it is difficult to see how the
arrangements under the BAT can be equated
with the rewarding of loyalty by a specific
private employer when service with any
BAT employer is treated as qualifying
employment. It is apparent that the BAT
applies to an array of legally separate
employers, sometimes with conflicting inter­
ests and policies and with only limited com­
mon structures, operating methods or insti­
tutional goals.
30. The German Government replies that it
is conceivable that a number of private
employers might collectively agree on
arrangements such as those of the BAT. At
the hearing it gave the example of two car
manufacturers who enter into a collective
agreement with the relevant unions under
which they each agree to provide, in their
loyalty schemes, for recognition of service
under the other company.
31. However, such an agreement — on the
assumption that it were able to withstand
scrutiny under Article 85 of the Treaty —
would not, in the absence of a single
employer, involve the rewarding of loyalty in
any normal sense of the word. Service with a
competitor can hardly be thought of as dem­
onstrating loyalty to one's employer. At the
very least its sole purpose could not be to
reward loyalty since that purpose would be
better served by agreements specific to each
employer.
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OPINION OF MR JACOBS — CASE C-15/96
32. The same applies to the BAT. If the aim
of the BAT were solely to reward an
employee's loyalty to his employer it would
be sufficient for each employer to adopt its
own arrangements or, if uniform conditions
were sought, to agree collectively on condi­
tions to be applied independently by each
employer without any provision for mutual
recognition of periods of service. That would
however presumably be unacceptable to the
parties to the BAT for the very reason which
causes migrant workers to be placed at a dis­
advantage under the present arrangements. It
would preclude mobility, not only for
migrant workers (and a small number of
German public servants), but for the major­
ity of German public servants by compart­
mentalizing the German public sector. Thus
the BAT goes beyond the mere rewarding of
loyalty by allowing in addition for extensive
mobility for the majority of public servants.
33. Finally, the German Government's asser­
tion that the BAT is in part a private sector
arrangement casts doubt on whether it
would even be lawful to restrict qualifying
periods of employment to those completed
in the public sector. However, the national
court's questions are posited on the basis
that the BAT is a public sector agreement,
and in any event it seems clear that
Dr Schöning-Kougebetopoulou's previous
employment as a doctor was in the Greek
public service.
Question 2
34. By its second question the national court
asks whether, on the assumption that the
BAT rule is unlawful, it should require the
periods of service in another Member State
to be taken into account or refer the matter
back to the parties to the collective agree­
ment, having regard to their freedom to con­
tract.
35. On this question I share the Commis­
sion's view that guidance may be sought
from the Court's case-law on sex discrimi­
nation, in particular the judgments in
McDermott and Cotter 12 and Van Cant. 13
By virtue of Article 7(4) of Regulation No
1612/68 the BAT rule is null and void in so
far as it lays down or authorises discrimina­
tory conditions for workers who are nation­
als of other Member States. It will be for the
parties to the BAT to make the necessary
amendments to it in order to eliminate the
discrimination. However, until such amend­
ments are made the rules applied to the
advantaged group provide the only appropri­
ate point of reference.
12 — Case 286/85 McDermott and Cotter v Minister for Social
Welfare and Attorney-General [1987] ECR 1453, paragraph
19 of the judgment.
13 — Case C-154/92 Van Cant v Rijksdienst voor Pensionen
[1993] ECR I-3811, paragraph 20 of the judgment.
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SCHÖNING-KOUGEBETOPOULOU v FREIE UND HANSESTADT HAMBURG
36. As the Commission points out, it will
be necessary for the national court in such
circumstances to examine the equivalence
of the periods of service completed in the
public service of the other Member State.
However, there appears to be no dispute on
that issue in relation to Dr Schöning-
Kougebetopoulou. The BAT requires eight
years' employment as a doctor for promo­
tion to Group la, and it appears to be com­
mon ground that the years of service for
which she seeks recognition were spent as a
doctor in the Greek public service.
Conclusion
37. Accordingly, I am of the opinion that the questions referred by the Arbeitsge­
richt Hamburg should be answered as follows:
(1) A clause of a collective agreement for the public service of a Member State
which provides for promotion on grounds of seniority after eight years' ser­
vice in a particular career bracket under the agreement and does not take
account of comparable employment in the public service of another Member
State infringes Article 48 of the Treaty and Article 7(1) of Regulation (EEC)
No 1612/68 and is null and void under Article 7(4) of that regulation in so far
as it lays down or authorises discriminatory conditions for workers who are
nationals of other Member States.
(2) Until such time as the terms of the collective agreement are amended so as to
eliminate the discrimination, Article 48 of the Treaty, together with Article
7(1) of Regulation No 1612/68, requires that the advantages conferred by the
agreement should be extended to a migrant worker, so that comparable
employment in the public service of another Member State is given equivalent
recognition.
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