Opinion of the Advocate General — ECLI:EU:C:2000:50
Date: 2000-01-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Preliminary rulings — Reference to the Court — Court or tribunal of a Member State 
within the meaning of Article 177 of the Treaty (now Article 234 EC) — Defini­
tion — Oberster Gerichtshof ruling under a specific procedure intended to determine 
in the abstract whether there is a right without reference to any individual dispute — 
Covered 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
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SUMMARY — CASE C-195/98 
2. Freedom of movement for persons —• Workers •— Equal treatment — Seniority — 
Recognition of previous periods of service for the purposes of determining the pay of 
contractual teachers — Stricter requirements applicable to periods spent in compar­
able institutions of other Member States — Covert discrimination •—• Not permissi­
ble — Account to be taken without temporal limitation 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC); Council Regulation 
No 1612/68, Art. 7(1) and (4)) 
1. In order to determine whether a body 
making a reference is a court or 
tribunal for the purposes of Article 177 
of the Treaty (now Article 234 EC), 
which is a question governed by Com­
munity law alone, the Court takes into 
account a number of factors, such as 
whether the body concerned is estab­
lished by law, whether it is permanent, 
whether its jurisdiction is compulsory, 
whether its procedure is inter partes, 
whether it applies rules of law and 
whether it is independent. 
In exercising functions such as those 
provided for under a specific procedure 
intended to determine in the abstract 
whether there is a right without refer­
ence to any individual dispute, the 
Oberster Gerichtshof constitutes a 
court or tribunal within the meaning 
of Article 177 of the Treaty. Although 
the Oberster Gerichtshof is not ruling 
on disputes in a specific case involving 
identified persons and must base its 
legal assessment on the facts alleged by 
the applicant without further examina­
tion, and although the decision is 
declaratory in nature and the right to 
bring proceedings is exercised collec­
tively, the procedure in question is none 
the less intended to result in a decision 
that is judicial in character. In particu­
lar, the final decision is binding on the 
parties who cannot make a second 
application for a declaration relating 
to the same factual situation and rais­
ing the same legal questions. 
(see paras 24, 29-30, 32 
and operative part 1) 
2. Article 48 of the Treaty (now, after 
amendment Article 39 EC) and Arti­
cle 7(1) and (4) of Regulation 
No 1612/68 on freedom of movement 
for workers within the Community 
preclude a national rule concerning 
the account to be taken of previous 
periods of service for the purposes of 
determining the pay of contractual 
teachers and teaching assistants, where 
the requirements which apply to peri­
ods spent in other Member States are 
stricter than those applicable to periods 
spent in comparable institutions of the 
Member State concerned. That provi­
sion, which operates to the detriment 
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OSTERREICHISCHER GEWERKSCHAFTSBUND 
of migrant workers who have spent 
part of their career in another Member 
State is liable to breach the principle of 
non-discrimination enshrined in Arti­
cle 48 of the Treaty and Article 7(1) 
and (4) of Regulation No 1612/68. 
Moreover, where a Member State is 
obliged to take into account, in calcu­
lating the pay of contractual teachers 
and teaching assistants, periods of 
employment in certain institutions in 
other Member States comparable to the 
national institutions, such periods must 
be taken into account without any 
temporal limitation. 
(see paras 44, 51, 56 and 
operative part 2-3) 
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