5.

I shall now consider the problems raised in the last two points, that is to say the conflict — the fundamental conflict — between the Organic' approach and the ‘functional’ approach to definition of the concept at issue here. As we know, in Case 149/79 France, in company with Belgium, Germany and the United Kingdom, espoused the organic approach. However, once again following the line suggested by Mr Advocate General Mayras, the Court took the opposite view. It held that Article 48 (4) removes from the ambit of freedom of movement ‘a series of posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. Such posts in fact 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’ (judgment of 17 December 1980, paragraph 10). In short, the criterion according to which the post at issue is to be appraised is material in character: in other words, it is based on the ‘duties’ involved in the post and removes from the ambit of the principle of freedom of movement only those which entail the exercise of official authority and (not ‘or’ — both requirements must be satisfied) are designed to safeguard the general interests of the State and of smaller territorial units. It seems to me that that criterion is firmly rooted in the Treaty and particularly in Article 55, which speaks of ‘activities which... are connected, even occasionally, with the exercise of official authority’. As has been seen, France dissents: it considers that the very absence of those words in Article 48 (4) proves the wider scope of the exception laid down in it. But that argument is weak. As was pointed out by the Commission in Case 149/79, the different content of the two provisions is accounted for by the difference in the situations envisaged: on the one hand, employed persons who are able to move in order to take up posts in the public service which intrinsically involve the exercise of official authority; and, on the other, selfemployed persons who establish themselves abroad in order to engage in an occupation which is necessarily private in character, even though it too may possibly involve the exercise of official authority. It is therefore clear that the functional criterion is a valid one. But how should it be applied in practice? The problem is of no little importance and the difficulties encountered in the attempts made to resolve it make the French proposal that legislation should be adopted to ‘implement’ Article 48 (4) appear reasonable. However, I have many misgivings about that proposal, even if I leave aside the risk of its being exploited in order to restrict the right to freedom of movement and to negate the ‘acquis’ represented by the case-law of the Court. The greatest danger of the action called for lies elsewhere: the danger of halting a process which, linked as it is to the aim of political unity which is being pursued by means of the integration of the European States and peoples, must be allowed to take its course with as few impediments as possible. It is indeed clear that in order to guarantee full freedom of movement it would be necessary to remove the obstacles deriving from the existence of different nationalities and to create a Community citizenship, which is no longer metaphorical, in the sense currently reflected in the judgments of this Court, but real. On the other hand, in the work of the Court there may be found more than one helpful response to the difficulties to which I have referred. This is so, in the first place, as regards the purpose and limits of the analysis designed to establish whether or not a given post comes within the scope of the derogation. In Sotgiu, for example, it is stated that such an analysis may not be based on factors such as the legal nature of the relationship between the administrative authority and the employee or the category to which the employee belongs: in particular the Court stated (in paragraph 5) that, in the absence of any distinction in the provisions referred to, ‘it is of no interest whether a worker is engaged as a workman, a clerk or an official or even whether the terms on which he is employed come under public or private law’ (for the opposite view — albeit in an obiter dictum having all the appearance of a lapsus calami —see the judgment of 8 May 1979 in Case 129/78 Bestuur Sociale Verzekeringsbank v Lohmann [1979] ECR 853, in which the provision of Regulation No 1408/71 on social security for migrant workers which excludes special schemes for civil servants and persons treated as such was explained as ‘the logical consequence of Article 48 (1) of the Treaty’). But the same should be said regarding the concept of ‘exercise of official authority ’ The Court preferred — its choice perhaps dictated by the preoccupations to which I have just referred — not to give a definition in the abstract. A number of allusions and, of course, the operative parts of the judgments of 17 December 1980 and 26 May 1982 prove, however, that the Court has adopted the definition given by Mr Advocate General Mayras, to the effect that such authority ‘is that which arises from the sovereignty... of the State; for him who exercises it it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens’ (Opinion in Reyners [1974] ECR at p. 664). In short, in order to be made inaccessible to nationals of another State, it is not sufficient for the duties inherent in the post at issue to be directed specifically towards public objectives which influence the conduct and action of private individuals. Those who occupy the post must don full battle dress: in non-metaphorical terms, the duties must involve acts of will which affect private individuals by requiring their obedience or, in the event of disobedience, by compelling them to comply. To make a list — taking account inter alia of the second condition laid down by the Court (the protection of general interests) — is practically impossible; but certainly the first examples which come to mind are posts which involve the exercise of powers relating to policing, defence of the State, the administration of justice and assessments to tax.