Keywords

Summary



Keywords

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1. Actions for failure to fulfil obligations ° Pre-litigation procedure ° Purpose ° Setting of time-limits for the Member State concerned ° Requirement of reasonable time-limits ° Criteria for assessment

(EEC Treaty, Art. 169)

2. Freedom of movement for persons ° Derogations ° Employment in the public service ° Public sectors of research, education, health, inland transport, posts and telecommunications and the water, gas and electricity distribution services ° Nationality requirement for posts not involving participation in the exercise of powers conferred by public law or the safeguarding of the general interests of the State ° Not permissible ° Justification ° Preservation of national identity ° Not acceptable

(EEC Treaty, Art. 48; Treaty on European Union, Art. F(1); Council Regulation No 1612/68, Art. 1)

Summary

1. In an action for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections raised by the Commission. That dual purpose requires that the Commission allow the Member State a reasonable period in which to reply to the letter of formal notice and to comply with a reasoned opinion, or, where appropriate, to prepare its defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case.

A period of four months given to a Member State in order to comply with a reasoned opinion issued by the Commission cannot be regarded as unreasonable where that Member State was informed of the Commission' s position nearly three years before receiving formal notice from the Commission and that period is, moreover, twice as long as the period normally allowed.

2. A Member State which, in the public sectors of research, education, health, inland transport, posts and telecommunications and in the water, gas and electricity distribution services, does not restrict the requirement of possession of its nationality to civil servants' and public employees' posts involving 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, fails to fulfil its obligations under Article 48 of the Treaty and Article 1 of Regulation No 1612/68 on freedom of movement for workers within the Community. Since the generality of the posts in those sectors are remote from the specific activities of the public service, the fact that some posts in those sectors may, in certain circumstances, be covered by Article 48(4) of the Treaty cannot justify a Member State' s making all those posts in general subject to a nationality condition.

In a sector such as education, the exclusion of nationals of other Member States from all the posts in the sector cannot be justified by considerations relating to preservation of national identity since that interest, whose safeguarding is a legitimate interest, recognized by Article F(1) of the Treaty on European Union, can still be effectively safeguarded otherwise than by a general exclusion and since nationals of other Member States, like nationals of the Member State concerned, must in any event fulfil all the conditions required for recruitment, in particular those relating to training, experience and language knowledge.