3.

By order of 24 January 1985, the Bundesverwaltungsgericht stayed the proceedings and referred the following question to the Court for a preliminary ruling: ‘Do the rules of European law on the free movement of persons (Article 48 of the EEC Treaty) and Article 1 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 (Official Journal, English Special Edition 1968 (II), p. 475, later amended) give nationals of a Member State the right to be appointed trainee teachers in the State school system of another Member State under the same conditions as nationals of that Member State, even where such trainee teachers, according to national law, have civil service status (in this case, as temporary civil servants [Beamte auf Widerruf] under German law) and conduct classes independently, and where national law requires that persons appointed to the civil service must in principle be nationals of the Member State concerned?’ In the statement of the grounds for its decision the Bundesverwaltungsgericht first points out that, under German law, the plaintiff has no right to be admitted to the period of preparatory service; such a right might possibly arise under Community law but not in this case. The Bundesverwaltungsgericht expresses doubts about accepting the proposition that the term ‘workers’ in Article 48 (1), (2) and (3) of the EEC Treaty and Article 1 of Regulation No 1612/68 ( 1 ) covers an occupation in a legal relationship such as that of the German civil service. It accepts that the term ‘worker’ should not be defined by reference to the law of the Member States. However, that does not exclude the possibility of obtaining guidance for interpreting terms used in Community law from the law of the Member States as it stood at the time when the EEC Treaty was concluded. In any event, in German law, the term ‘workers’ means persons whose legal relationship to their employer (Arbeitgeber) is governed by private law. Persons whose legal relationship to their employer, being a body governed by public law (Dienstherr), is subject to public law — particularly civil servants, judges and soldiers — are not covered by the term. That view is reinforced by the consideration that, if civil servants or judges and soldiers were in principle covered by the term, this would have constituted a much more extensive incursion into the existing national legal order than would the granting of freedom of movement to workers whose employment relationship is governed by private law. The essence of such an employment relationship is a mutual obligation to engage in an economic exchange of labour in return for remuneration. On the other hand, civil service status has not only economic but primarily political significance and is characterized above all by a wider obligation of loyalty. It is not necessary to decide whether the expression ‘activity as an employed person’ in Article 1 (1) of Regulation No 1612/68, considered in isolation, suggests that the Council, in adopting the regulation, intended that freedom of movement should apply to all employed persons other than self-employed persons, because that provision presupposes that Article 48 of the EEC Treaty determines which activities are subject to the rules on freedom of movement. Further doubts as to the applicability of Article 48 of the EEC Treaty to the period of preparatory service at issue arise from the fact that it does not involve a remunerated professional activity but constitutes the last stage of vocational training. The purpose of preparatory service is not to meet the employing authority's needs in regard to the giving of lessons but rather to train the persons undergoing it. The latter are to be made sufficiently familiar with the theory and practice of education and teaching that they are in a position to perform independent, successful work as teachers in a Gymnasium. Teaching, carried out at first under supervision and later independently, is also subordinated to that purpose. The trainee's salary is not, as are the salaries of other civil servants, a maintenance allowance commensurate with the office occupied and paid in return for their comprehensive obligation to perform certain duties, but is intended to ensure that the purpose of the training is achieved. If the disputed training period none the less comes within the scope of Article 48 (1), (2) and (3) of the EEC Treaty, the exemption in Article 48 (4) must apply. According to the decisions of the Court of Justice of the European Communities, ‘the posts in question [should be] typical of the specific activities of the public service in so far as the exercise of powers conferred by public law and responsibility for safeguarding the general interests of the State are vested in it’. That must be understood, according to the Bundesverwaltungsgericht, as meaning not that the posts in question must display both those characteristics but rather that they must be connected either with the exercise of powers conferred by public law or with the responsibility for safeguarding the general interests of the State. A limitation to the effect that not all posts which are connected with the exercise of powers conferred by public law come within the scope of the exemption cannot be deduced from the decisions of the Court. Accordingly, in the passage quoted above, the Court of Justice did not relate the two characteristics to the ‘posts in question’ but rather used them to indicate the entire range of activities specific to the public service. In German law, appointment as a civil servant is permissible only for the purpose of discharging public functions or functions which, for reasons connected with State security or with public life, may not be exclusively carried out by persons whose relationship to their employer is governed by private law. In view of those statutory requirements and the special rights and duties connected with civil service status, posts to be occupied by civil servants thus appear to be typical of the specific activities of the public service, as defined by the Court of Justice of the European Communities. The activity exercised by a teacher in a State school constitutes an exercise of powers conferred by public law, whatever the type of employment relationship involved. It is necessary, when applying Article 48 (4) of the EEC Treaty, to determine in accordance with Community law which forms of State activity are to be regarded as the exercise of powers conferred by public law, while each Member State must decide which functions it wishes to have carried out by way of that form of activity, which functions it wishes to have carried out through other forms of State activity and which tasks it wishes to leave to private individuals. According to German legislation on schools, the State, through the public institution of the school system and the persons acting for it, is exercising powers conferred by public law in relation to pupils. That can be seen inter alia from the fact that decisions concerning not only transfers to a higher class and formal disciplinary measures, but also, for example, decisions concerning a controversial curriculum are public administrative acts. Individual measures such as, for example, the continuous assessment of pupils' performance during the school year are also administrative acts. Trainee teachers take part, under supervision at first but later independently, in the preparation of administrative acts of that kind. At the same time, a teacher's activity in the State school system safeguards the general interests of the State. The national law applicable in this regard ranks education highly as a fundamental public function. According to Article 7 (1) of the Grundgesetz, the entire educational system is to be under the supervision of the State.