Keywords

Summary



Keywords

1 . FREE MOVEMENT OF PERSONS - DEROGATIONS - EMPLOYMENT IN THE PUBLIC SERVICE - CRITERIA - PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND IN THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE .

( EEC TREATY , ART . 48 ( 4 ))

2 . FREE MOVEMENT OF PERSONS - WORKERS - EQUAL TREATMENT - DEROGATIONS - PARTICIPATION IN THE MANAGEMENT OF BODIES GOVERNED BY PUBLIC LAW AND THE HOLDING OF AN OFFICE GOVERNED BY PUBLIC LAW - AIM OF THE DEROGATION

( REGULATION NO 1612/68 OF THE COUNCIL , ART . 8 )

3 . FREE MOVEMENT OF PERSONS - DEROGATIONS - EMPLOYMENT IN THE PUBLIC SERVICE - CONCEPT - UNIFORM INTERPRETATION AND APPLICATION - REFERENCE TO NATIONAL LAW ALONE - NOT PERMISSIBLE

( EEC TREATY , ART . 48 ( 4 ))

4 . FREE MOVEMENT OF PERSONS - DEROGATIONS - EMPLOYMENT IN THE PUBLIC SERVICE - ADMISSION OF NATIONALS ALONE TO POSTS INVOLVING THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE - PERMISSIBILITY - EXCLUSION OF NATIONALS OF OTHER MEMBER STATES FROM THE TOTALITY OF POSTS - NOT PERMISSIBLE

( EEC TREATY , ART . 48 ( 4 ))

Summary

1 . BY PROVIDING THAT ' ' THE PROVISIONS OF THIS ARTICLE SHALL NOT APPLY TO EMPLOYMENT IN THE PUBLIC SERVICE ' ' ARTICLE 48 ( 4 ) OF THE EEC TREATY REMOVES FROM THE AMBIT OF ARTICLE 48 ( 1 ) TO ( 3 ) 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 . ON THE OTHER HAND THE EXCEPTION CONTAINED IN ARTICLE 48 ( 4 ) DOES NOT APPLY TO POSTS WHICH , WHILST COMING UNDER THE STATE OR OTHER ORGANIZATIONS GOVERNED BY PUBLIC LAW , STILL DO NOT INVOLVE ANY ASSOCIATION WITH DUTIES BELONGING TO THE PUBLIC SERVICE PROPERLY SO CALLED .

2 . ARTICLE 8 OF REGULATION NO 1612/68 BY WHICH A WORKER FROM ANOTHER MEMBER STATE ' ' MAY BE EXCLUDED FROM TAKING PART IN THE MANAGEMENT OF BODIES GOVERNED BY PUBLIC LAW AND FROM HOLDING AN OFFICE GOVERNED BY PUBLIC LAW ' ' IS NOT INTENDED TO DEBAR WORKERS FROM OTHER MEMBER STATES FROM CERTAIN POSTS , BUT SIMPLY PERMITS THEM TO BE DEBARRED IN SOME CIRCUMSTANCES FROM CERTAIN ACTIVITIES WHICH INVOLVE THEIR PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW , SUCH AS THOSE INVOLVING THE PRESENCE OF TRADE-UNION REPRESENTATIVES ON THE BOARDS OF ADMINISTRATION OF MANY BODIES GOVERNED BY PUBLIC LAW WITH POWERS IN THE ECONOMIC SPHERE .

3 . THE RULE FUNDAMENTAL TO THE EXISTENCE OF THE COMMUNITY , BY WHICH RECOURSE TO PROVISIONS OF THE DOMESTIC LEGAL SYSTEM TO RESTRICT THE SCOPE OF THE PROVISIONS OF COMMUNITY LAW IS NOT PERMISSIBLE AS IT WOULD HAVE THE EFFECT OF IMPAIRING THE UNITY AND EFFICACY OF THAT LAW , MUST ALSO APPLY IN DETERMINING THE SCOPE AND BOUNDS OF ARTICLE 48 ( 4 ) OF THE TREATY . WHILST IT IS TRUE THAT THAT PROVISION TAKES ACCOUNT OF THE LEGITIMATE INTEREST WHICH THE MEMBER STATES HAVE IN RESERVING TO THEIR OWN NATIONALS A RANGE OF POSTS CONNECTED WITH THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND WITH THE PROTECTION OF GENERAL INTERESTS , AT THE SAME TIME IT IS NECESSARY TO ENSURE THAT THE EFFECTIVENESS AND SCOPE OF THE PROVISIONS OF THE TREATY ON FREEDOM OF MOVEMENT OF WORKERS AND EQUALITY OF TREATMENT OF NATIONALS OF ALL MEMBER STATES SHALL NOT BE RESTRICTED BY INTERPRETATIONS OF THE CONCEPT OF PUBLIC SERVICE WHICH ARE BASED ON DOMESTIC LAW ALONE AND WHICH WOULD OBSTRUCT THE APPLICATION OF COMMUNITY RULES .

4 . IN REFERRING TO POSTS INVOLVING THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND THE CONFERMENT OF RESPONSIBILITIES FOR THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE , ARTICLE 48 ( 4 ) ALLOWS MEMBER STATES TO RESERVE TO THEIR NATIONALS BY APPROPRIATE RULES ENTRY TO POSTS INVOLVING THE EXERCISE OF SUCH POWERS AND SUCH RESPONSIBILITIES WITHIN THE SAME GRADE , THE SAME BRANCH OR THE SAME CLASS . EVEN IF IT IS ACCEPTED THAT SUCH RULES MIGHT CREATE DISCRIMINATION , AN INTERPRETATION OF ARTICLE 48 ( 4 ) WHICH HAS THE EFFECT OF DEBARRING THE NATIONALS OF OTHER MEMBER STATES FROM THE TOTALITY OF POSTS IN THE PUBLIC SERVICE IS NOT PERMISSIBLE SINCE IT INVOLVES A RESTRICTION ON THE RIGHTS OF SUCH NATIONALS WHICH GOES FURTHER THAN IS NECESSARY TO ENSURE OBSERVANCE OF THE OBJECTIVES OF THAT PROVISION .