WRITTEN QUESTION E-1758/01

by Ilda Figueiredo (GUE/NGL) to the Commission

(15 June 2001)

Subject: Discrimination in access to civil service posts

On 3 November 1999 the Portuguese government published Decree-Law No 444/99 adopting the professional statute for the personnel of the external services of the Ministry of Foreign Affairs (embassies and consulates).

This statute gives employees of those services the right to opt for national civil servant status. However, it denies that option to employees who are not Portuguese nationals, even where they are citizens of other EU Member States. This creates situations of unequal treatment.

Can the Commission state whether this situation is in breach of ECJ case-law and of the EC Treaty, notably its Article 13?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(25 July 2001)

According to Article 39 (ex Article 48) of the EC Treaty, Community nationals have a right to freedom of movement for workers within the territory of the Union. Article 39(4) of the EC Treaty provides that the provisions of this Article shall not apply to employment in the public service. However, the Court of Justice (CJ) has interpreted this reservation very strictly. In its constant interpretation the CJ has clarified that Member States are authorised to reserve public service posts for their nationals only if they are directly related to the specific activities of the public service, namely those involving the exercise of public authority and the responsibility for safeguarding the general interest of the Member State including those of public bodies such as local authorities. According to the Commission action in respect of the application of Article 48(4) (now 39(4)) of the EC-Treaty(1) the staff of the diplomatic service may fall under this reservation.

The authorities of the Member States (including the courts), under the control of the CJ, have to decide in each individual case if the criteria for applying Article 39(4) are really fulfilled; this has to be done according to the specific tasks and responsibilities of the post in question.

If the Portuguese authorities decide that a specific post in the diplomatic corps does not fulfil the criteria of Article 39(4) and therefore open this post to Union nationals who have exercised their right to free movement they may not deny them the right to opt for national civil servant status. This denial would be a discrimination based on nationality as regards any conditions of employment and work which is prohibited according to Article 39(2) and Article 7(1) of Regulation (EEC) 1612/68 of the Council on freedom of movement for workers within the Community(2). The CJ has ruled that Article 39(4) of the EC Treaty cannot justify discriminatory measures with regard to remuneration or other conditions of employment against workers once they have been admitted to the public service (see judgment of the CJ of 12 February 1974 in Case 152/73 (Giovanni Maria Sotgiu v. Deutsche Bundespost))(3).

Finally, it should be noted that discrimination on grounds of nationality is not covered by Article 13 (ex Article 6a) of the EC Treaty.

(1) OJ C 72, 18.3.1988.

(2) OJ L 257, 19.10.1968.

(3) ECR 1974, p. 153.