TO DETERMINE WHETHER POSTS ARE POSTS IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) OF THE TREATY , IT IS NECESSARY TO CONSIDER ' WHETHER OR NOT THE POSTS IN QUESTION ARE 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 ' . AS THE COURT ALSO STATED IN THAT JUDGMENT , THAT INTERPRETATION - TO THE EFFECT THAT THE CRITERION FOR DETERMINING WHETHER ARTICLE 48 ( 4 ) OF THE TREATY IS APPLICABLE MUST BE FUNCTIONAL AND MUST TAKE ACCOUNT OF THE NATURE OF THE TASKS AND RESPONSIBILITIES INHERENT IN THE POST - IS NECESSARY IN ORDER TO ENSURE ' THAT THE EFFECTIVENESS AND SCOPE OF THE PROVISIONS OF THE TREATY ON FREEDOM OF MOVEMENT FOR 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 ' .
13 FINALLY , IT FOLLOWS FROM THE JUDGMENT OF 26 MAY 1982 ( CASE 149/79 COMMISSION V KINGDOM OF BELGIUM ( 1982 ) ECR 1845 ) THAT , IN VIEW OF THE NATURE OF THE FUNCTIONS AND RESPONSIBILITIES WHICH THEY INVOLVE , POSTS OF NURSES IN PUBLIC HOSPITALS DO NOT CONSTITUTE EMPLOYMENT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) OF THE TREATY .
14 THE SECOND QUESTION WHICH ARISES IN THESE PROCEEDINGS IS WHETHER THE CONTESTED PROVISION OF THE FRENCH PUBLIC HEALTH CODE LEADS TO DISCRIMINATION OF THE KIND PROHIBITED BY ARTICLE 48 ( 2 ) OF THE TREATY .
15 THE FRENCH GOVERNMENT CLAIMS THAT ACCESS TO EMPLOYMENT AS A NURSE IN PUBLIC HOSPITALS IS NOT SUBJECT TO ANY NATIONALITY REQUIREMENT AND THAT SUCH EMPLOYMENT IS OPEN TO THE NATIONALS OF OTHER MEMBER STATES WHEN IT COMES TO RECRUITING EMPLOYEES UNDER CONTRACT AS OPPOSED TO MEMBERS OF THE ESTABLISHED STAFF .
16 THAT ARGUMENT MUST BE REJECTED , SINCE THE FRENCH REPUBLIC HAS NOT ESTABLISHED THAT ALL POSTS AS NURSES OFFERED IN PUBLIC HOSPITALS WERE EQUALLY ACCESSIBLE TO THE NATIONALS OF OTHER MEMBER STATES AND THAT WHEN SUCH NATIONALS WERE RECRUITED THEY ENJOYED CONDITIONS - WITH THE EXCEPTION OF THE POSSIBILITY OF PROMOTION TO POSTS IN THE PUBLIC SERVICE WITHIN THE MEANING OF THE TREATY - ADVANTAGES AND SAFEGUARDS WHICH WERE IN EVERY RESPECT EQUIVALENT TO THOSE DERIVING FROM THE STATUS OF MEMBERS OF THE ESTABLISHED STAFF , WHICH IS RESERVED TO FRENCH NATIONALS .
17 IN THOSE CIRCUMSTANCES , IT MUST BE CONCLUDED THAT BY RESTRICTING TO ITS OWN NATIONALS APPOINTMENT AND ESTABLISHMENT IN PERMANENT EMPLOYMENT AS A NURSE IN A PUBLIC HOSPITAL , THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 48 OF THE EEC TREATY .
Decision on costs
COSTS
18 UNDER ARTICLE 69 ( 2 ) OF