IT LAYS DOWN OR AUTHORIZES DISCRIMINATORY CONDITIONS IN RESPECT OF WORKERS WHO ARE NATIONALS OF THE OTHER MEMBER STATES '.
BY VIRTUE OF ARTICLE 48 ( 4 ) OF THE TREATY, HOWEVER, THESE PROVISIONS ARE NOT APPLICABLE TO 'EMPLOYMENT IN THE PUBLIC SERVICE '.
THE EXTENT OF THIS EXCEPTION MUST THEREFORE BE DEFINED .
4 TAKING ACCOUNT OF THE FUNDAMENTAL NATURE, IN THE SCHEME OF THE TREATY, OF THE PRINCIPLES OF FREEDOM OF MOVEMENT AND EQUALITY OF TREATMENT OF WORKERS WITHIN THE COMMUNITY, THE EXCEPTIONS MADE BY ARTICLE 48 ( 4 ) CANNOT HAVE A SCOPE GOING BEYOND THE AIM IN VIEW OF WHICH THIS DEROGATION WAS INCLUDED .
THE INTERESTS WHICH THIS DEROGATION ALLOWS MEMBER STATES TO PROTECT ARE SATISFIED BY THE OPPORTUNITY OF RESTRICTING ADMISSION OF FOREIGN NATIONALS TO CERTAIN ACTIVITIES IN THE PUBLIC SERVICE .
ON THE OTHER HAND THIS PROVISION CANNOT JUSTIFY DISCRIMINATORY MEASURES WITH REGARD TO REMUNERATION OR OTHER CONDITIONS OF EMPLOYMENT AGAINST WORKERS ONCE THEY HAVE BEEN ADMITTED TO THE PUBLIC SERVICE .
THE VERY FACT THAT THEY HAVE BEEN ADMITTED SHOWS INDEED THAT THOSE INTERESTS WHICH JUSTIFY THE EXCEPTIONS TO THE PRINCIPLE OF NON-DISCRIMINATION PERMITTED BY ARTICLE 48 ( 4 ) ARE NOT AT ISSUE .
5 IT IS NECESSARY TO ESTABLISH FURTHER WHETHER THE EXTENT OF THE EXCEPTION PROVIDED FOR BY ARTICLE 48 ( 4 ) CAN BE DETERMINED IN TERMS OF THE DESIGNATION OF THE LEGAL RELATIONSHIP BETWEEN THE EMPLOYEE AND THE EMPLOYING ADMINISTRATION .
IN THE ABSENCE OF ANY DISTINCTION IN THE PROVISION REFERRED TO, IT IS OF NO INTEREST WHETHER A WORKER IS ENGAGED AS A WORKMAN ( OUVRIER ), A CLERK ( EMPLOYE ) OR AN OFFICIAL ( FONCTIONNAIRE ) OR EVEN WHETHER THE TERMS ON WHICH HE IS EMPLOYED COME UNDER PUBLIC OR PRIVATE LAW .
THESE LEGAL DESIGNATIONS CAN BE VARIED AT THE WHIM OF NATIONAL LEGISLATURES AND CANNOT THEREFORE PROVIDE A CRITERION FOR INTERPRETATION APPROPRIATE TO THE REQUIREMENTS OF COMMUNITY LAW .
6 THE ANSWER TO THE QUESTION PUT TO THE COURT SHOULD THEREFORE BE THAT ARTICLE 48 ( 4 ) OF THE TREATY IS TO BE INTERPRETED AS MEANING THAT THE EXCEPTION MADE BY THIS PROVISION CONCERNS ONLY ACCESS TO POSTS FORMING PART OF THE PUBLIC SERVICES AND THAT THE NATURE OF THE LEGAL RELATIONSHIP BETWEEN THE EMPLOYEE AND THE EMPLOYING ADMINISTRATION IS OF NO CONSEQUENCE IN THIS RESPECT .
ON THE SECOND QUESTION
7 THE SECOND QUESTION ASKS WHETHER ARTICLE 7 ( 1 ) AND ( 4 ) OF REGULATION NO 1612/68 IS TO BE INTERPRETED AS MEANING THAT THE SEPARATION ALLOWANCE PAID IN ADDITION TO WAGES FALLS WITHIN THE CONCEPT OF 'CONDITIONS OF EMPLOYMENT AND WORK '.
THIS QUESTION IS RAISED BOTH IN VIEW OF THE NATURE OF THIS PAYMENT AND HAVING REGARD TO THE FACT THAT ACCORDING TO THE RELEVANT NATIONAL PROVISIONS IT IS A MATTER OF AN OPTIONAL PAYMENT .
8 THE AIM OF ARTICLE 7 OF REGULATION NO 1612/68 IS TO ENSURE EQUALITY OF TREATMENT OF WORKERS WHO ARE