Giovanni Maria Sotgiu v Deutsche Bundespost.
Date: 1974-02-12
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 .
11 THE RULES REGARDING EQUALITY OF TREATMENT, BOTH IN THE TREATY AND IN ARTICLE 7 OF REGULATION NO 1612/68, FORBID NOT ONLY OVERT DISCRIMINATION BY REASON OF NATIONALITY BUT ALSO ALL COVERT FORMS OF DISCRIMINATION WHICH, BY THE APPLICATION OF OTHER CRITERIA OF DIFFERENTIATION, LEAD IN FACT TO THE SAME RESULT .
THIS INTERPRETATION, WHICH IS NECESSARY TO ENSURE THE EFFECTIVE WORKING OF ONE OF THE FUNDAMENTAL PRINCIPLES OF THE COMMUNITY, IS EXPLICITLY RECOGNIZED BY THE FIFTH RECITAL OF THE PREAMBLE TO REGULATION NO 1612/68 WHICH REQUIRES THAT EQUALITY OF TREATMENT OF WORKERS SHALL BE ENSURED 'IN FACT AND IN LAW '.
IT MAY THEREFORE BE THAT CRITERIA SUCH AS PLACE OF ORIGIN OR RESIDENCE OF A WORKER MAY, ACCORDING TO CIRCUMSTANCES, BE TANTAMOUNT, AS REGARDS THEIR PRACTICAL EFFECT, TO DISCRIMINATION ON THE GROUNDS OF NATIONALITY, SUCH AS IS PROHIBITED BY THE TREATY AND THE REGULATION .
12 HOWEVER, THIS WOULD NOT BE THE CASE WITH A SEPARATION ALLOWANCE THE CONDITIONS OF ALLOTMENT AND RULES FOR THE PAYMENT OF WHICH TOOK ACCOUNT OF OBJECTIVE DIFFERENCES WHICH THE SITUATION OF WORKERS MAY INVOLVE ACCORDING TO WHETHER THEIR RESIDENCE, AT THE TIME THEIR TAKING UP A GIVEN POST, IS WITHIN THE TERRITORY OF THE STATE IN QUESTION OR ABROAD .
IN THIS RESPECT THE FACT THAT, FOR WORKERS WHOSE HOME IS WITHIN THE TERRITORY OF THE STATE CONCERNED, PAYMENT OF THE SEPARATION ALLOWANCE IS ONLY TEMPORARY AND IS BOUND UP WITH AN OBLIGATION TO TRANSFER THE RESIDENCE TO THE PLACE OF EMPLOYMENT, WHILST THE SAME ALLOWANCE IS PAID FOR AN INDEFINITE PERIOD AND IS NOT BOUND UP WITH ANY SUCH OBLIGATION IN THE CASE OF WORKERS WHOSE RESIDENCE IS ABROAD, WHATEVER THEIR NATIONALITY, MAY BE A VALID REASON FOR DIFFERENTIATING BETWEEN THE AMOUNTS PAID .
IN ANY CASE IT IS NOT POSSIBLE TO STATE THAT THERE IS DISCRIMINATION CONTRARY TO THE TREATY AND THE REGULATION, IF IT IS APPARENT FROM A COMPARISON BETWEEN THE TWO SCHEMES OF ALLOWANCES TAKEN AS A WHOLE THAT THOSE WORKERS WHO RETAIN THEIR RESIDENCE ABROAD ARE NOT PLACED AT A DISADVANTAGE BY COMPARISON WITH THOSE WHOSE RESIDENCE IS ESTABLISHED WITHIN THE TERRITORY OF THE STATE CONCERNED .