Kalliope Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg.
Date: 1998-01-15
9 The Court has consistently held that, in the context of the application of Article 177 of the Treaty, it has no jurisdiction to decide whether a national provision is compatible with Community law.  The Court may, however, extract from the wording of the questions formulated by the national court, having regard to the facts stated by it, those elements which concern the interpretation of Community law for the purpose of enabling that court to resolve the legal problem before it (see, inter alia, Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR I-711, paragraph 19).
12 Third, Article 48 of the Treaty lays down the fundamental principle of freedom of movement for workers. Article 7(4) of Regulation No 1612/68, which merely clarifies and gives effect to rights already conferred by Article 48 of the Treaty (Case C-419/92 Scholz v Opera Universitaria di Cagliari [1994] ECR I-505, paragraph 6), guarantees equal treatment of workers who are nationals of other Member States in regard to any clause of a collective or individual agreement or any other collective regulation concerning, in particular, pay.
13 Fourth, the derogation in Article 48(4) of the Treaty, according to which the provisions on freedom of movement for workers are not to apply to `employment in the public service', concerns only access for nationals of other Member States to certain posts in the civil service (Case C-248/96 Grahame and Hollanders [1997] ECR I-0000, paragraph 32).  It does not concern the activities of a specialist doctor, which do not 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 public authorities (see, in that regard, Case 149/79 Commission v Belgium [1980] ECR 3881, paragraph 10).
21 The questions for consideration are therefore whether a clause of a collective agreement applicable to the public service of a Member State, such as the clause in question, is such as to infringe the principle of non-discrimination laid down in Article 48 of the Treaty and Article 7(1) and (4) of Regulation No 1612/68 and, if so, whether such rules are justified by objective considerations independent of the nationality of the employees concerned and whether they are proportionate to the legitimate aim of the national provisions (see, inter alia, the judgment in Case C-237/94 O'Flynn v Adjudication Officer [1996] ECR I-2617).
The principle of non-discrimination
22 It is common ground that the BAT does not allow periods of employment completed in the public service of another Member State to be taken into account.
23 As is explained in paragraphs 12 to 14 of the Advocate General's Opinion, the conditions for promotion on grounds of seniority laid down in the BAT thus manifestly work to the detriment of migrant workers who have spent part of their careers in the public service of another Member State.  For that reason they are such as to contravene the principle of non-discrimination laid down by Article 48 of the Treaty and Article 7(1) and (4) of Regulation No 1612/68.
27 However, if that is the case, to take into account periods of employment completed with one of those institutions or undertakings in determining seniority for the purposes of promotion cannot, given the multiplicity of employers, be justified by the desire to reward employee loyalty.  On the contrary, the system affords employees covered by the BAT considerable mobility within a group of legally separate employers.
33 According to that case-law, where a provision discriminates against women, the members of the disadvantaged group are to be treated in the same way and to have applied to them the same rules as the other workers and, failing correct implementation of Article 119 of the Treaty in national law, those rules remain the only valid point of reference (see the judgments in Case C-154/92 Van Cant v Rijksdienst voor Pensionen [1993] ECR I-3811, paragraph 20; Case C-184/89 Nimz v Freie und Hansastadt Hamburg [1991] ECR I-297, paragraph 18; Case C-33/89 Kowalska v Freie und Hansastadt Hamburg [1990] ECR I-2591, paragraph 20, and Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453, paragraph 19).