Iraklis Haralambidis v Calogero Casilli.
Date: 2014-09-10
27. In that regard, it should be noted that the concept of ‘worker’ for the purposes of Article 45 TFEU has an autonomous meaning specific to EU law and must not be interpreted narrowly (see, inter alia, judgment in Commission  v Netherlands , C‑542/09, EU:C:2012:346, paragraph 68).
28. Any person who pursues activities that are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must this be regarded as a ‘worker’ within the meaning of Article 45 TFEU. According to the case-law of the Court, the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see judgments in Lawrie-Blum , 66/85, EU:C:1986:284, paragraph 17, and Petersen , C‑544/11, EU:C:2013:124, paragraph 30).
37. Finally, it should be noted that, as is apparent from the order for reference, in the main proceedings, the effective and genuine nature of the functions performed by the President of a Port Authority is not contested (see judgment in Lawrie-Blum , EU:C:1986:284, paragraph 21, last sentence).
39. That finding cannot be invalidated by the assertion of the referring court that the appointment of the President of a Port Authority cannot amount to an employment relationship within the context of the ‘civil service’, but is the attribution of a ‘trust mission’ delegated by a government authority connected with the exercise of public tasks.
40. According to established case-law, the public law or private law nature of the legal relationship of the employer and employee is of no consequence in regard to the application of Article 45 TFEU (see judgments in Sotgiu , 152/73, EU:C:1974:13, paragraph 5, and Bettray , 344/87, EU:C:1989:226, paragraph 16).
41. Moreover, the Court has previously held, in the context of an examination of the link between a member of the board of directors of a capital company and that company, that board members who, in return for remuneration, provide services to the company which has appointed them and of which they are an integral part, who carry out their activities under the direction or control of another body of that company and who can, at any time, be removed from their duties, satisfy the criteria for being treated as workers within the meaning of the case-law of the Court (judgment in Danosa , C‑232/09, EU:C:2010:674, paragraph 51).
The concept of ‘employment in the public service’ within the meaning of Article 45(4) TFEU
43. According to the Court’s case-law, the concept of ‘public service’ within the meaning of Article 45(4) TFEU must be given uniform interpretation and application throughout the European Union and cannot therefore be left entirely to the discretion of the Member States (see, inter alia, judgments in Sotgiu , EU:C:1974:13, paragraph 5, and Colegio de Oficiales de la Marina Mercante Española , C‑405/01, EU:C:2003:515, paragraph 38). Furthermore, that derogation must be construed in such a way as to limit its scope to what is strictly necessary for safeguarding the interests which it allows the Member States to protect (see judgment in Colegio de Oficiales de la Marina Mercante Española , C‑405/01, EU:C:2003:515, paragraph 41).
44. In that regard, the Court has previously held that the concept of ‘public service’ within the meaning of Article 45(4) TFEU covers posts which 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 other public authorities and thus presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality (see, inter alia, judgments in Commission  v Greece , C‑290/94, EU:C:1996:265, paragraph 2, and Colegio de Oficiales de la Marina Mercante Española , EU:C:2003:515, paragraph 39).
45. On the other hand, the exception provided for in Article 45(4) TFEU does not cover posts which, while coming under the State or other bodies governed by public law, still do not involve any association with tasks belonging to the public service properly so called (judgments in Commission  v Greece , EU:C:1996:265, paragraph 2, and Colegio de Oficiales de la Marina Mercante Española , EU:C:2003:515, paragraph 40).
59. As noted in paragraph 43 above, that derogation must be construed in such a way as to limit its scope to what is strictly necessary for safeguarding the general interests of the Member State concerned, which cannot be imperilled if powers of a public authority are exercised only occasionally, or indeed exceptionally, by nationals of other Member States (see judgments in Colegio de Oficiales de la Marina Mercante Española , EU:C:2003:515, paragraph 44; Anker and Others , C‑47/02, EU:C:2003:516, paragraph 63; and Commission  v France , C‑89/07, EU:C:2008:154, paragraph 14).