Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV.
Date: 2008-07-17
24. It must be observed in that regard that, according to settled case-law of the Court, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 26).
25. Moreover, the information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 20 of the Statute of the Court of Justice (order in Case C‑422/98 Colonia Versicherung and Others  [1999] ECR I‑1279, paragraph 5, and Case C‑20/05 Schwibbert [2007] ECR I‑0000, paragraph 21).
26. In order to ascertain whether the information supplied by the Arbeitsgericht Bonn satisfies those requirements, the nature and scope of the questions raised have to be taken into consideration (see, to that effect, Confederación Española de Empresarios de Estaciones de Servicio , paragraph 29).
33. In that regard, it must be noted that the Court has consistently held that the concept of ‘worker’ within the meaning of Article 39 EC has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, 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, in particular, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17; Case C‑138/02 Collins  [2004] ECR I‑2703, paragraph 26; and Case C‑456/02 Trojani  [2004] ECR I‑7573, paragraph 15).
41. In that regard, it must be borne in mind that, under Article 39 EC, freedom of movement for workers within the European Community entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment (Case C‑281/98 Angonese  [2000] ECR I‑4139, paragraph 29).
43. Thus, the Court has held that the prohibition of discrimination based on nationality applies not only to the actions of public authorities but also to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services (see Case 36/74 Walrave and Koch  [1974] ECR 1405, paragraph 17, and Angonese , paragraph 31).
44. The Court has held that the abolition, as between Member States, of obstacles to freedom of movement for persons would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law (see Walrave and Koch , paragraph 18, and Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 83).
45. The Court has thus held, with regard to Article 39 EC, which lays down a fundamental freedom and which constitutes a specific application of the general prohibition of discrimination contained in Article 12 EC, that the prohibition of discrimination applies equally to all agreements intended to regulate paid labour collectively, as well as to contracts between individuals (see Case 43/75 Defrenne  [1976] ECR 455, paragraph 39, and Angonese , paragraphs 34 and 35).
47. As to the question whether MPG was, in consequence, obliged to accord Mr Raccanelli the right to choose between a grant contract and an employment contract, the answer must be that the Court has consistently held that discrimination consists in the application of different rules to comparable situations or in the application of the same rule to different situations (see, to that effect, Case C‑311/97 Royal Bank of Scotland  [1999] ECR I‑2651, paragraph 26). It is for the referring court to establish whether, by reason of the application of different rules to comparable situations in circumstances such as those of the case in the main proceedings, the potential withholding of that choice resulted in inequality in the treatment of domestic and foreign doctoral students.
50. In that regard, it must be held that neither Article 39 EC nor Regulation No 1612/68 prescribes a specific measure to be taken by the Member States or associations such as MPG in the event of a breach of the prohibition of discrimination, but leaves them free to choose between the different solutions suitable for achieving the objective of those respective provisions, depending on the different situations which may arise (see, to that effect, Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 18, and Case C‑460/06 Paquay  [2007] ECR I‑8511, paragraph 44).