Commission of the European Communities v Hellenic Republic.
Date: 1996-07-02
2 Article 48(1) to (3) of the EEC Treaty, which is now the EC Treaty, lays down the principle of the free movement of workers and the abolition of all discrimination based on nationality between workers of the Member States.  Article 48(4) of the Treaty provides that the provisions of this article are not to apply to employment in the public service.  According to the case-law of the Court, Article 48(4) 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.  On the other hand, the Article 48(4) exception does not cover posts which, whilst coming under the State or other organizations governed by public law, still do not involve any association with tasks belonging to the public service properly so called (judgment in Case 149/79 Commission v Belgium [1980] ECR 3881, paragraphs 10 and 11).
24 The Hellenic Republic claims that the application should be dismissed.  It does not deny that in Greece posts in the areas in question are generally reserved for its own nationals.  However, it points out, first, that, as far as sea transport is concerned, on 31 December 1992 the President of the Republic adopted Decree No 12/1992 on access to posts in the Greek Merchant Marine by nationals of Member States of the European Community and recognition of periods at sea served by Greek sailors on vessels registered in Member States of the European Community for the purpose of the grant of maritime efficiency certificates.  That decree entered into force on 1 February 1993 and was notified to the Commission on 18 March 1993. Consequently, the action is devoid of purpose on this point.
27 As far as the first two arguments are concerned, the Court must refer to its established case-law (see, in particular, the judgment in Case C-433/93 Commission v Germany [1995] ECR I-2303, paragraph 15), according to which amendments made to national legislation are irrelevant for the purpose of giving judgment on an action for failure to fulfil obligations if they have not been implemented before expiry of the period set by the reasoned opinion.  Likewise, the Court cannot take any account of settlements of individual cases occurring after expiry of that period when ruling on an alleged breach of obligations.
29 As regards the second argument, it must also be observed that the Greek Government cannot effectively rely on an acknowledgement of the primacy of Community law by the Athens Court in its judgment of 29 May 1992.  It is well established in case-law that the primacy and direct effect of Community law do not release Member States from their obligation to remove from their domestic legal order any provisions incompatible with Community law, since the maintenance of such provisions creates an ambiguous state of affairs, in so far as it leaves persons concerned in a state of uncertainty as to the possibilities available to them of relying on Community law (see, in particular, the judgment in Case 104/86 Commission v Italy [1988] ECR I799, paragraph 12).
30 As regards the third argument, again it is well established in case-law that a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations arising under Community law (see, in particular, the judgment in Case C-259/94 Commission v Greece [1995] ECR I-1947, paragraph 5).
34 The application concerns the areas of research, education, health, transport by land, sea and air, posts and telecommunications, television broadcasting, water, gas and electricity distribution services and, finally, music. As the Greek Government itself admits, the generality of posts in those areas are remote from the specific activities of the public service because they involve no direct or indirect participation in the exercise of powers conferred by public law nor duties designed to safeguard the general interest of the State or other public authorities (see, in particular, as regards health, the judgment in Case 307/84 Commission v France [1986] ECR 1725; as regards research for civil purposes, the judgment in Case 225/85 Commission v Italy [1987] ECR 2625,  and, as regards education, the judgments in Case 66/85 Lawrie-Blum [1986] ECR 2121, Case 33/88 Allué and Coonan [1989] ECR 1591 and Case C-4/91 Bleis [1991] ECR I-5627).