Commission of the European Communities v Kingdom of Belgium.
Date: 1980-12-17
7 THE COMMISSION CONSIDERED THAT IT COULD NOT ACCEPT THE ARGUMENT PUT FORWARD BY THE BELGIAN GOVERNMENT . ON 2 APRIL 1979 IT ISSUED A REASONED OPINION IN ACCORDANCE WITH ARTICLE 169 OF THE TREATY STRESSING INTER ALIA :
- THAT THE KINGDOM OF BELGIUM COULD NOT RELY ON THE SECOND PARAGRAPH OF ARTICLE 6 OF ITS CONSTITUTION TO JUSTIFY THE DISPUTED PRACTICES IN THE MATTER OF ACCESS TO EMPLOYMENT ;

- THAT THE EXCEPTION CLAUSE CONTAINED IN ARTICLE 48 ( 4 ) OF THE TREATY COVERS ONLY POSTS WHOSE PERFORMANCE INVOLVES ACTUAL PARTICIPATION IN OFFICIAL     AUTHORITY , THAT IS TO SAY , INVOLVING A POWER OF DECISION OVER INDIVIDUALS OR PUTTING IN QUESTION NATIONAL INTERESTS , ESPECIALLY THOSE WHICH TOUCH UPON THE INTERNAL AND EXTERNAL SECURITY OF THE STATE ;

- THAT THE CONDITIONS FOR APPLYING THE EXCEPTION CLAUSE ARE NOT FULFILLED IN THE CASE OF POSTS OF THE KIND COVERED BY THE VACANCY NOTICES IN QUESTION .
10 THAT PROVISION REMOVES FROM THE AMBIT OF ARTICLE 48 ( 1 ) TO ( 3 ) A SERIES OF POSTS WHICH INVOLVE DIRECT OF 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 . SUCH POSTS IN FACT 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 .
11 THE SCOPE OF THE DEROGATION MADE BY ARTICLE 48 ( 4 ) TO THE PRINCIPLES OF FREEDOM OF MOVEMENT AND EQUALITY OF TREATMENT LAID DOWN IN THE FIRST THREE PARAGRAPHS OF THE ARTICLE SHOULD THEREFORE BE DETERMINED ON THE BASIS OF THE AIM PURSUED BY THAT ARTICLE . HOWEVER , DETERMINING THE SPHERE OF APPLICATION OF ARTICLE 48 ( 4 ) RAISES SPECIAL DIFFICULTIES SINCE IN THE VARIOUS MEMBER STATES AUTHORITIES ACTING UNDER POWERS CONFERRED BY PUBLIC LAW HAVE ASSUMED RESPONSIBILITIES OF AN ECONOMIC AND SOCIAL NATURE OR ARE INVOLVED IN ACTIVITIES WHICH ARE NOT IDENTIFIABLE WITH THE FUNCTIONS WHICH ARE TYPICAL OF THE PUBLIC SERVICE YET WHICH BY THEIR NATURE STILL COME UNDER THE SPHERE OF APPLICATION OF THE TREATY . IN THESE CIRCUMSTANCES THE EFFECT OF EXTENDING THE EXCEPTION CONTAINED IN ARTICLE 48 ( 4 ) TO 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 , WOULD BE TO REMOVE A CONSIDERABLE NUMBER OF POSTS FROM THE AMBIT OF THE PRINCIPLES SET OUT IN THE TREATY AND TO CREATE INEQUALITIES BETWEEN MEMBER STATES ACCORDING TO THE DIFFERENT WAYS IN WHICH THE STATE AND CERTAIN SECTORS OF ECONOMIC LIFE ARE ORGANIZED .
12 CONSEQUENTLY IT IS APPROPRIATE TO EXAMINE WHETHER THE POSTS COVERED BY THE ACTION MAY BE ASSOCIATED WITH THE CONCEPT OF PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ), WHICH REQUIRES UNIFORM INTERPRETATION AND APPLICATION THROUGHOUT THE COMMUNITY . IT MUST BE ACKNOWLEDGED THAT THE APPLICATION OF THE DISTINGUISHING CRITERIA INDICATED ABOVE GIVES RISE TO PROBLEMS OF APPRAISAL AND DEMARCATION IN SPECIFIC CASES . IT FOLLOWS FROM THE FOREGOING THAT SUCH A CLASSIFICATION DEPENDS ON WHETHER OR NOT THE POSTS IN QUESTION ARE TYPICAL OF THE SPECIFIC ACTIVITIES OF THE PUBLIC SERVICE IN SO FAR AS THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND RESPONSIBILITY FOR SAFEGUARDING THE GENERAL INTERESTS OF THE STATE ARE VESTED IN IT .
15 FAR FROM SUPPORTING THE CASE OF THE BELGIAN GOVERNMENT THAT PROVISION CONFIRMS ON THE CONTRARY THE INTERPRETATION OF ARTICLE 48 ( 4 ) GIVEN ABOVE . INDEED , AS THE BELGIAN GOVERNMENT ITSELF ADMITS , ARTICLE 8 OF REGULATION NO 1612/68 IS NOT INTENDED TO DEBAR WORKERS FROM OTHER MEMBER STATES FROM CERTAIN POSTS , BUT SIMPLY PERMITS THEM TO BE DEBARRED IN SOME CIRCUMSTANCES FROM CERTAIN ACTIVITIES WHICH INVOLVE THEIR PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW , SUCH AS - TO USE THE EXAMPLES GIVEN BY THE BELGIAN GOVERNMENT ITSELF - THOSE INVOLVING ' ' THE PRESENCE OF TRADE-UNION REPRESENTATIVES ON THE BOARDS OF ADMINISTRATION OF MANY BODIES GOVERNED BY PUBLIC LAW WITH POWERS IN THE ECONOMIC SPHERE ' ' .
18 IT IS CORRECT THAT ARTICLE 48 ( 4 ) IS INDEED INTENDED TO OPERATE , IN THE SCHEME OF THE PROVISIONS ON FREEDOM OF MOVEMENT FOR WORKERS , TO TAKE ACCOUNT OF     THE EXISTENCE OF PROVISIONS OF THE KIND MENTIONED . BUT AT THE SAME TIME , AS IS ADMITTED IN THE OBSERVATIONS OF THE FRENCH GOVERNMENT , THE DEMARCATION OF THE CONCEPT OF ' ' PUBLIC SERVICE ' '  WITHIN THE MEANING OF ARTICLE 48 ( 4 ) CANNOT BE LEFT TO THE TOTAL DISCRETION OF THE MEMBER STATES .
19 IRRESPECTIVE OF THE FACT THAT THE WORDING OF THE BELGIAN CONSTITUTION DOES NOT RULE OUT THE POSSIBILITY OF EXCEPTIONS BEING MADE TO THE GENERAL REQUIREMENT OF THE POSSESSION OF BELGIAN NATIONALITY , IT SHOULD BE RECALLED , AS THE COURT HAS CONSTANTLY EMPHASIZED IN ITS CASE-LAW , THAT RECOURSE TO PROVISIONS OF THE DOMESTIC LEGAL SYSTEMS TO RESTRICT THE SCOPE OF THE PROVISIONS OF COMMUNITY LAW WOULD HAVE THE EFFECT OF IMPAIRING THE UNITY AND EFFICACY OF THAT LAW AND CONSEQUENTLY CANNOT BE ACCEPTED . THAT RULE , WHICH IS FUNDAMENTAL TO THE EXISTENCE OF THE COMMUNITY , MUST ALSO APPLY IN DETERMINING THE SCOPE AND BOUNDS OF ARTICLE 48 ( 4 ) OF THE TREATY . WHILST IT IS TRUE THAT THAT PROVISION TAKES ACCOUNT OF THE LEGITIMATE INTEREST WHICH THE MEMBER STATES HAVE IN RESERVING TO THEIR OWN NATIONALS A RANGE OF POSTS CONNECTED WITH THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND WITH THE PROTECTION OF GENERAL INTERESTS , AT THE SAME TIME IT IS NECESSARY TO ENSURE THAT THE EFFECTIVENESS AND SCOPE OF THE PROVISIONS OF THE TREATY ON FREEDOM OF MOVEMENT OF WORKERS AND EQUALITY OF TREATMENT OF NATIONALS OF ALL MEMBER STATES SHALL NOT BE RESTRICTED BY INTERPRETATIONS OF THE CONCEPT OF PUBLIC SERVICE WHICH ARE BASED ON DOMESTIC LAW ALONE AND WHICH WOULD OBSTRUCT THE APPLICATION OF COMMUNITY RULES .