Österreichischer Gewerkschaftsbund, Gewerkschaft öffentlicher Dienst v Republik Österreich.
Date: 2000-11-30
24 In that regard, it is settled case-law that in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case 61/65 Vaassen (née Göbbels) [1966] ECR 261; Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9; Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 23; and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 33).
25 Moreover, a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see inter alia Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14).
29 Finally, although the procedure at issue also has features which are less characteristic of judicial proceedings than those mentioned in the two previous paragraphs, that is to say, the fact that the Oberster Gerichtshof does not rule on disputes in a specific case involving identified persons, that it must base its legal assessment on the facts alleged by the applicant without further examination, that the decision is declaratory in nature and the right to bring proceedings is exercised collectively, the procedure is none the less intended to result in a decision that is judicial in character.
36 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-6407, paragraph 32, and Case C-15/96 Schöning-Kougebetopoulou [1998] ECR I-47, paragraph 13). It is settled case-law that it does not apply to the activities of teachers and teaching assistants (Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 28; Case C-4/91 Bleis [1991] ECR I-5627, paragraph 7; and Case C-473/93 Commission v Luxembourg [1996] ECR I-3207, paragraph 33).
37 In any event, the case in the main proceedings does not concern the rules for access to employment in the public service, but simply the determination of the seniority of contractual teachers or teaching assistants for the purposes of calculating their pay. Once a Member State has admitted workers who are nationals of other Member States into its public administration, Article 48(4) of the Treaty cannot justify discriminatory measures against them with regard to remuneration or other conditions of employment (see inter alia Case 152/73 Sotgiu [1974] ECR 153, paragraph 4).
39 According to the settled case-law of the Court, Article 48 of the Treaty prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see inter alia Case C-419/92 Scholz [1994] ECR I-505, paragraph 7, and Case C-237/94 O'Flynn [1996] ECR I-2617, paragraph 17).
40 A provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and there is a consequent risk that it will place the former at a particular disadvantage and if it is not justified by objective considerations independent of the nationality of the workers concerned, and proportionate to the legitimate aim pursued by that law (see, O'Flynn, cited above, paragraphs 19 and 20).
41 The Court has already held that national rules under which previous periods of employment in the public service of another Member State may not be taken into consideration constituted unjustified indirect discrimination and contravened Article 48(2) of the Treaty (see Scholz, cited above, paragraph 11, Schöning-Kougebetopoulou, cited above, paragraph 23; and Case C-187/96 Commission v Greece [1998] ECR I-1095, paragraph 21).
49 Finally, as regards the argument concerning the objective of rewarding the loyalty of the staff concerned, given the large number of employers covered by Paragraph 26(2) of the VBG, the pay scheme is intended to allow the greatest possible mobility within a group of legally distinct employers and not to reward the loyalty of an employee to a particular employer.
54 It is important to note that the case in the main proceedings does not concern the recognition of rights under Community law allegedly acquired before the accession of the Republic of Austria, but concerns the current discriminatory treatment of migrant workers.
55 The Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241 p. 21, and OJ 1995 L 1, p. 1) contains no transitional provisions concerning the application of Article 48 of the Treaty and Article 7(1) of the Regulation. Those provisions must be considered to be immediately applicable and binding as regards the Republic of Austria as of the date of its accession to the European Union, that is to say 1 January 1995. Since that date, they can be relied on by migrant workers from the Member States. In the absence of transitional provisions, previous periods of employment must necessarily be taken into account.