Commission of the European Communities v Hellenic Republic.
Date: 1998-03-12
17 The Court must observe, first of all, that the derogation contained in Article 48(4) of the EC Treaty, by virtue of which the provisions concerning freedom of movement for workers do not apply `to employment in the public service', does not apply in the present case since that provision merely provides for the possibility for Member States to exclude nationals of other Member States from access to certain posts in the public service (Case C-248/96 Grahame and Hollanders v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1997] ECR I-0000, paragraph 32).  The exception does not concern the factors which a Member State takes into account when determining conditions governing the pay of a worker who has already been admitted into its public service.
18 The Court has consistently held that the equal treatment rule laid down in Article 48 of the EC Treaty and in Article 7 of Regulation No 1612/68 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-57/96 Meints v Minister van Landbouw, Natuurbeheer en Visserij [1997] ECR I-0000, paragraph 44).
19 Unless it is objectively justified and proportionate to its aim, 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 if there is a consequent risk that it will place the former at a particular disadvantage (Meints, cited above, paragraph 45).
20 It is clear from the documents before the Court that the provisions of the contested legislation, at least in their application, render it absolutely impossible for periods of employment in the public service of a Member State other than the Hellenic Republic to be taken into account for the purposes of a worker's salary scale grading and the grant of a seniority increment, whereas periods of employment already completed in Greek public service are, in certain cases, taken into account.
21 That rule, which plainly operates to the detriment of migrant workers who have spent part of their working life in the public service of a Member State other than the Hellenic Republic, is therefore such as to contravene the principle of non-discrimination enshrined in Article 48 of the Treaty and Article 7(1) of Regulation No 1612/68.
23 Since the Hellenic Republic has not adduced any other evidence which could provide objective justification for the discriminatory treatment of migrant workers to which the Commission objects, it must be declared that by excluding, by regulation or administrative practice, the taking into account of previous employment in the public service of another Member State for the purposes of granting to an employee in Greek public service a seniority increment and of grading him on the salary scale, on the sole ground that the previous employment was not performed in Greek public service, the Hellenic Republic is in breach of its obligations under Community law, in particular under Article 48 of the EC Treaty and Article 7(1) of Regulation No 1612/68.