Commission of the European Communities v Republic of Austria.
Date: 2004-09-16
39. Furthermore, it is, in any event, settled case-law that the non-application of the rules laid down in Article 39 EC to activities which entail participation in the exercise of powers conferred by public law is an exception to a fundamental freedom which must therefore be interpreted in such a way as to limit its scope to that which is strictly necessary in order to safeguard the interests which Member States are allowed to protect. It follows that that exception cannot permit a Member State to submit generally any participation in a public-law institution, such as the workers’ chambers in Austria, to a nationality requirement; it merely permits the exclusion of foreign workers, where appropriate, from certain specific activities of the institution in question which, in themselves, actually entail direct participation in the exercise of powers conferred by public law (see, inter alia, ASTI I , paragraph 19, and Wählergruppe Gemeinsam , paragraph 92).
40. The Court thus concluded, in paragraph 93 of Wählergruppe Gemeinsam,  in which it made reference to paragraph 20 of ASTI I , that the exclusion of foreign workers enjoying equal treatment as regards remuneration and other conditions of work, from eligibility for election to bodies that represent and defend the interests of workers, such as workers’ chambers in Austria, can be justified neither by the legal nature of the body in question, as defined under national law, nor by the fact that certain of its functions could involve participation in the exercise of powers conferred by public law.
44. It is already clear from the Court’s case-law that the first indent of Article 37(1) of the European Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, concluded and approved on behalf of the Community by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1) establishes, in favour of workers of Polish nationality, once they are legally employed within the territory of a Member State, a right to equal treatment as regards conditions of employment of the same extent as that conferred on Member State nationals in similar terms by Article 48(2) of the EC Treaty (now, after amendment, Article 39(2) EC) (see Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraph 41).
45. Similarly, in the context of the Association Agreement between the European Economic Community and Turkey, the Court has held that Article 10(1) of Decision No 1/80, whose wording is almost identical to Article 39(2) EC, imposes on each Member State, as regards the conditions of work for Turkish workers duly registered as belonging to its labour force, obligations analogous to those applying to nationals of other Member States ( Wählergruppe Gemeinsam , paragraph 77).
46. The Court has already observed, in paragraph 37 of this judgment, that Wählergruppe Gemeinsam  concerned the very nationality requirement to which the Austrian legislation submits eligibility for election to workers’ chambers in Austria.
51. First, for reasons set out more fully in paragraphs 81 to 86 of Wählergruppe Gemeinsam , the fact that the meaning of ‘conditions of work’ as used in Article 48(2) of the EC Treaty (now, after amendment, Article 39(2) EC) has been clarified by Regulation No 1612/68, particularly the first paragraph of Article 8 thereof which refers specifically to trade-union and related rights, while such clarification is missing in relation to the bilateral agreements in question in no way means that the scope of the term used in those agreements is narrower than that of the term used in Article 39(2) EC and, hence, that it does not include the right of workers from the non-member States concerned to participate, on the same terms as domestic nationals, in elections to bodies that represent and defend employees’ interests.
53. Moreover, the above interpretation is the only one consistent with the aim and broad logic of the agreements concerned, since granting workers who are nationals of the non-member States party to such agreements and who are legally employed in the territory of a Member State entitlement to the same conditions of work as those enjoyed by workers who are nationals of the Member States is an important step towards creating an appropriate framework for the gradual integration of those migrant workers in the host Member State (see, by analogy, Pokrzeptowicz-Meyer , paragraph 42, and Wählergruppe Gemeinsam , paragraph 79).