Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 1996-07-02
19 In view of those arguments, the Court must reiterate that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections raised by the Commission (judgment in Case 293/85 Commission v Belgium [1988] ECR 305, p. 13).
20 In view of that dual purpose the Commission must allow Member States a reasonable period to reply to the letter of formal notice and to comply with a reasoned opinion, or, where appropriate, to prepare their defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case (judgment in Case 293/85 Commission v Belgium, cited above, paragraph 14).
26 With regard to that argument, it suffices to refer to the Court' s settled case-law according to which the concept of public service within the meaning of Article 48(4) of the Treaty requires uniform interpretation and application throughout the Community and cannot therefore be left entirely to the discretion of the Member States (see, in particular, the judgment in Case 152/73 Sotgiu [1974] ECR 153 and the judgment in Case 149/79 Commission v Belgium, cited above, paragraphs 12 and 18).
27 So, in order to determine whether posts fall within the scope of Article 48(4) of the Treaty, it is necessary to consider whether or not the posts in question typify the specific activities of the public service in so far as it exercises powers conferred by public law and has responsibility for safeguarding the general interests of the State or of other public bodies. For that reason, the criterion for determining whether Article 48(4) of the Treaty is applicable must be functional and must take account of the nature of the tasks and responsibilities inherent in the post, in order to ensure that the effectiveness and scope of the provisions of the Treaty on freedom of movement of workers and equal treatment of nationals of all Member States is not restricted by interpretations of the concept of public service which are based on domestic law alone and which would obstruct application of Community rules (judgment in Case 307/84 Commission v France [1986] ECR 1725, paragraph 12).
28 Secondly, the Grand Duchy of Luxembourg objects to the Commission' s "global" approach, consisting in excluding entire areas from the Article 48(4) derogation in the absence of Community rules and without providing more details of the posts concerned. In its view, it is clear from the case-law of the Court (see, in particular, its judgment in Case 149/79 Commission v Belgium, cited above) that the Commission must examine the posts concerned on a case-by-case basis instead of designating entire areas which are to be excluded in principle from the Article 48(4) derogation by putting the burden on Member States to prove the contrary in specific individual cases.
31 The Court observes in this regard that, as the Luxembourg Government itself admits, the generality of posts in the areas of research, health, inland transport, posts and telecommunications and in the water, gas and electricity supply services are remote from the specific activities of the public service because they do not involve direct or indirect participation in the exercise of powers conferred by public law or duties designed to safeguard the general interests of the State or of other public authorities (see, in particular, as regards the area of health, the judgment in Case 307/84 Commission v France, and, as regards research for civil purposes, the judgment in Case 225/85 Commission v Italy [1987] ECR 2625.
33 As to that argument, the Court has already stated that the very strict conditions which posts must satisfy in order to come within the exception laid down in Article 48(4) of the Treaty are not fulfilled in the case of trainee teachers (judgment in Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 28), in the case of foreign-language assistants (judgment in Case 33/88 Allué and Coonan [1989] ECR 1591, paragraph 9) or in the case of secondary school teachers (judgment in Case C-4/91 Bleis [1991] ECR I-5627, paragraph 7).
35 This conclusion cannot be shaken by considerations relating to the preservation of national identity in a demographic situation as specific as that prevailing in the Grand Duchy of Luxembourg. Whilst the preservation of the Member States' national identities is a legitimate aim respected by the Community legal order (as is indeed acknowledged in Article F(1) of the Treaty on European Union), the interest pleaded by the Grand Duchy can, even in such particularly sensitive areas as education, still be effectively safeguarded otherwise than by a general exclusion of nationals from other Member States. As the Advocate General points out in paragraphs 132 to 141 of his Opinion, nationals of other Member States must, like Luxembourg nationals, still fulfil all the conditions required for recruitment, in particular those relating to training, experience and language knowledge.
38 In reply to that argument it is sufficient to refer to the Court' s settled case-law according to which 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 (see, in particular, the judgment in Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 3, and, regarding in particular Article 48(4) of the Treaty, the judgment in Case 149/79 Commission v Belgium, cited above, paragraph 19).
40 In that regard, the Court observes that it is settled case-law that, whilst the first paragraph of Article 234 of the Treaty allows Member States to honour obligations owed to non-Member States under international agreements preceding the Treaty, it does not authorize them to exercise rights under such agreements in intra-Community relations (see, in particular, the judgment in Case 10/61 Commission v Italy [1962] ECR 1 and the judgment in Case C-158/91 Levy [1993] ECR I-4287, paragraph 12. Even if Article 13 of the European Convention on Establishment must be given a broader interpretation than Article 48(4) of the Treaty, the Grand Duchy of Luxembourg cannot therefore rely on the former provision in order to escape its Community obligations.
42 As the Court held in its judgment in Case 105/83 Pakvries [1984] ECR 2101, paragraph 11, the aim of Article 233 of the Treaty is to prevent the application of Community law from causing the disintegration of the Benelux Union or from hindering its development. It therefore enables the three Member States concerned to apply, in derogation from the Community rules, the rules in force within their union in so far as that union is further advanced than the common market.