Important legal notice

61990C0332

European Court reports 1992 Page I-00341

Opinion of the Advocate-General

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Mr President,

Members of the Court,

4. It seems that the status of contractual employee had certain pecuniary advantages for Mr Steen in relation to that of a civil servant: on 1 May 1988 the salary under Ia paid to the plaintiff amounted to DM 2 644.04 whereas if he had had the status of civil servant at that date his net salary in grade A5 would have been DM 2 416.39. It also seems that according to the prevalent German expert opinion civil servants in the Deutsche Bundespost may not exercise the right to strike which contractual employees may do.

6. The national court therefore submits three questions for a preliminary ruling in relation to the interpretation of Articles 7 and 48(2) and (4) of the EEC Treaty.

7. I do not, however, think that there is anything in Community law relevant to this case.

8. The Court has consistently held that:

"The Treaty provisions on freedom of movement for workers and the rules adopted to implement them cannot be applied to cases which have no factor linking them with any of the situations covered by Community law. Such is undoubtedly the case with workers who have never exercised the right to freedom of movement within the Community." (1)

10. Accordingly Article 7 of the Treaty cannot apply to him either, since it prohibits discrimination on grounds of nationality only "within the scope of application of this Treaty". Furthermore the Court has held that Article 7

"applies independently only to situations governed by Community law in regard to which the Treaty lays down no specific prohibition of discrimination." (3) The principle of prohibition of discrimination based on nationality is given specific expression in Article 48(2) in relation to free movement of workers. (4)

Opinion

11. I therefore conclude that the Court should rule as follows:

Articles 7 and 48 of the EEC Treaty and the implementing provisions do not apply to purely domestic situations of a Member State such as where a national of the State has never resided, worked, acquired a training or obtained a qualification in another Member State.

(*) Original language: French.

(1) - Judgment in Joined Cases 35 and 36/82 Morson and Jhanjan v State of the Netherlands [1982] ECR 3723, paragraphs 16 and 17; see also judgments in Case 155/78 Regina v Saunders [1979] ECR 1129, paragraph 11, Case 180/83 Moser v Land Baden-Wuerttemberg [1984] ECR 2539, paragraph 15, Case 298/84 Iorio v Azienda Autonoma della Ferrovie dello Stato [1986] ECR 247, paragraph 14, Case 147/87 Zaoui v CRAMIF [1987] ECR 5511, paragraph 15.

(2) - Judgments in Case 115/78 Knoors v Secretary of State for Economic Affairs [1979] ECR 399, paragraph 24, Case 271/82 Auer v Ministère Public [1983] ECR 2727, Case 292/86 Gullung v Conseils de l' Ordre des Avocats du Barreau de Colmar et de Saverne [1988] ECR 111, paragraphs 10 to 13, Case 130/88 Van de Bijl v Staatssecretaris van Economische Zaken [1989] ECR 3039.

(3) - Judgments in Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 13, Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1120.

(4) - See judgment in Case C-41/90 Hoefner and Elser v Macroton Gesellschaft fuer Datenfassungssysteme mit beschraenken Haftung [1991] ECR I-1979 paragraphs 35 to 40, for a similar situation in relation to freedom to provide services.