Ingetraut Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Díez de Velasco
• ECLI: ECLI:EU:C:1993:936
• Date: 15 December 1993
• Docket Number: C-419/92
• Procedure Type: Reference for a preliminary ruling

Important legal notice

|

61992C0419

Opinion of Mr Advocate General Jacobs delivered on 15 December 1993. - Ingetraut Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda. - Reference for a preliminary ruling: Tribunale amministrativo regionale per la Sardegna - Italy. - Freedom of movement of workers - Competition for a post in the public service - Practical experience acquired in another Member State. - Case C-419/92.

European Court reports 1994 Page I-00505

Opinion of the Advocate-General

++++

My Lords,

1. In 1984 the University of Cagliari organized an open competition for the recruitment of canteen assistants. One of the unsuccessful candidates was Ingetraut Scholz, who was born a German citizen but acquired Italian nationality by marriage. As emerges from the case-file, the selection board appointed by the university decided that points were to be awarded in respect of the candidates' previous employment in the public service. 2.5 points were to be awarded for each year' s service in functions similar or "superior" to those attaching to the posts to be filled. One point was to be awarded for each year' s service in different functions. From 1965 to 1972 Mrs Scholz had worked for the German post office as a postal assistant, and she asked for that experience to be taken into account. The selection board took the view that only experience in the Italian public service could be taken into account and so refused to give her any credit for her years of service with the German post office. Mrs Scholz was 54th in the order of merit drawn up by the selection board. It is clear from the documents before the Court that if her service in the German post office had been taken into account she would have been awarded an extra seven points and would have risen to 11th place. It is moreover clear that, since 21 persons have been appointed as a result of the competition, the failure to take into account her service in the German post office prevented her recruitment as a canteen assistant at the University of Cagliari.

2. On 6 May 1986 the list of successful candidates was published. On 4 July 1986 Mrs Scholz commenced proceedings against the University of Cagliari (1) before the Tribunale Amministrativo Regionale per la Sardegna. She sought the annulment of the decision establishing the list of successful candidates, arguing that the refusal to take into account employment in the public service of a Member State other than Italy was contrary to Community law. The Italian court decided, on 10 June 1992, to seek a preliminary ruling on the question:

"Whether Articles 7 and 48 of the EEC Treaty and Articles 1 and 3 of Regulation No 1612/68 may be interpreted as precluding, in connection with an open competition to fill posts not falling within those covered by the reservation referred to in Article 48(4), the possibility of disregarding work carried out in the public service of another Member State, when work carried out for a public authority of the State in which the competition is published is regarded as relevant experience for the purposes of the list of successful candidates to be drawn up on completion of the competition procedure."

The order for reference was finally received at the Court on 17 December 1992.

3. Written observations have been submitted by Mrs Scholz, the Commission and the French and Italian Governments. In addition, all were represented at the hearing. All agree that the relevant provisions of Community law must be interpreted as meaning that, in the circumstances of the present case, employment in the public service of another Member State must be taken into account in the same way as employment in the Italian public service.

4. Mrs Scholz points out that Article 48(2) of the Treaty prohibits "any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment". She observes that the post for which she was a candidate lies outside the "public service" exception provided for in Article 48(4) of the Treaty, in view of the Court' s restrictive interpretation of that provision. She then cites Sotgiu v Deutsche Bundespost, (2) in which the Court held that Community law prohibits "not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result" (paragraph 11). She also relies on Article 3(1) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, (3) which provides as follows:

"Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply:

- where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or

- where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered.

This provision shall not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled."

5. The Commission' s position is broadly similar to that of Mrs Scholz but is argued more fully. The Commission observes that the general prohibition of discrimination laid down in Article 7 (now Article 6) of the Treaty may be disregarded since, according to the Court' s case-law, it only applies independently in situations not governed by more specific provisions of Community law; (4) the situation that arises in the present case is governed by Article 48(2) of the Treaty and Article 3(1) of Regulation No 1612/68. The Commission considers that those provisions may be relied on by Mrs Scholz notwithstanding that she has Italian nationality. The decisive element, according to the Commission, is that she has exercised her right of free movement: having worked first in her Member State of origin, she now seeks employment...