Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords

1 . FREE MOVEMENT OF PERSONS - WORKER - CONCEPT - EXISTENCE OF AN EMPLOYMENT RELATIONSHIP - TRAINEE TEACHER - INCLUDED

( EEC TREATY , ART . 48 ( 1 ))

2 . FREE MOVEMENT OF PERSONS - DEROGATIONS - EMPLOYMENT IN THE PUBLIC SERVICE - CONCEPT - PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND IN THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE - TRAINEE TEACHER

( EEC TREATY , ART . 48 ( 4 ))

Summary

1 . THE TERM ' WORKER ' IN ARTICLE 48 HAS A COMMUNITY MEANING . IT MUST BE DEFINED IN ACCORDANCE WITH OBJECTIVE CRITERIA WHICH DISTINGUISH THE EMPLOYMENT RELATIONSHIP BY REFERENCE TO THE RIGHTS AND DUTIES OF THE PERSONS CONCERNED . THE ESSENTIAL FEATURE OF AN EMPLOYMENT RELATIONSHIP IS THAT A PERSON PERFORMS SERVICES OF SOME ECONOMIC VALUE FOR AND UNDER THE DIRECTION OF ANOTHER PERSON IN RETURN FOR WHICH HE RECEIVES REMUNERATION . THE SPHERE IN WHICH THEY ARE PROVIDED AND THE NATURE OF THE LEGAL RELATIONSHIP BETWEEN EMPLOYEE AND EMPLOYER ARE IMMATERIAL AS REGARDS THE APPLICATION OF ARTICLE 48 .

THEREFORE , A TRAINEE TEACHER WHO , UNDER THE DIRECTION AND SUPERVISION OF THE SCHOOL AUTHORITIES , IS UNDERGOING A PERIOD OF SERVICE IN PREPARATION FOR THE TEACHING PROFESSION DURING WHICH HE PROVIDES SERVICES BY GIVING LESSONS AND RECEIVES REMUNERATION MUST BE REGARDED AS A WORKER WITHIN THE MEANING OF ARTICLE 48 ( 1 ) OF THE EEC TREATY , IRRESPECTIVE OF THE LEGAL NATURE OF THE EMPLOYMENT RELATIONSHIP .

2 . THE EXPRESSION ' EMPLOYMENT IN THE PUBLIC SERVICE ' WITHIN THE MEANING OF ARTICLE 48 ( 4 ), WHICH IS EXCLUDED FROM THE AMBIT OF ARTICLE 48 ( 1 ), ( 2 ) AND ( 3 ), MUST BE UNDERSTOOD AS MEANING THOSE POSTS WHICH INVOLVE DIRECT OR INDIRECT PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND IN THE DISCHARGE OF FUNCTIONS WHOSE PURPOSE IS TO SAFEGUARD THE GENERAL INTERESTS OF THE STATE OR OF OTHER PUBLIC AUTHORITIES AND WHICH THEREFORE REQUIRE A SPECIAL RELATIONSHIP OF ALLEGIANCE TO THE STATE ON THE PART OF PERSONS OCCUPYING THEM AND RECIPROCITY OF RIGHTS AND DUTIES WHICH FORM THE FOUNDATION OF THE BOND OF NATIONALITY . THE POSTS EXCLUDED ARE CONFINED TO THOSE WHICH , HAVING REGARD TO THE TASKS AND RESPONSIBILITIES INVOLVED , ARE APT TO DISPLAY THE CHARACTERISTICS OF THE SPECIFIC ACTIVITIES OF THE PUBLIC SERVICE IN THE SPHERES DESCRIBED ABOVE .

A PERIOD OF PREPARATORY SERVICE FOR THE TEACHING PROFESSION DOES NOT COME WITHIN THE SCOPE OF THAT PROVISION .

Parties

IN CASE 66/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

DEBORAH LAWRIE-BLUM , RESIDING AT FREIBURG IM BREISGAU ,

AND

LAND BADEN-WURTTEMBERG

Subject of the case

ON THE INTERPRETATION OF ARTICLE 48 OF THE EEC TREATY AND ARTICLE 1 OF REGULATION NO 1612/68 ,

Grounds

1 BY A JUDGMENT OF 24 JANUARY 1985 , WHICH WAS RECEIVED AT THE COURT ON 14 MARCH 1985 , THE BUNDESVERWALTUNGSGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 48 OF THE EEC TREATY AND ARTICLE 1 OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ).

THE SUBJECT-MATTER OF THE DISPUTE

2 THAT QUESTION AROSE IN PROCEEDINGS BROUGHT AGAINST THE LAND BADEN-WURTTEMBERG BY DEBORAH LAWRIE-BLUM , A BRITISH NATIONAL , WHO , AFTER PASSING AT THE UNIVERSITY OF FREIBURG THE EXAMINATION FOR THE PROFESSION OF TEACHER AT A GYMNASIUM ( SECONDARY SCHOOL ), WAS REFUSED ADMISSION , ON THE GROUND OF HER NATIONALITY , BY THE OBERSCHULAMT STUTTGART ( SECONDARY EDUCATION OFFICE , STUTTGART ) TO THE VORBEREITUNGSDIENST , A PERIOD OF PREPARATORY SERVICE LEADING TO THE SECOND STATE EXAMINATION , WHICH QUALIFIES SUCCESSFUL CANDIDATES FOR APPOINTMENT AS TEACHERS IN A GYMNASIUM .

3 IT APPEARS FROM THE DOCUMENTS AND THE OBSERVATIONS SUBMITTED TO THE COURT THAT IN THE FEDERAL REPUBLIC OF GERMANY TEACHER TRAINING IS ESSENTIALLY A MATTER FOR THE LANDER . THAT TRAINING CONSISTS OF UNIVERSITY STUDIES , LEADING TO THE FIRST STATE EXAMINATION AND A PERIOD OF PREPARATORY SERVICE FOLLOWED BY THE SECOND STATE EXAMINATION , THE QUALIFYING EXAMINATION FOR TEACHERS .

4 AT THE MATERIAL TIME , THE PERIOD OF PREPARATORY SERVICE WAS GOVERNED IN LAND BADEN-WURTTEMBERG BY THE VERORDNUNG DES MINISTERIUMS FUR KULTUS UND SPORT UBER DEN VORBEREITUNGSDIENST UND DIE PADAGOGISCHE PRUFUNG FUR DAS LEHRAMT AN GYMNASIEN ( ORDER OF THE MINISTRY OF EDUCATION AND SPORT ON PREPARATORY SERVICE AND THE EXAMINATION FOR THE PROFESSION OF TEACHER AT A GYMNASIUM ) OF 14 JUNE 1976 ( GESETZBLATT BADEN-WURTTEMBERG , P . 504 ), WHICH HAS SINCE BEEN REPLACED BY THE VERORDNUNG DES MINISTERIUMS FUR KULTUS UND SPORT UBER DER VORBEREITUNGSDIENST UND DIE ZWEITE STAATSPRUFUNG FUR DIE LAUFBAHN DES HOHEREN SCHULDIENSTES AN GYMNASIEN ( ORDER OF THE MINISTRY OF EDUCATION AND SPORT ON PREPARATORY SERVICE AND THE SECOND STATE EXAMINATION FOR ADMISSION AS A TEACHER IN THE HIGHER EDUCATION SERVICE QUALIFIED TO TEACH IN A GYMNASIUM ) OF 31 AUGUST 1984 ( GESETZBLATT BADEN-WURTTEMBERG , P . 576 ).

5 THE PERIOD OF PREPARATORY SERVICE , THE PURPOSE OF WHICH IS TO INTRODUCE THE TRAINEE TEACHER TO EDUCATIONAL THEORY AND TEACHING , CONSISTS OF TWO STAGES , EACH LASTING ONE YEAR . THE FIRST STAGE CONSISTS OF TRAINING AT A TEACHERS ' TRAINING COLLEGE ( SEMINAR ) AND AT A SCHOOL , GENERALLY A STATE SCHOOL , TO WHICH THE TRAINEE TEACHER HAS BEEN ATTACHED AND THE SECOND STAGE CONSISTS IN FURTHER DEVELOPING THE ABILITIES AND SKILLS NEEDED IN ORDER TO CARRY OUT EDUCATIONAL AND TEACHING DUTIES IN A SCHOOL . DURING THE LATTER PERIOD , THE TRAINEE MAY BE CALLED UPON TO GIVE LESSONS FOR UP TO 11 HOURS A WEEK IN DIFFERENT CLASSES IN THE GYMNASIUM , INITIALLY UNDER THE DIRECT SUPERVISION OF AN INSTRUCTOR AND LATER , DURING THE LAST SIX MONTHS , ON HIS OWN .

6 COMPLETION OF THE PERIOD OF PREPARATORY SERVICE AND POSSESSION OF THE DIPLOMA GRANTED FOR PASSING THE SECOND STATE EXAMINATION ARE , DE JURE , ESSENTIAL FOR ADMISSION TO THE PROFESSION OF TEACHER IN THE STATE SCHOOL SYSTEM AND DE FACTO NECESSARY FOR EMPLOYMENT IN PRIVATE SCHOOLS .

7 A CANDIDATE ADMITTED TO PREPARATORY SERVICE IS APPOINTED STUDIENREFERENDAR ( TRAINEE TEACHER ) WITH THE STATUS OF TEMPORARY CIVIL SERVANT ( BEAMTE AUF WIDERRUF ) AND IN THAT CAPACITY ENJOYS ALL THE ADVANTAGES OF CIVIL SERVICE STATUS . THE ABOVE-MENTIONED ORDERS OF 1976 AND 1984 RESTRICT ADMISSION TO PERSONS SATISFYING THE PERSONAL CONDITIONS FOR APPOINTMENT TO THE CIVIL SERVICE . PARAGRAPH 6 OF THE LANDESBEAMTENGESETZ FUR BADEN-WURTTEMBERG ( LAW OF THE LAND OF BADEN-WURTTEMBERG ON THE CIVIL SERVICE ), IN THE VERSION IN FORCE SINCE 8 AUGUST 1979 ( GESETZBLATT , P . 398 ), REQUIRES THE POSSESSION OF GERMAN NATIONALITY WITHIN THE MEANING OF ARTICLE 116 OF THE GRUNDGESETZ ( CONSTITUTION ), UNLESS AN EXPRESS DEROGATION IS GRANTED BY THE MINISTER FOR THE INTERIOR ON ACCOUNT OF THE IMPERATIVE REQUIREMENTS OF THE SERVICE .

8 AFTER BEING REFUSED ADMISSION TO PREPARATORY SERVICE BECAUSE SHE DID NOT HAVE GERMAN NATIONALITY , MRS LAWRIE-BLUM BROUGHT AN ACTION BEFORE THE VERWALTUNGSGERICHT FREIBURG ( ADMINISTRATIVE COURT , FREIBURG ) FOR THE ANNULMENT OF THE DECISION OF REFUSAL ON THE GROUND THAT IT WAS CONTRARY TO THE COMMUNITY RULES PROHIBITING ALL DISCRIMINATION ON GROUNDS OF NATIONALITY AS REGARDS ACCESS TO EMPLOYMENT . THE VERWALTUNGSGERICHT FREIBURG AND THE VERWALTUNGSGERICHTSHOF BADEN-WURTTEMBERG ( HIGHER ADMINISTRATIVE COURT FOR BADEN-WURTTEMBERG ), BEFORE WHICH AN APPEAL WAS BROUGHT , DISMISSED HER APPLICATION ON THE GROUND THAT ARTICLE 48 ( 4 ) OF THE EEC TREATY PROVIDED THAT THE RULES CONCERNING FREEDOM OF MOVEMENT FOR WORKERS DID NOT APPLY TO EMPLOYMENT IN THE PUBLIC SERVICE . THE APPEAL COURT ALSO STATED THAT THE STATE SCHOOL SYSTEM WAS EXCLUDED FROM THE SCOPE OF THE TREATY BECAUSE IT DID NOT FORM PART OF ECONOMIC LIFE .

9 MRS LAWRIE-BLUM APPEALED TO THE BUNDESVERWALTUNGSGERICHT , WHICH DECIDED TO STAY THE PROCEEDINGS UNTIL THE COURT OF JUSTICE HAD GIVEN A PRELIMINARY RULING ON THE FOLLOWING QUESTION :

' DO THE RULES OF EUROPEAN LAW ON THE FREE MOVEMENT OF PERSONS ( ARTICLE 48 OF THE EEC TREATY ) AND ARTICLE 1 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 , LATER AMENDED ) GIVE NATIONALS OF A MEMBER STATE THE RIGHT TO BE APPOINTED TRAINEE TEACHERS IN THE STATE SCHOOL SYSTEM OF ANOTHER MEMBER STATE UNDER THE SAME CONDITIONS AS NATIONALS OF THAT MEMBER STATE , EVEN WHERE SUCH TRAINEE TEACHERS , ACCORDING TO NATIONAL LAW , HAVE CIVIL SERVICE STATUS ( IN THIS CASE , AS TEMPORARY CIVIL SERVANTS ( BEAMTEN AUF WIDERRUF ) UNDER GERMAN LAW ) AND CON