Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. The questions submitted to the Court for a preliminary ruling by the Arbeitsgericht Elmshorn have their origin in a situation which does not appear to involve the application of Community law.
2. The facts may be summarized as follows. Volker Steen has been employed as a manual worker with the Deutsche Bundespost since 15 March 1973. On 12 July 1985 he applied for a post involving "maintenance duties", supervision duties, stores administration in the "mittlerer (technischer) Dienst" (intermediate technical service). Since the date of an order of the Federal Minister for the Post Office and Telecommunications of 14 May 1985 entry to employment in the intermediate technical service is conditional upon completion of a period of training during which the trainee is employed under a contractual system. The applicant must furthermore undertake to accept appointment in the civil service on completion of the period of training.
3. Mr Steen made that declaration in July 1985 and the following month began his period of two years' training in the post A7 Pt/M with classification in the Salary Group Ia. On 13 October 1987 he passed the test for the intermediate technical service. By letter dated 29 October 1987 he stated that he would like to remain an employee and was withdrawing his previous declaration.
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.
5. After being appointed to a post in the Salary Group IIa Mr Steen challenged his appointment before the national court. In so far as nationals from other Member States of the Community are not admitted to posts in the civil service and since the contractual employment only of German nationals is restricted ratione temporis, he considers he is the victim of discrimination contrary to Articles 7 and 48(2) of the EEC Treaty.
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)
9. Although there is nothing to prevent Mr Steen, who is a German national, from relying on the provisions of Articles 7 and 48 of the EEC Treaty against his own State, (2) he has, however, never exercised his right of freedom of movement and, for example, never worked, been trained or obtained any diploma in another Member State of the Community. In the case of a purely domestic situation the rules of the Treaty on free movement of workers have no application. What legal writers describe as "reverse discrimination", is therefore not covered by the principles of Community law.
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.
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