Opinion of the Advocate-General
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My Lords,
1. In this case the Court is asked once more to consider the position under Community law of persons employed as foreign-language assistants in another Member State. The case is a request for a preliminary ruling by the Arbeitsgericht Passau, which has referred the following questions:
"1. Where legislation of a Member State lays down special rules on the length of contracts in relation to the activity of foreign-language assistants, the length of such contracts being limited (Paragraph 57(b)(3) and (c)(2) of the Hochschulrahmengesetz (' the HRG' ) in conjunction with Article 27(3) of the Bayerisches Hochschullehrergesetz), but there is no such restriction on the length of contract for other teaching staff performing special duties (Paragraph 56 of the HRG), is such legislation compatible with Article 48(2) of the EEC Treaty?
2. Is such legislation so compatible at least if such a restriction is based on special objective grounds, in particular that of ensuring that the instruction is topical?"
2. The plaintiff in the main proceedings is an Italian national who, since 1 November 1986, has been employed in Germany as a foreign-language assistant at the University of Passau. The plaintiff initially entered into a contract of employment for one year (1 November 1986 to 31 October 1987). On 22 September 1987 she entered into a second contract, under which her employment continued for a further four-year period (1 November 1987 to 31 July 1991). On 10 July 1991 the university refused her request for a further renewal of her contract on the ground that, under the applicable federal and Bavarian legislation, employment as a foreign-language assistant was limited to a maximum period of five years.
3. The plaintiff argues that such a refusal to extend her contract of employment beyond a maximum period of five years is incompatible with Article 48(2) of the Treaty. The plaintiff refers to the judgment of the Court in Case 33/88 Allué and Another v Università degli studi di Venezia [1989] ECR 1591 ("Allué I"), and submits that the principles established in that judgment apply also to the circumstances of the present case. It is to be noted that the legislation at issue in the Allué I case has given rise to further references by Italian courts: see Joined Cases C-259/91, C-331/91 and C-332/91 Allué and Others, in which the Opinion of Advocate General Lenz was delivered on 20 January 1993. In Allué I the Court held that Article 48(2) of the Treaty precludes the application of a national provision imposing a limit on the duration of the employment relationship between universities and foreign-language assistants where there is, in principle, no such limit with regard to other workers.
4. In what follows I shall first briefly resume the provisions of German law at issue in the main proceedings, and then discuss how the principles established in Allué I are to be applied to such legislation. It will be recalled that Article 48(2) of the Treaty requires the abolition of any discrimination based on nationality between workers of Member States as regards employment, remuneration and other conditions of work and employment. It may also be noted that Article 7(1) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) provides that:
"A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment".
The German legislation
5. As the German Government explains in its written observations, it follows from the case-law of the German courts that, under German law, a contract of employment may be concluded for a limited period of time only where an objective ground exists for such a limitation. I shall refer to such contracts of employment as "fixed-term contracts".
6. Provisions on the conclusion of fixed-term contracts by institutions of higher education and research are contained in the Hochschulrahmengesetz of 26 January 1976 (Framework law on universities, hereafter "the HRG"), as amended by Article 1 of the Gesetz ueber befristete Arbeitsvertraege mit wissenschaftlichem Personal an Hochschulen und Forschungseinrichtungen of 14 June 1985 (Law on fixed-term contracts of employment with academic staff at universities and research institutes; BGBl. 1985 I, p. 1065).
7. That amendment inserted into the HRG a series of new Paragraphs 57a to 57f. Paragraph 57a defines the categories of worker to which those new provisions apply, including in particular the "scientific and artistic assistants" referred to in Paragraph 53 of the HRG, the "personnel with medical tasks" referred to in Paragraph 54, and the "teaching staff for special tasks" referred to in Paragraph 56.
8. Paragraph 57b(1) provides that, except when no objective ground is required under the general provisions and principles of labour law, the conclusion of fixed-term contracts with the personnel mentioned in Paragraph 57a is permitted where it can be justified on such a ground. Paragraph 57b(2) provides that, in the case of the workers referred to in Paragraphs 53 and 54, such grounds exist in particular (1) where the activities of an assistant further his scholarly or artistic development or professional training, (2) where he is paid out of funds which are earmarked for activities of limited duration, (3) where he is intended to acquire or temporarily to contribute special knowledge or experience, (4) where he is financed mainly from the funds of a third party, or (5) where he is engaged for the first time.
9. Paragraph 57b(3) provides that an objective ground exists for the engagement on a fixed-term contract of an instructor who is the native speaker of a foreign language where, in particular, the instructor is mainly engaged as a foreign-language assistant ("Lektor").
10. Paragraph 57c(2) imposes a maximum period of five years for any fixed-term contract limited on a ground mentioned in Paragraph 57b(2), points 1 to 4, or in Paragraph 57b(3). Where an employee is employed on more than one such contract with a single institution, the total period of the contracts may not exceed five years. In the case of a contract limited on the ground mentioned in Paragraph 57b(2), point 5, the maximum period of the contract is two years. Finally, Paragraph 57c(3) to (6) contain various exceptions to those requirements which are not relevant in the circumstances of the present case.
11. It can be seen that, under the above provisions of the HRG, the employment of foreign-language assistants on fixed-term contracts is permitted but is not compulsory. In the case of universities in Bavaria, however, it appears that the employment of such assistants can only be made on fixed-term contracts not exceeding five years: see Article 27(3) of the Bayerisches Hochschullehrergesetz (Bavarian law on university teachers).
Foreign-language assistants and Community law
12. As I have already mentioned, in Allué I the Court held that national provisions imposing a time-limit on the employment of foreign-language assistants are incompatible with Community law where, in principle, no such limit is imposed in respect of other workers: see paragraph 3 above. However, in the view of the German Government the national provisions at issue in the present case can be distinguished from the provisions which were at issue in Allué I. In the case of the latter provisions, it appears that the employment of workers other than foreign-language assistants was not subject to any time-limit. As Advocate General Lenz stated at paragraph 19 of his Opinion in Allué I:
"Apart from 'lecturers on contracts' , who are engaged on the basis of a one-year contract for services, which may be renewed no more than twice, the teaching and research staff [at Italian universities] ... have permanent posts which are filled by competition. In addition ... contracts of employment are concluded according to the general rule of Italian labour law for an indeterminate period."
Accordingly, in Allué I there was no doubt that foreign-language assistants were treated differently from other workers as regards the time-limits imposed on their contracts of employment, and in particular that they were treated differently from other university staff. Since it was clear, equally, that that difference in treatment affected a substantially greater proportion of nationals from other Member States than Italian nationals, the only question at issue in Allué I was whether the difference in treatment could be objectively justified. In contrast, the provisions which are at issue in the present case provide for the possibility of fixed-term contracts also in the case of university staff other than foreign-language assistants. In particular, they provide for such a possibility in the case of other "teaching staff for special tasks" (see Paragraphs 56 and 57a of the HRG), the workers to whom foreign-language assistants are, it appears, most closely comparable.
13. The German Government suggests a second ground on which the present provisions can be distinguished from the legislation at issue in Allué I. It points out that the time-limits imposed by the Italian legislation were mandatory, whereas Paragraph 57b of the HRG regulates only the circumstances in which fixed-term contracts are permissible. Thus, the HRG does not exclude the possibility of foreign-language assistants being appointed on contracts of unlimited duration. As I have already mentioned, however, the Bavarian legislation which is applicable in the present case does in fact exclude such a possibility.
14. In the Commission' s view, legislation of the kind presently at issue is incompatible with Article 48(2) of the Treaty for essentially the same reasons as applied in the case of the legislation at issue in Allué I. Although the German legislation, unlike the Italian legislation, provides for the engagement on fixed-term contracts of other university staff as well as foreign-language assistants, the fact remains that the circumstances in which such an engagement is permitted may differ. As the Commission points out, in the case of foreign-language assistants Paragraph 57b(3) of the HRG provides that employment on a fixed-term contract is automatically justified. In contrast, in the case of other university staff an objective ground must be made out in the circumstances of each individual case. Moreover in Bavaria a mandatory limit of five years on the engagement of foreign-language assistants is laid down, and it appears that such a mandatory limit does not apply to other categories of university staff.
15. The Commission also points out that in Allué I the Court considered the question whether special restrictions on the employment of foreign-language assistants can be justified on the ground that such assistants are required to have an up-to-date knowledge of their language. The Court stated, at paragraph 14 of its judgment, that:
"... the danger of their losing contact with their mother tongue is slight, in the light of the increase in cultural exchanges and improved communications, and in addition it is open to the universities in any event to check the level of assistants' knowledge."
The Court also noted that under the legislation in question the assistant could be engaged by another university for a further maximum period, a consideration which applies equally in the case of the rules laid down by Paragraph 57c(2) of the HRG. There would appear therefore to be no good reason for imposing the five-year time-limit laid down by that provision in respect of any one university.
16. It seems to me to be incontestable that the Court' s reasoning in Allué I applies equally in the circumstances of the present case. It is true that the German legislation, at least at the level of the framework rules laid down by the HRG, is less obviously discriminatory than the Italian legislation which was at issue in Allué I, since the German legislation permits several categories of university staff to be employed on fixed-term contracts. It remains the case however that foreign-language assistants - and moreover those whose mother tongue happens to be other than German - are singled out for special treatment. They may be refused the benefit of an indefinite contract of employment solely on account of their status as foreign-language assistants; in contrast, teaching staff assigned to other special tasks may be employed on fixed-term contracts only for a reason based on their particular circumstances.
17. It is clear that, even in the absence of the provisions of Paragraph 57b(3) of the HRG, a German university would be able to employ language assistants on fixed-term contracts. The university would however be required to have an objective reason for doing so other than the mere circumstance that the person concerned is employed as a foreign-language assistant. Even if foreign-language assistants were made subject to the regime of Paragraph 57b(2), which currently applies only to the categories of staff referred to in Paragraphs 53 and 54 of the HRG and to "scientific auxiliaries", concrete reasons based on the actual circumstances of the case would still have to be given for employment on such a contract (except for the case of a contract given on first appointment: see paragraphs 8 and 10 above). Foreign-language assistants are thus less favourably treated than other university employees who may be offered short-term contracts. In the case of the special rules applicable in Bavaria the difference in treatment is even more evident, since as we have seen under Bavarian law there is a mandatory limit of five years on the employment of foreign-language assistants, but not it appears on the employment of other university staff.
18. In its written observations the German Government does not accept that the German legislation gives rise to discrimination; nor however does it put forward any reason justifying the different treatment accorded to foreign-language assistants, as compared with other categories of university staff, under both federal and Bavarian law. As we have seen, the reason mentioned in the second question referred by the Arbeitsgericht, namely the need for an up-to-date knowledge of the language, was rejected by the Court in Allué I: see paragraph 15 above. It seems to me that the Court' s reasoning on that point must apply also to the mandatory time-limit of five years imposed by the Bavarian legislation. Furthermore it is not contested that, as in the Allué I case, the less favourable treatment afforded by the law of the Member State in question is particularly likely to affect nationals from other Member States. Such treatment amounts therefore to indirect discrimination contrary to Article 48(2) of the Treaty.
19. Accordingly, there is no doubt in my opinion that legislation of the kind applicable in the present case, which includes a mandatory time-limit of five years, is incompatible with the principle of equal treatment laid down by the Treaty. In the absence of a mandatory time-limit such as that imposed by Bavarian law, the question might arise whether a difference in treatment of the kind which results from the HRG itself could be justified on the ground of the need for an up-to-date knowledge of the language concerned. It will be recalled that Paragraph 57b(3) of the HRG permits, but does not require, a university to employ foreign-language assistants on a fixed-term contract. It might be argued that such a provision is necessary in order to give the university a sufficient discretion to conclude fixed-term contracts in appropriate cases. Thus although it is clear that such a ground cannot be used to justify a mandatory time-limit imposed by national law, a university may well wish to have the discretion to appoint some of its language assistants for terms of limited duration.
20. However, it does not seem to me that a provision such as Paragraph 57b(3) of the HRG can be justified on such a basis. As we have seen, appointment on a fixed-term contract is already permitted under German law where there are objective grounds for such an appointment. In so far as a university has an objective ground for employing a language assistant on a fixed-term contract, therefore, it is entitled to do, although any grounds given are presumably subject to scrutiny by the national court. The unlimited discretion to make such appointments given by Paragraph 57b(3) is accordingly unnecessary. Its only effect, in practice, is to remove any possibility of judicial review under national law of the decision not to offer a contract of indefinite duration. Even in the absence of the mandatory time-limit imposed by the Bavarian legislation, therefore, it seems to me that provisions of the kind in question are incompatible with the prohibition of discrimination laid down by Article 48(2) of the Treaty.
21. It must none the less be emphasized that the employment of foreign-language assistants on fixed-term contracts in individual cases need not in itself be incompatible with Community law where under the national law in question other university staff can also be engaged on such contracts. So far as German law is concerned, it must be recalled that for staff falling within Paragraphs 53 and 54 of the HRG the fact of being engaged for the first time is a sufficient ground for a fixed-term contract. Community law would not preclude the same provision being applied to foreign-language assistants to the extent that they are comparable to staff in those categories - a question which does not fall to be decided in the present case. Moreover, both on initial recruitment, and on any subsequent contract, valid reasons may well exist for fixed-term contracts in the particular circumstances. In the case of foreign-language assistants such contracts may well be thought desirable from the point of view both of the students and of the instructors themselves. One reason for making some such posts available might be to offer young academics from other countries the opportunity to spend a limited period of time in Germany for the purposes of their own Bildung. Conversely, depending upon the nature of the instruction to be given, it might be thought desirable to have an instructor in a foreign language recently arrived from the country concerned. A university may for instance wish to lay particular stress on recent developments in the colloquial language for the benefit of advanced students. It does not seem to me that in Allué I the Court intended to exclude the possibility that, in individual cases, fixed-term contracts might be justified by the need for a topical knowledge of the language or even by the need for an up-to-date acquaintance with the cultural and political life of the country concerned. It would be for the national court to decide, in any individual case, whether such a need amounts to a sufficient objective ground. From the case-law of the German courts referred to in the order for reference, it appears that that was indeed the position under German law before the amendment to the HRG made by the Gesetz ueber befristete Arbeitsvertraege of 14 June 1985, cited above in paragraph 6: see the judgments of the Bundesarbeitsgericht of 19 August 1981 (7 AZR 280/79; AP No. 59 at Paragraph 620 BGB) and of 13 May 1982 (2 AZR 87/80; AP No. 68 ibid.). A rule of national law cannot however be justified which removes any requirement to give objective grounds for the employment of foreign-language assistants on fixed-term contracts, where such grounds are required to be given in the case of comparable categories of worker.
Conclusion
22. I am accordingly of the opinion that the questions referred by the Arbeitsgericht Passau should be answered as follows:
Article 48(2) of the EEC Treaty precludes the application of a provision of national law which imposes a limit on the duration of an employment relationship between universities and foreign-language assistants, or which has the effect that the employment of such assistants on fixed-term contracts is automatically permitted, where in the case of other comparable workers employment for a fixed term is permitted under national law only if there is an objective ground for limiting the duration of the contract of employment.
(*) Original language: English.
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