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	Databáze č. 17 : Databáze judikatury

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	Číslo (Kód CELEX): Number (CELEX Code):		61979J0149

	Název: Title:		Judgment of the Court of 17 December 1980. Commission of the European Communities v Kingdom of Belgium. Free movement of workers. Case 149/79.

	Publikace: Publication:		European Court Reports 1980 page 3881

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Sotgiu, Case 152/73 Giovanni Maria Sotgiu v Deutsche Bundespost [1974] ECR 153 · Case 307/84 Commission of the European Communities v French Republic [1986] ECR 1725 · Lawrie Blum Case 66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121 · Case 149/79 Commission v Belgium judgement of 26 May 1982 [1982] ECR 1845


	Plný text: Fulltext:		Ne

Fakta:
The Commission under Article 169 of the EEC Treaty brought action against the Kingdom of Belgium for having failed to fulfil its obligations under Article 48 of the Treaty. The ground for these proceedings were that - as the Commission brought forward - the Belgian Railway had “during recent years” advertised “various vacancies” for posts for unskilled workers, thereby limiting the applications to those who are of Belgian nationality.
In the course of the proceedings, it was established that the posts in question were for trainee locomotive drivers, loaders, plate-layers, shunters, signallers, unskilled workers, nurses, night-watchmen, plumbers, carpenters, electricians, garden hands, architects and supervisors. However, the exact nature of the duties involved could not be established in the proceedings.
While the Commission held that the Kingdom of Belgium had violated its obligations under Article 48 of the Treaty, Belgium argued that the restriction to Belgian nationals was justified under Article 48 (4) since the jobs in question constituted employment in the public service.

Názor soudu a komentář:
The Court discusses in considerable detail the question of the interpretation of Article 48 (4) of the Treaty which provides for an exception from the general rule of freedom of movement for employees (Article 48 (1) - (3)). Article 48 (4) provides that “the provisions of this article shall not apply to employment in the public service”.
The Court construes the exception of Article 48 (4) narrowly (see also Case 307/84,
Sotgiu
and
Lawrie Blum
). It adopts the view that the “public service” had to be defined with respect to substantive criteria and could not be made with reference to the formal criterion only whether the national authorities were acting under powers conferred by public law (see also
Sotgiu
). Therefore, the “classification depends on whether or not the posts in question are typical of the specific activities of the public service in so far as the exercise of powers conferred by public law and responsibility for safeguarding the general interests of the State are vested in it”. Such posts presumed “the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundations of the bond of nationality”.
To refer to the formal classification did not seem advisable “since in the various Member States authorities acting under powers conferred by public law have assumed responsibilities of an economic and social nature or are involved in activities which are not identifiable with the functions which are typical for the public service yet which by their nature still come under the sphere of the application of the Treaty”.
The Belgian government had argued that all posts in the administration of a Member State were covered by the exception of Article 48 (4). It had referred to Article 8 of Regulation No 1612/68 by which a worker from another Member State “may be excluded from taking part in the management bodies governed by public law and from holding an office governed by public law”. The Court rejects this argument and points out that this provision only permits that workers from other Member States under certain circumstances may be debarred from
certain activities
which involve their participation in the exercise of powers conferred by public law, it does not, however, permit the total exclusion of those workers from the respective jobs.
The Court also refuses to interpret the Community provision in the light of the constitutional laws of various Member States which reserve certain posts to nationals of the country. First, the Court emphasises, that “Community rules override national rules”. More particularly, it puts forward that “recourse to provisions of the domestic legal systems to restrict the scope of the provisions of Community law would have the effect of impairing the unity and efficacy of that law and consequently cannot be accepted”. This argument is characteristic of the Court’s method which gives little weight to the historical interpretation of Community law.
Finally, the Court addresses an argument which the Belgian government together with other governments had brought forward: That a restriction to nationals of the respective state may also be justified on the ground that participation in the job in question would make the employee eligible to a certain career, the higher grades of which involve the exercise of powers conferred. The Court rejects this argument, pointing out that for one thing, the Member States may “reserve to their nationals by appropriate rules entry to posts involving the exercise of such powers”; secondly, it would be a more severe form of discrimination to totally exclude nationals of other Member States than to exclude them from certain promotions or transfers to other posts.
The ECJ does not, however, decide that the Belgian Government had failed to fulfil its obligations under Community law, since it did not have sufficient facts to examine whether the jobs in question involved the exercise of public powers in the meaning of Article 48 (4) of the Treaty. Therefore, the Court refers the matter back to the parties for further examination and asks them to report to the Court “within a specified period, either any solution to the dispute which they succeed in reaching together or their respective viewpoints, having regard to the matters of law arising from this judgement” (as to the development of the matter, see
Commission v Belgium,
judgement of 25 May 1982).

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):