Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Court is called upon to give judgment in an action brought under Article 169 of the EEC Treaty by the Commission of the European Communities against the French Republic. The charge made against the defendant is that by making the possession of French nationality a precondition for the appointment and establishment in permanent employment as a nurse in public hospitals it has infringed Article 48 of the Treaty.

2. The Court's task, as I have said, is to determine whether the posts of nurses in public hospitals fall within the purview of Article 48 (4), by virtue of which the principle of freedom of movement for workers does not apply to employment in the public service. Let me say straight away that the problem is not a new one. The Court has delivered judgment in similar cases: on 12 February 1974 in Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, on 17 December 1980 (interim judgment) and 26 May 1982 (final judgment) in Case 149/79 Commission v Kingdom of Belgium [1980] ECR 3881 and [1982] ECR 1845. The first case concerned an Italian worker who, although already employed by the German postal administration, was denied an allowance granted to nationals on the ground that he was an alien; the second dispute, on the other hand, related to a number of advertisements offering employment with Belgian public authorities and undertakings (the City of Brussels, the Commune of Auderghem, the Société nationale des chemins de fer vicinaux and the Société nationale des chemins de fer belges), subject to fulfilment of a condition as to nationality.

3. As in Case 149/79, the French Government's reading of the term public service (Article 48 (4] is Organic or institutional, excluding every kind of employment in the public service, regardless of the nature of the activity involved, from the scope of the principle of freedom of movement for workers. Six factors are mentioned in support of that interpretation:

4. I have already stated that the points of defence which I have just described coincide exactly with those already relied upon in Case 149/79, which were rejected in the judgments delivered by the Court. Is this a case of faithful adherence to a centuries-old heritage of ideas or, more simply, of difficulty in presenting to the Court a fresh and more cogent line of argument? I shall leave the Court to answer that question and go on to consider the established body of case-law regarding exclusion from employment in the public service. The principal milestones may be summarized as follows: (1) Article 48 (4) is to be interpreted strictly; (2) the concept of employment in the public service is a Community concept and, (3) that concept is to be appraised in functional terms; (4) in any event, it is of decisive importance to determine whether the activity at issue involves exercise of official authority and protection of the general interests of the State or of other public authorities.

5. I shall now consider the problems raised in the last two points, that is to say the conflict — the fundamental conflict — between the Organic' approach and the functional approach to definition of the concept at issue here. As we know, in Case 149/79 France, in company with Belgium, Germany and the United Kingdom, espoused the organic approach. However, once again following the line suggested by Mr Advocate General Mayras, the Court took the opposite view. It held that Article 48 (4) removes from the ambit of freedom of movement a series of posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. Such posts in fact presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality (judgment of 17 December 1980, paragraph 10).

6. Much else could be said on this crucial matter. However, my observations so far are sufficient to knock the cornerstone out of the French defensive fortress. It is true that there remain the arguments put forward by France regarding both the possibility open to foreigners of entering the public service on the basis of a contract of employment and the career principle; and whilst it is not worthwhile dwelling upon the first argument, in view of the fact that it is so obviously contrary to the equal treatment rule, the second calls for some further reference to the case-law of the Court. It has been seen what this consists of. According to the French Government, the result of the Court's decisions is that a foreigner is appointed to a permanent post the holder of which is entitled to reasonable career prospects and is then refused promotion to a more senior post because that would involve the exercise of official authority: in the name of freedom of movement and the principle of equality the Court, it is said, has ultimately created an instance of unequal treatment. That course of action has therefore had negative results and accordingly it should be abandoned.

7. Finally, a few words are called for regarding the post with which this case is concerned. Even if it were conceded that the derogation were capable of a restrictive interpretation — as argued by Belgium in 1980 and again by France today — the nurses are affected by it because they are entitled to authorize services which are charged to the State or to local authorities. Now, I do not doubt that that power is conferred upon the employees in question, nor shall I question the fact (although it seems a little strange to me) that it is public, in the forceful sense of the term, as described earlier. As far as I am aware, however, the activities involving the exercise of that power are occasional or incidental and can therefore be separated from the main duties of the persons concerned. It seems to me that to exclude nationals of other Member States from the posts in question merely for that reason would be contrary to the principle of proportionality. It should also be noted that the duties of nurses in public hospitals are identical to those of their colleagues in private clinics and that the derogation contained in Article 48 (4) does not apply to the latter. Am I to deduce from that fact that if a clinic is brought out of the private sector into the public sector the management is obliged to dismiss all the non-French staff?

8. In view of all the foregoing considerations, I suggest that the Court should uphold the action brought by the Commission of the European Communities by application lodged on 21 December 1984. The Court should therefore declare that by making the possession of French nationality a requirement for appointment to and establishment in permanent employment as nurses, the French Republic has failed to fulfil its obligations under the EEC Treaty.

1 Translated from the Italian.

2 Translator's note: The English version of the judgment omits this word.