Opinion of Mr Advocate General Lenz
Mr President,
Members of the Court,
The case on which I am delivering my opinion today concerns the question whether, in Germany, a national of another Member State of the European Community can demand admission to preparatory service as a trainee teacher in the State school system [Zulassung zum staatlichen Vorbereitungsdienst] on the same conditions as German nationals.
1. The plaintiff, Mrs Lawrie-Blum, a British national born in Portugal who has since married a German national, went to school in Austria and England and obtained her first university degree in the latter country. She then studied at the University of Freiburg and in Spring 1979 took the Gymnasium [secondary school] teacher's examination with Russian and English as her main subjects. In August 1979, she applied to the Oberschulamt Stuttgart [Secondary Education Office, Stuttgart] in the Land of Baden-Württemberg, the defendant in this case, to be admitted to the period of preparatory service for the profession of teacher at a Gymnasium. It was her intention to teach in a private Gymnasium after completing her training.
2. The plaintiff brought an action before the Verwaltungsgericht Freiburg [Administrative Court, Freiburg] against the refusal to admit her to preparatory service for the profession of teacher at a Gymnasium and sought the annulment of the decision of the Oberschulamt Stuttgart and an order requiring the defendant Land to admit her to preparatory service. She left it to the defendant Land to decide on the legal form in which this was to be done and in particular did not seek civil service status.
3. By order of 24 January 1985, the Bundesverwaltungsgericht stayed the proceedings and referred the following question to the Court for a preliminary ruling:
4. In its reply to questions put by the Court of Justice, the defendant in the main proceedings stated that the numbers of teachers employed in Gymnasien in the Land Baden-Württemberg in the 1984/85 school year were as follows: 18248 teachers with civil service status; 651 teachers who were not civil servants working in the State school system; 1269 trainee teachers and 1894 teachers in private schools.
5. The parties to the main proceedings, the Commission of the European Communities and, in the oral procedure, the United Kingdom submitted observations to the Court on the preliminary question. The plaintiff and the Commission are of the opinion that the question should be answered in the affirmative whereas the defendant Land takes the opposite view and relies on the statement of the grounds in the order for reference. The United Kingdom was primarily concerned with establishing the line of demarcation between pure training and employment based on a balanced relationship of service and reward.
First, I consider it necessary to describe in more detail the preparatory service for the profession of teacher in the State system and to point out some characteristics of the German school system. It is not a matter of interpreting national law — the Court would have no jurisdiction to do that in the context of a reference for a preliminary ruling — but of setting out facts which are touched upon in the national court's question but not described in detail.
1. In the Federal Republic of Germany, teacher training is primarily a matter for the Länder. The training consists of a period of study at a university, which leads to the First State Examination, and a period of preparatory service, which is followed by the teacher's professional examination.
2. As far as the organization of the school system in the Federal Republic of Germany is concerned, regard must be had first of all to Article 7 of the Grundgesetz, paragraph (1) of which provides as follows:
I will now deal with the wording of the preliminary question and then with the question whether persons in a situation such as that of the German Studienreferendar are to be regarded as workers within the meaning of Article 48 of the EEC Treaty and, if so, whether the exception regarding employment in the public service laid down in Article 48 (4) of the EEC Treaty is applicable to them.
1. In the view of the United Kingdom, the question is formulated too widely. It presupposes that a single answer can be given which covers all persons studying or training to become a teacher. A single answer of that kind is not possible since the organization, the financing, the structure and the duration of pedagogic education varies greatly from Member State to Member State.
2. It seems to me that that view is based on a misunderstanding. It must be conceded that the formulation of the question, particularly in the English translation, which speaks of trainee teachers, could give the impression of being broader than it is actually meant to be.
The next matter to be considered is whether Studienreferendare are covered by Article 48 of the EEC Treaty. That was disputed on the ground that Studienreferendare are not in employment but in training. It was also argued that the term workers in Article 48 of the EEC Treaty does not include civil servants.
1. (a) In the view of the defendant, the preparatory service for the profession of teacher in a Gymnasium does not involve the exercise of a professional activity but constitutes the last stage of vocational training. The pay of a Studienreferendar is not a reward for services performed but is intended to ensure that the purpose of the training is achieved. According to the plaintiff in the main proceedings, the preparatory service for the profession of teacher in a Gymnasium guarantees the trainee a living at least as much as it prepares him for the Second State Examination. Candidates for teaching posts receive not only a small maintenance grant but also trainee teacher's pay which is fixed by Federal law. They also receive special allowances, holiday pay and capital accumulation benefits. Trainee teachers work for a substantial reward commensurate with the services which they provide. The Commission also considers that a Studienreferendar should not be denied a worker's status even if the prime purpose of the preparatory service is to train and not to work. Entry into professional life is always preceded by a training period. Because of the close link between vocational training and the exercise of a profession, Community law includes vocational training within the scope of the rules on freedom of movement. (b) As I stated at the beginning of my Opinion (BI.1)), the period spent in training by a Studienreferendar is akin to an employment relationship. He has to give a certain number of lessons, he receives pay and is also subject to the provisions of labour law and public service law and to tax law and social security law.
2. (a) The defendant has adopted the position taken by the Bundesverwaltungsgericht which is that the term worker in Community law does not include civil servants who have a special duty of loyalty to their employer. In the view of the plaintiff in the main proceedings, the term worker in Community law does not automatically exclude persons working in the public service. Paid employment with public bodies is also in principle an activity as an employed person within the meaning of Article 1 of Regulation No 1612/68. If public servants were to be excluded in principle from the scope of Article 48, the exception in Article 48 (4) would be redundant. The Commission also points out that Article 48 (4) would be superfluous if Article 48 merely applied to persons performing activities under a contract of employment with an economic entity. It can be deduced from the Court's previous decisions that the nature of the legal relationship between the worker and the administration is unimportant. Any argument based on a distinction in national law between employment relationships governed by public law and employment relationships by private law is untenable. If such a distinction were accepted, the scope of a fundamental legal concept of Community law would be limited by the application of legal definitions laid down in national legislation. The United Kingdom is also of the opinion that, once it is determined that an employment relationship exists, it is immaterial whether in national law that relationship is governed by private law, labour law, the law governing public servants or any other branch of law. (b) It may be deduced from the previous decisions of the Court that the legal form of the employment relationship is irrelevant to the question whether or not Article 48 of the EEC Treaty is applicable. In its judgment of 12 February 1974 in the Sotgiu case, the Court rejected any distinction between employment relationships governed by public law and those governed by private law; it did not matter whether a person was a manual worker, a white-collar worker or a public official or whether his employment was subject to public law or private law.
3. The next question to be examined is whether the activity of a Studienreferendar is covered by the exception in Article 48 (4) of the EEC Treaty, which provides that freedom of movement for workers is not to apply to persons employed in the public service.
Finally, I must deal with a number of arguments which were put forward by the parties to the proceedings but which do not require a definitive view to be taken.
1. (a) It was pointed out in particular by the plaintiff in the main proceedings and the Commission that, in contrast to the legal position of Studienreferendare in the Federal Republic of Germany, nationals of other Member States of the European Communities are admitted as Rechtsreferendare [legal trainees] to preparatory legal service. Since a Rechtsreferendar discharges public functions at least to the same degree as a Studienreferendar, it is contrary to the general principle of equal treatment to require Studienreferendare to possess German nationality in order to be admitted to professional training. (b) Those arguments will undoubtedly be important for the national courts when they reexamine the plaintiff's claim to be admitted to preparatory service for the teaching profession. They will be important first from the point of view of the general principle of equal treatment in national law and secondly with regard to the question how far the reservation regarding the public service contained in Article 48 (4) of the EEC Treaty may extend. In this respect, the national court will be able to see from the legislation of the Länder just how unobjectionable it now seems in German legal opinion for nationals of other Member States to be allowed to exercise powers conferred by public law. Only then will the national court have to consider whether Community law requires wider admission of such persons to teacher training in State schools.
2. The question whether the training of teachers in the State education service constitutes vocational training within the meaning of the EEC Treaty need not and should not be decided in this case. A decision on that question is not necessary in the present case since a satisfactory reply can be deduced from the arguments set out above.
On the basis of all the foregoing arguments, I propose that the Court reply as follows to the questions referred to it by the Bundesverwaltungsgericht:
1 Translated from the German.
2 Regulation (EEC) 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).
3 Judgment of 21 June 1974 in Case 2/74 Jean Reyners v Belgian State [1974] ECR 631.
4 Judgment of 3 December 1974 in Case 33/74 Johanna Henricus María van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299.
5 It must be borne in mind, however, that as a result of the determination of seniority in accordance with paragraph 28 of the Bundesbesoldungsgesetz, the first appointment of a Studienrat will normally De at a step higher than Step I. Consequently, the percentage stated must be somewhat further reduced.
6 See the judgment of the Bundesverfassungsgericht [Federal Constitutional Court] of 14 November 1969, Entscheidungen det Bundesverfassungsgerichts , Vol. 27, pp. 195 and 201.
7 Official Journal 1985, C 99, p 7.
8 Judgment of 9 October 1984 in Case 188/83 Hermann Wille v European Parliament [1984] ECR 3465.
9 Idem , at p. 3481.
10 Judgment of 12 February 1974 in Case 152/73 Giovanni Maria Sotgiu v Deutsche Bundespost [1974] ECR 153.
11 Judgmenc of 17 December 1980 in Case 149/79 Commission of the European Communities v Kingdom of Belgium [1980] ECR 3881.
12 In German case-law this has been recognized by the Bundesverfassungsgericht at least; see the decision of 23 June 1981, Entscheidungen des Bundesverfassungsgeriechts Vol. 58, pp. 1 and 36, and the judgment of 18 December 1984, Entscheidungen des Bundesverfassungsgerichts, Vol. 68, p. 1 and p. 98 et seq.
13 Idem, paragraphs 10 and 19.
14 Opinion of Mr Advocate General Mancini of 15 April 1986 in Case 307/84 Commission v French Republic (1986) ECR 1726.
15 See the judgment of the Court of 13 July 1983 in Case 152/82 Sandro Forcheri and Another v Belgian State and Another [1983] ECR 2323, and the judgment of 13 February 1985 in Case 293/83 Gravier v City of Liege [1985] ECR 593.