Opinion of Mr Advocate General Darmon
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 milderer (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 lus period of two years' training in the post A7 Pt/M with classification in the Salary Group la. 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 la paid to the plaintiff amounted to DM 2644.04 whereas if he had had the status of civil servant at that date his net salary in grade A5 would have been DM 2416.39. 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. Hie 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:
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, 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 Sute 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
11. I therefore conclude that the Court should rule as follows:
1 Original language: French.
2 Judgment in Joined Cases 35/82 and 36/82 Monoa and Jharuan v Situe 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 Badcn-Württemberg [1984] ECR 2539, paragraph 15, Case 298/84 Iono v Azienda Autonoms della ferrovie dello Stato [19861 ECR 247, paragraph 14, Case 147/87 Zaoui v CRMAIF [1987] ECR 5511, paragraph 15.
3 Judgments in Casc 115/78 Knoon v Secretary of State for Economic Anain [1979] ECR 399, paragraph 24, Case 271/82 Auer v Minútete Public [1983] ECR 2727, Case 292/86 Cullung v ConseUs de rOrdre des Avocats du Barreau de Colmar et de Sårerne [1988] ECR 111, paragraphs IC to 13, Case 130/88 Van de Billy Staatssecretaris ran Economische Zaken [1989] ECR 3039.
4 Judgments in Case 305/87 Commission v Greece [1919] ECK 1461, paragraph I), Case C-10/90 Mastio v Bundes-Knappschaft [1991] ECR I-1119.
5 See judgment in Case C-41/90 Hüfner and Elser v Macroton Gesellschaft für Datenerfassungssysteme mit beschrankter Haftung [1991] ECR I-1979 paragraphs 35 to 40, for a similar situation in relation to freedom to provide services.