Eu Law L20

The provisions of this Article shall not apply to employment in the public service.

… . 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. (para 10)

… 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.

(trainee teachers)

(scientific researchers: different terms for foreign nationals),
Italy failed to meet its EC obligations by discriminating against researchers working for the National Research Council who were nationals of other Member States. Italian provisions only gave established status or equivalent standing to research workers at the Italian National Research Council if such workers possessed Italian nationality. The Commission of the European Communities brought proceedings against Italy under the Treaty of Rome 1957 Art.169 for failing to meet its obligations under EC law.
Held, that Italy had failed to meet its obligations under Art.48 EC and Council Regulation 1612/68 Art.7(1) and (4) by discriminating, as regards conditions of work and employment, against researchers working for the National Research Council who were nationals of other Member States in favour of Italian researchers working for that body.

(Luxembourg sought to resurrect the ‘institutional’ approach to employment in the public service, so that the character of the employer would determine who fell within the exception)

25. On the substance, the Grand Duchy of Luxembourg submits first of all that Article 48(4) of the Treaty must be interpreted in an "institutional" sense so that the exception which it lays down should cover all posts which under national law constitute public service posts, including those involving purely executory, technical or manual duties if they are performed for the State or for public authorities. Only nationals can be depended on to show the special degree of integrity and trustworthiness which must be capable of being required of civil servants and public employees. 26. With regard to that argument, it suffices to refer to the Court' s settled case-law according to which the concept of public service within the meaning of Article 48(4) of the Treaty requires uniform interpretation and application throughout the Community and cannot therefore be left entirely to the discretion of the Member States (see, in particular, the judgment in Case 152/73 Sotgiu [1974] ECR 153 and the judgment in Case 149/79 Commission v Belgium, cited above, paragraphs 12 and 18). 27. So, in order to determine whether posts fall within the scope of Article 48(4) of the Treaty, it is necessary to consider whether or not the posts in question typify the specific activities of the public service in so far as it exercises powers conferred by public law and has responsibility for safeguarding the general interests of the State or of other public bodies. For that reason, the criterion for determining whether Article 48(4) of the Treaty is applicable must be functional and must take account of the nature of the tasks and responsibilities inherent in the post, in order to ensure that the effectiveness and scope of the provisions of the Treaty on freedom of movement of workers and equal treatment of nationals of all Member States is not restricted by interpretations of the concept of public service which are based on domestic law alone and which would obstruct application of Community rules (judgment in Case 307/84 Commission v France [1986] ECR 1725, paragraph 12). . … 48. In those circumstances, in order to give full effect to the principles of freedom of movement for workers and equal treatment in access to employment, the Grand Duchy of Luxembourg was obliged to open the areas in question to nationals of other Member States by restricting application of the nationality condition to only those posts which actually involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interest of the State or of other public authorities.

The rights conferred by the state werent peformed regullarly enough for them to prohibit then foreing nationals to becoming captain or leaders of the shop or whatever, if they only had to the perform the 'rights conferred to them by the state' on rare occasions.

The rights conferred by the state werent peformed regullarly enough for them to prohibit then foreing nationals to becoming captain or leaders of the shop or whatever, if they only had to the perform the 'rights conferred to them by the state' on rare occasions.

(requirement for captain of a merchant vessel to be a French national)

Italian post man working for the Duetsche Budespost denied separation allowance for working far from home. they could deny him the separation allowance because once you've been admitted into a public service type employment the state cant then use article 45(4) to limit the benefits available to you as a worker on the grounds that the employment is in the public service.

Refusal to take account of employment in the public service in another member state.
S, who was of German origin and acquired Italian nationality by marriage, brought an action challenging her place on the list drawn up following a competition for staff posts in the University of Cagliari, in which she alleged that it was unlawful for the selection board to refuse to take into account, in accordance with the notice of competition, her previous employment in the German post office before her marriage. The notice of competition provided, in particular, for the award, with a view to drawing up the list of successful candidates, of a number of points in respect of qualifications and experience. It did not contain any details as to what type of previous experience was relevant. , that any Community national who, irrespective of his place of residence and his nationality, had exercised the right to freedom of movement for workers and who had been employed in another Member State, fell within the scope of the aforesaid provisions. The refusal to take into consideration S's employment in the public service of another Member State, for the purposes of the award of the additional points provided for, in order to determine her place on the list, constituted unjustified indirect discrimination

The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.

(does legal practice constitute the exercise of official authority?)
Advocate General Mayras said in the Reyners case: Official authority is that which arises from the sovereignty and majesty of the State; for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens.

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