Report of the judge-rapporteur in Case C-272/92

I — Legal background

The ‘Hochschulrahmengesetz’ (Framework Law on Higher Education, hereinafter ‘the HRG’), provides in Paragraph 57a as follows:

‘Limitation of the duration of contracts of employment Paragraphs 57b to 57f are applicable to fixed-term (limited-duration) contracts of employment concluded with scientific and artistic assistants (Paragraph 53), staff with medical duties (Paragraph 54), and teaching staff performing special duties (Paragraph 56), as well as auxiliary scientific staff. The rules of employment law and the principles governing fixed-term contracts of employment are applicable only to the extent that they are not contrary to the provisions of the present Law.’

Paragraph 57b provides:

‘Objective justification for the limitation of duration (1) Except where no objective ground is required under the rules and general principles of employment law, the conclusion of fixed-term contracts of employment with the staff referred to in the first sentence of Paragraph 57a is permitted if the limitation of duration can be justified on such a ground. (2) In the case of the scientific and artistic assistants referred to in Paragraph 53 and the staff with medical duties referred to in Paragraph 54, objective grounds justifying the limitation of the duration of the contract of employment exist also where: 1. the appointment of the assistant to the duties referred to in Paragraph 53(1), or in Paragraph 53(3) taken in conjunction with Paragraph 53(1), also further his scientific or artistic development or his professional education and training; 2. the assistant is paid out of funds which, for budgetary reasons, are allocated for activities of limited duration and he is engaged for such an activity; 3. the assistant is to acquire, or temporarily to contribute, special knowledge or experience to research work or artistic activity; 4. the assistant is financed mainly by external funding and is employed in accordance with the purpose of that funding; 5. the assistant is engaged for the first time as a scientific or artistic assistant. (3) An objective ground also exists for the engagement on a fixed-term contract of an instructor performing special duties who is a speaker of a foreign language, where that instructor is mainly engaged to teach foreign languages (as a “foreign-language assistant”). (4) Subparagraph (2), points 1, 2 and 4, apply, mutatis mutandis, to the conclusion of fixed-term employment contracts with auxiliary scientific personnel. ...’

Paragraph 57c(2) provides:

‘A fixed-term contract of employment under Paragraph 57b(2), points 1 to 4, or Paragraph 57b(3) may be for a maximum period of 5 years. Where several fixed-term contracts are concluded under Paragraph 57b(2), points 1 to 4, or Paragraph 57b(3) with the same establishment, their total period shall not exceed 5 years ...’

Paragraph 56 provides:

‘Teaching staff performing special duties The communication of practical skills and knowledge, where that and not the conditions for the employment of senior teaching staff is the main requirement, may be assigned as their main activity to teaching staff performing special duties.’

Paragraph 53 provides:

‘Scientific and artistic assistants 1. Scientific assistants are established or non-established staff with scientific duties attached to scientific departments, installations or units. Those duties also include the communication to students of specialized knowledge and practical skills and initiation into the application of scientific methods to the extent necessary for the purposes of the courses offered. ... 3. Subparagraph 1 applies, mutatis mutandis, to artistic assistants.’

Paragraph 54 provides:

‘Staff with medical duties Persons primarily employed in an institution of higher education for the performance of medical, dental or veterinary duties, who are not senior or junior teaching staff, are normally assimilated for service and affiliation purposes to scientific assistants.’

Paragraph 27(3) of the ‘Bayerisches Hochschullehrergesetz’ (Bavarian Law on Teachers in Higher Education), hereinafter ‘the BayHSchLG’, provides:

‘Teachers performing special duties shall be appointed as established staff with the grade of senior lecturer in higher education or specialized lecturer. Teachers performing special duties may also be recruited as non-established staff under a fixed-term contract, in particular if: 1. the general conditions for the recruitment of established staff are not met; 2. they are employed as foreign-language assistants. Foreign-language assistants may not be employed for a period exceeding five years.’

II — Facts and procedure

Maria Chiara Spotti, an Italian national, was employed as a foreign-language assistant at the University of Passau in Bavaria, initially under a ‘foreign-language assistant's contract of employment’ concluded for one year (1 November 1986 to 31 October 1987) and subsequently under a second contract concluded for the period 1 November 1987 to 31 July 1991. Clause 1(2) of that contract gives the following reasons for the limitation placed upon its duration:

‘to ensure continuity of cultural exchange to prevent loss of contact with the country of origin in order to ensure up-to-date instruction, taking into account periods spent outside the country of origin since 1 November 1986 (one year) in calculating the maximum length of employment. Engagement to teach foreign languages as provided for in Paragraph 57b(3) of the HRG’.

When Ms Spotti applied for her period of employment to be extended beyond 31 July 1991, the University of Passau refused on the basis of Paragraph 27(3) of the BayHSchLG and Paragraphs 57b(3) and 57c(2) of the HRG. After unsuccessfully applying for that refusal to be reconsidered, Ms Spotti instituted proceedings before the Arbeitsgericht Passau.

In its request for a preliminary ruling, the national court refers to the judgment of the Court of Justice of 30 May 1989, Case 33/88 Aline and Another v Università degli Studi di Venezia [1989] ECR 1591 (paragraphs 11 and 12), according to which Artide 48(2) of the EEC Treaty prohibits not only overt discrimination but all covert forms of discrimination which in fact achieve the same result. It accepts that there may be indirect discrimination in the present case, because the vast majority of foreign-language assistants in higher education are foreign nationals.

Nevertheless, the national court considers that it is not possible, solely on the basis of Aline, to conclude that the German rules on fixed terms are inoperative, since they are not fully comparable to the Italian legislation with which that judgment was concerned. In particular, Paragraphs 57b(3) and 57c of the HRG do not absolutely preclude contracts of employment for an indefinite period.

The national court's doubts are based upon the fact that Paragraph 57b(3) provides for the possibility of limiting the duration of the employment of a specific category of ‘staff performing special duties’, namely foreign-language assistants, simply on the basis of the nature of their activity, whereas such a limitation for other ‘staff performing special duties’ must be based upon an objective reason. Furthermore, under Paragraph 57c(2), employment contracts for foreign-language assistants may only be concluded for a maximum period of five years, whereas fixed-term contracts concluded with other ‘staff performing special duties’ are not subject to this limitation since Paragraph 57b(l) is not mentioned in Paragraph 57c(2) of the HRG.

The national court observes that, even if those provisions do not prohibit the conclusion of contracts of employment for an unlimited term, it is not ruled out that fixed-term contracts should in fact be the norm, bearing in mind the possibility created by Paragraph 57b(3). Where the BayHSchLG applies, the conclusion of contracts of employment for an unlimited term with foreign-language assistants is even completely prohibited and their maximum length limited to five years by Paragraph 27(3).

The national court points out that paragraphs 13 and 14 of the Allué judgment confute the argument, put forward by the defendant in the main proceedings, that a limitation of the period of employment is necessary to ensure up-to-date instruction. According to the case-law of the Bundesarbeitsgericht (Federal Labour Court), the need for up-to-date instruction may nevertheless constitute an objective ground for the conclusion of fixed-term contracts for foreign-language assistants. In the national court's view, however, it may not be deduced from that case-law that there is any general requirement for such contracts to be subject to a maximum duration. For these reasons, by order of 27 May 1992, the Arbeitsgericht stayed the proceedings and referred the following questions to the Court of Justice:

‘1. Where legislation of a Member State lays down special rules on the length of contracts in relation to the activity of foreign-language assistants, the length of such contracts being limited (Paragraphs 57b(3) and 57c(2) of the Hochschulrahmengesetz in conjunction with Paragraph 27(3) of the Bayerisches Hochschullehrergesetz), but there is no such restriction on the length of contract for other teaching staff performing special duties (Paragraph 56 of the HRG), is such legislation compatible with Article 48(2) of the EEC Treaty? 2. Is such legislation so compatible at least if such a restriction is based on special objective grounds, in particular that of ensuring that the instruction is topical?’

III — Procedure before the Court

The order of the Arbeitsgericht Passau was received at the Court Registry on 16 June 1992. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted: on 5 October 1992 by the plaintiff in the main proceedings, Maria Chiara Spotti, represented by Annette Kahler, Rechtsanwältin, Frankfurt am Main; on 13 October 1992 by the German Government, represented by Ernst Röder, Ministerialrat in the Federal Ministry for Economic Affairs, acting as Agent; and on 21 October 1992 by the Commission, represented by Dimitrios Gouloussis, Legal Adviser, and Roberto Hayder, of its Legal Service, acting as Agents.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, pursuant to Article 104(4) of the Rules of Procedure, not to open the oral procedure.

IV — Summary of observations submitted to the Court

(a) The first question

The plaintiff in the main proceedings accepts that the HRG does not preclude the conclusion of contracts of employment with foreign-language assistants for an unlimited period, in contrast to the provisions of the Italian law at issue in the Allué case. Nevertheless, Paragraph 57b(3) of the HRG permits the conclusion of contracts for a limited period with foreign-language assistants, without further investigating whether there is an objective ground for that limitation. To the plaintiff's knowledge, that possibility has become the general rule for such assistants (in this regard, she suggests that the Court should obtain further information from the Federal Ministry for Education and Science), whereas a similar general limitation upon the duration of employment is not laid down for the contracts of employment of other ‘teaching staff performing special duties’.

The plaintiff stresses that the second sentence of Paragraph 27(3) of the BayHSchLG, under which the period of employment of foreign-language assistants may not exceed five years, read in conjunction with the HRG, gives rise to the same situation as in Italy.

Furthermore, the decision of the Seventh Chamber of the Bundesarbeitsgericht of 31 January 1990 holding that objective reasons need not be given for the fixing of a maximum period for the contract of a foreign-language assistant but that it is sufficient to indicate the legislative provision upon which the limitation is based, has the effect of greatly facilitating the fixing of a maximum period of employment for foreign-language assistants. This gives rise to a fundamental distinction in relation to other ‘teaching staff performing special duties’, the limitation of whose contracts must be justified on objective grounds. Since the vast majority of foreign-language assistants arc foreign nationals, Paragraph 57b(3) amounts to indirect discrimination.

The Government of the Federal Republic of Germany observes that, since the majority of the foreign-language assistants to whom the HRG applies are foreign nationals, indirect discrimination based on nationality might arise. Nevertheless, such discrimination would only exist if those assistants were treated less favourably in terms of the duration of their employment relationship than other academic staff in higher education, and that is not the case.

The relevant provisions of the HRG were introduced by Paragraph 1 of the Law of 14 June 1985 concerning fixed-term contracts of employment for academic staff at higher education and research establishments. The purpose of that Law is to improve the efficiency of institutions of higher education and research establishments outside universities, by extending their latitude in engaging academic staff for fixed terms.

The efficiency of institutions of higher education is dependent, inter alia, upon always being able to obtain sufficient new staff. Without a constant influx of young academics and new ideas, teaching and research would stagnate and it would be more difficult to encourage rising generations of academics.

The HRG follows the basic principle developed by the courts, that the conclusion of a fixed-term employment contract requires objective justification. Paragraph 57b enumerates a certain number of typical cases in which, in the view of the legislature, an objective justification exists, and no additional condition is required. In addition to the case of foreign-language assistants covered by Paragraph 57b(3) of the HRG, reference should also be made to contracts intended to further the professional training of staff (Paragraph 57b(2)(l)), contracts limited for budgetary reasons (Paragraph 57b(2)(2)), contracts concluded for the purpose of a ‘transfer of knowledge’ (Paragraph 57b(2)(3)) and contracts financed from external sources (Paragraph 57b(2)(4)).

The rules on fixed-term contracts form part of a series of similar criteria applicable under Paragraph 57a to various categories of staff including scientific and artistic assistants (Paragraph 53), staff with medical duties (Paragraph 54), teaching staff performing special duties (Paragraph 56), including foreign-language assistants, and auxiliary scientific staff. A limitation of the duration of the employment relationship is thus a characteristic element of the personnel structure of German institutions of higher education. The limitation applies to both the established and non-established staff of institutions of higher education.

Such a variety of situations in which the duration of the contract may be limited constitutes an essential difference from the legislation in issue in Allué, where the Italian legislation provided for the limitation of the period of employment only in the case of foreign-language assistants.

Furthermore, the Italian law imposed a mandatory time-limit of one academic year for contracts with such assistants and a total maximum duration, including possible extensions, of six years. Paragraph 57b of the HRG, however, primarily regulates only the circumstances in which fixed-term contracts are permissible, laying down a statutory requirement that such contracts must be justified on objective grounds. When that possibility of imposing a time-limit is used, the maximum duration of the employment contract is five years. However, those rules do not preclude the conclusion of employment contracts for an unlimited period. The Government concludes that there is no discrimination against foreign-language assistants under German law.

The Commission is of the opinion that the questions referred for a preliminary ruling have already been answered by the Court in Allué, since the facts in the present case are very similar to those in issue in that judgment. It appears from paragraph 9 of the judgment that employment as a foreign-language assistant at a university is not employment in the public service within the meaning of Article 48(4) of the EEC Treaty. The prohibition of discrimination contained in Article 48(2) is therefore applicable. It is further clear from the case-law that Article 48(2) prohibits not only overt discrimination based on nationality but all covert forms of discrimination — in practice against the nationals of other Member States in a host State (Allué, paragraph 11).

Bearing in mind that the vast majority of foreign-language assists are not German nationals, the Commission considers that discrimination against that category of assistants, in relation to other ‘teaching staff performing special duties’ within the meaning of Paragraph 56 of the HRG cannot be ruled out. Whereas for foreign-language assistants, the nature of their activity automatically justifies limiting the duration of their employment, in the case of other ‘teaching staff performing special duties’ there must be objective grounds linked to the circumstances of each individual case.

In the Commission's view, it cannot be concluded, merely from the fact that both a limitation on the duration of contracts and a maximum period for employment are unlawful in Italy, that a similar limitation and maximum period for the employment of foreign-language assistants in Germany arc incompatible with Article 48(2) of the Treaty. If Paragraph 57b(l) of the HRG permits limitations justified on objective grounds on the duration of the contracts of such persons, and the criteria used are not such as to disadvantage foreign-language assistants, such assistants may not insist on privileged treatment in relation to other ‘teaching staff performing special duties’.

Finally, the Commission observes that the fact that some foreign-language assistants have contracts for an unlimited period is not sufficient to remove the discrimination against those who are employed under fixed-term contracts.

The Commission therefore proposes that the first question should be answered as follows:

‘1. Legislation of a Member State which lays down special rules on the duration of contracts of employment for foreign-language assistants, which disadvantages such persons as against other comparable teachers in the same Member State (Paragraph 27(3)) of the BayHSchLG) is incompatible with Article 48(2) of the EEC Treaty. 2. Legislation of a Member State which regards the activity of a foreign-language assistant as automatically providing an “objective ground” (Paragraph 57b(3) of the HRG) and permits the imposition as a general rule of a limitation on the duration of contracts and a maximum overall duration for the employment relationship (Paragraph 57c(2) of the HRG) is incompatible with Article 48(2) of the EEC Treaty. Legislation of a Member State may, however, provide for a limitation on the duration of contracts and a maximum overall duration for the employment of a foreign-language assistant if the criteria applied do not disadvantage such assistants, as against other comparable teachers, solely on the grounds of the nature of their activity.’

(b) The second question

The plaintiff in the main proceedings is of the view that, in any event, the necessity for up-to-date instruction does not alone provide an objective ground for limiting the duration of contracts and she agrees completely with the reasoning in the Aline judgment on this point (Paragraph 14). She adds that foreign-language courses are also given by German nationals and that, if the argument concerning ‘up-to-date instruction’ were to prevail, it would mean that such persons could never be employed. A lack of up-to-date knowledge is even less of a danger with foreign nationals teaching in their mother tongue, bearing in mind that they are in regular touch with their country of origin.

The Commission also agrees with paragraph 14 of the Aline judgment. It submits that the need to ensure up-to-date instruction cannot provide an objective ground for imposing a general time-limit on the employment of foreign-language assistants. Instruction cannot be up-to-date if the assistant is not longer able to teach at all as a result of the expiry of the contract of employment. Furthermore, as in Allué, the assistant may be engaged at another German university on the expiry of the contract.

The same requirement for up-to-date instruction could moreover, also be used against foreign-language assistants employed for an unlimited period who are required to have specialized knowledge of foreign languages (in economics, law).

The Commission therefore proposes that the second question should be answered as follows:

‘The need to ensure up-to-date instruction cannot render legal provisions of a Member State compatible with Article 48(2) of the EEC Treaty, where those provisions automatically regard working as a foreign-language assistant as an objective ground permitting a time-limit to be placed on the employment relationship by the imposition of a maximum period of employment.’

J. C. Moitinho de Almeida

Judge-Rapporteur

1 Language of the case: German.