This case concerned the qualification for employment in the public sector. This qualification depends on whether or not the posts in question are typical of the specific activities of the public service, to the extent that the exercise of powers conferred by public law and responsibility for safeguarding the general interests of the State.
In order to be reserved for own nationals only, posts in the public service, which presume to 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 nationality can be included. (full text)
This case concerned the Directive on the harmonisation of the laws of the Member States relating to turnover taxes. The activities of the local (Spanish) tax collectors, who are appointed by the local authority, must be regarded as being carried out independently. This is based on the fact that the collectors are not paid a salary and are not bound to the commune by a contract of employment. The legal relationship on the basis of which they engage in their activity is not such as to constitute one of employer and employee in relation to the local authority which uses their services.Bodies governed by public law are not to be considered as taxable persons. This exception is not applicable when a public authority is not directly engaged in the activity but has entrusted it to an independent third party. (full text)
The provisions of the freedom of movement for workers are not applicable to employment in the public sector, but only if the public sector post reveals 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. This case examined whether merchant shipping captains are considered as employees in the public sector. Employment in public service involves 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. It presumes 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.
Employment in the public service is excluded from the principle of non-discrimination on the grounds of nationality. This exception must be interpreted restrictively. It may only be used if the rights under powers conferred by public law are in fact exercised on a regular basis by those holders and do not represent a very minor part of their activities. (full text)
The Court ruled that this case concerns employment in public service, since the post (merchant shipping captain) requires direct participation in the exercise of powers given by public law to safeguard the general interest of the State. The Court took into account that the job entails duties connected to the maintenance of safety and to the exercise of police powers, particularly in the case of danger on board, together with the powers of investigation, coercion and punishment. Consequently, it could be possible that the provisions on the freedom of movement of workers are not applicable.
To benefit from the non-discrimination exception regarding employment in public service, the Court held that the powers have to be exercised on a regular basis and may not represent only a very minor part of their activities. (full text)