Abstract
Article 45 of the Treaty of the Functioning of the European Union sets the norm of free movement of workers in EU Member States. However, the same article sets in unequivocal terms in paragraph 4 an exclusion principle concerning the employment in the public service. During the past decades it has been underlined that the exception clause ought to be interpreted in a narrow sense. That is, restrictions on access to the public service should only apply to posts involving the exercise of public authority and the responsibility for safeguarding the general interests of the State or other public bodies. In the paper it is presented the way that a number of EU Member States have implemented the policy of open access to public service posts. The level of implementation of this rule could be used as an indication of the wider phenomenon of administrative convergence in the European level.
Highlights
Article 45 of the Treaty of the Functioning of the European Union sets the norm of free movement of workers in EU Member States
It explained what “employment in the public service” exactly means. As far as this last notion is concerned, it is ISSN 1918-7173 E-ISSN 1918-7181 www.ccsenet.org/res true that its somehow vague meaning had led a number of EU Member States to interpret it at first in a wider sense; the Court of Justice made clear that it ought to be interpreted according to Community law, not according to norms and principles of national law. It ought to be interpreted necessarily in a narrow sense. (Note 5) The Court of Justice held that all public service posts should be open to citizens of other Member States of the European Community, whereas restrictions on access should only apply to posts involving the exercise of public authority and the responsibility for safeguarding the general interests of the State or other public bodies presuming “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”. (Note 6) It should be stressed that these two criteria are required cumulatively (Handoll, 1988: 234-236, Goerlich & Bräth, 1989, Spiliotopoulos, 1997)
Thereafter, the European Commission promulgated the Communication 88/C 72/02 on “Freedom of movement of workers and access to employment in the public service of the Member States Commission’s action in respect of the application of article 48 paragraph 4 of the EEC Treaty”, whereby a number of clarifications were made concerning the kind of public service functions that are covered by the exclusion principle, namely, the armed forces, the police, the judiciary, the tax administration, the diplomatic corps, et.c
Summary
National law in Greece – including the Constitution itself – provides that Greek citizenship forms a fundamental formal prerequisite for employment in the public service. Despite the time given by the European Commission, Greece did not manage to take the adequate measures, in order to comply with the opinion of the European Commission The latter brought the matter before the Court of Justice, which held that the Member State concerned had failed to fulfil the obligation under the Treaty establishing the European Economic Community regarding the access of employment in the public service. (Note 13) Pursuant to this law EU citizens are given general access of employment to public service posts It was foreseen, that Presidential Decrees should be published in order to be defined in particular which posts in each ministry or other public agency would be reserved for Greeks. In practice the extent that this opportunity has been really taken advantage of by EU citizens continues to remain rather low
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