European Court of Human Rights Pellegrin v. France

in International Labour Law Reports Online
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European Court of Human Rights Pellegrin v. France

in International Labour Law Reports Online


  • 1. Article 48(4) of the EEC Treaty permits derogation from the principle of freedom of movement for workers within the Community in respect of "employment in the pub- lic service: ' The Court of Justice of the European Communities has developed a restrictive interpretation of this derogation. In a judgment of 17 December 1980 in the case of Commission v. Belgium, it decided that the derogation concerned only posts which involved direct or indirect participation in the exercise of powers con- ferred by public law and duties designed to safeguard the general interests of the State or of other public authorities, and which thus presumed 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 formed the foundation of the bond of nationality. (Continued on next page)

  • 1. (continued) In a communication of 18 March 1988, the European Commission set itself the task of listing separately those activities which are covered by the deroga- tion in Article 48(4) and those which are not. It considered that the derogation cov- ered specific functions of the State and similar bodies such as the armed forces, the police and other forces for the maintenance of order, the judiciary, the tax authorities and the diplomatic corps. This derogation also covered posts in State Ministries, regional government authorities, local authorities and other similar bodies, central banks and other public bodies, where the duties of the post involve the exercise of State authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and supervision of subordinate bodies. On the other hand, the Commission considered that the functions involved in the following forms of public employment would only in very rare cases be covered by the exception in Article 48(4): bodies responsible for administering commercial services (e.g. public transport, electricity and gas supply, airline and shipping companies, posts and tele- communications, radio and television companies), public health care services, teach- ing in State educational establishments, research for non-military purposes in public establishments.

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