Beata Pokrzeptowicz-Meyer, a Polish national, transferred her residence to Germany in 1992. In October 1992, she began working as a part-time foreign language assistant (employed by the Land Nordrhein-Westfalen) at the University of Bielefeld. Her contract of employment was from October 1992 to September 1996; in accordance with German law, her employment was for a fixed term only because she was to be mainly engaged in teaching foreign languages. According to her job description, Ms Pokrzeptowicz-Meyer taught Polish in class for up to eight hours a week.

The Europe Agreement establishing an association between the European Communities and their Member states, of the one part, and the Republic of Poland, of the other part ¹(the Agreement), provides for the “Movement of workers”. According to the Agreement, a Polish worker, legally employed in a Member state shall not be discriminated against on the basis ofnationality, as regards working conditions, renumeration or dismissal. The Agreement also
provides that the Member states may apply their own laws regarding, for example, entry and stay, work and labour conditions provided that they do not apply them in a manner to nullify or impair the benefits contained within the Agreement.

Under German law, (the German law was amended with effect from 24 August 1998 but the new law does not, according to the German courts, apply to contracts signed and expired prior to that date) posts for foreign-language assistants could be the subject of employment contracts of limited duration, whereas, for other teaching staff performing special duties, recourse to such contracts had to be individually justified by an objective reason.

Ms Pokrzeptowicz-Meyer took an action before the German courts. She argued that the German law restricting the duration of her contract with the Land Nordrhein-Westfalen could not be justified. The Bundesarbeitsgericht (Federal Labour Court) is asking the Court of Justice to rule on the compatibility of this German law with the Agreement.

Advocate General Jacobs delivered his Opinion in this case today

The Opinion of the Advocate General is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the case assigned to them.

According to the Advocate General, a Polish migrant worker legally employed in a Member state may rely on the rule of non-discrimination contained within the Agreement in legal proceedings before the courts of the Member states against a public authority acting in its capacity as employer.

Advocate General Jacobs then considers the compatability of the German law with the Agreement.

The Advocate General points out that under German law, whilst foreign-language teachers could be employed on fixed-term contracts, other teaching staff performing special duties could be employed for a fixed-term contract only where that was individually justified by an objective reason. The Advocate General considers that the majority of foreign-language assistants are of a different nationality than that of the State in which they are employed and consequently the difference in treatment under German law leads to indirect discrimination on grounds of nationality.

According to the Advocate General, the prohibition on discrimination in the Agreement should not be interpreted narrowly. Therefore, it covers indirect as well as direct discrimination on grounds of nationality as regards conditions of employment.

The Advocate General recalls the principle established in the judgment of Spotti², in which the Court of Justice was asked whether indirect discrimination under the same German law between German nationals and nationals of other Member states may be justified. The Court held in this case that the imposition of a time-limit on the employment contracts of foreign-language assistants could not be justified. According to the Advocate General, this reasoning is applicable to language assistants of Polish nationality in the context of the Agreement.

Therefore, the Advocate General considers that the German law is not compatible with the Agreement.

Unofficial document for media use only; not binding on the Court of Justice. Available in English, French and German. For the full text of the opinion, please consult our Internet page www.curia.eu.int  at approximately 3 pm today. For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731

    ¹ OJ 1993 L 348, p. 2
    ² Case C-272/92 Spotti (1993) ECR 1-5185