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the Law court of the EU has confirmed the regularity of the nomination of Haralambides to president of the Harbour Authority of Brindisi
"article 45, paragraph 4, TFUE - the sentence explains - must be interpreted in the sense that does not allow with a Member States to reserve to own citizens the exercise of the functions of president of a Harbour Authority"
September 11, 2014
The Law court of the European Union, pronouncing itself with respect to the cause that opposes the Greek Hercules Haralambides against Calogero Casilli and in confronts of the ministry of Infrastructures and of the Transports and the harbour agency and the local governments of Brindisi, it has sentenziato that a foreign national can approach the charge of president of an Italian Harbour Authority.
Haralambides was named president of the Harbour Authority of Brindisi in 2011. Against such nomination the excluded competitor Calogero Casilli had introduced resorted asking the Regional administrative court of the Apulia to cancel it as Haralambides could not cover such assignment not being Italian national. In 2012 the REGIONAL ADMINISTRATIVE COURT had cancelled the nomination and successively the Council of State had decided to suspend the procedure and to put again to the Law court of the EU some prejudicial issues.
The sentence of the Court of Strasbourg, that we publish below, specific that "article 45, paragraphs from 1 to 3, TFUE sanctions the fundamental principle of the free circulation of the workers and the abolition of any discrimination, founded on the nationality, between the workers of the Member States. Article 45, paragraph 4, TFUE - the Court remembers - preview however that the dispositions of such article are not applicable to employ in Public Administration". The sentence continues specifying that "from the information communicated from the Italian government turns out that the powers of the president of a Harbour Authority constitute a marginal part of its activity, which in general terms anticipate a technical character and of economic management that cannot be modified from their exercise. Moreover, according to saying government, such same powers can be practised only in occasional way or exceptional circumstances. In such context, a general exclusion of the access of the citizens of other Member States to the charge of president of an Italian harbour authority constitutes a discrimination founded on the prohibited nationality from article 45, paragraphs from 1 to 3, TFUE. To light of the considerations that precede - the Court concludes - it is necessary to answer to the first issue declaring that, in circumstances as those of which to the main procedure, article 45, paragraph 4, TFUE it must be interpreted in the sense that does not allow with a Member States to reserve to own citizens the exercise of the functions of president of a Harbour Authority".
Law court of the European Union
Della Corte SENTENCE (Second Section)
10 september 2014 (*)
"Prejudicial dismissal - Free circulation of the workers - Article 45, paragraphs 1 and 4, TFUE - Notion of worker - Employs in Public Administration - Loaded with president of a harbour authority - Participation to the exercise of the publics powers - Requisitioned of the nationality"
In the C-270/13 cause,
having to object the question of pronounces prejudicial proposal to the Court, according to article 267 TFUE, from the Council of State (Italy), with decree of 8 January 2013, reached in papal chancery on May 17, 2013, in the proceedings
Iraklis Haralambidis
against
Calogero Casilli,
regarding:
Harbour authority of Brindisi,
Ministry of Infrastructures and the Transports,
Region Apulia,
Province of Brindisi,
Municipality of Brindisi,
Industry, Chamber of Commerce, Handicraft and Agriculture of Brindisi,
The COURT (Second Section),
composed from R. Silva de Lapuerta, president of section, J.L by Cruz Vilaça (reporter), G. Arestis, J. - C. Bonichot and To. Arabadjiev, judges,
general lawyer: N. Wahl
chancellor: To. Impellizzeri, administrator
seen the written phase of the procedure and as a result of the audience on March 26, 2014,
considered the introduced observations:
- for I. Haralambidis, from G. Giacomini, R. Damonte, G. Scuras and G. Demartini, lawyers;
- for C. Casilli, from Russian R., lawyer;
- for the Harbour Authority of Brindisi, from G. Giacomini and R. Damonte, lawyers;
- for the Italian government, from G. Palmieri, in quality of agent, assisted from Florentine S., lawyer of the State;
- for the Spanish government, from J. García-Valdecasas Dorrego, in quality of agent;
- for the government of the Low Countries, from B. Koopman and M. Bulterman, in quality of agents;
- for the EU commission, from G. Gattinara, D. Martin and H. Tserepa-Lacombe, in quality of agents,
felt the conclusions of the general lawyer, introduced to the audience on June 5, 2014,
it has pronounced the following one
Sentence
The 1 question of pronounces prejudicial concerns on the interpretation of article 45 TFUE, 49 TFUE, 51 TFUE, of directive 2006/123/CE of the European Parliament and the Council, on December 12, 2006 relative to the services in home market (GU L 376, p. 36), let alone of article 15 and 21, paragraph 2, of the Paper of the fundamental rights of the European Union (in prosieguo: the "Paper").
2 Such question is proposed within a controversy between the Mr. Haralambidis, Greek citizen, and the Mr. Casilli, with respect to the nomination of the Mr. Haralambidis to president of the Harbour Authority of Brindisi.
The Italian right
3 article 51 of the Italian Constitution arranges that "[t] utti the citizens of one or the other sex can approach the offices publics and the elective charges in equality conditions, second requirement established from the law" and that "[l] to law can, for the admission to the publics offices and to the elective charges, to parificare to the citizens the Italians not pertaining to the Republic".
4 From the dismissal decree it emerges that the expression "the Italians not pertaining to the Republic" indicates the citizens of Italian nationality abroad residents.
5 article 38, paragraphs 1 and 2, of I decree on March 30, 2001 legislative, n. 165, bringing general norms on the ordering of the job to the dependencies of the public administrations (ordinary supplement to the GURI n. 106 on May 9, 2001; in prosieguo: "I decree legislative n. 165/01"), so arrange:
"1. The citizens of the Member States of the European Union can approach the places of work near the public administrations that do not imply direct or indirect exercise of publics powers, that is do not concern to the protection of the national interest.
2. With I Prime Minister's decree of the Ministers (…) the places and the functions are characterized for which it cannot be prescinded from the possession of the Italian citizenship, let alone indispensable requirement to the access of the citizens of which to codicil 1".
6 I on February 7, 1994 Prime Minister's decree of the Ministers, n. 174, "Regulations bringing norms on the access of the citizens of the Member States of the European Union to the places of work near public administrations" (GURI n. 61 on March 15, 1994), designates to the places and the functions for which the Italian citizenship is demanded. Such I decree is adopted in application of I decree that it has preceded I decree legislative n. 165/01, that is I decree on February 3, 1993 legislative, n. 29 (GURI n. 30 on February 6, 1993), the whose editing did not introduce meaningful differences regarding I decree legislative n. 165/01.
7 article 1, paragraph 1, letter b), of I decree on February 7, 1994, n. 174, so preview:
"The places of the public administrations for the access to which it cannot be prescinded from the possession of the Italian citizenship are the following ones:
(…)
b) the places with functions of administrative summit of the peripheral structures of the public administrations of the State, also to independent ordering, of the not economic public bodies, the provinces and the municipalities let alone of the E regions the Bank of Italy".
8 From the dismissal decree it emerges that the harbour authority is a public organism, created from the law on January 28, 1994, n. 84, bringing I reorder of the legislation in harbour matter (ordinary supplement to the GURI n. 28 on February 4, 1994; in prosieguo: the "law n. 84/94").
9 article 6 of the law n. 84/94 so preview:
"1. In the ports of (…) Brindisi (…) the harbour authority with the following tasks is instituted (…):
a) address, programming, coordination, promotion and control of the harbour operations (…) and of exercised commercial and industrial other asset in the ports, with powers of regulation and decree, also in reference to safety regarding risks of incidents connected to such activities and to the conditions of hygiene of the job (…);
b) ordinary and extraordinary maintenance of the common parts in the harbour within (…);
c) confidence and control of the activities directed to the supply under onerous title to the harbour users of services of general interest, not coinciding neither closely connected to the harbour operations (…) characterized with I decree of the Minister of the transports and navigation.
2. The harbour authority has by right public legal personality and is equipped of administrative autonomy except how much having from article 12, let alone of autonomy budgetary and financial institution in the limits previewed from law anticipates. To it the dispositions are not applied of which to the law 20 March 1975, n. 70, and next modifications, let alone the 3 dispositions of which to I decree legislative February 1993, n. 29, and next modifications and integrations, made exception for how much specifically previewed from codicil 2 of article 23 of law anticipates.
3. The patrimonial management and financial institution of the harbour authority are disciplined by regulations of accounting approved of from the Minister of the transports and navigation, together with the Minister of the treasure. The consuntivo account of the harbour authorities is attached to the state of forecast of the navigation and Ministry of Transportation for the next exercise to that in which the same one is approved of.
4. The statement of the management financial institution of the harbour authority is subject to the control of the State Audit Court.
(…)”.
10 article 7 of the law n. 84/94 so arrange:
“(…)
2. The emolument of the president (…) they are at the expense of the budget of the authority and are determined by the committee within the established maximum limits (…) with I decree of the Minister of the transports and navigation (…).
3. With I decree of the Minister of the transports and of navigation they are arranged the revocation of the mandate of the president and the issolution of the harbour committee in case:
a) passed the term of which to article 9, codicil 3, letter a), the triennial operations plan is not approved of in the next term of thirty days;
(…)
c) the consuntivo account evidences a deficit.
(...)”.
11 article 8 of the law n. 84/94 are written up in the following terms:
“1. The president is named, advance understanding with the interested Region, with decrees of the Minister of the transports and navigation, within a tern of experts of maximum and proven professional qualification in the fields of the economy of the transports and harbour (…).
(...)
2. The president has the representation of the harbour authority, remains in charge four years and can be reconfirmed a single time. (…)
(...)
3. The president of the harbour authority:
a) the harbour committee presides;
b) it subjects the harbour committee, for the approval, the triennial operations plan;
c) it subjects the harbour committee, for the adoption, the harbour town development plan;
d) the pre-emptive budget subjects to the harbour committee the outlines of regarding deliberations and the relative variations, the consuntivo account and the treatment of the general secretary, let alone the recepimento of relative the contractual agreements to the staff of the technical-operating secretariat;
e) it proposes to the harbour committee the outlines of regarding deliberations the concessions of which to article 6, codicil 5;
f) it supplies to the coordination of the activities carried out in the port from Public Administration, let alone to the coordination and the control of the activities subject to authorization and concession, and of the harbour services; (…)
(...)
h) it administers the areas and the assets of the marine Federal property comprised in the within of the territorial administrative division of which to article 6, codicil 7, on the base of the dispositions of law in matter, exercising, felt the harbour committee, the attributions established in articles from 36 to 55 and 68 of the navigation code and in the relative norms of performance;
i) it exercises the competences attributed to the harbour authority from article 16 and 18 and releases, felt the harbour committee, the authorizations and the concessions of which to same articles when these have lasted not advanced to four years, determining the amount of the relative canons (…);
l) it promotes the institution of the association of the harbour job (…);
m) it assures the navigability in the harbour within (…). To the aims of the participations of excavation and maintenance of the backdrops it can call, assuming of the presidency, a conference of services with the interested administrations to conclude itself in the term of sixty days. In the indifferibili cases of necessity and urgency it can adopt provisions of coactive character (…);
n) it exercises the tasks of proposal in matter of marking out of the bonded areas, felt the marine authority and the interested local governments;
n-second) other competence exercises every that is not attributed by anticipates law to the other organs of the harbour authority”.
12 According to article 12 of the law n. 84/94, rubricato “Vigilance on the harbour authority”:
“1. The harbour authority is subordinate to the vigilance of the Minister of the transports and navigation.
2. The deliberations of the relative president and the harbour committee are subordinates to the approval of the vigilance authority:
a) to the approval of the forecast budget, of eventual notes of variation and the consuntivo account;
b) to the determination of the organic one of the technical-operating secretariat;
(…)”.
13 article 18 of the law n. 84/94, to which ago dismissal article 8, codicil 3, letter i), of this same law, has to object the “concession of areas and docks” and previews that it is up to the harbour authority to attribute to such concessions to the enterprises for the accomplishment of harbour operations and/or the supply of harbour services. Such article previews moreover that the realization and the management of works relating to the marine and harbour activities are subordinated to concession of the harbour authority also to carry out inside of the port.
14 From the answer of the Italian government to the written questions places from the Court turn out that the president of the harbour authority is the qualified administrative authority to exercise the previewed functions from article 54 of the navigation code, approved of with the regal one decrees on March 30, 1942, n. 327, dawned to the law on March 7, 2001, n. 51, that is to emit an administrative provision with which to enjoin to who it occupies areas of the marine Federal property illicit, situated in the harbour within, to restore the state of the places, with faculty, in implementation defect, to supply compulsory placing the expenses at the expense of the interested one.
Main procedure and prejudicial issues
15 On April 6, 2010, expiration date of the mandate of the president of the Harbour Authority of Brindisi, is started the procedure for the nomination of a new president by the minister of Infrastructures and the Transports (already minister of the Transports and Navigation; in prosieguo: the “minister”).
16 Within such procedure the Province of Brindisi, the Municipality of Brindisi and the Industry, Chamber of Commerce, Handicraft and Agriculture of Brindisi have designated everyone, in compliance with article 8, codicil 1, of the law n. 84/94, a tern of experts in the fields of the economy of the transports and harbour, between which the Mr. Haralambidis and the Mr. Casilli.
17 With I decree on June 7, 2011 the minister has named the Mr. Haralambidis president of the harbour authority of Brindisi.
18 the Mr. Casilli has proposed rerun dinanzi to the Regional administrative court for the Apulia asking the cancellation for such decrees. To foundation of its resource the Mr. Casilli supported that the Mr. Haralambidis could not be named president of such authority since it did not possess the Italian citizenship.
19 As a result of the acceptation of the resource on the foundation of article 51 of the Italian Constitution, the Mr. Haralambidis has interposed appeal dinanzi to the judge of the dismissal.
20 In the dismissal decree the Council of State observes that in Italian right the issue of the legal qualification of the harbour authorities is many times over mail until from the moment of their institution and that in the jurisprudence - also in that of the Council of State - these last ones are characterized as “economic public bodies” or “public bodies”.
21 To such purpose the judge of the precise dismissal that the configuration of the legal nature of the harbour authority assumes relief in so far as to its presidency is named a natural person of not Italian citizenship, considering that, in the hypothesis in which to such harbour authority nature of economic public body had to be recognized that acts by right in private regime, could not set obstacles of kind to such nomination. On the other hand, if to the same authority public body nature had to be recognized who institutionally work in by right public regime, and that therefore connotes of full authority which “Public Administration”, the solution would turn out various.
22 Orbene, according to the judge of the dismissal, is undeniable that the competences of the president of a harbour authority, previewed which to article 8, codicil 3, of the law n. 84/94, have pubblicistica nature. The same specific judge who said president must assure the navigability of the harbour zone, manage the harbour town development plan and elaborate the triennial operations plan.
23 Moreover, the Council of State finds that the activity of the president of a harbour authority does not appear configurabile which relationship of job subordinated to the dependencies of an administration, but which assumption of a conferred fiduciary assignment from the governmental authority of the Italian, temporary limited State and to carry out as president of a legal person led back from the right of the Union a by right public organism.
24 In such context, the Council of State has decided to suspend the procedure and to subject to the Court the following prejudicial issues:
“1) Appearing inconferente to the species case [nomination of a citizen of other Member States of the European Union to President of a Harbour Authority, qualificabile legal person as by right public organism] the exclusion arranged from art. the 45 TFUE § the 4, as regarding (...) working hypotheses subordinated with Public Administration (if [...] under investigation not subsistent) and - nevertheless - being however the fiduciary assignment of President of the Harbour Authority [of riguardabile Brindisi] which “job activity” broadly speaking, (...) if the clause of reserve for the accomplishment of the same assignment in favor of the single Italian nationals sostanzi - or less - a discrimination on the nationality prohibited from the art. 45 same.
2) [S] and the acquitted assignment which President of an Italian Harbour Authority by the citizen of other Member States of the European Union can - otherwise - shape himself as re-entering in the plant right of which to art. the 49 and ss. TFUE and if, in this case, the by right internal prohibition to the performance of the same assignment by not the Italian national sostanzi - or less - a discrimination founded on the nationality, that is if such circumstance can be deemed excluded from above-mentioned art. the 51 TFUE.
3) [S] and the acquitted assignment which President of an Italian Harbour Authority by the citizen of other Member States of the uropea Union [and] can - about to subordine - shape which performance of “service”, [to] the senses of directive 2006/123/CE, if the exclusion [of] the application of the same directive to the harbour services less finds or also to the aims that interest here and - where this was not - if the by right internal prohibition to the performance of the same assignment sostanzi - or less - a discrimination founded on the nationality.
4) [The] n via of extreme subordine (...) if the acquitted assignment which President of an Italian Harbour Authority by the citizen of other Member States of where which deemed the European Union, not inquadrabile in suesposte the forecasts, can - however - be regarded in via more general, [to] the senses of art. the 15 of [the Paper], which prerogative re-entering in the right of the communitarian citizen “to work, to settle or lend services in any Member States”, also to prescind from the specific contained dispositions “of field” in the articles. 45 and 49 and ss. TFUE, let alone in relative directive 2006/123/CE to the services in the home market, and if, therefore, the by right internal prohibition to the performance of the same assignment contrasts - or less - with equally the general prohibition of discrimination based on the citizenship contemplated from art. the 21, codicil 2, of foretold [the Paper]”.
On the prejudicial issues
On the first issue
25 With the first issue the judge of the dismissal asks in short if, if article 45, paragraph 4, TFUE are applicable to a situation as that of which to the main procedure, such disposition must be interpreted in the sense that does not allow with a Member States to reserve to own citizens the exercise of the functions of president of a harbour authority.
On the notion of “worker” according to article 45, paragraph 1, TFUE
26 In via preliminary matter it is necessary to find that from the decree of dismissal, and in particular from the literal tenor of the first issue, it emerges that the judge of the dismissal nutre doubts on the nature of the activity exercised from the president of a harbour authority. According to saying judge, such activity according to does not appear configurabile which relationship of job subordinate of article 45 TFUE.
27 To such purpose it is necessary to remember that the notion of “worker” according to article 45 TFUE has independent capacity own of the right of the Union and it does not go interpreted (v restrictively., in particular, sentence Commission/Low Countries, C 542/09, EU: C: 2012:346, point 68).
28 Therefore, it must be qualified as “working” according to article 45 TFUE anyone carries out real and effective activities, to exclusion of activities so reduced to set itself as pure marginal and accessory. The characteristic of the job relationship is given, second the jurisprudence of the Court, from the circumstance that a person supplies for a sure period of time, in favor of another and under the direction of this last one, performances in counterpart of which receive one salary and wage (v. Lawrie-Blum sentences, 66/85, EU: C: 1986:284, point 17, and Petersen, C 544/11, EU: C: 2013:124, point 30).
29 it achieves some that the subordination relationship and the payment of a salary and wage forms the constituent elements of any relationship of employment, provided that the professional activity in question you anticipate a real and effective character.
30 As for the subordination relationship, from the law n. 84/94 turn out that the minister has of directive powers and control let alone, if of the case, of endorsement in he confronts of the president of a harbour authority.
31 In fact, the minister nomination the president of such a authority for a renewable mandate four-year-old a single time (article 8, codicils 1 and 2, of the law n. 84/94) and can revoke it if the relative triennial operations plan to the management of the port is not approved of and if the consuntivo account evidences a deficit, that is in case of bad management financial institution [article 7, codicil 3, letters a) and c), of the law n. 84/94]. From the answer of the Italian government to the written questions places from the Court also emerge that the minister can arrange the “revocation” of the president of a harbour authority “in the cases in which not insignificant irregularities are found, under the managerial profile, such to determine prejudice for the correct management of the agency. Moreover, the cases can involve the revocation of the assignment in which the behavior of the president it is not in compliance with the principles of loyalty and mutual collaboration”.
32 the minister exercises moreover vigilance powers as he approves of the deliberations of the president of relative the harbour authority, in particular, to the approval of the budget of forecast, eventual notes of variation and the consuntivo account, let alone to the determination of organic of the technical-operating secretariat [article 12, codicil 2, letters a) and b), of the law n. 84/94].
33 On the other hand, as observed from the general lawyer to paragraph 32 of its conclusions, the place of president of a harbour authority typically does not possess the characteristics associated to the functions of an independent supplier of services, that is a greater flexibility with regard to the choice of the type of job and the tasks to carry out, to the way in which such job or such tasks must be carried out let alone to the timetable and the place of job, and a greater freedom in the selection of own collaborators.
34 it achieves some that the activities of the president of a harbour authority are exercised under the direction and the control of the minister and, therefore, within a subordination relationship, according to the jurisprudence cited to point 28 of anticipates sentence.
35 As for the emolument of the president of a harbour authority, from the answer of the Italian government to the written questions places from the Court turn out that it is defined by decrees on March 31, 2003 of the minister. According to saying I decree, such emolument is determined based on the previewed fundamental economic treatment for the general leaders of the ministry. It is therefore fixed with reference to that of a high civil employee of Public Administration.
36 Such emolument is poured to the president of a harbour authority as fee for the development of the tasks that are entrusted to it by the law. It anticipates therefore the characteristics of prevedibilità and regularities inborn in a job relationship subordinate.
37 Occorre last to find that, as emerges from the dismissal decree, in the proceedings main the real and effective character of the functions exercised from the president of a harbour authority is not contested (v. Lawrie-Blum sentence, EU: C: 1986:284, point 21, last phrase).
38 he must himself therefore be declared that, in circumstances as those of which to the main procedure, the president of a harbour authority must be considered a worker according to article 45, paragraph 1, TFUE.
39 Such conclusion cannot be inficiata from the affirmation of the judge of the dismissal second which the nomination to president of a harbour authority cannot be shaped as a job relationship that places in the within of the “Civil Service”, but corresponds to the assumption of a “conferred fiduciary assignment” from a governmental and connected authority to the exercise of public functions.
40 In fact, according to constant jurisprudence, the public or by right by right private nature of the legal nexus of the job relationship is insignificant as for the application of article 45 TFUE (v. Sotgiu sentences, 152/73, EU: C: 1974:13, point 5, and Bettray, 344/87, EU: C: 1989:226, point 16).
41 Moreover, the Court has already declared, in the within of the appraisal of the existing relationship between a member of a board of directors of a society of capitals and such same society, than the member of a council of that sort, which supplies, in exchange for a salary and wage, performances to the society that has named it and of which it is part integrating, that it exercises own activity under the direction or the control of another organ of such society and that, anytime, it can be revoked from its functions, satisfies the conditions for being qualified worker according to the jurisprudence of the Court (Danosa sentence, C 232/09, EU: C: 2010:674, point 51).
The Law court of the European Union, pronouncing itself with respect to the cause that opposes the Greek Hercules Haralambides against Calogero Casilli and in confronts of the ministry of Infrastructures and of the Transports and the harbour agency and the local governments of Brindisi, it has sentenziato that a foreign national can approach the charge of president of an Italian Harbour Authority.