Case C-627/26, Rasone – is an air traffic controller a public servant?
Article 45(4) TFEU lets Member States keep posts in the public service for their own nationals. Latvia says the person who controls its airspace, on its border with Russia and Belarus, holds such a post even when employed by a company.
Facts
B, a national of another Member State holding an air traffic controller licence issued in the Union, is the appellant on a point of law before the Senāts of the Augstākā tiesa against A. The employer is a state-owned capital company that provides air navigation services and manages, in the referring court’s words, “critical infrastructure” of “national security importance”. Under the applicable rules, the post of air traffic controller requires special clearance to access official secrets classified “confidential” or higher, and the prohibition on a national of another Member State occupying the post is justified by airspace security concerns “in a complex geopolitical context in which real threats exist”. The Senāts asks whether the post falls within the public service exception in Article 45(4) TFEU, whether Article 45(3)’s public security derogation permits the clearance requirement, and whether Articles 15 and 21(2) of the Charter and Articles 18 and 45 TFEU preclude the exclusion. (Rasone is a fictitious name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
1. Does the position of air traffic controller in a stated-owned capital company fall within the scope of Article 45(4) of the Treaty on the Functioning of the European Union?
2. In the circumstances pertaining in the main proceedings, does Article 45(3)(a) of the Treaty on the Functioning of the European Union permit provisions which, relying on the exception relating to national security, establish that the position of air traffic controller in a state-owned capital company requires special clearance to access official secrets, issued in order to work with classified information with a classification level of confidential or higher?
3. Do Article 15 and Article 21(2) of the Charter of Fundamental Rights of the European Union and Articles 18 and 45 of the Treaty on the Functioning of the European Union preclude the prohibition of a national of another Member State of the European Union, who has obtained an air traffic controller licence in a Member State of the European Union, from occupying an air traffic controller position, if that prohibition is justified on the basis of airspace security concerns, where the employer is a commercial company of national security importance which manages critical infrastructure, in a complex geopolitical context in which real threats exist, and where those occupying the position of air traffic controller have to be given access to official secrets?
Sources
OJ notice C/2026/4485 (EUR‑Lex) · Case file on CURIA · Article 45 TFEU
Comment
The public service exception has been read narrowly since Case 149/79, Commission v Belgium (ECLI:EU:C:1980:297), which confined it to posts that “involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State”. The test is functional, not institutional: it asks what the post does, not who employs the holder. That cuts both ways here. It means the corporate form of the employer is not decisive — a company can host a public-service post — but it also means the exception reaches only the holder who actually exercises public authority. An air traffic controller issues binding instructions to aircraft in sovereign airspace; that looks like public authority. But the controller does so as a technical professional applying standardised rules, and holds — as the third question records — a licence obtained under the Union’s common licensing system, which is hard to reconcile with treating the profession as one reserved to each State’s own nationals.
The second and third questions shift ground from Article 45(4) to public security, and here the referring court’s framing is notable for its candour. Latvia does not say that every foreigner is a risk; it says that the post requires clearance to classified information and that, in the present geopolitical situation, that clearance is reserved to nationals. Those are two different measures. A clearance regime that vetted every applicant individually would be straightforward to defend on public security grounds. A rule that excludes all nationals of other Member States, whatever their individual vetting would show, treats nationality as the measure of trustworthiness — and Article 21(2) of the Charter, which the referring court invokes, prohibits discrimination on grounds of nationality within the scope of the Treaties in terms. The proportionality question is whether individual vetting would achieve the same security aim without the exclusion.
What makes the reference worth watching is the context it puts on the record: a supreme court of a Member State on the Union’s external border, describing “a complex geopolitical context in which real threats exist”. The Court will be asked to say whether such threats change the proportionality analysis for a Union citizen licensed by the Union’s own system. The answer will matter for every security-sensitive profession a frontline Member State might wish to reserve to its own nationals.