Roman Angonese v. Cassa di Risparmio di Bolzano SpA … · Roman Angonese v. Cassa di Risparmio di...
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Roman Angonese v. Cassa di Risparmio di Bolzano SpA (Case C-281/98) Before the Court of Justice of the European Communities (Small Plenary) ECJ (Presiding, RodrÍguez Iglesias P.; Edward, Sevón and Schintgen PP.C.; Kapteyn, Gulmann, Puissochet, Hirsch, Jann, Ragnemalm ( Rapporteur) and Wathelet JJ.) Mr Nial Fennelly, Advocate General. 6 June 2000 Reference for a preliminary ruling by the Pretura Circondariale di Bolzano (District Magistrates' Court, Bolzano). Free movement of persons--requirement of bilingualism--evidence of bilingualism solely by means of a certificate delivered only by the public authorities in one province--whether contrary to Article 39 E.C. and to Regulation 1612/68 on the freedom of movement of workers--whether Article 39 E.C. applied to private persons--measure justified if not based on considerations related to nationality and proportionate to the aim pursued-- discrimination on grounds of nationality contrary to Article 39 E.C. Roman Angonese is an Italian national of German mother tongue from Bolzano, in the Italian province of Alto Adige. He had been studying in Austria for five years when, in August 1997, he applied to take part in a competition for a position with the Cassa di Risparmio di Bolzano SpA, a savings bank based in Bolzano. The 1994 Collective Agreement for Savings Banks provided that banks were entitled to lay down specific conditions for the recruitment of candidates. Accordingly, the Cassa di Risparmio required that candidates should be bilingual and that, to that effect, they should produce an official certificate of bilingualism in Italian and German delivered by the public authorities of the province of Bolzano. Most residents in the province usually acquire the certificate as a matter of course. Mr Angonese, however, was not in possession of the certificate and circumstances made it virtually impossible for him to obtain it on time for the competition. He nevertheless applied, producing a number of degrees in language studies obtained at Vienna University as evidence of his bilingualism
Transcript of Roman Angonese v. Cassa di Risparmio di Bolzano SpA … · Roman Angonese v. Cassa di Risparmio di...
Roman Angonese v. Cassa di Risparmio di Bolzano SpA (Case C-281/98)
Before the Court of Justice of the European
Communities (Small Plenary)
ECJ
(Presiding, RodrÍguez Iglesias P.; Edward, Sevón and Schintgen PP.C.;
Kapteyn, Gulmann, Puissochet, Hirsch, Jann, Ragnemalm ( Rapporteur) and
Wathelet JJ.) Mr Nial Fennelly, Advocate General.
6 June 2000
Reference for a preliminary ruling by the Pretura Circondariale di Bolzano (District Magistrates' Court, Bolzano).
Free movement of persons--requirement of bilingualism--evidence of bilingualism solely by means of a certificate delivered only by the public authorities in one province--whether contrary to Article 39 E.C. and to Regulation 1612/68 on the freedom of movement of workers--whether Article 39 E.C. applied to private persons--measure justified if not based on considerations related to nationality and proportionate to the aim pursued-- discrimination on grounds of nationality contrary to Article 39 E.C. Roman Angonese is an Italian national of German mother tongue from Bolzano, in the Italian province of Alto Adige. He had been studying in Austria for five years when, in August 1997, he applied to take part in a competition for a position with the Cassa di Risparmio di Bolzano SpA, a savings bank based in Bolzano. The 1994 Collective Agreement for Savings Banks provided that banks were entitled to lay down specific conditions for the recruitment of candidates. Accordingly, the Cassa di Risparmio required that candidates should be bilingual and that, to that effect, they should produce an official certificate of bilingualism in Italian and German delivered by the public authorities of the province of Bolzano. Most residents in the province usually acquire the certificate as a matter of course. Mr Angonese, however, was not in possession of the certificate and circumstances made it virtually impossible for him to obtain it on time for the competition. He nevertheless applied, producing a number of degrees in language studies obtained at Vienna University as evidence of his bilingualism
and also putting forward his professional experience as a draughtsman and translator. The bank refused to allow *1121 him to enter the competition on the ground that he did not possess the requisite certificate. Mr Angonese claimed that whilst the bank was entitled to require its staff to be perfectly bilingual, the requirement to produce the certificate as the only acceptable evidence of bilingualism was contrary to Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.). The national court, acknowledging that Mr Angonese was perfectly bilingual, referred to the European Court of Justice a question on the compatibility of such a requirement with Article 39 E.C. and Regulation 1612/68 on the freedom of movement for workers in the Community. Held: Applicable Community law Article 3 of Regulation 1612/68 was only concerned with restrictions on the freedom of movement for workers resulting from provisions laid down by laws, regulations, administrative action or practices, not from other provisions. It was therefore not applicable to the 1994 Collective Agreement in this respect. Article 7 included collective agreements such as the one at issue. However, Article 19 of the Collective Agreement, on which the bank based the terms of its competition, did not, either explicitly or implicitly, authorise the institutions concerned to adopt discriminatory criteria and therefore did not infringe Article 7 of the Regulation. The matter therefore concerned the Bank's own requirement and fell to be considered only under Article 39 E.C. [22]-;[28] Extent of the principle of prohibition of discrimination on the ground of nationality (a) The principle of non-discrimination was not exclusively addressed to the Member States and also had to be observed by organisations not governed by public law which, in the exercise of their legal autonomy, issued rules collectively regulating employment or the provision of services. In view of the fact that working conditions were sometimes governed by acts adopted by private persons, excluding such acts from the scope of Article 39 E.C. would create a risk of inequality in its application. In this regard, the Court had held that individuals could derive rights from provisions addressed to the Member States and that the prohibition of discrimination applied also to agreements regulating labour collectively as well as to individual contracts. Such a consideration applied to Article 39 E.C. to the extent that it constituted an application of the general prohibition of discrimination contained in Article 6 of the E.C. Treaty (now, after amendment, Article 12 E.C.) in the particular area of movement of workers and that, like Article 119 of the E.C. Treaty (Articles 117 to 120 of the E.C. Treaty have been replaced by Articles 136 E.C. to 143 E.C.), it aimed at ensuring a discrimination-free labour market. Article *1122 39 therefore applied to private persons as well as to public authorities. [29]-;[36] Walrave and Another v. Association Union Cycliste Internationale and Others
(36/74): [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320; Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others (C-415/93): [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645; and Defrenne v. Societe Anonyme Belge de Navigation Aerienne (SABENA) (43/75): [1976] E.C.R. 455; [1976] 2 C.M.L.R. 98, followed. (b) The circumstances that the certificate could only be obtained in the province and that it was the only document accepted by the bank as evidence of bilingualism made it difficult or even impossible for nationals of other Member States not resident in the province to obtain the certificate and to take up employment there. Nationals of other Member States were therefore at a disadvantage by comparison with residents of the province. A requirement such as that at issue, making the right to take part in a competition subject to the possession of a certificate which was issued only by the authorities of one province in one Member State, without accepting any other equivalent evidence, could be justified only if it was based on objective factors not related to nationality and if it was proportionate to the aim legitimately pursued. While it was legitimate to require applicants to have minimum linguistic knowledge, the requirement that the knowledge had been acquired in the territory of the Member State was contrary to the principle of non-discrimination. The possession of a diploma such as the certificate at issue could constitute a valid criterion for assessing that knowledge, but the refusal to consider other qualifications acquired in other Member States was disproportionate to the aim pursued. Consequently, the requirement to provide, as evidence of linguistic knowledge, a diploma such as the certificate, at the exclusion of any other evidence, constituted discrimination on the ground of nationality contrary to Article 39 E.C. [37]-;[46] Groener v. Minister for Education and Another (C-379/87): [1989] E.C.R. 3967; [1990] 1 C.M.L.R. 401, considered. Representation G. Lanzinger, of the Bolzano Bar, for Roman Angonese. K. Zeller and T. Dipoli, of the Bolzano Bar, for the Cassa di Risparmio di Bolzano SpA. U. Leanza, Head of the Legal Affairs Department, Ministry of Foreign Affairs, acting as Agent, assisted by D. Del Gaizo, Avvocato dello Stato, for the Italian Government. P. J. Kuijper, Legal Adviser, and A. Aresu, of its Legal Service, acting as Agents, for the E.C. Commission. Cases referred to in the judgment: 1. Cabour SA and Another v. Arnor "Soco" Sarl (C-230/96), 30 April 1998: [1998] E.C.R. I-2055; [1998] 5 C.M.L.R. 679. *1123 2. Walrave and Another v. Association Union Cycliste Internationale and Others (36/74), 12 December 1974: [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320. 3. Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others (C-415/93), 15 December 1995: [1995] E.C.R. I-4921;
[1996] 1 C.M.L.R. 645. 4. Defrenne v. Societe Anonyme Belge de Navigation Aerienne (SABENA) (43/75), 8 April 1976: [1976] E.C.R. 455; [1976] 2 C.M.L.R. 98. 5. Groener v. Minister for Education and Another (C-379/87), 28 November 1989: [1989] E.C.R. 3967; [1990] 1 C.M.L.R. 401. Further cases referred to by the Advocate General: 6. Moser v. Land Baden-Württemberg (180/83), 28 June 1984: [1984] E.C.R. 2539; [1984] 3 C.M.L.R. 720. 7. Knoors v. Secretary of State for Economic Affairs (115/78), 7 February 1979: [1979] E.C.R. 399; [1979] 2 C.M.L.R. 357. 8. Kraus v. Land Baden-Württemberg (C-19/92), 31 March 1993: [1993] E.C.R. I-1663. 9. R. v. Saunders (175/78), 28 March 1979: [1979] E.C.R. 1129; [1979] 2 C.M.L.R. 216. 10. Morson and Another v. Netherlands (35 & 36/82), 27 October 1982: [1982] E.C.R. 3723; [1983] 2 C.M.L.R. 221. 11. Iorio v. Azienda Autonoma delle Ferrovie dello Stato (298/84), 23 January 1986: [1986] E.C.R. 247; [1986] 3 C.M.L.R. 665. 12. Criminal Proceedings against Bekaert (204/87), 20 April 1988: [1988] E.C.R. 2029; [1988] 2 C.M.L.R. 655. 13. Criminal Proceedings against Nino and Others (C 54 & 91/88 & 14/89), 3 October 1990: [1990] E.C.R. I-3537; [1992] 1 C.M.L.R. 83. 14. Dzodzi v. Belgium (C 297/88 & 197/89), 18 October 1990: [1990] E.C.R. I-3763. 15. Steen v. Deutsche Bundespost (C-332/90), 28 January 1992: [1992] E.C.R. I-341; [1992] 2 C.M.L.R. 406. 16. Koua Poirrez v. Caisse d'Allocations Familiales de la Seine-Saint-Denis (C-206/91), 16 December 1992: [1992] E.C.R. I-6685. 17. Broekmeulen v. Huisarts Registratie Commissie (246/80), 6 October 1981: [1981] E.C.R. 2311; [1982] 1 C.M.L.R. 91. 18. Gullung v. Conseil de l'Ordre des Avocats du Barreau de Colmar et de Saverne (292/86), 19 January 1988: [1988] E.C.R. 111; [1988] 2 C.M.L.R. 57. 19. Auer v. Ministere Public (271/82), 22 September 1983: [1983] E.C.R. 2727; [1985] 1 C.M.L.R. 123. *1124 20. Criminal Proceedings against Bouchoucha (C-61/89), 3 October 1990: [1990] E.C.R. I-3551; [1992] 1 C.M.L.R. 1033. 21. Fernández de Bobadilla v. Museo Nacional del Prado and Others (C-234/97), 8 July 1999: [1999] 3 C.M.L.R. 151. 22. R. v. Secretary of State for the Home Department, Ex parte Immigration Appeal Tribunal and Singh (C-370/90), 7 July 1992: [1992] E.C.R. I-4265; [1992] 3 C.M.L.R. 358. 23. Ministere Public v. Gauchard (20/87), 8 December 1987: [1987] E.C.R. 4879; [1989] 2 C.M.L.R. 489. 24. Kremzow v. Austria (C-299/95), 29 May 1997: [1997] E.C.R. I-2629; [1997] 3
C.M.L.R. 1289. 25. Höfner and Another v. Macrotron GmbH (C-41/90), 23 April 1991: [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306. 26. Werner v. Finanzamt Aachen-Innenstadt (C-112/91), 26 January 1993: [1993] E.C.R. I-429. 27. Middleburgh v. Chief Adjudication Officer (C-15/90), 4 October 1991: [1991] E.C.R. I-4655; [1992] 1 C.M.L.R. 353. 28. Sodemare SA and Others v. Regione Lombardia (C-70/95), 17 June 1997: [1997] E.C.R. I-3395; [1997] 3 C.M.L.R. 591. 29. European Parliament v. E.C. Council (C-295/90), 7 July 1992: [1992] E.C.R. I-4193; [1992] 3 C.M.L.R. 281. 30. Finanzamt Köln-Altstadt v. Schumacker (C-279/93), 14 February 1995: [1995] E.C.R. I-225; [1996] 2 C.M.L.R. 450. 31. Wielockx v. Inspecteur der Directe Belastingen (C-80/94), 11 August 1995: [1995] E.C.R. I-2493; [1995] 3 C.M.L.R. 85. 32. Graf v. Filzmoser Maschinenbau (C-190/98), 27 January 2000: [2000] 1 C.M.L.R. 741. 33. Gmurzynska-Bscher v. Oberfinanzdirektion Köln (C-231/89), 8 November 1990: [1990] E.C.R. I-4003. 34. Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2 (C-28/95), 17 July 1997: [1997] E.C.R. I-4161; [1998] 1 C.M.L.R. 157. 35. Giloy v. Hauptzollamt Frankfurt AM Main-Ost (C-130/95), 17 July 1997: [1997] E.C.R. I-4291. 36. Thomasdünger GmbH v. Oberfinanzdirektion Frankfurt AM Main (166/84), 26 September 1985: [1985] E.C.R. 3001. 37. Criminal Proceedings against Tomatis and Another (C-384/89), 24 January 1991: [1991] E.C.R. I-127.
Opinion of Mr Advocate General Fennelly
Introduction 1. The special linguistic regime of the Italian autonomous province of Bolzano forms the background of this case. It relates to a recruitment condition imposed by a private employer that candidates for employment possess a specified certificate of competence in German and Italian issued by the provincial authorities.
*1125 Factual and legal context 2. The Cassa di Risparmio di Bolzano SpA, a private banking undertaking (hereinafter "the defendant") advertised posts on 9 July 1997 in a local Bolzano newspaper, Dolomiten. Applications for the posts were to be submitted by 1 September 1997. The advertisement made possession of a type-B certificate of bilingualism in German and Italian, commonly known as the "patentino", a condition of participation in the competition for the posts. The patentino was
required for what used to be known as careers in an advisory capacity in the public service of the province of Bolzano. It is issued exclusively by the authorities of Bolzano. At the material time, four examination sittings to obtain the patentino were fixed in any given year, with a mandatory delay of 30 days between the written and oral stages, which were held at a single examination centre in the province. The applicable Presidential Decree [FN1] specifies that the written and oral tests of linguistic proficiency be of equal difficulty for the two languages. The examinations are taken almost exclusively by residents of the province. [FN2] FN1 Presidential Decree 752 of 26 July 1976, Title I. FN2 Of 20,799 applications to sit the examinations in 1996, only 1,077 (5.18 per cent) were submitted by candidates residing outside the province. 3. The applicant in the main proceedings, Mr Angonese, (hereinafter "the applicant") is an Italian citizen who, it appears, is regarded by the competent local authority as having been resident in Bolzano since his birth. He is perfectly bilingual but did not possess a patentino at the material time. [FN3] Nonetheless, he applied to participate in the competition and submitted certificates pertaining to his studies in English, Polish and certain other Slavic languages at the Faculty of Philosophy of the University of Vienna from 1993 to 1997 (which had not yet resulted in the grant of a degree), as well as to his experience as a draughtsman and Polish-Italian translator in Cracow. The defendant refused him admission to the competition, whereupon he commenced proceedings against the defendant before the Pretura Circondariale (District Magistrates' Court) di Bolzano (hereinafter "the national court") seeking the annulment of the clause requiring possession of a patentino (hereinafter "the contested clause") and damages for loss of opportunity. FN3 It appears that he acquired it on 20 October 1997. 4. The arguments of the parties have centred on Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.) and Articles 3(1) and 7(1) and (4) of Council Regulation 1612/68 on freedom of movement for workers within the Community. [FN4] These provide:
Article 3 1. Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply: *1126 -- where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or --where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered.
FN4 [1968] O.J. Spec. Ed. (II) 475. This provision shall not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled. ...
Article 7 1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal and should he become unemployed, reinstatement or re-employment. ... 4. Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in respect of workers who are nationals of the other Member States.
The order for reference 5. The national court referred the following question to the Court for a preliminary ruling pursuant to Article 177 of the E.C. Treaty (now Article 234 E.C.): Is it compatible with Article 48(1), (2) and (3) of the E.C. Treaty and Articles 3(1) and 7(1) and (4) of Regulation 1612/68 to make the admission of candidates to a competition organised to fill posts in a company governed by private law conditional on possession of the official certificate attesting to knowledge of local languages issued exclusively by a public authority of a Member State at a single examination centre (namely, Bolzano), on completion of a procedure of considerable duration (to be precise, of not less than 30 days, on account of the minimum lapse of time envisaged between the written test and the oral test)? 6. The national court observed in its order for reference that persons not already resident in Alto Adige (the autonomous region of which Bolzano is a part) were unlikely to be in possession of a patentino, whereas many residents acquired one as a matter of course at the end of the secondary school studies. The time-scale of recruitment by the defendant in the present case made it difficult, if not impossible, for a potential candidate who did not already possess a patentino to acquire one before the closing date for applications. Furthermore, it was, in its view, theoretically possible to prove adequate knowledge of both languages by other means, through the competition procedure itself or by production of qualifications awarded by other bodies or by *1127 production of a patentino in due course after the closing date for applications. The national court suggested, therefore, that the requirement could constitute indirect discrimination on grounds of nationality, through use of a criterion strongly linked to residence. It cited, in particular, the Court's statement in Case C-379/87, Groener v. Minister for
Education and Another [FN5] that "the principle of non-discrimination precludes the imposition of any requirement that the linguistic knowledge in question must have been acquired within the national territory". FN5 [1989] E.C.R. 3967; [1990] 1 C.M.L.R. 401, para. [23]. 7. The national court also noted that the Community rules on the freedom of movement of workers do not apply to cases whose facts are entirely confined to a single Member State. [FN6] It suggested that a connecting factor between the facts of the case and Community law could be found in the applicant's period of study in Austria. Alternatively, should the contested clause be contrary to Community law, through hypothetical breach of the rights of third parties who are nationals of another Member State, it would be null and void by virtue of Article 1418 of the Italian Civil Code. By virtue of Article 1421 of the Italian Civil Code, nullity "may be relied upon by anyone with an interest therein and may be established by the court of its own motion". If the contested clause, or Article 19 of the National Collective Labour Agreement for Savings Fund Employees of 19 December 1994 (hereinafter "the 1994 Collective Agreement") which permitted the defendant to set its recruitment conditions, were void pursuant to Article 7(4) of Regulation 1612/68 in that they discriminated, or permitted discrimination, on grounds of nationality, the applicant could also rely upon their nullity before the national courts even if his situation had no connection with Community law. Article 19 of the 1994 Collective Agreement provides that savings banks shall decide whether the recruitment of personnel should be undertaken by way of internal competitions on the basis of either qualifications or tests or in accordance with selection criteria laid down by the savings bank. Article 21 states that, for recruitment purposes, candidates must produce on demand, inter alia, any document which the undertaking deems to be necessary. FN6 Case 180/83, Moser v. Land Baden-Württemberg: [1984] E.C.R. 2539; [1984] 3 C.M.L.R. 720.
Observations 8. Written and oral observations were submitted by the applicant, the defendant, Italy and the Commission. They concentrate on three issues, namely: (i) the existence of a connecting factor with Community law; (ii) whether the relevant rules are applicable to a private undertaking; and *1128 (iii) whether unlawful discrimination was suffered by the applicant.
Existence of a connecting factor with Community law 9. The defendant and Italy consider that the case has no connection with the application of Community law, as the applicant is an Italian citizen residing in Italy who did not, at the material time, possess any material non-Italian educational qualification and the defendant is a company established in Italy. They argue that, in order to benefit from the line of case law commencing with Case 115/78,
Knoors v. Secretary of State for Economic Affairs, [FN7] account can only be taken of time spent studying abroad in the exercise of Community law rights if it results in a relevant diploma or recognised training--a condition not satisfied in the present case, as the applicant's studies in Vienna had no connection with banking and could not be relied upon by him in the competition. Otherwise, short educational exchanges or even periods of as little as one day spent abroad as a tourist could, quite arbitrarily, enable a person to invoke Community law rights against his own Member State. Furthermore, the applicant never formally changed his residence from Bolzano to Vienna. The provisions of the Italian Civil Code on nullity do not remedy the hypothetical and, thus, inadmissible character of the reference. FN7 [1979] E.C.R. 399; [1979] 2 C.M.L.R. 357. 10. The Commission acknowledges that the facts of the present case can be distinguished from those of earlier cases such as Case C-19/92, Kraus v. Land Baden-Württemberg [FN8] and that the inclusion of the applicant within the scope of Community law would represent a significant new step in the case law. It submits, nonetheless, that a connecting factor with Community law could be said to result from the applicant's exercise of his right to free movement as a student to follow a course of vocational training abroad, and from the fact that he wished to take up employment in Bolzano at the end of his studies. In response to questions from the bench at the oral hearing regarding the relevance for the establishment of a connecting factor with Community law of the subject matter studied, the duration of the period of study and the interval of time between the end of those studies and the invocation of Community law rights, the agent for the Commission submitted that the duration and temporal immediacy of the applicant's studies in the present case were not problematic. Few people get jobs which dovetail perfectly with their studies and too restrictive an approach should not be adopted in this regard. He also observed that the fact that the applicant had been registered as resident in Bolzano throughout his period of study in Austria was immaterial. Council Directive 93/96 on the right of residence for students [FN9] referred (in Italian) to un diritto di *1129 soggiorno (a right of sojourn, that is, a right of temporary stay) as distinct from a right of permanent residence and it was clear that the applicant had benefited from this to stay in Austria while studying there. FN8 [1993] E.C.R. I-1663. FN9 [1993] O.J. L317/59.
Rules applicable to a private undertaking 11. The Commission and the applicant argue that Article 19 of the 1994 Collective Agreement constitutes authority for the contested clause requiring possession of the patentino and is, therefore, to the extent that this clause applies discriminatory criteria, incompatible with Article 7(4) of Regulation
1612/68. When asked at the oral hearing whether the Commission took a view on the possible direct application of Article 39 E.C. Treaty to contractual relations between private employers and employees, the agent for the Commission stated that it was not necessary to address the issue in the present case because its argument regarding the 1994 Collective Agreement was sufficient. The defendant counters that individual employers are not the addressees of the obligations in Regulation 1612/68 regarding recruitment conditions and that the contested clause in the present case had no link with the terms of the 1994 Collective Agreement. Article 7(1) of that Regulation refers exclusively to conditions imposed on workers in other Member States. The application of Article 39 E.C. to private parties is confined to circumstances where they set conditions for an entire economic sector in a collective manner. [FN10] FN10 Case 36/74, Walrave and Another v. Association Union Cycliste Internationale and Others: [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320, paras [16] & [19]; and Case C-415/93, Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645.
Unlawful discrimination suffered by the applicant 12. The applicant submits that the contested clause discriminates against persons not resident in Bolzano, who are less likely to have taken the examinations for the patentino. Furthermore, the patentino has no particular relevance to banking terminology. He complains of the fact that possession of the patentino was a prior condition for participation in the competition, rather than being included among the types of qualification to be compared in assessing candidates' suitability. The Commission argues that proof of bilingualism such as that furnished by the patentino is a justifiable condition of employment in Bolzano but that the practical obstacles to obtaining it are disproportionate and principally affect non-residents of the province. The defendant argues that the contested clause is not discriminatory because it is objectively justified by the liberty of a private firm to adopt *1130 the recruitment policy of its choice, which is appropriate to its operations in a bilingual area, and without having to carry out its own evaluation of bilingualism through oral interviews of all candidates. The patentino is the only linguistic qualification specifically designed to test bilingualism in the two languages at issue, German and Italian. In any event, the applicant has no qualification which is even potentially equivalent, so his arguments are purely hypothetical.
Analysis 13. The observations submitted to the Court correctly identify, in my view, the issues to be addressed in this case. Inevitably, they are not entirely independent of each other. In particular, as will be seen below, the question whether the applicant's situation displays a sufficient connection with Community law is
inevitably linked with the nature of his claim to be the victim of discrimination prohibited by that law.
Existence of a connecting factor with Community law 14. It is settled case law that "[t]he provisions of the Treaty on freedom of movement for workers cannot ... be applied to situations which are wholly internal to a Member State, in other words, where there is no factor connecting them to any of the situations envisaged by Community law". [FN11] The highlighted expressions have acquired the status of terms of art used to express the test of applicability of Community law. FN11 Emphasis added. Case 175/78, R. v. Saunders: [1979] E.C.R. 1129; [1979] 2 C.M.L.R. 216, para. [11]. See also, for example, as regards the freedom of movement for workers or freedom of establishment, Joined Cases 35 & 36/82, Morson and Another v. Netherlands: [1982] E.C.R. 3723; [1983] 2 C.M.L.R. 221, para. [16]; Moser, cited above, para. [15]; Case 298/84, Iorio v. Azienda Autonoma delle Ferrovie dello Stato: [1986] E.C.R. 247; [1986] 3 C.M.L.R. 665, para. [14]; Case 204/87, Criminal Proceedings against Bekaert: [1988] E.C.R. 2029; [1988] 2 C.M.L.R. 655, para. [12]; Joined Cases C 54 & 91/88 & 14/89, Criminal Proceedings against Nino and Others: [1990] E.C.R. I-3537; [1992] 1 C.M.L.R. 83, para. [11]; Joined Cases C 297/88 & 197/89, Dzodzi v. Belgium: [1990] E.C.R. I-3763, para. [23]; Case C-332/90, Steen v. Deutsche Bundespost: [1992] E.C.R. I-341; [1992] 2 C.M.L.R. 406, para. [9]; Case C-206/91, Koua Poirrez v. Caisse d'Allocations Familiales de la Seine-Saint-Denis: [1992] E.C.R. I-6685, paras [10] & [11]; and Kraus, cited above, para. [15]. 15. The rights conferred on workers by Article 39 E.C. and by the measures implementing it are typically and most readily invoked by workers of the nationality of one Member State wishing to move to the territory of another Member State in pursuit of employment there. The Court has also recognised that a person may invoke those provisions, or those in respect of establishment and services, against his own Member State where his circumstances are assimilable to those of a migrant worker or a foreign self-employed person or service-provider by reason of his prior exercise of his Community law right to freedom of movement. 16. I will discuss, first, a number of cases in which the Court has found the condition of a connecting factor with Community law to be *1131 met. In Knoors, [FN12] the Court stated that nationals of all the Member States could rely upon the provisions of a Council Directive on recognition of foreign periods of relevant work experience for the purpose of authorisation to carry on certain trades, [FN13] even to contest rules applied by the State whose nationality they possess. The liberties guaranteed by, inter alia, Article 39 E.C.: which are fundamental in the Community system, could not be fully realised if the Member States were in a position to refuse to grant the benefit of the provisions of Community law to those of their nationals who have taken advantage of the facilities existing in the matter of freedom of movement and establishment and
who have acquired, by virtue of such facilities, the trade qualifications referred to by the Directive in a Member State other than that whose nationality they possess. [FN14] FN12 Cited above, para. [18]. FN13 Council Directive 64/427 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23-40 (Industry and small craft industries) ([1963-64] O.J. Spec. Ed. (I) 148. FN14 Knoors, cited above, para. [20]. Although Knoors concerned the right of establishment, the Court confirmed in Kraus, cited above, para. [16], that the same reasoning must be followed as regards Article 39 E.C. 17. In Case 246/80, Broekmeulen v. Huisarts Registratie Commissie, [FN15] the Court gave the same reason for permitting the invocation, by a doctor of Dutch nationality, of two Council Directives concerning recognition of medical qualifications and authorisation to practise as a doctor. [FN16] He had obtained his medical qualifications in Belgium. The Dutch authority responsible for the registration of general medical practitioners had required him to undergo an additional year's training. A similar result was reached in Case 292/86, Gullung v. Conseil de l'Ordre des Avocats du Barreau de Colmar et de Saverne. [FN17] A person of dual nationality, who had been admitted to the legal profession in one of the Member States whose nationality he held, was permitted to rely on the provisions of Council Directive 77/249 to facilitate the effective exercise by lawyers of freedom to provide services [FN18] in the territory of the other Member State, provided the conditions for the application of that Directive were satisfied. FN15 [1981] E.C.R. 2311; [1982] 1 C.M.L.R. 91, para. [20]. FN16 Council Directive 75/362 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services ([1975] O.J. L167/1) and Council Directive 75/363 concerning the co-ordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors ([1975] O.J. L167/14). FN17 [1988] E.C.R. 111; [1988] 2 C.M.L.R. 57, para. [12]. FN18 [1977] O.J. L78/17. 18. In these cases, there was, independently of the nationality of the person seeking to rely upon the Community legislation at issue, an intrinsic trans- frontier element. The legislation required one Member State, for the purpose of
authorising an economic activity, to recognise educational qualifications acquired by all Community nationals in another Member State, or to recognise periods of employment or *1132 self-employment deemed equivalent to such qualifications, which were directly material to that activity. [FN19] FN19 See also Case 271/82, Auer v. Ministere Public: [1983] E.C.R. 2727; [1985] 1 C.M.L.R. 123, para. [20]. 19. In Case C-61/89, Criminal Proceedings against Bouchoucha, [FN20] the defendant, a French national, was prosecuted for practising osteopathy in France, an activity restricted to qualified doctors. He had acquired a diploma in osteopathy in the United Kingdom which permitted him to pursue that activity in that country. The Court stated that it followed from the fact that he, a French national practising in France, held a professional diploma issued in another Member State that the scope of the case was not purely national and that the applicability of the Treaty provisions on freedom of movement must be considered. [FN21] However, the Court held that, in the absence of provisions for the mutual recognition of qualifications in osteopathy, France was entitled to restrict the activity in question to medically qualified persons. [FN22] Similarly, in Case C-234/97, Fernández de Bobadilla v. Museo Nacional del Prado and Others, [FN23] the Court was willing to examine the claims of discrimination regarding access to an art restoration post in Spain of a Spanish national who relied on a U.K. diploma in the field. FN20 [1990] E.C.R. I-3551; [1992] 1 C.M.L.R. 1033. FN21 Bouchoucha, cited above, para. [11]. FN22 Ibid., paras [14]-;[16]. FN23 [1999] 3 C.M.L.R. 151. 20. In Kraus, the Court addressed the somewhat different circumstances of a German national who merely sought recognition by the German authorities of his right to use a postgraduate academic title conferred on him by a university in the United Kingdom following a course of study there. The Court noted that, although possession of a postgraduate academic title is not usually a prerequisite for access to a profession, it constitutes an advantage for the purpose of gaining entry into and prospering in such a profession. [FN24] It could improve its holder's chances relative to candidates who did not have such a supplementary qualification by attesting to the former's fitness for a particular post and, as the case may be, his command of the language of the country where it was awarded. [FN25] Furthermore, such an additional qualification might be necessary for access to certain academic posts, or could contribute to more rapid promotion, or facilitate establishment as an independent practitioner. [FN26] The Court concluded, therefore, that [FN27]:
the situation of a Community national who holds a postgraduate academic title which, obtained in another Member State, facilitates access to a profession or, at least, the pursuit of an economic activity, is governed by Community law, even as regards the relations between that national and the Member State whose nationality he possesses. FN24 Kraus *1133 , cited above, para. [18]. FN25 Ibid., para. [19]. FN26 Ibid., paras [20]-;[22]. FN27 Ibid., para. [23]. 21. Although it does not relate to the recognition of educational or other qualifications, a brief reference should also be made to the Court's judgment in Case C-370/90, R. v. Secretary of State for the Home Department, Ex parte Immigration Appeal Tribunal and Singh. [FN28] That case related to the Indian husband of a U.K. national. They spent a two year period working in Germany, after which they returned to the United Kingdom to set up a business. As a consequence of his wife's right to freedom of movement to exercise an economic activity the Court held that the husband's right to enter and remain in the United Kingdom with her was governed by Article 52 of the E.C. Treaty (now, after amendment, Article 43 E.C.) and Council Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. [FN29] It stated that a national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence, or those applied to his spouse and children, were not at least equivalent to those applicable to them under the Treaty or secondary law in the territory of another Member State. [FN30] FN28 [1992] E.C.R. I-4265; [1992] 3 C.M.L.R. 358. FN29 [1973] O.J. L172/14. FN30 Singh, cited above, paras [19] & [20] 22. Before returning to the application of these principles to the present case, I will refer to some cases which the Court has found to fall outside the scope of Community law. In cases where a Community national challenges rules applied by his own Member State, the Court has refused to treat as a sufficient connecting factor with Community law a merely hypothetical possibility of that
person exercising free movement rights. Thus, Moser concerned a German national who had always lived and maintained his residence in Germany, [FN31] but who, in order to establish a connection with the Community provisions he invoked, claimed that the German legislation denying him access to the teaching profession in that country because of uncertainty as to his loyalty to the Basic Law (he was said to be a member of the Communist Party) also precluded him from applying for posts in schools in the other Member States. [FN32] The Court did not accept this argument, responding that "[a] purely hypothetical prospect of employment in another Member State does not establish a sufficient connection with Community law to justify the application of Article 48 of the Treaty." [FN33] FN31 See also, for example, Case 20/87, Ministere Public v. Gauchard: [1987] E.C.R. 4879 *1134 ; [1989] 2 C.M.L.R. 489, paras [10] & [13]; and Steen v. Deutsche Bundespost, cited above, para. [10]. FN32 Moser, cited above, paras [16] & [17]. FN33 Ibid., para. [18]. 23. The Court applied the same approach in Case C-299/95, Kremzow v. Austria. [FN34] It declined to address the question whether the deprivation of an Austrian national's liberty by virtue of a prison sentence imposed by the Austrian courts for murder and possession of firearms constituted an unlawful restriction on the prisoner's freedom of movement, stating that: [w]hilst any deprivation of liberty may impede the person concerned from exercising his right of free movement, ... a purely hypothetical prospect of exercising that right does not establish a sufficient connection with Community law to justify the application of Community provisions. [FN35] FN34 [1997] E.C.R. I-2629; [1997] 3 C.M.L.R. 1289. FN35 Ibid., para. [16]. See also, in the field of services, Case C-41/90, Höfner and Another v. Macrotron GmbH: [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306, para. [39]. 24. Even the fact that an economic actor resides in a Member State other than that in which he works may not be sufficient to establish a sufficient connection with Community law. In Case C-112/91, Werner v. Finanzamt Aachen-Innenstadt, [FN36] a German national who resided in the Netherlands and worked as a self-employed dentist in Germany, where he earned virtually all his income, challenged German tax rules which denied to non-residents, who were subject to tax only on their German income, the benefit of rules regarding the splitting of spousal income and the deduction from taxable income of various insurance contributions, expenses and levies. The Court stated that Article 52 of the E.C. Treaty did not preclude this heavier tax burden on non-resident nationals, [FN37] on these grounds:
Mr Werner is a German national who obtained his degrees and professional qualifications in Germany; he has always practised his profession in Germany and is subject to German tax legislation. The only factor which takes his case out of a purely national context is the fact that he lives in a Member State other than that in which he practises his profession. [FN38] FN36 [1993] E.C.R. I-429. FN37 Ibid., para. [17]. FN38 Ibid., para. [16]. 25. Advocate General Darmon expressly stated that he viewed Mr Werner's situation as being quite distinct from that of, for example, a Dutch national who resided in the Netherlands and was self-employed in Germany, from the point of view of the possible application of Article 43 E.C. [FN39] He analysed the case law, summarised above, on the assimilation of a Member State's own nationals to migrant workers or self-employed persons as turning on the prior exercise of the right of free movement in order to exercise an economic activity. [FN40] Furthermore, the fact that he resided permanently in the Netherlands *1135 precluded Mr Werner from relying on the Treaty and legislative provisions regarding the removal of restrictions on free movement in order to receive services. [FN41] No argument could be founded on the Directives relating to the right of residence of non-economically active persons because they were not in force at the material time. [FN42] FN39 Ibid., para. 24. FN40 Ibid., para. 30. See also the Opinion of Advocate General Mischo in Case C-15/90, Middleburgh v. Chief Adjudication Officer: [1991] E.C.R. I-4655; [1992] 1 C.M.L.R. 353, para. 45. FN41 Werner, cited above, paras [36]-;[43]. The non-application of the Treaty rules on services in the case of a permanent change in residence was confirmed by the Court in Case C-70/95, Sodemare SA and Others v. Regione Lombardia: [1997] E.C.R. I-3395; [1997] 3 C.M.L.R. 591. FN42 Ibid., fn. 19 to the Opinion. The relevant Directives were Council Directive 90/364 on the right of residence ([1990] O.J. L180/26); Council Directive 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity ([1990] O.J. L180/28); and Council Directive 90/366 on the right of residence for students ([1990] O.J. L180/30). Directive 90/366 was annulled by the Court in Case C-295/90, European Parliament v. E.C. Council: [1992] E.C.R. I-4193: [1992] 3 C.M.L.R. 281 and was replaced by Council Directive 93/96, cited above.
26. It is, of course, quite clear from the subsequent decision of the Court in Case C-279/93, Finanzamt Köln-Altstadt v. Schumacker [FN43] that Mr Werner's claim failed only because he was of the same nationality (German) as the Member State whose tax provisions he wished to challenge. In Schumacker, the applicant was a national of Belgium, where he resided. He earned his entire income from employment in Germany and was subjected, as a non-resident, to essentially the same German rules as were applied to Mr Werner. His case came within the scope of Community law because of his Belgian nationality and the application of those tax provisions in his case was deemed to be contrary to Article 39 E.C. The contrast highlights the established rule that a Member State may discriminate against its own nationals unless they can bring themselves within the scope of Community law provisions which are designed for their benefit. FN43 [1995] E.C.R. I-225; [1996] 2 C.M.L.R. 450. See also Case C-80/94, Wielockx v. Inspecteur der Directe Belastingen: [1995] E.C.R. I-2493; [1995] 3 C.M.L.R. 85. 27. In the present case, the applicant claims that his period of study in Vienna, through German, of English, Polish and other Slavic languages, which had not, at the material time, led to the grant of a degree, permits him to invoke, in respect of the requirement that candidates hold a specific certificate of bilingualism granted only in Bolzano, the Community law prohibition of indirect discrimination against migrant workers on grounds of nationality. In the light of the established case law summarised above, I do not think that this claim can be accepted. 28. Leaving aside for the moment the fact that the applicant had not completed his studies, it is of primary importance, in my view, that, while those studies can be characterised as a type of vocational training within the meaning of Article 127 of the E.C. Treaty (now, after amendment, Article 150 E.C.), they were, nonetheless, quite remote in content both from the banking post for which the applicant wished to be considered and from the certificate of bilingualism required of candidates for that post. If graduates (or students who have verifiably *1136 completed a substantial part of their course) are to use their studies abroad to establish a connecting factor with Community law for the purpose of challenging rules in their home State regarding access to a particular profession, there must, in my view, be some more than hypothetical connection between those studies and either the profession at issue or, where it is distinct in character, as in this case, the contested rule regarding access thereto. In the present case, the applicant's course of study had no apparent connection with banking, or even with commercial activity in the broadest sense. Although the applicant's Viennese studies were not hypothetical in the sense in which the term was used in Moser and Kremzow, the facts as found by the national court do not suggest any link between the nature of those studies and the employment sought by him in Bolzano or the condition imposed for access to that employment. Therefore, in the absence of a connecting factor with Community law, the applicant is unable to derive any rights from Article 39 E.C. or from the secondary measures enacted to implement it.
29. The criterion of a material link between, on the one hand, a putative connecting factor with Community law and, on the other, the Community rules invoked and the circumstances in which they are to be applied, was inevitably satisfied in Knoors, Broekmeulen and Gullung because, as I pointed out above, those cases directly concerned the applicability of Community legislation on the recognition of the educational qualifications or periods of economic activity in question. Bouchoucha provides more immediate support for my analysis--although the French defendant in that case did not possess the medical qualification required by French law in order to practise osteopathy, he did hold a professional diploma in osteopathy issued in another Member State, which satisfied the Court that the case was not purely national in character. There is nothing to suggest that the Court would have taken the same view had the defendant's diploma been in law, literature or some other, unrelated, discipline. The same may be said of the judgment in Fernández de Bobadilla. The applicant in that case had obtained a degree following a course of study in the United Kingdom which was directly relevant to the post of art restorer she sought. 30. Kraus is a somewhat special case, as it related to the abstract recognition of an academic title. The Court indicated that it was willing to treat the case as one governed by Community law because the postgraduate legal qualification in question "facilitates access to a profession or, at least, the pursuit of an economic activity". It based this conclusion on as concrete an assessment of its relevance to entry into and advancement in the legal profession, either as a practitioner or as an academic, as was possible given the abstract character of the case. If the applicant in that case had held a foreign degree in English and Polish, its economic relevance would have had to be assessed by reference to an entirely different range of potential professional *1137 activities. By the same token, if the applicant in the present case had applied for a post teaching English and Polish, or for a post of any description for which English or Polish were deemed an advantage, for example in dealing with foreign clients, or for a post for which proof of mastery of one or both languages was a precondition for the consideration of candidates' applications, his Viennese studies could, in my view, constitute a connecting factor with Community law. I should add that the statement in Kraus that a foreign diploma could confirm the holder's command of the language of the country where it was awarded [FN44] is not directly material to the present applicant's case, as it refers to the assessment of the holder's fitness to engage in an economic activity related to the substantive subject matter of the diploma. FN44 Kraus, cited above, para. [19]. 31. I think that this approach, whereby the sufficiency of a putative connecting factor is judged in the light of the character of the economic activity or restrictive rule at issue, is underpinned by the judgment in Werner, interpreted in the light of the more extensive analysis of Advocate General Darmon referred to above. That case shows that not all trans-frontier factual elements are material to establishing the existence of a connecting factor with Community law. Thus,
foreign residence alone did not entitle a German national to invoke the Treaty rules on establishment against Germany, in whose territory he had always pursued his economic activity. It is an open question--and, more to the point, an entirely distinct question--whether, after the entry into force of Directive 90/364 and of Article 8a of the E.C. Treaty (now, after amendment, Article 18 E.C.), someone in Mr Werner's position could successfully argue that the German tax rules were a restriction on his exercise of those non-economic rights in the Netherlands, [FN45] but I do not see how those provisions could affect his inability to invoke the distinct Treaty rules on establishment in Germany. Similarly, periods spent abroad as a student of languages, for example, could not be expected to change the approach taken by Community law to the taxation of Mr Werner's income from his dental practice. FN45 On the subject of barriers to exit from a Member State in order to exercise an economic activity, see my Opinion of 16 September 1999 in Case C-190/98, Graf v. Filzmoser Maschinenbau: [2000] 1 C.M.L.R. 741. 32. I do not think that the judgment in Singh is inconsistent with the approach outlined immediately above. It is true that the Court did not seek to identify any link between the nature of the wife's economic activity in Germany and that undertaken upon her return with her husband to the United Kingdom. However, the national immigration rule at issue was not connected with any particular profession or economic activity, but affected freedom of movement as such. In those circumstances, a different, more general approach was justified, permitting any U.K. national who had exercised his right of free *1138 movement in order to engage in an economic activity to invoke that right against rules restricting his establishment with his family in his home State. 33. In the foregoing analysis, I have not attached particular importance to the fact that the applicant had not completed his studies at the time of application for the competition. In the light of my conclusion regarding the subject matter of the applicant's studies, it is not necessary to prejudge the question whether relevant but only partially completed foreign studies, arising from which a student already has documentary evidence of satisfactory performance at the stages reached at the material time, should also be taken into account where these attest to a level of knowledge or ability equivalent to that evidenced by the national qualification specified for a given post. 34. On the other hand, it is necessary to address the alternative argument put forward by the national court--that Articles 1418 and 1421 of the Italian Civil Code permit the applicant to benefit from the nullity erga omnes of the contested clause if it is established that it breaches the rights of other, perhaps entirely hypothetical, third parties, such as a candidate who is a national of another Member State and who holds a qualification which is equivalent to the patentino. In my view, the Court does not have jurisdiction to rule on the rights of such hypothetical third parties, even if such a ruling would be material to the national court's decision in the present case. 35. It follows from the co-operative character of the preliminary ruling procedure
that it is for the national courts alone who are seised of a case and who are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court is, in principle, obliged to give a ruling. A reference by a national court can only be rejected if it appears that a ruling is being elicited by means of a contrived dispute, or if it is obvious that Community law cannot apply, either directly or indirectly, to the circumstances of the case referred to the Court. [FN46] Thus, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning Community provisions in situations where the facts of the cases being considered by the national courts were outside the scope of Community law but *1139 where those provisions had been rendered applicable by domestic law. [FN47] FN46 Dzodzi, cited above, paras [33]-;[35] & [40]; Case C-231/89, Gmurzynska-Bscher v. Oberfinanzdirektion Köln: [1990] E.C.R. I-4003, paras [18]-;[20] & [23]; Case C-28/95, Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2: [1997] E.C.R. I-4161; [1998] 1 C.M.L.R. 157, paras [24]-;[26]; and Case C-130/95, Giloy v. Hauptzollamt Frankfurt AM Main-Ost: [1997] E.C.R. I-4291, paras [20]-;[22]. FN47 Leur-Bloem, cited above, para. [27]; Giloy, cited above, para. [27]. In addition to Dzodzi and Gmurzynska-Bscher, cited above, the Court referred in both cases to Case 166/84, Thomasdünger GmbH v. Oberfinanzdirektion Frankfurt AM Main: [1985] E.C.R. 3001 and Case C-384/89, Criminal Proceedings against Tomatis and Another: [1991] E.C.R. I-127. 36. However, the present case is not, in my view, comparable to cases such as Dzodzi, Leur-Bloem and Giloy. Such cases have involved the express extension of substantive secondary provisions of Community law to purely internal situations which are comparable to the situations originally governed by the Community rules in question. They are often applied simultaneously, sometimes by the same administrative agency, but always to concrete situations which give rise to the questions referred by the national courts in those cases. The Court answers the questions referred as if the rules are being interpreted for application in their Community context, [FN48] but on the basis of facts which are relevant to a dispute of a purely internal character to which those rules are also applicable. FN48 See, in particular, Leur-Bloem, cited above, para. [33]. 37. That is not the present case. The Community rules prohibiting discrimination against workers on grounds of nationality which have been invoked by the applicant lay down a standard of great generality, whose applicability and effects vary according to the circumstances. This is particularly so as regards the
discussion of indirect discrimination. [FN49] I have already concluded that those rules do not apply directly to a person in the applicant's situation. They have not been expressly extended to his situation by Italian law, nor is it easy to envisage this being done, because of the need for a comparative element in any analysis of discrimination. It would amount to a contrived or artificial procedure, quite different from cases like Dzodzi and Giloy, for the Court to seek to determine whether those rules could, nonetheless, be of indirect benefit to the applicant by virtue of the general effect in Italian civil law of a finding of nullity, simply because those rules would protect a person in a quite different situation from the unconditional application of the contested clause. FN49 The Court's ruling in Fernández de Bobadilla, cited above, is a good example of the kind of conditional response, closely linked to a party's individual circumstances, that may be given to a question regarding recognition of educational qualifications.
Rules applicable to a private undertaking 38. On the assumption that, contrary to the views I have expressed, the present case falls within the scope of Community law, the question referred by the national court requires the Court to address the issue of the extent to which private employers are subject to an obligation of non-discrimination on grounds of nationality. I am not convinced by the argument of the Commission that the contested clause must be annulled because it was permitted by Article 19 of the 1994 Collective *1140 Agreement, which, by virtue of Article 7(4) of Regulation 1612/68, must be deemed null and void in so far as it authorises discrimination on grounds of nationality. Article 19 of the 1994 Collective Agreement does not purport to regulate the conditions for recruitment to be operated by employers. It is not, in my view, consistent with the underlying autonomy of economic actors in a market economy, in the context of which Regulation 1612/68 was clearly intended to apply, to strain the interpretation of clauses of collective agreements which leave a particular matter to be determined at the discretion of individual employers, as amounting to authorisation, within the meaning of Article 7(4), by the parties to that collective agreement of the conditions ultimately imposed. In reality, the Commission's approach avoids the fundamental question, to which I will now turn, of whether Article 39 E.C. applies directly to private employment relationships, as does, in particular, Article 119 of the E.C. Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 E.C. to 143 E.C.). The same question may be posed regarding Article 7(1) of Regulation 1612/68. Article 3 of that Regulation may be excluded from discussion, as it clearly relates to provisions and administrative practices of the Member States. I do not think that the fact that the patentino is granted by a public body is sufficient to bring Article 3 into play in a case such as the present. 39. Article 7(1) of Regulation 1612/68 is contained in a Regulation which is, in principle, of direct application and its prohibition of discrimination on grounds of nationality in respect of, inter alia, conditions of employment is not confined in terms to public entities. Furthermore, Title II of Regulation 1612/68 imposes other
obligations on certain private entities, both through Article 7(4) and through the provisions on trade union participation in Article 8. 40. Article 39 E.C. is couched in terms of the abolition of discrimination but does not expressly identify any particular addressee of that obligation. The Court has already held it to be applicable to rules adopted by private bodies aimed at regulating gainful employment in a collective manner, because the abolition of State barriers might otherwise be neutralised by obstacles arising from the exercise of their legal autonomy by associations or organisations not governed by public law. [FN50] The Court stated that if the scope of Article 39 E.C. were confined to the acts of a public authority, there would be a risk of creating inequality in its application. [FN51] It may seem surprising, therefore, that the Court has not to date had occasion to comment on the application of Article 39 E.C. to employment conditions specified by individual undertakings. The most that can be said is that such a step is not excluded by its reasoning in the sporting association cases. At first sight, it can certainly be argued that Article 39(2) E.C. should be *1141 interpreted by analogy with the reasoning in the second Defrenne v. SABENA case [FN52] regarding the direct applicability to private employers of the prohibition of direct pay discrimination on grounds of sex in Article 119 of the E.C. Treaty. FN50 Walrave, cited above, para. [18] and Bosman, cited above, paras [82] & [83]. FN51 Walrave, cited above, para. [19] and Bosman, cited above, para. [84]. FN52 Case 43/75, Defrenne v. Societe Anonyme Belge de Navigation Aerienne (SABENA): [1976] E.C.R. 455; [1976] 2 C.M.L.R. 98, especially paras [30]-; [40]. 41. It is difficult to conceive that advertisements of vacancies, for example, open exclusively to candidates of a given nationality, or, perhaps worse, excluding a given nationality, would escape the prohibition in Article 39 E.C. However, a combination of factors dissuades me from delving further into this question in the present case. First, these possible grounds for the application to private employers of a prohibition of discrimination on grounds of nationality were not raised in the grounds for the order for reference or discussed to any useful extent in the observations submitted to the Court. The Commission, in particular, in response to a question at the oral hearing, was not prepared to go beyond the suggestion, which I have found unpersuasive, that the answer is to be found in the text of the 1994 Collective Agreement. Secondly, the present case concerns an allegation of indirect discrimination on grounds of nationality, prohibition of which may present special problems and difficulties in the case of private economic actors. As I conclude below that the applicant's claim of indirect discrimination would not be well founded even if his situation were assimilable to that of a non-Italian Community worker, I think it more advisable not to make any recommendation to the Court on the present issue.
Unlawful discrimination suffered by the applicant
42. I have already indicated above that, subject to the findings of the national court, I do not see any necessary connection between the applicant's course of study in Vienna and the patentino required by the defendant of candidates for its recruitment competition. It is obvious, in the light of the linguistic regime in the province of Bolzano and of the linguistic make-up of its population, that the defendant was entitled to require its potential employees to give evidence of bilingualism. Given the number of applicants which could be expected for its recruitment competition, it was legitimate for it to require such evidence to be provided at the date of application, by reference to relevant qualifications already acquired, to assist it in short-listing candidates for the competition itself. Thus, the fact that examinations for the patentino were held only four times a year does not appear to me to pose a problem--indeed, the examinations for many professional qualifications are much more infrequent. Furthermore, there is no reason for the work of universities and other accrediting agencies which grant educational and professional qualifications to be duplicated by requiring that employers themselves also assess the *1142 merits of candidates who have not, at the relevant time, acquired any such formal evidence of their abilities. 43. The only potential problem with the defendant's requirement that recruitment candidates hold the patentino is that it might discriminate indirectly against, or restrict the free movement of, migrant workers in possession of equivalent qualifications granted by other bodies. [FN53] Such persons could seek to invoke the Court's case law on the requirement to determine the equivalence of different qualifications. [FN54] However, I have already stated that the applicant does not find himself in that position, and that any discussion of that issue would be entirely hypothetical. I conclude, therefore, that there is nothing in the facts outlined to the Court which establishes the existence of covert discrimination on grounds of nationality which affects the applicant, or which could be remedied by an assessment of the equivalence of his studies to the evidence of bilingualism afforded by the patentino. FN53 The case law on the recognition of equivalent foreign qualifications tends to characterise national rules requiring a particular national qualification as restrictions on free movement rather than as a form of indirect discrimination--see my Opinion in Graf, cited above, para. 26. FN54 See, for example, Fernández de Bobadilla, cited above.
Conclusion 44. In the light of the foregoing, I recommend that the Court respond as follows to the question referred by the Pretura Circondariale di Bolzano: Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.) and Articles 3(1) and 7(1) and (4) of Council Regulation 1612/68 on freedom of movement for workers within the Community do not apply to an allegation that a requirement in a Member State that candidates for a recruitment competition hold a specified certificate of bilingualism constitutes covert discrimination on grounds of
nationality, where this allegation is made by a national of that Member State who has never exercised an economic activity elsewhere in the Community and whose studies in another Member State have no connection either with the nature of the vacant post or with the languages in question. JUDGMENT [1] By order of 8 July 1998, received at the Court on 23 July 1998, the Pretura Circondariale di Bolzano referred to the Court for a preliminary ruling under Article 177 of the E.C. Treaty (now Article 234 E.C.) a question on the interpretation of Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.) and of Articles 3(1) and 7(1) and (4) of Council Regulation 1612/68 on freedom of movement for workers within the Community ("the Regulation"). [FN55] FN55 [1968] O.J. Spec. Ed. (II) 475. *1143 [2] The question has been raised in the proceedings between Mr Angonese and the Cassa di Risparmio di Bolzano SpA ("the Cassa di Risparmio") concerning a requirement imposed by the Cassa di Risparmio for admission to a recruitment competition. Community law [3] Article 3(1) of the Regulation provides: Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply: -- where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or -- where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered. This provision shall not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled. [4] Article 7(1) and (4) of the Regulation provide: A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment. ... Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, employment remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in respect of workers who are
nationals of the other Member States. The main proceedings [5] Mr Angonese, an Italian national whose mother tongue is German and who is resident in the province of Bolzano, went to study in Austria between 1993 and 1997. In August 1997, in response to a notice published in the local Italian daily Dolomiten on 9 July 1997, he applied to take part in a competition for a post with a private banking undertaking in Bolzano, the Cassa di Risparmio. [6] One of the conditions for entry to the competition was possession of a type-B certificate of bilingualism (in Italian and German) ("the Certificate"), which used to be required in the province of Bolzano for access to the former "carriera di concetto" (managerial career) in the public service. [7] According to the file, the Certificate is issued by the public authorities of the province of Bolzano after an examination which is held only in that province. It is usual for residents of the province of Bolzano to obtain the Certificate as a matter of course for employment purposes. Obtaining the Certificate is viewed as an almost compulsory step as part of normal training. *1144 [8] The national court has found as a fact that, although Mr Angonese was not in possession of the certificate, he was perfectly bilingual. With a view to gaining admission to the competition, he had submitted a certificate showing completion of his studies as a draughtsman and certificates attesting to his studies of languages (English, Slovene and Polish) at the Faculty of Philosophy at Vienna University and had stated that his professional experience included practising as a draughtsman and translating from Polish into Italian. [9] On 4 September 1997, the Cassa de Risparmio informed Mr Angonese that he could not be admitted to the competition because he had not produced the Certificate. [10] The Pretore di Bolzano draws attention to the fact that non-residents of Bolzano may have difficulty obtaining the Certificate in good time. He explains that, in the present case, applications to take part in the competition had to be submitted by 1 September 1997, just less than two months after publication of the competition notice. However, there is a minimum period of 30 days between the written tests and the oral tests organised for the purpose of awarding the Certificate and there are a limited number of examination sittings in any given year. [11] The requirement for the Certificate imposed by the Cassa de Risparmio was founded on Article 19 of the National Collective Agreement for Savings Banks of 19 December 1994 ("the Collective Agreement"), which provides: The institution has the right to decide whether the recruitment of staff referred to in paragraphs 1 and 2, subject in any event to Article 21 below, is to be by way of an internal competition on the basis of either qualifications and/or tests or in accordance with selection criteria specified by the institution. The institution must lay down as and when necessary the conditions and rules for internal competitions, must appoint selection panels and must lay down the selection criteria mentioned in the first paragraph ...
[12] Although he has acknowledged the Cassa di Risparmio's right to select its future staff from persons who are perfectly bilingual, Mr Angonese has complained that the requirement to have and produce the Certificate is unlawful and contrary to the principle of freedom of movement for workers laid down in Article 39 E.C. [13] Mr Angonese claims that the requirement should be declared void and that the Cassa di Risparmio should be ordered to compensate him for his loss of opportunity and to reimburse him the costs he has incurred in the proceedings. [14] According to the national court, the requirement to hold the Certificate in order to provide evidence of linguistic knowledge, may, contrary to Community law, penalise job candidates not resident in Bolzano and, in the present case, could have been prejudicial to Mr Angonese who had taken up residence in another Member State for the purpose of studying there. The national court takes the view, *1145 moreover, that, if the requirement in issue were held to be inherently contrary to Community law, it would be void under Italian law. The question submitted for a preliminary ruling [15] In those circumstances, the Pretore di Bolzano decided to stay proceedings and to refer the following question to the Court: Is it compatible with Article 48(1), (2) and (3) of the E.C. Treaty and Articles 3(1) and 7(1) and (4) of Regulation 1612/68 to make the admission of candidates to a competition organised to fill posts in a company governed by private law conditional on possession of the official certificate attesting to knowledge of local languages issued exclusively by a public authority of a Member State at a single examination centre (namely, Bolzano), on completion of a procedure of considerable duration (to be precise, of not less than 30 days, on account of the minimum lapse of time envisaged between the written test and the oral test)? [16] Before examining the question put by the Pretore di Bolzano, it should be noted that observations have been submitted as to its relevance for resolution of the main proceedings and the Court's jurisdiction to answer it. [17] The Italian Government and the Cassa di Risparmio contend that, since Mr Angonese is regarded as having been resident in the province of Bolzano since his birth, the question is artificial and has no connection with Community law. [18] In that respect, it should be noted that the Court has consistently held that it is for the national courts alone, which are seised of a case and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they refer to the Court. A reference for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject matter of the main action. [FN56] FN56 See, in particular, Case C-230/96, Cabour SA and Another v. Arnor "Soco" Sarl: [1998] E.C.R. I-2055; [1998] 5 C.M.L.R. 679, para. [21].
[19] Whether or not the reasoning of the order for a reference mentioned in paragraph [14] above is well founded, it is far from clear that the interpretation of Community law it seeks has no relation to the actual facts of the case or to the subject matter of the main action. [20] In those circumstances, the question submitted must be answered. [21] The national court is asking essentially whether Article 39 E.C. and Articles 3 and 7 of the Regulation preclude an employer from requiring persons applying to take part in a recruitment competition to *1146 provide evidence of their linguistic knowledge solely by means of one particular diploma, such as the certificate, issued in a single province of a Member State. [22] As far as the effect of the Regulation is concerned, Article 3(1) is concerned only with provisions laid down by the laws, regulations or administrative action or administrative practices of Member States. Article 3(1) is not therefore relevant in determining the lawfulness of a requirement not based on such provisions or practices. [23] As regards Article 7 of the Regulation, the Cassa di Risparmio submits that the requirement to possess the Certificate does not arise under a collective agreement or an individual employment contract, and so the question whether it is lawful under that provision is not relevant. [24] Mr Angonese and the Commission contend, however, that Article 19 of the Collective Agreement allows banking undertakings to include discriminatory selection criteria, such as possession of the Certificate, and that it infringes Article 7(4) of the Regulation. [25] It should be noted that Article 19 of the Collective Agreement authorises the institutions concerned to lay down the conditions and rules for competitions, as well as the selection criteria. [26] Nevertheless, such a provision does not authorise the institutions concerned, either expressly or implicitly, to adopt discriminatory criteria in relation to workers who are nationals of other Member States, which would be incompatible with Article 7 of the Regulation. [27] It follows that such a provision does not in itself constitute an infringement of Article 7 of the Regulation and does not have any effect on the lawfulness, under the Regulation, of a requirement such as the one imposed by the Cassa di Risparmio. [28] In those circumstances, the question submitted falls to be examined solely in relation to Article 39 E.C. [29] Under that provision, freedom of movement for workers within the Community entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. [30] It should be noted at the outset that the principle of non-discrimination set out in Article 39 E.C. is drafted in general terms and is not specifically addressed to the Member States. [31] Thus, the Court has held that the prohibition of discrimination based on nationality applies not only to the actions of public authorities but also to rules of
any other nature aimed at regulating in a collective manner gainful employment and the provision of services. [FN57] FN57 See Case 36/74, Walrave and Another v. Association Union Cycliste Internationale and Others: [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320, para. [17]. [32] The Court has held that the abolition, as between Member States, of obstacles to freedom of movement for persons would be *1147 compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law. [FN58] FN58 See Walrave, para. [18] and Case C-415/93, Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645, para. [83]. [33] Since working conditions in the different Member States are governed sometimes by provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons, limiting application of the prohibition of discrimination based on nationality to acts of a public authority risks creating inequality in its application. [FN59] FN59 See Walrave, para. [19] and Bosman, para. [84]. [34] The Court has also ruled that the fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in compliance with the obligations thus laid down. [FN60] The Court accordingly held, in relation to a provision of the Treaty which was mandatory in nature, that the prohibition of discrimination applied equally to all agreements intended to regulate paid labour collectively, as well as to contracts between individuals. [FN61] FN60 See Case 43/75, Defrenne v. Societe Anonyme Belge de Navigation Aerienne (SABENA): [1976] E.C.R. 455; [1976] 2 C.M.L.R. 98, para. [31]. FN61 See Defrenne, para. [39]. [35] Such considerations must, a fortiori, be applicable to Article 39 E.C., which lays down a fundamental freedom and which constitutes a specific application of the general prohibition of discrimination contained in Article 6 of the E.C. Treaty (now, after amendment, Article 12 E.C.). In that respect, like Article 119 of the E.C. Treaty (Article 117 to 120 of the E.C. Treaty have been replaced by Articles 136 E.C. to 143 E.C.), it is designed to ensure that there is no discrimination on the labour market. [36] Consequently, the prohibition of discrimination on grounds of nationality laid down in Article 39 E.C. must be regarded as applying to private persons as well.
[37] The next matter to be considered is whether a requirement imposed by an employer, such as the Cassa di Risparmio, which makes admission to a recruitment competition conditional on possession of one particular diploma, such as the Certificate, constitutes discrimination contrary to Article 39 E.C. [38] According to the order for reference, the Cassa di Risparmio accepts only the Certificate as evidence of the requisite linguistic knowledge and the Certificate can be obtained only in one province of the Member State concerned. [39] Persons not resident in that province therefore have little chance of acquiring the Certificate and it will be difficult, or even impossible, for them to gain access to the employment in question. [40] Since the majority of residents of the province of Bolzano are *1148 Italian nationals, the obligation to obtain the requisite Certificate puts nationals of other Member States at a disadvantage by comparison with residents of the province. [41] That is so notwithstanding that the requirement in question affects Italian nationals resident in other parts of Italy as well as nationals of other Member States. In order for a measure to be treated as being discriminatory on grounds of nationality under the rules relating to the free movement of workers, it is not necessary for the measure to have the effect of putting at an advantage all the workers of one nationality or of putting at a disadvantage only workers who are nationals of other Member States, but not workers of the nationality in question. [42] A requirement, such as the one at issue in the main proceedings, making the right to take part in a recruitment competition conditional upon possession of a language diploma that may be obtained in only one province of a Member State and not allowing any other equivalent evidence could be justified only if it were based on objective factors unrelated to the nationality of the persons concerned and if it were in proportion to the aim legitimately pursued. [43] The Court has ruled that the principle of non-discrimination precludes any requirement that the linguistic knowledge in question must have been acquired within the national territory. [FN62] FN62 See Case C-379/87, Groener v. Minister for Education and Another: [1989] E.C.R. 3967; [1990] 1 C.M.L.R. 401, para. [23]. [44] So, even though requiring an applicant for a post to have a certain level of linguistic knowledge may be legitimate and possession of a diploma such as the Certificate may constitute a criterion for assessing that knowledge, the fact that it is impossible to submit proof of the required linguistic knowledge by any other means, in particular by equivalent qualifications obtained in other Member States, must be considered disproportionate in relation to the aim in view. [45] It follows that, where an employer makes a person's admission to a recruitment competition subject to a requirement to provide evidence of his linguistic knowledge exclusively by means of one particular diploma, such as the Certificate, issued only in one particular province of a Member State, that requirement constitutes discrimination on grounds of nationality contrary to Article 39 E.C. [46] The reply to be given to the question submitted must therefore be that
Article 39 E.C. precludes an employer from requiring persons applying to take part in a recruitment competition to provide evidence of their linguistic knowledge exclusively by means of one particular diploma issued only in one particular province of a Member State. Costs [47] The costs incurred by the Italian Government and by the Commission, which have submitted observations to the Court, are not *1149 recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT in answer to the question referred to it by the Pretura Circondariale di Bolzano by order of 8 July 1998, HEREBY RULES: Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.) precludes an employer from requiring persons applying to take part in a recruitment competition to provide evidence of their linguistic knowledge exclusively by means of one particular diploma issued only in one particular province of a Member State.
(c) Sweet & Maxwell Limited [2000] 2 C.M.L.R. 1120 END OF DOCUMENT
