Summary

The obligation imposed by national law on a private educational institution to review whether its staff meet a requirement for proficiency in the official langue potentially fails to have regard to the freedom of establishment.

Questions

1. Must Article 49 TFEU be interpreted as applying to the situation of a private educational institution established in a Member State and in the capital of which nationals of other Member States have a holding, where that institution delivers, in the Member State in which it is established, an international secondary education programme and the primary and middle years education programmes of the International Baccalaureate?

2. Must Article 49 TFEU be interpreted as precluding, in a situation falling within its scope, legislation of a Member State under which a private educational institution – which delivers, in a language other than the official language of that Member State, an international secondary education programme and the primary and middle years education programmes of the International Baccalaureate – is required to review whether its teachers and the members of its administrative staff in regular communication with the public and with the administrative authorities fulfil the requirement for an intermediate level of proficiency in that official language?

3. Must Article 53(1) of Directive 2005/36 be interpreted as precluding, in a situation falling within its scope, legislation of a Member State under which teachers from a private educational institution which delivers, in a language other than the official language of that Member State, an international secondary education programme and the primary and middle years education programmes of the International Baccalaureate are subject to a requirement of an intermediate level of proficiency in that official language?

Ruling

1. Article 49 TFEU must be interpreted as applying to the situation of a private educational institution established in a Member State and in the capital of which a national of another Member State has a holding allowing him or her to exert a definite influence on its decisions and to determine its activities, where that institution delivers in the Member State in which it is established, for remuneration, an international secondary education programme and the primary and middle years education programmes of the International Baccalaureate.

2. Article 49 TFEU must be interpreted as not precluding, in a situation falling within its scope, legislation of a Member State under which a private educational institution – which delivers, in a language other than the official language of that Member State, an international secondary education programme and the primary and middle years education programmes of the International Baccalaureate – is required to review whether its teachers and the members of its administrative staff in regular communication with the public and with the administrative authorities fulfil the requirement of an intermediate level of proficiency in that official language, provided that such legislation is justified by the objective of protecting and promoting that official language and that it is necessary and proportionate to the attainment of that objective. That condition is not satisfied where that legislation applies, with no possibility for exception or flexibility, to all the persons covered by it and requires them, in order to demonstrate that they possess the requisite level of proficiency in the official language, to provide a certificate issued by a body of the Member State concerned on the basis of language tests organised in the territory of that Member State.

3. Article 53(1) of Directive 2005/36/EC must be interpreted as not precluding, in a situation falling within its scope, legislation of a Member State under which teachers from a private educational institution which delivers, in a language other than the official language of that Member State, an international secondary education programme and the primary and middle years education programmes of the International Baccalaureate are subject to a requirement of an intermediate level of proficiency in that official language, provided that such legislation is justified by the objective of protecting and promoting that official language and that it is necessary and proportionate to the attainment of that objective. That condition is not satisfied where that legislation applies, with no possibility for exception or flexibility, to all the persons covered by it and requires them, in order to demonstrate that they possess the requisite level of proficiency in the official language, to provide a certificate issued by a body of the Member State concerned on the basis of language tests organised in the territory of that Member State.