Access to Employment

February 5th, 2015 by James Goudie KC

What proof of linguistic knowledge should be required in order to be able to access employment in the public service?  That was the issue before the CJEU in Case C-317/14, European Commission v Kingdom of Belgium, in which Judgment was given on 5 February 2015.

All the provisions of the TFEU relating to freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in another Member State.  Those provisions thus preclude any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by EU nationals of the fundamental freedoms guaranteed by the Treaty. However, Member States are entitled to lay down the conditions relating to the linguistic knowledge required by reason of the nature of the post to be filled.  Nonetheless, the right to require a certain level of knowledge of a language in view of the nature of the post must not encroach upon the free movement of workers. The requirements under measures intended to implement that right must not in any circumstances be disproportionate to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States.

In the present case, the CJEU acknowledged that it may be legitimate to require a person applying to take part in a competition held in order to fill a post in a local service to have knowledge of the language of the region in which the municipality is located of a standard commensurate with the nature of the post in question. It may be considered that a post in such a service requires an ability to communicate with the local administrative authorities and, as the case may be, with the public.

In such a case, the possession of a diploma certifying that the candidate has passed a language examination may constitute a criterion for assessing the required linguistic knowledge.  However, said the CJEU, to require that a person applying to take part in a recruitment competition provide evidence of his linguistic knowledge exclusively by means of one particular type of certificate, issued only by one particular Belgian body tasked with conducting language examinations in Belgium for that purpose, appears, in view of the requirements of the freedom of movement for workers, disproportionate to the aim pursued. That requirement effectively forces interested persons residing in other Member States, for the most part nationals of those Member States, to travel to Belgium for the sole purpose of having their knowledge tested in an examination which is mandatory for the issuance of the certificate required for their application. The additional expenses which that requirement entails are liable to make it more difficult to gain access to the posts in question. The Kingdom of Belgium had not invoked any objective which might be capable of justifying those effects.


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