Opinion of the Advocate General — ECLI:EU:C:2022:166
Date: 2022-03-08
Language of the case: Latvian
Subject matter: Right of establishment;Freedom to provide services;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Latvia

Translation C–391/20 – 1 
Case C-391/20 
Request for a preliminary ruling  
Date lodged: 
29 July 2020 
Referring court: 
Satversmes tiesa (Constitutional Court, Latvia) 
Date of the decision to refer:  
14 July 2020 
Applicants: 
Boriss Cilevičs and Others 
Institution whose act is contested: 
Saeima (Parliament, Latvia) 
  
LATVIJAS REPUBLIKAS SATVERSMES TIESA (CONSTITUTIONAL 
COURT, LATVIA) 
DECISION 
ON REFERRING QUESTIONS TO THE COURT OF JUSTICE OF THE 
EUROPEAN UNION  
FOR A PRELIMINARY RULING 
IN CASE No 2020-33-01 
Riga, 14 July 2020 
The Constitutional Court […] [composition of the referring court], 
on an application by 20 members of the 13th session of the Saeima (Parliament, 
Latvia) – Boriss Cilevičs, Valērijs Agešins, Vjačeslavs Dombrovskis, Vladimirs 
Nikonovs, Artūrs Rubiks, Ivans Ribakovs, Nikolajs Kabanovs, Igors Pimenovs, 
Vitālijs Orlovs, Edgars Kucins, Ivans Klementjevs, Inga Goldberga, Evija Papule, 
Jānis Krišāns, Jānis Urbanovičs, Ļubova Švecova, Sergejs Dolgopolovs, Andrejs 
Klementjevs, Regīna Ločmele-Luņova and Ivars Zariņš – […] [procedural 
EN 
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considerations] made during the written stage of the proceedings, having heard the 
case ‘On the compatibility of the third sentence of Article 5(1) and Article 56(3) 
of the Augstskolu likums (Law on Higher Education Institutions) and point 49 of 
the transitional provisions of that law with Articles 1 and 105 of the Latvijas 
Republikas Satversme (Constitution of the Republic of Latvia, “the 
Constitution”)’ at a hearing on 14 July 2020, 
states as follows: 
I. Latvian legislation 
1. Article 1 of the Constitution states: 
‘Latvia is an independent democratic republic.’ 
Article 4 of the Constitution provides: 
‘The official language of the Republic of Latvia is Latvian. The flag of Latvia is 
red with a white stripe.’ 
Article 68 of the Constitution provides: 
‘All international agreements governing matters requiring legislation shall require 
the approval of Parliament. 
By concluding international agreements, Latvia may, in order to strengthen 
democracy, delegate part of the powers of State institutions to international 
institutions. International agreements under which part of the powers of State 
institutions are delegated to international institutions may be approved by 
Parliament in a parliamentary session at which at least two thirds of the members 
of Parliament are present; approval shall require a two-thirds majority of the votes 
of the members present. 
Latvia’s membership of the European Union shall be decided by a referendum 
held pursuant to a proposal by Parliament. 
Any significant changes to the terms of Latvia’s membership of the European 
Union shall be put to a referendum when at least half of the members of 
Parliament so request.’ 
Article 105 of the Constitution provides: 
‘Everyone has the right to own property. Property that is subject to ownership 
rights may not be used in a manner contrary to the public interest. The right to 
own property may be restricted only by law. No one shall be compulsorily 
deprived of his or her property except in exceptional circumstances in the public 
interest, in accordance with the provisions of a specific law and subject to 
payment of fair compensation.’ 
BORISS CILEVIČS AND OTHERS 
 
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Article 112 of the Constitution provides that: 
‘Everyone has the right to education. The State shall guarantee free access to basic 
education and to other levels of secondary education. Basic education shall be 
compulsory.’ 
Article 113 of the Constitution provides as follows: 
‘The State shall recognise freedom of scientific, artistic and other forms of 
creation, and shall ensure protection for copyright and patent rights.’ 
2. On 2 November 1995 Parliament enacted the Law on Higher Education 
Institutions, which came into force on 1 December of that year. 
2.1. Article 5 of the Law on Higher Education Institutions initially provided that 
the role of such institutions was to promote and develop the sciences and the arts. 
The likums ‘Grozījumi Augstskolu likumā’ (Law amending the Law on Higher 
Education Institutions) of 21 June 2018 amended the third sentence of Article 5 of 
the law to read as follows: ‘As part of their activities, they shall promote and 
develop the sciences, the arts and the official language.’ 
2.2. The Law of 21 June 2018 amending the Law on Higher Education Institutions 
also amended Article 56 of that law. At the beginning of Article 56(3), the term 
‘state higher education institutions’ was replaced by ‘higher education institutions 
and institutions of higher technical and vocational education’. From 1 January 
2019 (the date on which those amendments came into force), Article 56(3) of the 
Law on Higher Education Institutions therefore reads as follows: 
‘In higher education institutions and institutions of higher technical and vocational 
education, courses of study shall be taught in the official language. Courses of 
study may be pursued in a foreign language only in the following circumstances: 
(1) Courses of study pursued by foreign students in Latvia and courses of study 
organised as part of the cooperation provided for by European Union programmes 
and international agreements may be taught in the official languages of the 
European Union. Where the course of study to be undertaken in Latvia lasts for 
more than 6 months or represents more than 20 credits, the number of compulsory 
class hours to be taken by foreign students must include the learning of the official 
language. 
(2) Classes taught in the official languages of the European Union may not 
account for more than one fifth of the credits for the course of study; final exams, 
State exams, assessed coursework and dissertations for a bachelor’s or master’s 
degree will not be taken into account for the purposes of that calculation. 
(3) Courses of study may be taken in a foreign language where necessary in 
order to achieve their objectives in accordance with the educational classification 
established by the Republic of Latvia for the following categories of courses: 
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linguistic and cultural studies or language courses. The authorising body shall 
determine whether the course of study in question falls within this course 
category. 
(4) Joint courses of study may be taught in the official languages of the 
European Union.’ 
Article 56(3) of the Law on Higher Education Institutions therefore establishes 
that courses of study must be taught in the official language in all higher education 
institutions in Latvia, including private institutions. Courses may be taught in 
foreign languages only in the circumstances laid down in that provision. 
2.3. The Law of 21 June 2018 amending the Law on Higher Education Institutions 
added point 49 to the law’s transitional provisions; it provides as follows: 
‘The amendments to Article 56(3) of this law concerning the language in which 
courses of study are to be taught shall come into force on 1 January 2019. Higher 
education institutions and institutions of higher technical and vocational education 
at which courses of study are taught in a language that does not comply with 
Article 56(3) of this law may continue to teach such courses in the language in 
question until 31 December 2022. From 1 January 2019, students may not be 
admitted onto courses of study taught in a language that does not comply with 
Article 56(3) of this law.’ 
3. There are two private higher education institutions in Latvia – the Rīgas 
Ekonomikas augstskola (Stockholm School of Economics in Riga) and the Rīgas 
Juridiskā augstskola (Riga Graduate School of Law) – whose activities are 
governed by special legislation. Amongst other provisions, the legislation includes 
provisions on the language in which courses are taught at those institutions. 
Article 19(1) of the Likums ‘Par Rīgas Ekonomikas augstskolu’ (Law on the 
Stockholm School of Economics in Riga) provides: 
‘In this institution, courses shall be taught in English. All work to be submitted for 
the award of a bachelor’s degree, a master’s degree or a doctorate shall be written 
and defended in English, and professional examinations shall be conducted in 
English.’ 
Article 21 of the Rīgas Juridiskās augstskolas likums (Law on the Riga Graduate 
School of Law) provides as follows: 
‘This institution offers courses of study that have obtained the relevant 
authorisation and have been granted accreditation in accordance with the 
legislation. Courses shall be taught in English or another official language of the 
European Union.’ 
II. EU legislation 
BORISS CILEVIČS AND OTHERS 
 
5 
4. Article 49 of the Treaty on the Functioning of the European Union recognises 
the right of establishment, and Article 56 recognises the right of freedom to 
provide services. Freedom of establishment is also related to the freedom to 
conduct a business recognised in Article 16 of the Charter of Fundamental Rights 
of the European Union. 
III. Facts of the case and proceedings before the Constitutional Court 
5. Case 2019-12-01 ‘On the compatibility of the third sentence of Article 5(1) and 
Article 56(3) of the Law on Higher Education Institutions and point 49 of the 
transitional provisions of that law with Articles 1, 105 and 112 of the Constitution 
of the Republic of Latvia’ was commenced in the Constitutional Court. 
The action was brought by 20 members of the Latvian Parliament (‘the 
applicants’). This type of action gives rise to a review of the legislation in 
abstracto. The purpose of such actions, which are brought in the Constitutional 
Court by those having [the right] to [apply for] a review of legislation in 
abstracto, which include members of the Latvian Parliament, is to defend the 
public interest. These actions are an essential means to protect important State and 
societal interests. A review of legislation in abstracto provides a means of 
rectifying the legal system. The Constitutional Court is therefore required to 
determine whether the provisions at issue, as they apply to all persons to whom 
the legislature has determined they should apply, are compatible with higher-
ranking rules of law (see judgment of the Constitutional Court of 15 November 
2016 in Case 2015-25-01, paragraph 9). 
6. In their action in the Constitutional Court, the applicants argued that the third 
sentence of Article 5(1) and Article 56(3) of the Law on Higher Education 
Institutions and point 49 of the law’s transitional provisions (‘the contested 
provisions’) were not compatible with Articles 1, 105 and 112 of the Constitution. 
The applicants argued that the contested provisions restrict the independence of 
private higher education institutions and the academic freedom of their teachers 
and students, in so far as they impose on such institutions a requirement to 
promote and develop the official language, and restrict their ability to offer 
courses of study in foreign languages. In their view, this restricts the right to 
education enshrined in Article 112 of the Constitution. 
The applicants also argued that the contested provisions restrict the right of higher 
education institutions to engage in commercial activities and to provide a higher 
education service in return for payment in accordance with the authorisation they 
have been granted, even though that right is protected by the right to own property 
recognised in Article 105 of the Constitution. Private higher education institutions 
may not fully provide courses taught in English or in other languages that are not 
official languages of the European Union which have been granted the appropriate 
accreditation. 
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According to the applicants, the contested provisions also infringe the principle of 
the rule of law enshrined in Article 1 of the Constitution, under which the 
founders of private higher education institutions could legitimately expect to be 
able to benefit from the use of their property. Since the institutions in question 
obtained the relevant authorisation, and their courses of study have been granted 
accreditation, they had an expectation that they would be able to continue to carry 
on the commercial activities in question. No provision was made to ensure a 
smooth transition to the new legislation, nor was there any provision for a 
compensation mechanism. 
The applicants also submitted that, by creating a barrier to entry to the higher 
education market and preventing citizens and undertakings from other EU 
Member States from providing higher education services in foreign languages, the 
contested provisions undermined the rights to freedom of establishment and 
freedom to provide services guaranteed by EU law and recognised in Articles 49 
and 56 of the Treaty on the Functioning of the European Union, and also the 
freedom to conduct a business enshrined in Article 16 of the Charter of 
Fundamental Rights of the European Union. 
7. The institution that enacted the contested measure, namely the Parliament, 
maintains that the contested provisions are compatible with Articles 5, 105 and 
112 of the Constitution. 
7.1. According to the Parliament, the contested provisions do not restrict the rights 
of private higher education institutions, since the right to education protects only 
the rights of students. The State is not required to guarantee higher education in a 
language other than the official language. The principle of the unity of the 
education system requires that the same basic linguistic requirements be applied to 
different types and levels of education and training. Consequently, the rights 
conferred by Article 112 of the Constitution cannot be considered to have been 
restricted. Moreover, even if those rights were considered to have been restricted, 
the restriction would have been imposed by law, would pursue a legitimate 
objective, and would be proportionate to that objective. 
7.2. In its defence, the Parliament argued that the contested provisions do not 
infringe the rights recognised in Article 105 of the Constitution, since those rights 
do not accord legal protection to the right of individuals to make a profit. 
Furthermore, it should be borne in mind that private higher education institutions 
operate in a sector of activity that is subject to specific regulation, is required to 
achieve the objectives set by the legislature and may seek to make a profit only 
within the context of pursuing those objectives. Even if the contested provisions 
were considered to restrict the rights recognised in Article 105 of the Constitution, 
such a restriction would be proportionate, since private higher education 
institutions are still able to provide courses of study in accordance with the 
requirements of the Law on Higher Education Institutions, to offer informal 
courses and to carry on research. Moreover, point 49 of the transitional provisions 
BORISS CILEVIČS AND OTHERS 
 
7 
in the Law on Higher Education Institutions provides for a sufficiently long 
transitional period. 
At the hearing, Mr Sandis Bērtaitis, representing the Parliament, argued that EU 
law does not restrict the power of Member States, in the field of education, to pass 
the legislation required to protect constitutional values. He also maintained that 
Article 56(3) of the Law on Higher Education Institutions makes specific 
provision for courses of study to be provided in the languages of the European 
Union, and therefore it is not disengaging from the EU education arena. 
8. On 11 June 2020, the Constitutional Court gave judgment in Case No. 2019-
12-01 (‘the judgment’). 
8.1. In the judgment, the Constitutional Court concluded that the right to own 
property enshrined in Article 105 of the Constitution should be interpreted in the 
light of the freedom of establishment recognised in Article 49 of the Treaty on the 
Functioning of the European Union. It therefore considered that there was a need 
to clarify the content of freedom of establishment, while also contemplating the 
possibility of requesting a preliminary ruling from the Court of Justice. The 
Constitutional Court also noted that it was not desirable to have a situation in 
which, if a reference were made to the Court of Justice, the question of the 
compatibility of the contested provisions with the Constitution remained at least 
partially unresolved for a lengthy period of time. The Constitutional Court 
therefore decided to divide the case under consideration into two: the case 
concerning the compatibility of the contested provisions with Article 112 of the 
Constitution, and the case concerning the compatibility of the contested provisions 
with Articles 1 and 105 of the Constitution. The court was in a position to give 
judgment in the former case, since, in that context, the contested provisions 
govern an area which is a matter for the Member States of the European Union 
under Article 165 of the Treaty on the Functioning of the European Union. 
However, in the second case, it would have to return to its examination of the 
substantive issue. 
8.2. In view of the close relationship between higher education and freedom of 
scientific, artistic and other forms of creation, in the case concerning the 
compatibility of the contested provisions with Article 112 of the Constitution, 
alongside the question of the compatibility of the provisions with the right to 
education, the Constitutional Court also assessed their compatibility with 
Article 113 of the Constitution, which enshrines freedom of scientific creation. 
In the judgment, the court states that, in establishing the requirement to promote 
and develop the official language laid down in Article 5 of the Law on Higher 
Education Institutions, the legislature implemented the positive obligation on the 
State to create a legislative framework for higher education which ensures that the 
activities of those institutions serve the public interest. It should also be noted that 
the contested provision gives higher education institutions broad discretion as to 
how they fulfil this role. The third sentence of Article 5(1) of the Law on Higher 
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Education Institutions is therefore compatible with Article 112 of the Constitution, 
in conjunction with Article 113. 
The Constitutional Court noted that Article 56(3) of the Law on Higher Education 
Institutions must be construed in conjunction with point 49 of the law’s 
transitional provisions, since the provisions constitute a single legislative 
framework. That legislation restricts the academic freedom of teachers and 
students at higher education institutions and the autonomy of the institutions 
themselves, since it imposes restrictions on the use of foreign languages in the 
provision of courses of study at such institutions. That restriction is imposed by 
law, pursues a legitimate objective, and is suitable for achieving that objective. 
However, the Constitutional Court concluded that the legislature had not 
considered whether that legitimate objective could be achieved by less restrictive 
means. One such means could be an overall evaluation of the quality of all private 
higher education institutions, which could provide the basis for granting 
authorisation to provide courses of study in a foreign language. Likewise, 
legislation that established exceptions to Article 56(3) of the Law on Higher 
Education Institutions for certain branches of science or for a particular level of 
studies would be less restrictive of the academic freedom of teachers and students 
at private higher education institutions and the autonomy of the institutions 
themselves. Consequently, Article 56(3) of the Law on Higher Education 
Institutions and point 49 of its transitional provisions are not compatible with 
Article 112 of the Constitution, taken with Article 113, in so far as the contested 
provisions apply to private higher education institutions. 
IV. Reasons why the Constitutional Court has made a request to the Court of 
Justice of the European Union for a preliminary ruling 
9. Pursuant to Article 8(1) of the Law on Higher Education Institutions, higher 
education institutions may be established in Latvia by the State or by other legal 
or natural persons, including foreign legal or natural persons. Higher education is, 
therefore, a service that may be provided by undertakings established by private 
individuals. 
Article 4 of the Treaty [on European Union] provides that the European Union 
must respect the national identities of the Member States. Moreover, by virtue of 
Article 165 of the Treaty on the Functioning of the European Union, the European 
Union must respect the responsibility of the Member States for the content of 
teaching and the organisation of education systems and their cultural and 
linguistic diversity. It can, therefore, be concluded that the content and 
organisation of higher education are matters for the Member States of the 
European Union. Consequently, the contested provisions, which regulate the 
operation of education institutions in order to foster the promotion and 
development of the official language, fall within an area which lies within the 
competence of the Member States of the European Union. However, the Court of 
Justice has recognised that freedom of establishment also applies in those areas for 
which competence lies with the Member States of the European Union (see, for 
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9 
example, judgment of the Court of Justice of 11 June 2020, KOB, C-206/19, […] 
EU:C:2020:463, paragraph 20). 
Freedom of establishment within the meaning of Article 49 of the Treaty on the 
Functioning of the European Union includes the right to take up and pursue 
activities as self-employed persons and to set up and manage undertakings under 
the conditions laid down for its own nationals by the law of the country of 
establishment. That freedom is, therefore, enjoyed by both natural and legal 
persons. The Court of Justice has held that freedom of establishment must be 
interpreted broadly. That freedom includes the right of individuals and 
undertakings of the Member States of the European Union to participate in the 
economic life of another Member State on a permanent and continuous basis for 
commercial purposes (see judgment of the Court of Justice of 21 June 1974, 
Reyners, 2/74, […] EU:C:1974:68, paragraph 25). The organisation for 
remuneration of higher education courses therefore also falls within the scope of 
freedom of establishment when that activity is carried on by a national of one 
Member State in another Member State on a stable and continuous basis from a 
principal or secondary establishment in the latter Member State. All measures 
which prohibit, impede or render less attractive the exercise of that freedom 
constitute restrictions on that freedom within the meaning of the first paragraph of 
Article 49 of the Treaty on the Functioning of the European Union (see judgment 
of the Court of Justice of 13 November 2003, Neri, C-153/02, […] 
EU:C:2003:614, paragraphs 39 and 41). 
9.1. At the hearing held in Case No 2019-12-01, various individuals who were 
called to give evidence stated before the Constitutional Court that the contested 
provisions could constitute a restriction on the freedom of establishment 
recognised in Article 49 of the Treaty on the Functioning of the European Union, 
since Article 56 of the Law on Higher Education Institutions creates a significant 
barrier for foreign undertakings seeking to enter the Latvian higher education 
market. 
According to the case-law of the Court of Justice, the concept of ‘restriction’ 
within the meaning of Articles 49 and 56 of the Treaty on the Functioning of the 
European Union refers to all measures which prohibit, impede or render less 
attractive the exercise of the freedom of establishment and the freedom to provide 
services. Article 49 of the Treaty on the Functioning of the European Union 
precludes the application of any national rules which have the effect of making the 
provision of services between Member States more difficult than the provision of 
services purely within one Member State (see judgment of the Court of Justice of 
5 July 2007, Commission v Belgium, C-522/04, […] EU:C:2007:405, 
paragraph 37). Directive 2006/123/EC of the European Parliament and of the 
Council of 12 December 2006 on services in the internal market (‘the Services 
Directive’) contains general provisions facilitating the exercise of the freedom of 
establishment for service providers and the free movement of services. 
Article 14(1) of the Services Directive establishes that Member States may not 
make the provision of services subject to discriminatory requirements. 
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Moreover, the concept of restriction also covers non-discriminatory measures 
taken by a Member State that affect access to the market for undertakings from 
other Member States and hinder trade within the European Union (see, for 
example, judgment of the Court of Justice of 28 April 2009, Commission v Italy, 
C-518/06, […] EU:C:2009:270, paragraphs 62 and 64). Indirect discrimination 
means any national measure which, while applying irrespective of nationality, 
makes the exercise of the freedoms guaranteed by the Treaty less attractive (see, 
for example, judgment of the Court of Justice of 3 March 2020, Vodafone 
Magyarország, C-75/18, […] EU:C:2020:139, paragraphs 42 and 43). 
It follows from the case-law of the Court of Justice that national measures liable to 
hinder or make less attractive the exercise of fundamental freedoms guaranteed by 
the Treaty may nevertheless be allowed provided they pursue a legitimate 
objective compatible with the Treaty, are justified by imperative requirements in 
the general interest, are suitable for securing the attainment of the objective which 
they pursue, and do not go beyond what is necessary in order to attain it (see 
judgment of the Court of Justice of 5 July 2007, Commission v Belgium, 
C-522/04, […] EU:C:2020:139, paragraph 47). The Court of Justice has examined 
restrictions on the freedom of establishment in the field of higher education, but to 
date it has done so [only] as regards the conditions governing access to a 
profession in Member States and recognition of higher education diplomas (see, 
for example, judgments of the Court of Justice of 10 July 2008, Commission v 
Portugal, C-307/07, […] EU:C:2008:402, and of 29 January 2009, Consiglio 
Nazionale degli Ingegneri, C-311/06, […] EU:C:2009:37). In the opinion of the 
Constitutional Court, the main proceedings concern access to the market for 
higher education services. The Court of Justice has not yet addressed the question 
of the conduct of a business within the field of higher education. 
To date, the Court of Justice of the European Union has not examined the question 
whether the legislation of a Member State which requires the promotion of a 
national language and the use of that language in the field of higher education, 
including in private higher education institutions, constitutes a restriction on the 
freedom of establishment and, if so, whether it is justified, suitable, and does not 
go beyond what is necessary in order to attain that objective. The case-law of the 
Court of Justice of the European Union in cases where the facts and points of law 
differ from those in the present case could also be relevant to the current situation. 
Thus, for example, the Court of Justice has held that the requirement imposed on 
television broadcasters by a Member State to earmark a certain proportion of their 
operating revenue for works whose original language is one of the official 
languages of that Member State constitutes a restriction on the freedom to provide 
services, freedom of establishment, the free movement of capital and freedom of 
movement for workers. Such a restriction has been held to be compatible with EU 
law (see, for example, judgment of the Court of Justice of 5 March 2009, UTECA, 
C-222/07, […] EU:C:2009:124, paragraph 24). The Court of Justice has also 
concluded that legislation that requires employment contracts to be drafted in the 
official language of a Member State is liable to have a dissuasive effect on 
employees and employers from other Member States who do not speak that 
BORISS CILEVIČS AND OTHERS 
 
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language and therefore constitutes a restriction on the freedom of movement for 
workers. That restriction has been held to be incompatible with Article 45 of the 
Treaty on the Functioning of the European Union (see judgment of the Court of 
Justice of 16 April 2013, Las, C-202/11, […] EU:C:2013:239, paragraph 22). 
It should also be noted that, in her Opinion delivered on 5 March 2020, Advocate 
General of the Court of Justice Juliane Kokott examined certain provisions of 
Hungarian law which provide that a foreign higher education institution wishing 
to establish itself in Hungary may do so only if it provides higher education 
services in the State in which it has its seat and if an international treaty has been 
concluded between Hungary and that country. Although the Hungarian 
Government stated that the legislation was needed to guarantee public policy and 
to ensure the quality of higher education, the Advocate General concluded that it 
was not compatible with Article 49 of the Treaty on the Functioning of the 
European Union in conjunction with Article 54 of that treaty, nor with Article 16 
of the Services Directive, nor with the freedom to conduct a business enshrined in 
the Charter of Fundamental Rights of the European Union (see Opinion of 
Advocate General Kokott in Case C-66/18 Commission v Hungary […] 
EU:C:2020:172, points 130 to 140, 153 to 161 and 175). 
9.2. Article 5 of the Law on Higher Education Institutions requires any centre 
wishing to issue higher education diplomas recognised by the Republic of Latvia 
to develop and promote the official language, that is to say, Latvian. Article 56(3) 
of the law restricts the scope for private higher education institutions to offer and 
teach courses in foreign languages, since this is possible only in the circumstances 
specified in that provision (see judgment of the Constitutional Court of 11 June 
2020 in Case No 2019-12-01, paragraph 29.4). 
Both provisions apply equally to both public and private higher education 
institutions, and to undertakings established in Latvia and those established in 
foreign countries. However, by virtue of Article 21 of the Law on the Riga 
Graduate School of Law and Article 19(1) of the Law on the Stockholm School of 
Economics in Riga, Article 56(3) of the Law on Higher Education Institutions 
does not apply to those two higher education institutions established in Latvia. 
The conclusion of the Constitutional Court is, therefore, as follows: the case-law 
of the Court of Justice cited above makes clear that the requirement to use the 
official language of a Member State or to promote its development in a particular 
field of business activity could be considered a restriction on the freedom of 
establishment. However, given that competence in education matters lies with the 
Member States, it is doubtful whether the requirement for private higher education 
institutions to promote and develop the official language of a Member State and to 
use it in higher education courses also constitutes a restriction on the freedom of 
establishment. 
The fact that the contested provisions apply equally to Latvian undertakings and to 
individuals and undertakings from other Member States of the European Union 
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might indicate that the alleged restriction is not discriminatory. However, in the 
view of the Constitutional Court, it is not clear from the case-law of the Court of 
Justice whether the fact that Article 56(3) of the Law on Higher Education 
Institutions does not apply to two higher education institutions that have their seat 
in Latvia affects the nature of that restriction. In short, it is not possible to reach a 
clear conclusion as to whether or not legislation which applies indistinctly to both 
Latvian and foreign undertakings but which also includes exceptions for two 
undertakings that have their seat in Latvia is discriminatory. 
The principle of proportionality has been the subject of thorough examination in 
the case-law of the Court of Justice (see, for example, judgments of the Court of 
Justice of 22 January 2013, Sky Österreich, C-283/11, […] EU:C:2013:28, 
paragraph 50, and of 8 April 2014, Digital Rights Ireland and Seitlinger and 
Others, C-293/12 and C-594/12, […] EU:C:2014:238, paragraph 46). However, 
assuming that the contested provisions in the present proceedings restrict freedom 
of establishment, it is doubtful whether the interpretation of Article 49 of the 
Treaty on the Functioning of the European Union and Article 16 of the Charter of 
Fundamental Rights of the European Union permits the conclusion that such a 
restriction is justified, suitable, and does not go beyond what is necessary in order 
to attain the legitimate objective of protecting the official language pursued by 
that restriction. In the view of the Constitutional Court, an official language is one 
of the manifestations of national identity. 
10. Article 68 of the Constitution establishes, and the Constitutional Court has 
held, that EU law became an integral part of the Latvian legal order on the 
ratification of the treaty of accession of Latvia to the European Union. 
Consequently, in order to clarify the content of national legislation and to apply 
that legislation, regard must be had to EU law and to the interpretation thereof 
provided by the case-law of the Court of Justice (see judgment of the 
Constitutional Court of 6 March 2019 in Case No 2018-11-01, paragraph 16.2). 
It follows from the obligations assumed by Latvia by virtue of its accession to the 
European Union that Article 105 of the Constitution must be interpreted in the 
light of the freedom of establishment recognised in Article 49 of the Treaty on the 
Functioning of the European Union (see judgment of the Constitutional Court of 
11 June 2020 in Case 2019-12-01, paragraph 23.1). In the present proceedings it 
is, therefore, necessary to clarify the content of Article 49 of the Treaty on the 
Functioning of the European Union. 
Article 267 of the Treaty on the Functioning of the European Union provides that 
the Court of Justice of the European Union has jurisdiction to give preliminary 
rulings concerning the interpretation of the Treaties of the European Union and 
the validity and interpretation of acts of the European Union. The Constitutional 
Court is a court against whose decisions there is no judicial remedy within the 
meaning of the third paragraph of Article 267 of the Treaty on the Functioning of 
the European Union. It must, therefore, comply with its obligation to request a 
preliminary ruling from the Court of Justice, unless the Constitutional Court has 
BORISS CILEVIČS AND OTHERS 
 
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established that the question is irrelevant or that the provision in question has 
already been interpreted by the Court of Justice or that the correct application of 
the law is so obvious as to leave no scope for any reasonable doubt (see, for 
example, judgment of the Court of Justice of 6 October 1982, CILFIT v Ministero 
della Sanità, C-283/81, […] EU:C:1982:335, paragraph 21). It can be seen from 
the case-law of the Court of Justice cited above in the present decision that the 
correct interpretation and application of Article 49 of the Treaty on the 
Functioning of the European Union is not so obvious as to leave no scope for any 
reasonable doubt. Although the Court of Justice has interpreted that treaty 
provision on various occasions, it has not provided an interpretation concerning 
the restriction on the freedom of establishment in the field of higher education. 
The Constitutional Court considers, therefore, that in Case 2020-33-01 there are 
circumstances that justify the decision to refer the matter to the Court of Justice 
for a preliminary ruling. 
In the light of the foregoing considerations and […] pursuant to Article 267 of the 
Treaty on the Functioning of the European Union, the Constitutional Court  
has decided: 
1. To refer the following questions to the Court of Justice of the European 
Union for a preliminary ruling: 
1.1. Does legislation such as that at issue in the main proceedings constitute a 
restriction on the freedom of establishment enshrined in Article 49 of the Treaty 
on the Functioning of the European Union or, in the alternative, on the freedom to 
provide services guaranteed in Article 56 [of that treaty], and on the freedom to 
conduct a business recognised in Article 16 of the Charter of Fundamental Rights 
of the European Union? 
1.2. What considerations should be taken into account when assessing whether the 
legislation in question is justified, suitable and proportionate with regard to its 
legitimate purpose of protecting the official language as a manifestation of 
national identity? 
2. To stay proceedings until the Court of Justice of the European Union 
issues a decision. 
There is no right of appeal against this decision. 
[…] [signatures and formal matters]