Opinion of the Advocate General — ECLI:EU:C:1999:583
Date: 1999-11-25
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Limits — Manifestly irrelevant 
question 
(EC Treaty, Art. 177 (now Art. 234 EC) 
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SUMMARY — CASE C-281/98 
2. Freedom of movement for persons — Workers — Treaty provisions — Prohibition of 
discrimination on grounds of nationality — Scope — Conditions of employment fixed 
by private persons — Inclusion 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC) 
3. Freedom of movement for persons — Workers — Access to employment — Require­
ment for linguistic knowledge — Employer requiring those applying to take part in a 
recruitment competition to obtain a certificate of bilingualism issued by a local 
authority — Nor permissible 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC) 
1. Under the preliminary ruling procedure 
provided for by Article 177 of the 
Treaty (now, after amendment, Arti­
cle 234 EC), 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 judgment and the rele­
vance of the questions which they refer 
to the Court. A request for a prelimin­
ary 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. 
(see para. 18) 
2. The prohibition of discrimination on 
grounds of nationality laid down in 
Article 48 of the Treaty (now, after 
amendment Article 39 EC), which is 
drafted in general terms and is not 
specifically addressed to the Member 
States, also applies to conditions of 
employment fixed by private persons. 
(see paras. 30, 36) 
3. Article 48 of the EC Treaty (now, after 
amendment, Article 39 EC) 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. 
That requirement puts nationals of the 
other Member States at a disadvantage, 
since persons not resident in that 
province have little chance of acquiring 
the diploma, a certificate of bilingual­
ism, and it will be difficult, or even 
impossible, for them to gain access to 
the employment in question. The 
requirement is not justified by any 
objective factors unrelated to the 
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ANGONESE 
nationality of the persons concerned 
and in proportion to the aim legiti­
mately pursued. In that regard, even 
though requiring an applicant for a 
post to have a certain level of linguistic 
knowledge may be legitimate and pos­
session 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 consid­
ered disproportionate in relation to the 
aim in view. Therefore, the requirement 
constitutes discrimination on grounds 
of nationality contrary to Article 48 of 
the Treaty. 
(see paras. 39-40, 44-46 and 
operative part) 
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