62014CC0298_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. This reference for a preliminary ruling arises out of proceedings pending before the Conseil d’État (Council of State, Belgium; ‘the referring court’) in which a Belgian national, Mr Brouillard, challenges the decision of the selection board for a competitive examination to recruit legal secretaries at the Cour de cassation (Court of Cassation, Belgium) to refuse him access to that examination. The ground for that decision was that Mr Brouillard does not possess the academic qualifications required to apply for that post, that is to say a doctorate, licentiate or master’s degree in law awarded by a Belgian university or a degree obtained abroad and recognised as equivalent by the competent authority in Belgium.
2. Mr Brouillard submits in essence that his diplomas, including a lawyer-linguist specialist degree awarded by a French university, combined with his professional experience in the documentation and text alignment service of the Cour de cassation, (2) provided him with the necessary professional qualifications. He argues that the selection board, by limiting itself to examining his academic qualifications, disregarded both his right to move freely as a worker and the European Union (‘EU’) system of recognition of professional qualifications.
3. The referring court seeks guidance from the Court on whether Articles 45 and 49 TFEU and Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, (3) if applicable in the main proceedings, precluded the selection board from refusing Mr Brouillard access to the competitive examination on the ground that he did not possess the required academic qualifications, without verifying whether his diplomas, combined with his professional experience, provided him with equivalent professional qualifications.
European Union Law
TFEU
4. Whilst Article 45 TFEU guarantees freedom of movement for workers within the European Union, Article 45(4) TFEU states that that article does not apply to employment in the public service.
5. The first paragraph of Article 49 TFEU prohibits restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State.
Directive 2005/36
6. Directive 2005/36 aims to facilitate free movement of persons (thus including workers) and services within the European Union. (4) It guarantees persons who have acquired their professional qualifications in one Member State the right to access and pursue the same profession in another Member State, without prejudice to compliance with non-discriminatory, objectively justified and proportionate conditions for pursuing that profession laid down by the latter Member State. (5)
7. Directive 2005/36 is without prejudice to the application of Article 45(4) TFEU. (6)
8. Pursuant to Article 1 (‘Purpose’), if a Member State makes access to, or pursuit of, a regulated profession in its territory contingent upon possessing specific professional qualifications, it is required to recognise professional qualifications obtained in one or more other Member States, which allow the holder of those qualifications to pursue the same profession there, for access to and pursuit of that profession. (7)
9. Article 3(1) contains the following definitions:
‘(a) “regulated profession”: a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific professional qualifications; in particular, the use of a professional title limited by legislative, regulatory or administrative provisions to holders of a given professional qualification shall constitute a mode of pursuit. …
(b) “professional qualifications”: qualifications attested by evidence of formal qualifications, an attestation of competence referred to in Article 11, point (a)(i) and/or professional experience;
(c) “evidence of formal qualifications”: diplomas, certificates and other evidence issued by an authority in a Member State designated pursuant to legislative, regulatory or administrative provisions of that Member State and certifying successful completion of professional training obtained mainly in the [European Union]. …
…
(e) “regulated education and training”: any training which is specifically geared to the pursuit of a given profession and which comprises a course or courses complemented, where appropriate, by professional training, or probationary or professional practice. …
…’
10. Article 4 concerns the effects of recognition and provides:
‘1. The recognition of professional qualifications by the host Member State allows the beneficiary to gain access in that Member State to the same profession as that for which he is qualified in the home Member State and to pursue it in the host Member State under the same conditions as its nationals.
2. For the purposes of this Directive, the profession which the applicant wishes to pursue in the host Member State is the same as that for which he is qualified in his home Member State if the activities covered are comparable.’
11. Under Article 13(1) (‘Conditions for recognition’), which concerns the general system for the recognition of evidence of training, ‘[i]f access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State shall permit access to and pursuit of that profession, under the same conditions as apply to its nationals, to applicants possessing the attestation of competence or evidence of formal qualifications required by another Member State in order to gain access to and pursue that profession on its territory. …’.
12. Pursuant to Article 14(1), Article 13 does not preclude the host Member State from requiring an applicant for recognition to complete an adaptation period of up to three years or to take an aptitude test, in particular if (i) the training the applicant has received covers substantially different matters from those covered by the evidence of formal qualifications required in the host Member State, or (ii) the regulated profession in the host Member State comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant’s home Member State, and the training required in the host Member State covers substantially different matters from those covered by the applicant’s attestation of competence or evidence of formal qualifications. Pursuant to the first subparagraph of Article 14(3), the host Member State may stipulate either an adaptation period or an aptitude test for professions whose pursuit requires precise knowledge of national law and which essentially and constantly consist in providing advice and/or assistance on national law.
Belgian law
13. In accordance with Article 135 bis
of the Code judiciaire (Judicial Code), the Cour de cassation is assisted by ‘référendaires’ (legal secretaries) who prepare the work of judges and members of the office of the Procureur général (Principal Crown Counsel), (8) participate in documentation activities and in the translation and publication of judgments and the alignment of French and Dutch texts. Article 259 duodecies
of the Code judiciaire states that legal secretaries must be aged 25 or over and hold a doctorate or licentiate degree in law, which are equivalent to a master’s degree in law in Belgium. (9) Candidates are selected on the basis of competitive examinations, the results of which are valid for a period of six years. According to Article 259 terdecies, the King appoints legal secretaries for a probationary period of three years, at the end of which their appointment becomes final unless the King decides otherwise on a proposal from the First President or the Principal Crown Counsel.
14. At the material time in the main proceedings, Articles 43 and 44 of the Decree of the French Community of 31 March 2004 defining higher education, promoting its integration into the European area of higher education and refinancing universities, entitled the Government of the French Community to adopt general or individual measures recognising equivalence between studies completed abroad and academic qualifications awarded in that Community, including the master’s degree in law.
Facts, procedure and questions referred
15. Mr Brouillard has been employed in the documentation and text alignment service of the Cour de cassation for several years. He holds a licentiate degree in translation, a two-year degree in law (candidature en droit) awarded by a Belgian university, (10) a one-year degree in specialised studies in human rights awarded by that same university in 2006, and, in respect of the 2009-2010 academic year, a vocational master’s degree in law, economics and management, private law, lawyer-linguist specialism (‘the vocational master’s degree’), awarded by the University of Poitiers (France) on 22 November 2010.
16. On 24 May 2011, Mr Brouillard registered to take part in a public competitive examination to recruit legal secretaries at the Cour de cassation.
17. On 23 June 2011, he sought recognition from the French Community that his vocational master’s degree was fully equivalent to a master’s degree in Belgian law.
18. On 6 September 2011, the President of the Cour de cassation notified Mr Brouillard of the decision of the selection board to declare his application for registration for the competitive examination inadmissible. In that decision, the selection board noted that a doctorate or licentiate degree in law or a master’s degree in law awarded by a Belgian university is required in order to be appointed a legal secretary at the Cour de cassation, so as to ensure that the candidate has the requisite abilities to practise that profession in Belgium. Mr Brouillard did not fulfil that condition since his vocational master’s degree had not been recognised by the French Community as equivalent to a master’s degree in law awarded in Belgium and he had not taken an equivalence course at a Belgian university.
19. On 27 October 2011, the French Community rejected Mr Brouillard’s request for equivalence and only awarded him equivalence at the generic academic level of a master’s degree. Such equivalence concerns the level of academic qualifications rather than the specific content of a given degree. That decision was based on an opinion from the law and criminology section of the French Community’s equivalence committee, reasoned as follows:
‘– Holding a degree attesting to the completion of legal studies demonstrates that the holder has ability and technical expertise relating to the particular features of the legal system in which the degree was awarded; therefore, such studies completed abroad do not meet the requirements of the law faculties in Belgium’s French Community, which train their students in the duties of jurists in the Belgian legal system;
– some educational components which are necessary in order to complete, in Belgium’s French Community, postgraduate studies in law (including the law of obligations, contract law, administrative law and employment law) are not taught as part of the [vocational master’s degree] in respect of which equivalence is sought.’
20. Mr Brouillard challenged the selection board’s decision and the Royal Decrees of 20 September 2012 appointing three new legal secretaries at the Cour de cassation before the referring court, which stayed the proceedings and requested a preliminary ruling on the following questions:
‘(1) Are Articles 45 and 49 TFEU and Directive 2005/36 … to be interpreted as applying in a situation where a Belgian national, who resides in Belgium and who has not pursued a professional activity in another Member State, relies on a [vocational master’s degree, obtained in France] in support of his application to participate in a competitive examination to recruit legal secretaries at the Belgian Cour de cassation?
(2) Is the function of legal secretary at the Belgian Cour de cassation, in respect of which Article 259 duodecies
of the Code judiciaire makes appointment conditional on holding a doctorate or licentiate degree in law, a regulated profession within the meaning of Article 3 of Directive 2005/36 …?
(3) Is the function of legal secretary at the Cour de cassation … employment in the public service within the meaning of Article 45(4) TFEU, and is the application of Articles 45 and 49 TFEU and Directive 2005/36 … therefore precluded by Article 45(4) TFEU?
(4) If Articles 45 and 49 TFEU and Directive 2005/36 … apply in the present case, must they be interpreted as precluding the selection board charged with the recruitment of lega l secretaries at the Cour de cassation from making participation in the competitive examination conditional on the holding of a doctorate or licentiate degree in law awarded by a Belgian university, or on recognition by the French Community, which has competence in the field of education, that the [vocational master’s degree] is equivalent to the qualification of doctorate, licentiate degree or master’s degree in law awarded by a Belgian university?
(5) If Articles 45 and 49 TFEU and Directive 2005/36 … apply in the present case, must they be interpreted as requiring the selection board charged with the recruitment of legal secretaries at the Cour de cassation to compare the applicant’s qualifications resulting from his degrees as well as from his professional experience with those resulting from a doctorate or licentiate degree in law awarded by a Belgian university and, if necessary, to impose a compensation measure on him under Article 14 of Directive 2005/36?’
21. Mr Brouillard also challenged the decision of the French Community of 27 October 2011 before the referring court. That request for annulment, which does not form part of the main proceedings, was rejected on 15 May 2014.
22. Written observations have been submitted by Mr Brouillard, the Belgian and Italian Governments and the European Commission. Mr Brouillard, the Belgian Government and the Commission presented oral argument at the hearing on 25 March 2015.
Analysis
Preliminary observations
23. By its first three questions, the referring court essentially asks whether freedom of movement principles and Directive 2005/36 apply in the main proceedings. I shall examine first whether the facts in the main proceedings constitute a purely internal situation, to which Article 45 TFEU cannot apply (Question 1). I shall then consider whether Article 45(4) TFEU rules out the application of the remainder of that article and of Directive 2005/36 in the main proceedings (Question 3). I shall go on to examine whether the function of legal secretary at the Cour de cassation is a ‘regulated profession’ within the meaning of Directive 2005/36 (Question 2). The answer to that question determines whether that directive applies in the main proceedings.
24. Questions 4 and 5 should be examined together. They concern, in essence, whether free movement principles and Directive 2005/36, if applicable in the main proceedings, precluded the selection board from rejecting Mr Brouillard’s application to participate in the competitive examination on the ground that he did not possess the required academic qualifications without
comparing the latter with Mr Brouillard’s knowledge and skills resulting from his diplomas and professional experience and, if appropriate, imposing on him a compensation measure under Article 14 of Directive 2005/36.
25. There are three preliminary points to be made before addressing any of those questions.
26. First, I agree with the Belgian and Italian Governments that the main proceedings concern access to employment in the public service in Belgium rather than access to a self-employed activity in that Member State. Article 49 TFEU is therefore not relevant; and I shall limit my analysis to Article 45 TFEU and Directive 2005/36.
27. Next, the referring court appears to have assumed that Articles 4 and 13(1) of Directive 2005/36 have vertical direct effect and that Mr Brouillard is thus entitled to rely directly on those provisions in the main proceedings. That assumption is correct. Those provisions require in unconditional and sufficiently precise terms the competent authorities of a Member State to enable a person to pursue there, under the same conditions as apply to its nationals, a profession which is subject to the possession of specific professional qualifications if that person is qualified to pursue the same profession in another Member State. (11)
28. Lastly, Directive 2005/36 does not harmonise the conditions for exercising regulated professions in the Member States. Rather, that directive sets up a recognition mechanism for professional qualifications. It allows beneficiaries to gain access in the host Member State to the same regulated profession as that for which they are qualified in the home Member State and to pursue it in the host Member State under the same conditions as that State’s nationals. (12) Assuming that all other conditions for applying Directive 2005/36 are satisfied (inter alia, that the function of legal secretary with the Cour de cassation is a ‘regulated profession’), Mr Brouillard could therefore rely on that directive only if he possessed the professional qualifications required for exercising activities in France comparable to those of a legal secretary at the Cour de cassation. (13) However, I take the view that the function of legal secretary at the Belgian Cour de cassation is not a regulated profession, so that Directive 2005/36 does not apply in the main proceedings. (14) If the Court takes the same view, the referring court will not have to address that issue.
Do the facts in the main proceedings constitute a ‘purely internal situation’ not covered by Article 45 TFEU? (Question 1)
29. The Belgian Government submits that Article 45 TFEU does not apply in the main proceedings, which do not have a sufficient link with EU law. Although Mr Brouillard bases his claim for participating in the competitive examination on a degree obtained in another Member State, he followed that university programme by correspondence.
30. I am not convinced by the Belgian Government’s argument.
31. It is settled case-law that the treaty provisions on freedom of movement cannot be applied to activities which are confined in all respects within a single Member State. (15) However, those provisions do confer benefits on the nationals of a given Member State when, owing to the fact that they have lawfully resided on the territory of another Member State and have acquired a professional qualification there, they are, with regard to their State of origin, in a situation which may be assimilated to that of any other persons enjoying the rights and liberties guaranteed by EU primary law. (16) More generally, freedom of movement for workers would not be fully achieved if Member States could refuse to grant the benefit of that freedom to their own nationals who had taken advantage of EU law to acquire vocational qualifications in other Member States. That is true, in particular, when those nationals have acquired there a university qualification which supplements their basic education and training and which they intend to use after they return to their country of origin. (17)
32. Mr Brouillard relies on a degree which he obtained from an academic institution in France. He thus exercised his right to receive educational services provided by a university established in another Member State. Against that background, whether there was physical cross-border movement in order to acquire that vocational qualification is, in my view, irrelevant to whether Article 45 TFEU applies in the main proceedings. Suppose for example that a student who resides in one Member State receives distance learning provided by an educational establishment located in another Member State. He is meant to go to that establishment to take a final oral examination. However, he becomes unable to travel for health reasons. The educational establishment providing the correspondence course allows him to take the oral examination from home, by videoconference. He passes and receives his vocational qualification. I see no reason why that student should not subsequently benefit from Article 45 TFEU as interpreted in the case-law cited in point 31 above.
33. In any event, in answer to a question which I put to him at the hearing, Mr Brouillard expressly indicated that he went to the University of Poitiers on 10 July 2010 in order to take a three-hour oral exam. Although the facts are ultimately for the national court to judge, the Court may thus proceed here on the (almost certain) basis that there has been some physical cross-border movement and that, on the facts, this is not a purely internal situation.
Does Article 45(4) TFEU preclude applying the remainder of that article and Directive 2005/36 in the main proceedings? (Question 3)
34. The referring court seeks guidance on whether the function of legal secretary at the Cour de cassation constitutes ‘employment in the public service’ within the meaning of Article 45(4) TFEU.
35. Taking into account the fundamental nature of the principles of freedom of movement and equality of treatment of workers within the European Union, the scope of that exception should not go beyond its original aim to enable Member States to restrict admission of foreign nationals to certain positions in the public service, which presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality. (18) Consequently, the exception in Article 45(4) TFEU concerns only access for non-nationals to certain posts in the public service of a Member State. (19)
36. Mr Brouillard is a Belgian national seeking access to a post in the public service in Belgium . It follows that Article 45(4) TFEU cannot constitute a valid ground for Belgium to deny him the protection which he derives from the first three paragraphs of that provision. Article 45(4) TFEU therefore does not preclude Directive 2005/36 from applying on the facts of the main proceedings.
37. On different facts, it might be necessary to resolve the question of whether the function of legal secretary at the Cour de cassation constitutes ‘employment in the public service’ within the meaning of Article 45(4) TFEU. The parties have devoted considerable attention to that issue in their written and oral observations. I shall therefore address it briefly.
38. In my view, the function of legal secretary does not constitute ‘employment in the public service’ within the meaning of Article 45(4) TFEU.
39. As a derogation from the fundamental principle of free movement of workers, Article 45(4) TFEU is to be interpreted strictly. (20)
40. In Commission v Belgium, (21) the Belgian Government argued that ‘employment in the public service’ is an institutional concept which does not correspond to ‘the exercise of official authority’ in what is now Article 51 TFEU. (22) What matters in its view is thus the identity of the employer rather than the nature of the activities carried out by the employee.
41. The Court rejected that argument and opted for a functional interpretation of the concept of ‘employment in the public service’. Article 45(4) TFEU applies only to the extent that the worker concerned (1) participates directly or indirectly in the exercise of powers conferred by public law and (2) carries out tasks entailing duties designed to safeguard the general interests of the State and, more generally, public authorities. (23) What matters is thus whether or not a post is typical of the specific activities of the public service in so far as the exercise of powers conferred by public law and responsibility for safeguarding the general interests of the State are vested in it. (24)
42. On the basis of the information available to the Court, I do not agree with the Belgian and Italian Governments that employment as a legal secretary at the Belgian Cour de cassation fulfils the first condition.
43. As I see it, the posts of First President, President and judge at the Cour de cassation on the one hand, and those of Principal Crown Counsel, First Advocate General and advocates general at that court on the other hand, are indeed typical of the specific activities of the public service of administering justice. (25) These posts involve either deciding on appeals pending before the Cour de cassation, which is the court of last instance in civil and criminal matters in Belgium, or delivering independent advice (formal opinions) on those appeals. These functions entail, moreover, duties designed to safeguard the general interests of the State by ensuring that the law is observed in the context of both disputes between private litigants and disputes involving public authorities.
44. It appears from the Belgian Government’s written and oral submissions that legal secretaries at the Cour de cassation provide assistance and support to those judicial officials. Their main function consists of examining cases pending before that court, conducting legal research and assisting those officials in drafting judgments and opinions.
45. The Belgian Government confirmed at the hearing that legal secretaries at the Cour de cassation do not
have the power to adopt (or even participate in the adoption of) any judicial decision, cannot ask questions to the parties at hearings and do not have a final say on the legal reasoning underpinning judgments and opinions. Legal secretaries perform their tasks exclusively under the supervision of the judicial officials for whom they work and who bear sole responsibility for the judgments and opinions which they deliver. Legal secretaries’ auxiliary and preparatory functions thus appear to leave intact the free exercise of judicial power by those officials.
46. As a result, and although that is ultimately a matter of fact for the referring court to determine if necessary, legal secretaries’ tasks are in my view too remote from the essence of the public service of administering justice to involve (even indirect) participation in the exercise of powers conferred by public law. (26)
47. The Belgian Government’s submissions that Article 310 of the Code judiciaire formally classifies legal secretaries at the Cour de cassation as ‘members’ of that court and that they are partly subject to the same statutory rules as judges and other judicial officials, concerning, inter alia, appointments and remunerations, holidays, ‘privilège de juridiction’ (27) and the prohibition on exercising (certain) non-judicial functions are not, in my view, such as to call that conclusion into question. Such aspects do not concern directly the nature of the actual tasks carried out by legal secretaries.
Is the function of legal secretary at the Belgian Cour de cassation a ‘regulated profession ’ within the meaning of Directive 2005/36? (Question 2)
48. Whether Directive 2005/36 applies in the main proceedings depends also on whether the office of legal secretary at the Cour de cassation is a ‘regulated profession’ within the meaning of Article 3(1)(a) of Directive 2005/36. That in turn depends on whether accessing and pursuing that profession is subject to the possession of ‘specific professional qualifications’. (28)
49. First, the fact that special public service rules under Belgian law govern that employment is irrelevant for determining whether it is a regulated profession within the meaning of Directive 2005/36. (29)
50. Next, the Belgian Government’s argument that the function of legal secretary does not appear in the list of regulated professions published by the Commission is also irrelevant. That list does not form part of a binding EU act and is therefore purely indicative.
51. The Commission argues that appointment as legal secretary at the Cour de cassation is not subject to possessing ‘specific professional qualifications’ within the meaning of Article 3(1)(a) of Directive 2005/36. The doctorate or licentiate degree in law or the master’s degree in law are diplomas of a general nature, granting access to a large number of professions. Moreover, the selection process to recruit legal secretaries does not involve a test leading to the delivery of a certificate of aptitude.
52. I agree with that analysis.
53. Some of the definitions contained in Article 3 of Directive 2005/36 provide useful guidance for interpreting the concept of ‘specific professional qualifications’. Pursuant to Article 3(1)(b), professional qualifications include qualifications attested by evidence of formal qualifications; and Article 3(1)(c) states that formal qualifications include diplomas ‘certifying successful completion of professional training obtained mainly in the [EU]’. Article 3(1)(e) of Directive 2005/36 moreover defines ‘regulated education and training’ as ‘any training which is specifically geared
to the pursuit of a given profession and which comprises a course or courses complemented, where appropriate, by professional training, or probationary or professional practice’. (30)
54. Against that background, it seems to me clear that not every degree can be regarded as a specific professional qualification within the meaning of Directive 2005/36. Only those degrees that are specifically designed to prepare candidates to exercise a given profession and that certify successful completion of professional training obtained mainly in the EU come within that concept.
55. The academic qualifications required in order to be appointed as a legal secretary at the Cour de cassation are not designed specifically to prepare persons for the post of legal secretary at that court but give access to a wide range of professions. Given their general nature, those qualifications do not certify completion of specific professional training and therefore do not constitute ‘specific professional qualifications’. Consequently, Mr Brouillard cannot rely on Directive 2005/36 in the main proceedings.
56. The fact that legal secretaries are selected on the basis of competitive examinations involving a comparative assessment of the candidates does not call that conclusion into question. In Rubino, the Court considered that the fact of having been successful in a procedure designed to select a predefined number of persons on the basis of a comparative assessment, rather than by application of absolute criteria, and to confer a qualification which is valid for a limited period of time, cannot be regarded as a professional qualification within the meaning of Article 3(1)(b) of Directive 2005/36. (31)
57. Nor is the conclusion which I have reached undermined by the rule in Article 259 terdecies
of the Code judiciaire that the appointment of legal secretaries at the Cour de cassation becomes final only three years after they take up office. It is true that, in certain circumstances, compulsory training during a certain period may contribute to classifying a profession as regulated. In Burbaud, for instance, the Court concluded that employment as a manager in the French hospital public service constituted a regulated profession. That finding was based in essence on the fact that French law reserved access to that profession to trainees who had completed a course with the École nationale de la santé publique and had passed a final examination certifying that they possessed the necessary theoretical and practical knowledge to work in hospital management. (32) Those requirements are however not comparable to those laid down by the national provisions here. The Belgian Government confirmed at the hearing that those provisions do not set up a specific training programme at the end of which successful candidates receive an attestation that they possess the required professional qualification. As the wording of Article 259 terdecies
suggests, the three-year period following initial appointment is rather intended as a probationary period, enabling the judicial officials whom the legal secretaries assist to verify that they carry out their tasks properly, and therefore to take a position on whether their appointment is to become final. (33)
Which obligations did Article 45 TFEU impose on the selection board? (Questions 4 and 5)
58. I have concluded that Directive 2005/36 does not apply in the main proceedings. My analysis of Questions 4 and 5 is therefore limited to Article 45 TFEU. Did that provision require the selection board to verify whether Mr Brouillard’s academic qualifications combined with his professional experience provided him with knowledge and skills equivalent to those which a doctorate, licentiate or master’s degree in law awarded by a Belgian university attest?
59. In the absence of harmonised conditions of access to the profession in question, EU law does not preclude a Member State from making the appointment to the function of legal secretary at one of its courts conditional on possessing specific knowledge and qualifications demonstrating suitability for that function. (34) That competence must nevertheless be exercised in a manner which respects the basic freedoms guaranteed by the Treaties. (35)
60. It is settled case-law that the authorities of a Member State, when considering a request to admit a person to a profession to which access, under national law, depends upon possessing a given diploma or professional qualification, must take into consideration the professional qualification of the person concerned by comparing the qualifications certified by his diplomas, certificates and other formal qualifications and his relevant professional experience with the professional qualifications required by the national rules for exercising the profession in question. (36)
61. The examination procedure must enable the authorities of the Member State concerned to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma. That assessment must be carried out exclusively in the light of the level of knowledge and qualifications which that person can be assumed to possess on the basis of that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates. (37) Moreover, the knowledge attested by the diploma granted in another Member State and the qualifications and/or work experience obtained in other Member States, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be examined in relation to the professional qualification required by the rules of the host Member State. (38)
62. In so far as all practical experience in the pursuit of activities related to the profession to which access is sought can increase an applicant’s knowledge, it is incumbent on the competent national authorities to take into consideration all practical experience that is of use in the pursuit of that profession. The precise value of such experience is for the competent national authority to determine in the light of the specific functions carried out, knowledge acquired and applied in pursuit of those functions, responsibilities assumed and the level of independence granted to the person concerned. (39)
63. In the course of that examination, a Member State may take into consideration objective differences relating to both the legal framework of the profession in question in the Member State of origin and to its field of activity. (40) In the case of legal professions, a Member State may therefore carry out a comparative examination of diplomas, taking account of the differences identified between the national legal systems concerned. If the comparison reveals that the knowledge and qualifications certified by the foreign diploma and those required by the national provisions correspond only partially, the host Member State is entitled to require the person concerned to show that he has acquired (for example through professional experience) the knowledge and qualifications which are lacking. (41)
64. In the main proceedings, Mr Brouillard does not appear to have acquired what is regarded in Belgium as a full legal education. In particular, he confirmed at the hearing that the vocational master’s degree which the University of Poitiers awarded to him comprised no courses in Belgian law. He admitted further that that diploma did not cover courses in administrative law and employment law, which according to the French Community’s equivalence committee are necessary in order to complete postgraduate studies in law in that Community.
65. However, Mr Brouillard’s vocational master’s degree is a university degree covering certain aspects of legal training. As a result, it had prima facie at least some relevance as regards the level of qualification required to become a legal secretary at the Cour de cassation.
66. Mr Brouillard moreover relied before the Belgian authorities not only on his academic qualifications but also on the whole of his professional experience in order to establish that he qualified for that function. (42) He takes the view that his employment for several years in the documentation and text alignment service of the Cour de cassation, which covers a large part of the activities carried out by legal secretaries, combined with his academic qualifications, provided him with knowledge and skills equivalent to those required for appointment as a legal secretary.
67. Against that background, (43) the selection board was under a duty to examine whether the knowledge and skills which Mr Brouillard had acquired by way of the whole of his professional experience, including as an employee in the documentation and text alignment service of the Cour de cassation, demonstrated sufficiently that he possessed the qualifications which appeared to be lacking on the sole basis of his diplomas.
68. It seems to me doubtful that the decision in issue in the main proceedings is consistent with those principles, inasmuch as the selection board appears to have relied exclusively on the fact that Mr Brouillard did not possess the academic qualifications required for appointment as a legal secretary. That however is ultimately a matter for the referring court to decide, in the light of all relevant circumstances of the case.
Conclusion
69. For all the above reasons, I suggest that the Court should rule as follows in answer to the questions raised by the Conseil d’État (Belgium):
(1) Article 45 TFEU applies in a situation in which, in order to participate in a competitive examination to recruit legal secretaries at the Belgian Cour de cassation, a Belgian national who resides in Belgium and has never pursued a professional activity in another Member State relies, inter alia, on a qualification awarded to him by a French university.
(2) The exception laid down in Article 45(4) TFEU cannot be relied upon by a Member State against its own national; consequently, the situation described above is not excluded on that ground from the scope of application of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications.
(3) Employment as a legal secretary at the Belgian Cour de cassation is not a ‘regulated profession’ within the meaning of Article 3(1)(a) of Directive 2005/36.
(4) Article 45 TFEU precludes a public authority in a Member State from refusing to allow a person to take part in a public competitive examination to recruit legal secretaries on the ground that he does not hold a doctorate, licentiate or master’s degree in law awarded by a university of that Member State or a degree obtained abroad and recognised as equivalent by another public authority in that State, without verifying whether all his academic qualifications, including any qualifications awarded in another Member State and which are sufficiently relevant for accessing and pursuing that profession, combined with his professional experience, provide him with equivalent knowledge and skills.
(1) .
(2)
– That service is in charge of, inter alia, translating judgments and opinions into Belgium’s official languages and verifying consistency between different language versions of those documents.
(3)
– OJ 2005 L 255, p. 22, as last amended, at the material time in the main proceedings, by Commission Regulation (EU) No 213/2011 of 3 March 2011 amending Annexes II and V to Directive 2005/36 (OJ 2011 L 59, p. 4).
(4)
– Recital 1 in the preamble to Directive 2005/36.
(5)
– Recital 3.
(6)
– Recital 41.
(7)
– That purpose corresponds to that of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), which Directive 2005/36 repealed. See the judgment in Commission v Spain, C‑286/06, EU:C:2008:586, paragraph 71.
(8)
– According to the information available on the website of the Belgian Ministry of Justice, the office of the Principal Crown Counsel at the Cour de cassation is composed of the Principal Crown Counsel, the First Advocate General and advocates general.
(9)
– Article 2 of the Law of 30 December 2009.
(10)
– Before the Bologna reform of higher education, the ‘candidature en droit’ essentially covered introductory courses in a number of general legal disciplines and constituted in principle a prerequisite for commencing the three-year licentiate degree in law, which covered the study of the main branches of Belgian law as well as EU and international law. To qualify as a practising lawyer, a person had to hold a licentiate degree in Belgian law (now a master’s degree in Belgian law). A three-year bachelor’s degree and a two-year master’s degree in law have now replaced the candidature and licentiate degrees in law.
(11)
– See, by analogy, the judgments in Beuttenmüller, C‑102/02, EU:C:2004:264, paragraph 55 (concerning Article 3(a) of Directive 89/48), and Aslanidou, C‑142/04, EU:C:2005:473, paragraph 33 (concerning Article 3(a) of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48 (OJ 1992 L 209, p. 25), which corresponds in essence to Article 3(a) of Directive 89/48).
(12)
– See Articles 1 and 4 of Directive 2005/36. With regard to Mr Brouillard, the ‘host Member State’ within the meaning of those provisions is in fact his home Member State (Belgium).
(13)
– That would not, however, preclude Belgium from requiring him to complete an adaptation period or to take an aptitude test under Article 14 of Directive 2005/36.
(14)
– See points 48 to 57 below.
(15)
– See, inter alia, the judgments in López Brea and Hidalgo Palacios, C‑330/90 and C‑331/90, EU:C:1992:39, paragraphs 7 to 9, and Steen, C‑332/90, EU:C:1992:40, paragraph 9.
(16)
– See, inter alia, the judgments in Knoors, 115/78, EU:C:1979:31, paragraph 24; Kraus, C‑19/92, EU:C:1993:125, paragraph 15; and Fernández de Bobadilla, C‑234/97, EU:C:1999:367, paragraph 30.
(17)
–	Judgment in Kraus, C‑19/92, EU:C:1993:125, paragraphs 16 and 17.
(18)
– Judgment in Alevizos, C‑392/05, EU:C:2007:251, paragraphs 69 and 70 and case-law cited. That definition builds upon the judgment of the International Court of Justice in Nottebohm
(judgment of 6 April 1955, Second Phase, I.C.J. Reports 1955, p. 4, at p. 23).
(19)
–	See the judgments in Grahame and Hollanders, C‑248/96, EU:C:1997:543, paragraph 32, and Österreichischer Gewerkschaftsbund, C‑195/98, EU:C:2000:655, paragraph 36.
(20)
–	See, inter alia, the judgments in Colegio de Oficiales de la Marina Mercante Española, C‑405/01, EU:C:2003:515, paragraph 41, and Commission v Greece, C‑460/08, EU:C:2009:774, paragraph 29.
(21)
– 149/79, EU:C:1980:297.
(22)
– Pursuant to that article, provisions in the TFEU on the freedom of establishment do not apply to activities which ‘are connected, even occasionally, with the exercise of official authority’. Article 62 TFEU provides that that exception also applies to free movement of services.
(23)
– Judgment in Commission v Belgium, 149/79, EU:C:1980:297, paragraph 10.
(24)
–	Judgment in Commission v Belgium, 149/79, EU:C:1980:297, paragraph 12.
(25)
– See in that respect the Opinion of Advocate General Cruz Villalón in Commission v Portugal, C‑52/08, EU:C:2010:514, point 41.
(26)
– See, by analogy, concerning the derogation in Article 51 TFEU, the judgments in Reyners, 2/74, EU:C:1974:68, paragraph 53 (concerning lawyers in Belgium); Thijssen, C‑42/92, EU:C:1993:304, paragraph 22 (concerning ‘approved commissioners’ with the Insurance Inspectorate in Belgium); and Peñarroja Fa, C‑372/09 and C‑373/09, EU:C:2011:156, paragraph 44 (concerning court experts in France).
(27)
– For certain offences, judicial officials in Belgium are tried at first instance by courts of appeal (Article 479 of the Code of Criminal Procedure).
(28)
– It is common ground that the function of legal secretary at the Cour de cassation is not a profession pursued by the members of an association or organisation listed in Annex I to Directive 2005/36. It therefore cannot be treated as a regulated profession on the basis of the last sentence of Article 3(1)(a) read in conjunction with Article 3(2) of that directive.
(29)
– Judgment in Burbaud, C‑285/01, EU:C:2003:432, paragraphs 42 and 43 and case-law cited.
(30)
– Emphasis added.
(31)
–	Judgment in Rubino, C‑586/08, EU:C:2009:801, paragraph 32.
(32)
–	Judgment in Burbaud, C‑285/01, EU:C:2003:432, paragraphs 44 to 53.
(33)
– That period is therefore also not comparable to the period of practice necessary for being admitted to the bar as an advocate. See the judgments in Morgenbesser, C‑313/01, EU:C:2003:612, paragraph 51, and Peśla, C‑345/08, EU:C:2009:771, paragraph 23.
(34)
–	See, inter alia, the judgments in Vlassopoulou, C‑340/89, EU:C:1991:193, paragraph 9 and case-law cited, and Fernández de Bobadilla, C‑234/97, EU:C:1999:367, paragraph 11.
(35)
– See, inter alia, the judgment in Mac Quen and Others, C‑108/96, EU:C:2001:67, paragraphs 24 and 25.
(36)
–	See the judgments in Vlassopoulou, C‑340/89, ECR, EU:C:1991:193, paragraph 16, and Morgenbesser, C‑313/01, EU:C:2003:612, paragraph 57.
(37)
–	See the judgments in Vlassopoulou, C‑340/89, EU:C:1991:193, paragraph 17, and Morgenbesser, C‑313/01, EU:C:2003:612, paragraphs 66 and 68.
(38)
– Judgment in Peśla, C‑345/08, EU:C:2009:771, paragraph 45 and case-law cited.
(39)
– Judgment in Vandorou and Others, C‑422/09, C‑425/09 and C‑426/09, EU:C:2010:732, paragraphs 67 to 69.
(40)
– With regard to Mr Brouillard, his ‘Member State of origin’ is in fact France, where he obtained the vocational master’s degree on which he relies in the main proceedings. His ‘host Member State’ is Belgium (see footnote 12 above).
(41)
–	Judgments in Vlassopoulou, C‑340/89, EU:C:1991:193, paragraphs 18 to 20, and Morgenbesser, C‑313/01, EU:C:2003:612, paragraphs 69 to 71.
(42)
– This seems to be confirmed by the letter which Mr Brouillard sent to the First President of the Cour de cassation on 24 May 2011, which forms part of the national file deposited with the Court.
(43)
– The case-law to which I have referred in points 60 to 63 above cannot mean that any qualification obtained in another Member State, however slim its relevance for accessing and pursuing the profession concerned, triggers the requirement to assess professional experience acquired in the host Member State or elsewhere. Such a requirement would be disproportionate.