6.

Personally, I doubt whether under French law a measure refusing to recognize the equivalence of a foreign sports diploma is in fact exempt from the duty to state reasons (see Law No 79/587 of 21 July 1979 and the circulars of 31 August 1979 and 10 January 1980 of the Prime Minister, Journal officiel de la République française 1979, pp. 1711 and 2146, and JORF 1980, p. 465, respectively). However, whether that impression is correct or not and, if so, whether an unlawful practice is involved is for the tribunal de grande instance to determine. As has been made clear above, the Court's role is different: it has to establish whether or not national rules which do not require but authorize the administration to state reasons for decisions of refusal conflict with Community law. In my view, there is a conflict: it is sufficient in fact to have regard to what is actually involved before one gets to the stage of the ‘specific safeguard’ invoked by the French Government. That the assessment as to the equivalence of a diploma can be handed down without any reasons being given faces the person concerned with a difficult choice: should he bring the matter before the competent court in the country to which he has moved, if only to find out the reasons (possibly the most commonplace and avoidable ones) which caused him to be refused recognition, or, since it is impossible for him to assess the justification of the measure, should he forgo any attempt to utilize the legal remedies conferred on him, thus avoiding the risk of legal proceedings which are expensive and, as far as he is concerned, of absolutely unpredictable outcome. Indeed, that dilemma indubitably constitutes an unwarranted aggravation of a situation which is in itself discriminatory, and in this case inevitably so, as between national and foreign trainers as a result of the absence of a directive. However, its most serious consequence is that for the foreigner involved it alters the ordinary assessments — let us say the ordinary cost/benefit analysis — which the beneficiaries of safeguards in the shape of legal remedies carry out before deciding to press ahead with those remedies. To state — as the French Government does — that in the event that an action is brought the administration must divulge the reasons for its refusal is correct, but it is also misleading, since if he is not aware what those reasons are a national of another Member State is not free to decide whether he should avail himself of his right to bring an action. Furthermore, the alteration and the additional discrimination which I have just identified inevitably affect the foreign trainer's freedom of movement (if he decides not to bring an action, he decides in effect to leave the host country) ; and if that is correct it seems obvious to me that there is an implied obligation on the part of the Member States under Articles 48 to 51 of the EEC Treaty to obviate those consequences by requiring the national authorities to state reasons for the decisions by which they refuse to recognize the validity of foreign certificates. Confirmation of the above reasoning — in particular as regards the insufficiency of the protection afforded by the mere possibility of legal redress — is provided by Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (Official Journal, English Special Edition 1963-64, p. 117). Article 8 thereof requires the Member States to guarantee all Community citizens access to the legal remedies available to nationals; nevertheless Article 6 provides that ‘the person concerned shall be informed of the grounds of public policy, public security, or public health upon which the (unfavourable) decision taken... (in the case of a Community national) is based, unless this is contrary to the interests of the security of the State involved’. It is also significant that the ‘dual safeguard’ called for by those provisions is stressed by the judgments of 28 October 1975 in Case 36/75 Rutili [1975] ECR 1219, paragraphs 36 to 39; 22 May 1980 in Case 131/79 Santillo [1980] ECR 1585, paragraphs 14 and 19; and 18 May 1982 in Joined Cases 115 and 116/81 Adoni and Cournuaille [1982] ECR 1665, paragraph 13. In the course of the oral proceedings, the representative of the Danish Government argued on the basis of Article 6 of Directive 64/221 /EEC that the Community legislature dixit ubi voluit and hence a duty to give reasons did not exist where, as in this case, there was no express provision for such a requirement. However, there is no merit in that argument — and not only because it basically denies the very possibility of interpreting the provisions systematically. For such an argument to hold good it would have to be backed by counter evidence; but since there is no directive on football trainers there is no basis from which it might be possible to infer that ubi tacuit the legislature noluit or that a lack of intention can be inferred from the absence of a relevant provision.