Alain Laurent Brouillard v Jury du concours de recrutement de référendaires près la Cour de cassation and État belge.
Date: 2015-10-06
26. First, as regards Article 45 TFEU, it is time that the Court has consistently held that the provisions of the FEU Treaty on the freedom of movement of persons cannot be applied to cases which have no factor linking them with any of the situations governed by E|U law and where all elements of which are purely internal to a single Member State (see judgments in López Brea and Hidalgo Palacios , C‑330/90 and C‑331/90, EU:C:1992:39, paragraph 7, and Uecker and Jacquet , C‑64/96 and C‑65/96, EU:C:1997:285, paragraph 16).
27. However, the Court has held that the freedom of movement of persons would not be fully realised if the Member States were able to refuse to grant the benefit of the provisions of EU law to those of their nationals who had taken advantage of its provisions to acquire vocational qualifications in a Member State other than that of which they were nationals. The same consideration applies where a national of a Member State has obtained in another Member State a university qualification which supplements his basic education and training and of which he intends to make use after he returns to his country of origin (see judgment in Kraus , C‑19/92, EU:C:1993:125, paragraphs 16 and 17).
31. However, that exception concerns only the access of nationals of other Member States to certain posts in the civil service (see judgments in Vougioukas , C‑443/93, EU:C:1995:394, paragraph 19; Grahame and Hollanders , C‑248/96, EU:C:1997:543, paragraph 32; Schöning-Kougebetopoulou , C‑15/96, EU:C:1998:3, paragraph 13; and Österreischer Gewerkschaftsbund , C‑195/98, EU:C:2000:655, paragraph 36).
32. That provision takes account of the legitimate interest which Member States have in reserving to their own nationals a range of posts connected with the exercise of powers conferred by public law and with the protection of general interests (see judgments in Commission  v Belgium , 149/79, EU:C:1980:297, paragraph 19, and Vougioukas , C‑443/93, EU:C:1995:394, paragraph 20).
36. It should be borne in mind that the definition of ‘regulated profession’ within the meaning of Directive 2005/36 is a matter of EU law (see judgments in Rubino , C‑586/08, EU:C:2009:801, paragraph 23 and Peňarroja Fa , C‑372/09 and C‑373/09, EU:C:2011:156, paragraph 27).
38. As the Advocate General noted, in points 53 to 55 of her Opinion, it follows from Article 3(1)(b), (c) and (e) of Directive 2005/36 that the concept of ‘specific professional qualifications’ in Article 3(1)(a) thereof does not cover all qualifications attested by evidence of formal qualifications, but only these relating to training which is specifically designed to prepare candidates to exercise a given profession.
43. The fact that the legal secretaries at the Cour de cassation are appointed as a result of a competition, the subject-matter of which is determined in accordance with the requirements of the service, and which is valid for six years, is irrelevant to that assessment. The Court has already held that fact of having been successful in a procedure to select a predefined number of persons on the basis of a comparative assessment of the candidates rather than by application of absolute criteria, which confers a qualification the validity of which is strictly limited in time, cannot be regarded as a ‘professional qualification’ within the meaning of Article 3(1)(b) of Directive 2005/36 (see judgment in Rubino , C‑586/08, EU:C:2009:801, paragraph 32).
48. In this regard, it must be stated first of all that in the absence of harmonisation of the conditions of access to a particular occupation the Member States are entitled to lay down the knowledge and qualifications needed in order to pursue it and to require the production of a diploma certifying that the holder has the relevant knowledge and qualifications (see judgments in Vlassopoulou , C‑340/89, EU:C:1991:193, paragraph 9, and Peśla , C‑345/08, EU:C:2009:771, paragraph 34).
49. Since the conditions for access to the office of legal secretary at a court of a Member State have not, up to the present time, been harmonised at EU level, the Member States retain the power to define those conditions.
50. It follows that, in the present case, EU law does not preclude Belgian law from making access to the office of legal secretary at the Cour de cassation contingent on the possession of the knowledge and qualifications deemed to be necessary.
51. However, the fact remains that the Member States must exercise their powers in this area in a manner which respects the basic freedoms guaranteed by the FEU Treaty (see judgments in Commission  v France , C‑496/01, EU:C:2004:137, paragraph 55; Colegio de Ingenieros de Caminos, Canales y Puertos , C‑330/03, EU:C:2006:45, paragraph 29; and Nasiopoulos , C‑575/11, EU:C:2013:430, paragraph 20).
52. In particular, the provisions of national law adopted in that connection must not constitute an unjustified obstacle to the effective exercise of the fundamental freedoms guaranteed by Article 45 TFEU (see judgments in Kraus , C‑19/92, EU:C:1993:125, paragraph 28, and Peśla , C‑345/08, EU:C:2009:771, paragraph 35).
53. Thus, according to settled case-law, the national rules establishing the conditions for national qualifications, even when applied in an indiscriminate manner in relation to nationality, may infringe the exercise of those fundamental freedoms if the national rules at issue fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State (see judgments in, Vlassopolou , C‑340/89, EU:C:1991:193, paragraph 15; Morgenbesser , C‑313/01, EU:C:2003:612, paragraph 62; and Peśla , C‑345/08, EU:C:2009:771, paragraph 36).
54. In that context, it must be recalled that the authorities of a Member State which receive a request for authorisation, submitted by an EU national, to pursue a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification or periods of practical experience must take into consideration all of the diplomas, certificates and other evidence of qualifications and lies relevant experience by comparing the specialised knowledge and abilities so certified and that experience with the knowledge and qualifications required by the national legislation (see judgments in Vlassopoulou , C‑340/89, EU:C:1991:193, paragraph 16; Fernández de Bobadilla , C‑234/97, EU:C:1999:367, paragraph 31; Dreessen , C‑31/00, EU:C:2002:35, paragraph 24; and Morgenbesser , C‑313/01, EU:C:2003:612, paragraphs 57 and 58).
55. That comparative examination procedure must enable the authorities of the host Member State 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 attested by the national diploma. That assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed, by virtue of that diploma, to possess, having regard to the nature and duration of the studies and practical training to which the diploma relates (see judgments in Vlassopoulou , C‑340/89, EU:C:1991:193, paragraph 17; Morgenbesser , C‑313/01, EU:C:2003:612, paragraph 62; and Peśla , C‑345/08, EU:C:2009:771, paragraph 39).
56. In the course of the comparative examination, a Member State may however 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 (see judgments in Vlassopoulou , C‑340/89, EU:C:1991:193, paragraph 18; Morgenbesser , C‑313/01, EU:C:2003:612, paragraph 69; and Peśla , C‑345/08, EU:C:2009:771, paragraph 44).
57. If that comparative examination of diplomas results in the finding that the knowledge and qualifications attested by the foreign diploma correspond to those required by the national provisions, the Member State must recognise that diploma as fulfilling the requirements laid down by its national provisions. If, on the other hand, the comparison reveals that the knowledge and qualifications attested 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 the knowledge and qualifications which are lacking (see judgments in Vlassopoulou , C‑340/89, EU:C:1991:193, paragraph 19; Fernández de Bobadilla , C‑234/97, EU:C:1999:367, paragraph 32; Morgenbesser , C‑313/01, EU:C:2003:612, paragraph 70; and Peśla , C‑345/08, EU:C:2009:771, paragraph 40).
58. In that regard, it is for the competent national authorities to assess whether the knowledge acquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession of the knowledge which is lacking (see judgments in Vlassopoulou , C‑340/89, EU:C:1991:193, paragraph 20; Fernández de Bobadilla , C‑234/97, EU:C:1999:367, paragraph 33; Morgenbesser , C‑313/01, EU:C:2003:612, paragraph 71; and Peśla , C‑345/08, EU:C:2009:771, paragraph 41).
59. In so far as all practical experience in the pursuit of related activities can increase an applicant’s knowledge, it is incumbent on the competent national authorities to take into consideration all practical experience of use in the pursuit of the profession to which access is sought. The precise value to attach to such experience will be 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 accorded to the person concerned (see judgment in Vandorou and Others , C‑422/09, C‑425/09 and C‑426/09, EU:C:2010:732, paragraph 69).