Isabel Burbaud v Ministère de l'Emploi et de la Solidarité.
Date: 2003-09-09
40. As the French Government accepts, employment as a manager in the hospital public service is not covered by the exemption set out in Article 48(4) of the Treaty. Such employment does not involve direct or indirect participation in the exercise of public authority or in duties whose object is the protection of the general interests of the State or of other public authorities (see, in particular, Case C-290/94  Commission  v  Greece  [1996] ECR I-3285, paragraph 34). Moreover, there is no separate directive, within the meaning of the second paragraph of Article 2 of the Directive, which is applicable to such employment.
41. Furthermore, the Court has already held that public bodies are required to comply with the provisions of the Directive (see Case C-234/97  Fernández de Bobadilla  [1999] ECR I-4773, paragraphs 12 and 27)
43. The definition of a regulated profession is a matter of Community law (see  Fernández de Bobadilla , cited above, paragraph 14), whereas the national legal classifications of worker, employee and public servant or, moreover, of employment governed by public law or by private law can be varied freely by national legislatures and cannot therefore provide an appropriate criterion for interpretation (see, by analogy, as regards Article 48(4) of the Treaty, Case 152/73  Sotgiu  [1974] ECR 153, paragraph 5).
45. The effect of Article 1(c) and (d) of the Directive is that where the conditions for taking up or pursuing a professional activity are directly or indirectly governed by laws, regulations or administrative provisions requiring possession of a diploma, that activity constitutes a regulated profession.
47. It is therefore necessary to ascertain whether the requirement to which that provision subjects access to employment as a manager in the French hospital public service can be regarded as a requirement relating to the possession of a diploma within the meaning of Article 1(a) of the Directive.
48. In that regard, it is common ground that confirmation of passing the final examination of the ENSP course is evidence of completion of education and training of at least three years ' duration, at the end of which the candidate holds the necessary qualifications to pursue the profession of manager in the hospital public service.
49. First, it is clear from the case-file that the training concerned constitutes post-secondary education of at least three years ' duration and that it is composed of both education leading to the academic qualification which is necessary for participation in the ENSP ' s entrance examination and a course at the ENSP lasting from 24 to 27 months which follows that examination and concludes with the final examination of the course.
50. Second, according to the information in the case-file, the aim of that final examination is to determine, on the basis of a written test, a dissertation, an evaluation report for the  stage  and the work completed in seminars, and a continuous assessment, whether the person concerned has the necessary theoretical and practical knowledge to work in hospital management. The French rules also require a minimum total score as well as a minimum score for each part of the examination.
51. The French Government submits, however, that success in the final examination of the ENSP course leads to the permanent appointment of the trainee public servant to the hospital public service and is not evidenced by a diploma or any other document. Accordingly, that training does not lead to a diploma within the meaning of the Directive.
52. In that regard, it need only be noted that confirmation of passing the final examination of the ENSP course may be regarded as a diploma within the meaning of Article 1(a) of the Directive in view of its essential function, namely to confirm that the person concerned has successfully completed a post-secondary course of at least three years ' duration which confers the professional qualifications required for the taking up of a regulated profession. That conclusion is not affected by the fact that the diploma does not take the form of a formal document.
53. The fact that, after passing the entrance examination for the ENSP, the students are members of the public service for the duration of their training and that passing the final examination also results in their permanent appointment as public servants does not prevent confirmation of passing the final examination from constituting a diploma within the meaning of the Directive.
55. If the national court finds that the qualification held by Ms Burbaud constitutes a diploma within the meaning of the Directive but that there are differences between the duration of the two training courses at issue or between the matters which they cover, the French authorities will be entitled to require the applicant in the main proceedings to comply with the measures provided for in Article 4(1) of the Directive.
91. The Directive does not concern the choice of selection and recruitment procedures for filling positions and it cannot be relied on as the basis for a right actually to be recruited. The Directive does no more than require the recognition of qualifications obtained in one Member State in order to allow their holder to apply for a job in another Member State, in accordance with the selection and recruitment procedures which govern access to regulated professions in that Member State.
95. According to settled case-law, any national measure which, although applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by a national of a Member State of the freedom of movement of workers, is an obstacle to that fundamental freedom guaranteed by the Treaty (see, to that effect, Case C-19/92  Kraus  [1993] ECR I-1663, paragraph 32).
99. However, the specific features of the ENSP entrance examination do not allow for account to be taken of specific qualifications in the field of hospital management since, in the logic of the French recruitment system at issue in the main proceedings, the candidate is clearly not yet supposed to have such qualifications. The examination is intended to select between candidates who, by definition, are not yet trained to carry out that managerial role.
100. To require nationals of Member States who are already qualified in the field of hospital management in another Member State to pass such an examination is to deprive them of the possibility of having their specific qualifications in the field taken into account, thereby placing them at a disadvantage which is liable to dissuade them from exercising their rights, as workers, to freedom of movement for the purpose of seeking employment in that field in France.
104. While such an objective is indeed an overriding reason in the general interest capable of justifying the obstacle concerned, according to the case-law of the Court it is a further condition that, among other things, the restriction which that obstacle places on the freedom of movement of workers does not go beyond what is necessary to achieve the objective pursued (see, in particular, Case C-294/00  Gräbner  [2002] ECR I-6515, paragraph 39, and the case-law cited therein).