Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v Georges Heylens and others.
Date: 1987-10-15
8 IN ORDER TO ANSWER THAT QUESTION IT MUST BE BORNE IN MIND THAT ARTICLE 48 OF THE TREATY IMPLEMENTS, WITH REGARD TO WORKERS, A FUNDAMENTAL PRINCIPLE CONTAINED IN ARTICLE 3*(C ) OF THE TREATY, WHICH STATES THAT, FOR THE PURPOSES SET OUT IN ARTICLE 2, THE ACTIVITIES OF THE COMMUNITY ARE TO INCLUDE THE ABOLITION, AS BETWEEN MEMBER STATES, OF OBSTACLES TO FREEDOM OF MOVEMENT FOR PERSONS AND SERVICES ( SEE THE JUDGMENT OF 7 JULY 1976 IN CASE 118/75 WATSON AND BELMANN (( 1976 )) ECR 1185 ).
10 IN THE ABSENCE OF HARMONIZATION 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 .
11 HOWEVER, AS THE COURT HELD IN ITS JUDGMENT OF 28 JUNE 1977 IN CASE 11/77 PATRICK V MINISTRE DES AFFAIRES CULTURELLES (( 1977 )) ECR 1199, THE LAWFUL REQUIREMENT, IN THE VARIOUS MEMBER STATES, RELATING TO THE POSSESSION OF DIPLOMAS FOR ADMISSION TO CERTAIN OCCUPATIONS CONSTITUTES A RESTRICTION ON THE EFFECTIVE EXERCISE OF THE FREEDOM OF ESTABLISHMENT GUARANTEED BY THE TREATY THE ABOLITION OF WHICH IS TO BE MADE EASIER BY DIRECTIVES FOR THE MUTUAL RECOGNITION OF DIPLOMAS, CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS . AS THE COURT ALSO HELD IN THAT JUDGMENT, THE FACT THAT SUCH DIRECTIVES HAVE NOT YET BEEN ISSUED DOES NOT ENTITLE A MEMBER STATE TO DENY THE PRACTICAL BENEFIT OF THAT FREEDOM TO A PERSON SUBJECT TO COMMUNITY LAW WHEN THAT FREEDOM CAN BE ENSURED IN THAT MEMBER STATE, IN PARTICULAR BECAUSE IT IS POSSIBLE UNDER ITS LAWS AND REGULATIONS FOR EQUIVALENT FOREIGN DIPLOMAS TO BE RECOGNIZED .
13 SINCE IT HAS TO RECONCILE THE REQUIREMENT AS TO THE QUALIFICATIONS NECESSARY IN ORDER TO PURSUE A PARTICULAR OCCUPATION WITH THE REQUIREMENTS OF THE FREE MOVEMENT OF WORKERS, THE PROCEDURE FOR THE RECOGNITION OF EQUIVALENCE MUST ENABLE THE NATIONAL AUTHORITIES 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 OF THE EQUIVALENCE OF THE FOREIGN DIPLOMA MUST BE EFFECTED EXCLUSIVELY IN THE LIGHT OF THE LEVEL OF KNOWLEDGE AND QUALIFICATIONS WHICH ITS HOLDER CAN BE ASSUMED TO POSSESS IN THE LIGHT OF THAT DIPLOMA, HAVING REGARD TO THE NATURE AND DURATION OF THE STUDIES AND PRACTICAL TRAINING WHICH THE DIPLOMA CERTIFIES THAT HE HAS CARRIED OUT .
14 SINCE FREE ACCESS TO EMPLOYMENT IS A FUNDAMENTAL RIGHT WHICH THE TREATY CONFERS INDIVIDUALLY ON EACH WORKER IN THE COMMUNITY, THE EXISTENCE OF A REMEDY OF A JUDICIAL NATURE AGAINST ANY DECISION OF A NATIONAL AUTHORITY REFUSING THE BENEFIT OF THAT RIGHT IS ESSENTIAL IN ORDER TO SECURE FOR THE INDIVIDUAL EFFECTIVE PROTECTION FOR HIS RIGHT . AS THE COURT HELD IN ITS JUDGMENT OF 15 MAY 1986 IN CASE 222/84 JOHNSTON V CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY (( 1986 )) ECR 1651, AT P . 1663, THAT REQUIREMENT REFLECTS A GENERAL PRINCIPLE OF COMMUNITY LAW WHICH UNDERLIES THE CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER STATES AND HAS BEEN ENSHRINED IN ARTICLES 6 AND 13 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS .
15 EFFECTIVE JUDICIAL REVIEW, WHICH MUST BE ABLE TO COVER THE LEGALITY OF THE REASONS FOR THE CONTESTED DECISION, PRESUPPOSES IN GENERAL THAT THE COURT TO WHICH THE MATTER IS REFERRED MAY REQUIRE THE COMPETENT AUTHORITY TO NOTIFY ITS REASONS . BUT WHERE, AS IN THIS CASE, IT IS MORE PARTICULARLY A QUESTION OF SECURING THE EFFECTIVE PROTECTION OF A FUNDAMENTAL RIGHT CONFERRED BY THE TREATY ON COMMUNITY WORKERS, THE LATTER MUST ALSO BE ABLE TO DEFEND THAT RIGHT UNDER THE BEST POSSIBLE CONDITIONS AND HAVE THE POSSIBILITY OF DECIDING, WITH A FULL KNOWLEDGE OF THE RELEVANT FACTS, WHETHER THERE IS ANY POINT IN THEIR APPLYING TO THE COURTS . CONSEQUENTLY, IN SUCH CIRCUMSTANCES THE COMPETENT NATIONAL AUTHORITY IS UNDER A DUTY TO INFORM THEM OF THE REASONS ON WHICH ITS REFUSAL IS BASED, EITHER IN THE DECISION ITSELF OR IN A SUBSEQUENT COMMUNICATION MADE AT THEIR REQUEST .
16 IN VIEW OF THEIR AIMS THOSE REQUIREMENTS OF COMMUNITY LAW, THAT IS TO SAY, THE EXISTENCE OF A JUDICIAL REMEDY AND THE DUTY TO STATE REASONS, ARE HOWEVER LIMITED ONLY TO FINAL DECISIONS REFUSING TO RECOGNIZE EQUIVALENCE AND DO NOT EXTEND TO OPINIONS AND OTHER MEASURES OCCURRING IN THE PREPARATION AND INVESTIGATION STAGE .
17 CONSEQUENTLY, THE ANSWER TO THE QUESTION PUT BY THE TRIBUNAL DE GRANDE INSTANCE, LILLE, MUST BE THAT WHERE IN A MEMBER STATE ACCESS TO AN OCCUPATION AS AN EMPLOYED PERSON IS DEPENDENT UPON THE POSSESSION OF A NATIONAL DIPLOMA OR A FOREIGN DIPLOMA RECOGNIZED AS EQUIVALENT THERETO, THE PRINCIPLE OF THE FREE MOVEMENT OF WORKERS LAID DOWN IN ARTICLE 48 OF THE TREATY REQUIRES THAT IT MUST BE POSSIBLE FOR A DECISION REFUSING TO RECOGNIZE THE EQUIVALENCE OF A DIPLOMA GRANTED TO A WORKER WHO IS A NATIONAL OF ANOTHER MEMBER STATE BY THAT MEMBER STATE TO BE MADE THE SUBJECT OF JUDICIAL PROCEEDINGS IN WHICH ITS LEGALITY UNDER COMMUNITY LAW CAN BE REVIEWED, AND FOR THE PERSON CONCERNED TO ASCERTAIN THE REASONS FOR THE DECISION .