European Commission v Kingdom of Belgium.
Date: 2015-02-05
19. The Commission emphasises however that, in accordance with the Court’s case-law, the linguistic requirement must be implemented in a proportionate and non-discriminatory manner. It adds that, in its judgment in Angonese  (C‑281/98, EU:C:2000:296), the Court held that such was not the case where an employer required persons applying to take part in a recruitment competition to provide evidence of their linguistic knowledge exclusively by means of one particular diploma issued only in one particular province of a Member State.
22. In accordance with the Court’s settled case-law, all the provisions of the TFEU relating to freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in another Member State (see, inter alia, judgment in Las , C‑202/11, EU:C:2013:239, paragraph 19 and the case-law cited).
23. Those provisions and, in particular, Article 45 TFEU thus preclude any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the fundamental freedoms guaranteed by the Treaty (judgment in Las , EU:C:2013:239, paragraph 20 and the case-law cited).
25. However, the right to require a certain level of knowledge of a language in view of the nature of the post must not encroach upon the free movement of workers. The requirements under measures intended to implement that right must not in any circumstances be disproportionate to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States (see, to that effect, Groener , C‑379/87, EU:C:1989:599, paragraph 19).
27. In such a case, the possession of a diploma certifying that the candidate has passed a language examination may constitute a criterion for assessing the required linguistic knowledge (see, to that effect, Angonese , EU:C:2000:296, paragraph 44).
28. However, to require — as the consolidated laws do — that a person applying to take part in a recruitment competition provide evidence of his linguistic knowledge exclusively by means of one particular type of certificate, issued only by one particular Belgian body tasked with conducting language examinations in Belgium for that purpose, appears, in view of the requirements of the freedom of movement for workers, disproportionate to the aim pursued.
29. That requirement precludes any consideration of the level of knowledge which a holder of a diploma obtained in another Member State can be assumed to possess on the evidence of that diploma, having regard to the nature and duration of the studies which it attests (see, to that effect, Angonese , EU:C:2000:296, paragraph 44).
31. That requirement effectively forces interested persons residing in other Member States, for the most part nationals of those Member States, to travel to Belgium for the sole purpose of having their knowledge tested in an examination which is mandatory for the issuance of the certificate required for their application. The additional expenses which that requirement entails are liable to make it more difficult to gain access to the posts in question (see, to that effect, Angonese , EU:C:2000:296, paragraphs 38 and 39).
33. In so far as the Kingdom of Belgium submits that legislative work has been undertaken in order to ensure that the national legislation at issue complies with the requirements of EU law, but that, because of the structure of that country, that work entails lengthy and complex procedures, it must be observed that the Court has consistently held that a Member State cannot plead provisions prevailing in its domestic legal system, even its constitutional system, to justify failure to observe obligations arising under EU law (see, inter alia, Commission  v Hungary , C‑288/12, EU:C:2014:237, paragraph 35 and case-law cited).
34. It must be added that, in any event, the question whether a Member State has failed to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Commission  v United Kingdom , C‑640/13, EU:C:2014:2457, paragraph 42 and the case-law cited).