C-147/86
ECLI:EU:C:1988:2
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OPINION OF SIR GORDON SLYNN —CASE 147/86
O P I N I O N O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 13 January 1988
My Lords, The establishment and administration of frontistiria for the teaching of foreign languages was authorized for legal as well as natural persons (Decision No 158379/A 1025 of 4 November 1967 of the Ministry of Education and Ecclesiastical Affairs as confirmed by Emergency Law No The Commission contends, pursuant to 284/1968) but it is accepted by Greece that Article 169 of the EEC Treaty, that the the provisions of Emergency Law No Hellenic Republic is in breach of its obli- 2545/1940 apply so that natural persons gations in that its legislation relating to the must have Greek nationality and that legal provision of certain forms of education is persons must have their registered office in contrary to Articles 48, 52 and 59 of the Greece. Treaty.
The first category concerns coaching estab- lishments ('frontistiria') where a single Teaching in frontistiria is limited to persons group of five persons or more or, whatever of Greek nationality save that by Decree No the number of groups, where ten people or 46508/1976 a foreign national may be more receive weekly, for a maximum of employed for teaching foreign languages if three hours a day, instruction to supplement there are four Greek nationals teaching their primary, secondary or higher foreign languages in the same establishment, education or are taught foreign languages, or if there are more than four then one music or extra-curricular activities such as foreign national may be employed for each shorthand, typing and book-keeping. five Greek nationals employed.
The establishment of such a frontistirion, other than for foreign languages, is by There are thus clearly (and this is not Article 68 of the Emergency Law No denied) legislative rules which restrict the 2545/1940 authorized only for natural possibility of nationals of other Member persons who hold the qualifications States establishing, administering or necessary to occupy a public service post as teaching in these frontistiria. Whether these a teacher under the State education system. restrictions amount to a breach of the By Article 18 of the Public Service Code Treaty depends on arguments of principle such qualifications include the possession of advanced by Greece which I consider later Greek nationality. as they apply to all the categories involved.
COMMISSION v GREECE
The second category is that of giving private schools. As a matter of construction (since lessons at home which by virtue of Law No this is a question of Greek law) it does not 2545/1940 includes primary, secondary and seem to me to follow necessarily that private higher education and foreign language establishments cannot be authorized to give courses not given in a frontistirion. Again such training. On this argument I am not it is clear that the giving of such lessons satisfied by the Greek Government's reply. is restricted to Greek nationals to the exclusion of nationals of other Member States.
So far as concerns the legislation as explained to the Court, briefly the position The third category is that of private seems to be that a decree of 9 October 1935 technical and vocational training schools. permits the establishment by Greek citizens The defence here is that the establishment of certain categories of private technical and and running of such schools is prohibited vocational schools; and that Decree N o for all private persons. Thus this form of 685/1972 permits private professional education is limited to public bodies acting schools at secondary level or below to be on behalf of the State. If this is right then established (upon authorization) by natural there is clearly no discrimination or persons who enjoy the civic and political restriction on the grounds of nationality. rights of Greek citizens or by legal persons The Court has been referred in summary to of Greek nationality. It is said by the Greek a complex set of legislative measures. The Government that the latter was repealed by Greek Government says that they clearly Law No 576/1977 which appears in Article prohibit private individuals from giving such 49 (9) to prohibit the establishment of new instruction. The Commission began by private vocational and training schools of all denying that this was currently the law. At kinds at all levels until such time as legis- one stage during the oral arguments, I lation has been enacted. Law No 1404/1983 thought the Commission accepted the Greek then made provision for the organization of Government's position' but later it seems higher education and by Article 51 (1) that all it was conceding was that if the repealed Law No 576/1977 with the Greek Government's construction of the exception of certain articles not including subordinate legislation was right then there Article 49. The Commission says that the is no breach of the Treaty. result is that Article 49 was repealed so that the ban on private schools is removed. Greece says it has not repealed the law except in respect of establishments which provide higher technical and vocational training. Both sides appear to agree that Law No 576/1977 was repealed in its entirety by Law No 1566/1985 concerning the structure and functioning of primary Article 16 (7) of the Constitution provides and secondary education but the resulting that 'vocational training and any other position is in issue. It seems to be agreed specialized training shall be provided by the that higher technical and vocational training State'. This is said to exclude private can be given only in State schools but what
OPINION OF SIR GORDON SLYNN —CASE 147/86
is the level of higher vocational training and In my view, the exclusion by Article 45 (1) what overall is the position under the of the Treaty of Accession of Articles 1 to 6 secondary legislation is in dispute. and 13 to 23 of Regulation (EEC) N o 1612/68 during the transitional period does not affect the rights of persons already occupying a post in Greece. The Commission's argument on this point, in my At the end of the day, this is a matter which view, should be upheld. depends entirely on the construction of existing Greek legislation. There is plainly serious argument as to its meaning and effect. For my part I do not think that a declaration should be made under Article 169 unless the Commission has shown that The setting-up and administration of a fron- the breach is clear. Whilst in no way criti- tistirion, teaching by the proprietors thereof cizing the Commission for including this and teaching in a private home, if they are aspect in the case (since initially it looked as within the ambit of the Treaty at all, seem if there was a breach) the arguments of the more likely to fall within Community rules Greek Government raise sufficient doubts on rights of establishment under Article 52 that I am not satisfied that the breach is et seq. than under the rules relating to the clearly established. I would accordingly provision of services under Article 59 et seq. refuse this part of the application. This is They may in particular cases constitute the not because the legislation has been shown provision of services though the same not to be in breach of the Treaty but activity cannot simultaneously fall into both because the breach has not been clearly categories. established and if on further investigation the Commission can show clearly the effects of the legislation it would be open to it to do so.
The Greek Government contended at the hearing, first, that these activities, be they Before turning to the general Greek establishment or services, cannot fall within defences it is to be noted that both in its the Treaty at all as education is not within reasoned opinion and in the body of the the Treaty. Not being part of economic life application (p. 11, fourth complete but being closely linked with the traditional paragraph), the Commission limits its claim and cultural life of a Member State, under Article 48 of the Treaty in respect of education was deliberately excluded. teachers employed in frontistiria to those nationals of other Member States already occupying a post in Greece. It does not allege a breach of the Treaty (at any rate prior to 1 January 1988) in respect of persons wishing to enter Greece for the purposes of teaching in such establishments This is, in my view, an untenable argument. prior to that date. The claim in paragraph 1 Work performed or services rendered for of the prayer is clearly, in my view, limited remuneration are subject to the provisions to, and to be read only as covering, persons of Articles 48 and 59 whatever the sphere in already in posts in Greece. which they are performed (Case 36/74
COMMISSION v GREECE
Walrave V Union cycliste internationale The definition given by the Court in Case [1974] ECR 1405, at p. 1417, and Case 2/74 (Reyners v Belgium [1974] ECR 631) 66/85 Lawrie-Blum v Land Baden- and Case 149/79 (Commission v Belgium Württemberg [1986] ECR 2121). The same [1980] ECR 3881 and [1982] ECR 1845) must, in my view, be true mutatis mutandis indicates that the provisions respectively of in respect of establishment where a service is Article 55 (1) and Article 48 (4) are to read to be provided for reward on a continuing in a limited sense. basis.
An activity connected with the exercise of Secondly, it is said that such activities are official authority does not, in my view, excluded from the provisions of Articles 52 include the setting-up and administering of and 58, on the one hand, and Article 59, on private education institutions or the giving the other, in that they are 'activities which of lessons, even if these activities are auth- in [the Member State] are connected, even orized and controlled by the State. In no occasionally, with the exercise of official sense can they be said to be activities authority'. It is for each Member State to connected with the exercise of official decide what constitutes the exercise of authority. I would reject this argument. official authority. By Article 16 (2) of the Greek Constitution, education is a funda- mental duty of the State which remains an activity connected with the exercise of official authority even if carried out by private institutions. It is so carried out only with the authorization and under the control of the State and does no more than supplement the activities of public institutions. Foreigners cannot fully carry Finally, the fact, as the Court was told at out this activity, one of the aims of which is the hearing, that a ministerial decision has to increase Greek consciousness and respon- been adopted permitting nationals of other sibility. Member States to set up schools to teach music and dancing does not take away any defect in the legislation (such as, for example, Article 2 (1) of Presidential Decree N o 457/1983 which provides that authori- zation to establish and administer such schools may only be granted to natural persons who are Greek nationals and legal persons where the majority of the adminis- It is plainly not for each Member State to tration is in the hands of Greek nationals). define what is capable of constituting the The legislation must be repealed or brought exercise of public authority or a coach and into line (Case 159/78 Commission v Italy horses would be driven through Articles 52 [1979] ECR 3247; Case 102/79 Commission and 59, as through Article 48 (4) which v Belgium [1980] ECR 1473; Case 168/85 excludes employment in the public service. Commission v Italy [1986] ECR 2945).
OPINION OF SIR GORDON SLYNN —CASE 147/86
In my view accordingly the Commission is entitled to a declaration that in refusing to allow persons, including legal persons, having the nationality of a Member State of the European Economic Community other than Greece, to set up, administer and to give teaching services in coaching establishments ('frontistiria') or to give private lessons at home as a self-employed person on the same terms as Greek nationals, the Hellenic Republic is in breach of Articles ,52 and 59 of the EEC Treaty, and in refusing to allow nationals of other Member States to take employment as teachers at all in frontistiria not engaged in language teaching or to give private lessons at home, and in limiting the number of nationals of other Member States than Greece who may be employed in frontistiria engaged in language teaching, the Hellenic Republic is in breach of Article 48 of the EEC Treaty.
Although the Commission has in my view not made out one of its contentions, it seems to me that in all the circumstances the appropriate order is that the Hellenic Republic should pay the Commission's costs.