C-379/87

2. The facts are as follows. Mrs Groener, the applicant in the main proceedings, who is a Netherlands national, has, since 4. Consequently, the High Court, Dublin, September 1982, been working as a submitted a number of questions which, in part-time teacher of art at the College of substance, request this Court to give a Marketing and Design, Dublin. That estab­ ruling on whether a national provision lishment comes under the authority of the requiring knowledge of one of the official City of Dublin Vocational Educational languages of a Member State for a Committee, which is a public body permanent teaching post is compatible with responsible for the administration of vo­ Article 48 of the Treaty and Article 3 of the cational education subsidized by the State in Regulation in circumstances where, the Dublin area. In July 1984, Mrs Groener according to the national court, knowledge entered a competition with a view to of that language is not actually necessary to obtaining a permanent teaching post. She carry out the relevant duties. was successful in the competition but failed the special examination in Irish. Circular Letter 28/79 of the Irish Minister for Education requires candidates for permanent posts as assistant lecturer, 5. The disputed administrative measure is lecturer or senior lecturer in the City of applicable without distinction to Irish Dublin or any post subject to any other nationals and other Community nationals.

* Original language French. 1 — OJ, English Special Edition 1968 (II), p. 475.

OPINION OF MR DARMON — CASE C-379/89

'were defined in such a way that they could in fact be fulfilled only by nationals or if the conditions for loss or suspension of the right 10. The concept of 'the nature of the post were defined in such a way that they would to be filled' appears to be fundamental here. in fact more easily be satisfied by nationals It determines the scope of the exception of other Member States than by those of the thus created to the general principle of State of the competent institution'. 3 non-discrimination in Community law. Consequently, such a concept must be inter­ preted narrowly. 7. In the related field of the freedom to provide services, the Court has recalled that Article 59 and the third paragraph of Article 11. It appears that two factors must be 60 of the EEC Treaty present in order for this exception to operate. First, the language requirement must meet an aim and, secondly, it must be 'prohibit not only overt discrimination based strictly necessary in order to achieve that on the nationality of the person providing a aim. This will be recognized as the principle service but also all forms of covert discrimi­ of proportionality that is generally applied nation which, although based on criteria by the Court where it is a question of which appeared to be neutral, in practice allowing restrictions on the freedoms lead to the same result'. 4 guaranteed by the Treaty. It is therefore in the light of that principle that the posts 2 — Regulation (EEC) No 1408/71 of the Council of 14 June 1987 on the application of social security schemes to whose nature may justify a requirement of employed persons and their families moving within the linguistic knowledge must be identified. If Community (OJ, English Special Edition 1971 (II), p. 416). the matter were brought before the Court, 3 — Judgment of 28 June 1978 in Case 1/78 Kenny v Insurance the principle of proportionality might Officer [1978] ECR 1489, at p. 1478, paragraph 17, my emphasis; see also the judgment of 15 January 1986 in therefore lead it to hold that national Case 41/84 Pinna v Caisse d'allocations familiales de la measures introducing language requirements Savoie (1986) ECR 1, at p. 25, paragraph 23. for posts for which they are not strictly 4 — Judgment of 3 February 1982 in Joined Cases 62 and 63/81 Seco SA and Desquenne Girai SA v Etablissement necessary were incompatible with Com­ d'assurance contre la vieillesse et l'invalidité (1982) ECR 223, at p. 235, paragraph 8, my emphasis. munity law.

12. The order making the reference asks and the 1979 ministerial circular letter three questions which relate, first, to the which is at issue in this case. In its obser possible existence of de facto discrimination, vations, the Irish Government fully sets out secondly to the concept of a post the nature the details of the long-term plan undertaken of which requires linguistic knowledge and, to preserve the Irish language. However, it finally, to the concept of public policy. appears that at the Dublin College of Marketing and Design most of the teachers and students habitually express themselves

5 This 16. However, it does not seem to me conclusion also follows if there is no de facto necessary to embark upon a complex discrimination. analysis to ascertain whether lack of knowledge of the Irish language may in fact create difficulties in the efficient teaching of the subject concerned, for — and we are 14. The Court has not yet considered those now at the heart of the matter — it is a points. The only judgment given on the question of drawing a line between the interpretation of Article 3 of the Regulation powers of the Community and those of the does not concern conditions relating to 6 Member States and of considering whether linguistic knowledge. For the Court, or not a policy of preserving and fostering a therefore, the question is a novel one. language may be pursued, having regard to the requirements of Community law.

Since the 1950s the Irish Government has actively pursued the objectives of preserving and restoring the Irish language, as is attested to by the estab lishment in 1956 of a Department of State 17. That question has not escaped the responsible for encouraging the extension of attention of the Community institutions. On the use of Irish as a vernacular language 16 October 1981, the European Parliament adopted a resolution on a Community 5 — Commission's observations, paragraph 22 (p 17 of the charter of regional languages and cultures French translation) and on a charter of rights of ethnic 6 — Judgment of 7 May 1986 in Case 131/85 Emir Qui v minorities and, on 30 October 1987, it Regieningsprasident Dusseldorf[1986] ECR 1573

19. The preservation of languages is one of 22. Consequently, without contravening the those questions of principle which one principle of proportionality in any way, this cannot dismiss without striking at the very linguistic requirement must be conceived as heart of cultural identity. Is it therefore for not being limited merely to posts involving the Community to decide whether or not a the teaching of Irish literature or culture. At particular language should survive? Is the this point I would like to quote from Le Community to set Europe's linguistic degré zéro de l'écriture by Roland Barthes: 'il heritage in its present state for all time. Is it n'y a pas de pensée sans langage', he states to fossilize it? after having written 'la langue ... est l'aire d'une action, la définition et l'attente d'un possible'. To limit the requirement of a knowledge of Irish to posts involving the 20. It seems to me that every State has the actual teaching of Irish would be to treat it right to try to ensure the diversity of its as a dead language like ancient Greek or cultural heritage and, consequently, to Latin, and as a language incapable of establish the means to carry out such a further development, or, at least, as a policy. Such means concern primarily public confidential language whose use is restricted education. Likewise, every State has the to a small circle of initiates.

GROENER v MINISTER FOR EDUCATION AND THE CITY OF DUBLIN VOCATIONAL EDUCATION COMMITTEE

25. Finally it should be noted that dero­ 29. If that is also the Court's position, it gations for full-time posts are possible seems to me, for the reasons set out above, where there is no other qualified candidate that there is no need to reply either to the and that the level of knowledge required is first or to the third question. However, if not so high as to make it impossible for a the Court does not accept my opinion, how foreigner to pass the examination. Provision should the second indent of Article 3(1) of is made for an intensive course lasting only the Regulation be interpreted for the one month as preparation for that exam­ purposes requested by the national court? ination. Out of six non-Irish candidates, four passed at the first attempt and one at the second. Finally, the documents annexed to the observations of the applicant in the 30. Is it the exclusive or principal aim or main proceedings indicate that the oral effect of the national provision in question examination which she took related to to keep nationals of other Member States topical questions and was not particularly away from the employment offered? In difficult. Consequently, the disputed other words, does it constitute indirect measure, which is flexible in a number of discrimination? ways, is, in my view, limited to what is strictly necessary. 31. In my view, the reply to that question must be qualified. It is not alleged by anyone that the aim of the measure is to 26. The possibility of applying a less strict keep non-Irish nationals away from the measure, consisting, for example, in posts in question. Although brought up to requiring a teacher, once appointed, to take date in 1979, the policy followed by the lessons in Irish does not seem to meet satis­ Irish Government of preserving and factorily the aim in question. First, the fostering the Irish language is, as I have learning of the language would not be pointed out, quite old and in any event

dates from before Ireland's accession to the the certificate presupposes success in the Community Treaties. It also seems that this written and oral examinations. Exemption policy has borne fruit since statistics drawn from the written examination may be up following the 1981 census show an granted essentially to persons who have increase in the number of persons speaking completed their studies and passed examin­ the Irish language in certain regions ations in Irish, to persons who have studied between 1926 and 1981, namely from 9.4 to Irish for at least three years and obtained 28.2% in Leinster, from 21.6 to 34.6% in the appropriate diploma and to graduates Munster and from 33.3 to 38.8% in who have passed the Irish examination. Connaught. 7 There is, therefore, no Exemption from the oral examination may question at all of a measure having as its be granted to a person who has obtained a aim to keep nationals of other Member pass in the oral examination for registration States away from teaching posts. as a secondary school teacher. It is true that many Irish people pursue their studies entirely in English and do not benefit from those derogations. Furthermore, a special examination in Irish such as that taken by 32. As regards the exclusive or principal Mrs Groener compensates for the absence effect of the measure, it seems to be rather of a certificate. However, the Irish to require Irish nationals who wish to obtain Government stated at the hearing that a full-time teaching post to learn the Irish Community nationals who have learned language than to keep away non-Irish Irish outside Ireland in one of the towns nationals. Moreover, the Commission points where such a course is available, which I out that Irish may be studied in Paris, Bonn, have already mentioned, are not granted the Rennes, Brest and Aberystwyth. It should exemptions available to persons who have also be noted that Mrs Groener is obtained the aforesaid diplomas in Ireland. apparently the only non-Irish Community However, since the judgment in Thieffry v national to have failed the special exam­ Conseil de l'Ordre des Avocats à la Cour de ination in the Irish language. Finally, the Paris, 8the Court has considered a refusal to proportion of teachers who are nationals of take into account a diploma which has been another Member State in relation to the recognized as equivalent to a national number of teachers of Irish nationality (189 diploma to be an unjustified restriction. as against 1 723) does not, to my mind, That case concerned freedom of estab­ indicate that a dissuasive effect has been lishment but the decision is also applicable exerted on non-Irish Community nationals; to freedom of movement for workers. indeed, quite the reverse seems to be true.

35. As regards the third question, concerning the concept of public policy 36. Finally, it should be recalled that in its within the meaning of Article 48, I will judgment in Johnston v Chief Constable of confine myself to a few remarks. It seems to the Royal Ulster Constabulary the Court me that this exception cannot apply to stated that: access to employment. This proviso appears in paragraph (3) of Article 48 which in ' ... the only articles in which the Treaty effect sets out workers' freedom to come provides for derogations applicable in situ­ and go within the Community and to stay ations which may involve public safety are there; in other words, it concerns the Articles 36, 48, 56, 223 and 224 which deal political aspect of freedom of movement. with exceptional and clearly defined cases. On the other hand, the public policy proviso Because of their limited character those is not mentioned in paragraph (2) of Article articles do not lend themselves to a wide 48, which relates to the abolition of interpretation and it is not possible to infer discrimination as regards employment, from them that there is inherent in the remuneration and other conditions of work Treaty a general proviso covering all and employment, that is to say the measures taken for reasons of public economic aspect of freedom of movement. 9 safety'. Moreover, the Regulation, which was adopted to implement Article 48, lays down the exceptions to the principle of 37. Consequently, it seems to me for the non-discrimination, essentially as regards same reasons that the public policy proviso languages, as we have seen, and this would is inapplicable in this case and that it is seem to exclude the possibility of adding an unnecessary to reply to the third question.

(3) It is unnecessary to reply to the third question.'