C-281/98

I I— Factual and legal context 3. The applicant in the main proceedings, Mr Angonese, (hereinafter 'the applicant') is an Italian citizen who, it appears, is regarded by the competent local authority as having been resident in Bolzano since his 2. The Cassa di Risparmio di Bolzano SpA, birth. He is perfectly bilingual but did not a private banking undertaking, (hereinafter possess a patentino at the material time. 3 'the defendant') advertised posts on 9 July None the less, he applied to participate in 1997 in a local Bolzano newspaper, 'Dolo- the competition and submitted certificates miten'. Applications for the posts were to pertaining to his studies in English, Polish be submitted by 1 September 1997. The and certain other Slavic languages at the advertisement made possession of a type-B Faculty of Philosophy of the University of certificate of bilingualism in German and Vienna from 1993 to 1997 (which had not Italian, commonly known as the 'paten- yet resulted in the grant of a degree), as well tino', a condition of participation in the as to his experience as a draughtsman and competition for the posts. The patentino was required for what used to be known as careers in an advisory capacity in the public 1 — Presidential Decree No 752 of 26 July 1976, Title I. 2 —Of 20 799 applications to sit the examinations in 1996, only 1 077 (5.18%) were submitted by candidates residing outside the province. * Original language: English. 3 — It appears that he acquired it on 20 October 1997.

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Polish-Italian translator in Cracow. The employment or subject these to condi- defendant refused him admission to the tions not applicable in respect of their competition, whereupon he commenced own nationals; or proceedings against the defendant before the Pretura Circondariale (District Magis- trates' Court) di Bolzano (hereinafter 'the national court') seeking the annulment of the clause requiring possession of a paten- tino (hereinafter 'the contested clause') and damages for loss of opportunity. — where, though applicable irrespective of nationality, their exclusive or princi- pal aim or effect is to keep nationals of other Member States away from the employment offered.

he become unemployed, reinstatement or examination centre (namely, Bolzano), on re-employment. completion of a procedure of considerable duration (to be precise, of not less than 30 days, on account of the minimum lapse of time envisaged between the written test and the oral test)?'

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OPINION OF MR FENNELLY — CASE C-281/98

commencing with Knoors v Secretary of ing the relevance for the establishment of a State for Economic Affairs, 7account can connecting factor with Community law of only be taken of time spent studying abroad the subject-matter studied, the duration of in the exercise of Community-law rights if the period of study and the interval of time it results in a relevant diploma or recog- between the end of those studies and the nised training — a condition not satisfied invocation of Community-law rights, the in the present case, as the applicant's agent for the Commission submitted that studies in Vienna had no connection with the duration and temporal immediacy of banking and could not be relied upon by the applicant's studies in the present case him in the competition. Otherwise, short were not problematic. Few people get jobs educational exchanges or even periods of as which dovetail perfectly with their studies little as one day spent abroad as a tourist and too restrictive an approach should not could, quite arbitrarily, enable a person to be adopted in this regard. He also observed invoke Community-law rights against his that the fact that the applicant had been own Member State. Furthermore, the appli- registered as resident in Bolzano through- cant never formally changed his residence out his period of study in Austria was from Bolzano to Vienna. The provisions of immaterial. Council Directive 93/96/EEC the Italian Civil Code on nullity do not of 29 October 1993 on the right of resi- remedy the hypothetical and, thus, inad- dence for students 9 referred (in Italian) to missible character of the reference. un diritto di soggiorno (a right of sojourn, that is, a right of temporary stay) as distinct from a right of permanent residence and it was clear that the applicant had benefited from this to stay in Austria while studying there.

tory criteria, incompatible with Article 7(4) nology. He complains of the fact that of Regulation No 1612/68. When asked at possession of the patentino was a prior the oral hearing whether the Commission condition for participation in the competi- took a view on the possible direct applica- tion, rather than being included among the tion of Article 48 of the EC Treaty to types of qualification to be compared in contractual relations between private assessing candidates' suitability. The Com- employers and employees, the agent for mission argues that proof of bilingualism the Commission stated that it was not such as that furnished by the patentino is a necessary to address the issue in the present justifiable condition of employment in case because its argument regarding the Bolzano but that the practical obstacles to 1994 Collective Agreement was sufficient. obtaining it are disproportionate and prin- The defendant counters that individual cipally affect non-residents of the province. employers are not the addressees of the The defendant argues that the contested obligations in Regulation No 1612/68 clause is not discriminatory because it is regarding recruitment conditions and that objectively justified by the liberty of a the contested clause in the present case had private firm to adopt the recruitment policy no link with the terms of the 1994 Collec- of its choice, which is appropriate to its tive Agreement. Article 7(1) of that Regu- operations in a bilingual area, and without lation refers exclusively to conditions having to carry out its own evaluation of imposed on workers in other Member bilingualism through oral interviews of all States. The application of Article 48 of candidates. The patentino is the only lin- the EC Treaty to private parties is confined guistic qualification specifically designed to to circumstances where they set conditions test bilingualism in the two languages at for an entire economic sector in a collective issue, German and Italian. In any event, the manner. 10 applicant has no qualification which is even potentially equivalent, so his arguments are purely hypothetical.

14. It is settled case-law that '[t]he provi- sions of the Treaty on freedom of move- ment for workers cannot ... be applied to situations which are wholly internal to a Member State, in other words, where there is no factor connecting them to any of the 16. I will discuss, firstly, a number of cases situations envisaged by Community law' in which the Court has found the condition (emphasis added). 11 The highlighted of a connecting factor with Community expressions have acquired the status of law to be met. In Knoors, 12 the Court terms of art used to express the test of stated that nationals of all the Member applicability of Community law. States could rely upon the provisions of a Council Directive on recognition of foreign periods of relevant work experience for the purpose of authorisation to carry on certain trades, 13 even to contest rules applied by the State whose nationality they possess. The liberties guaranteed by, inter alia, 15. The rights conferred on workers by Article 48 of the Treaty, 'which are funda- Article 48 of the EC Treaty and by the mental in the Community system, could not measures implementing it are typically and be fully realised if the Member States were most readily invoked by workers of the in a position to refuse to grant the benefit of the provisions of Community law to those of their nationals who have taken 11 — Case 175/78 Regina v Saunders [1979] ECR 1129, para- advantage of the facilities existing in the graph 11. See also, for example, as regards the freedom of movement for workers or freedom of establishment, Joined matter of freedom of movement and estab- Cases 35/82 and 36/82 Morson and Jhanjan v State of the Netherlands [1982] ECR 3723, paragraph 16; Moser, op. lishment and who have acquired, by virtue cit., paragraph 15; Case 298/84 Jorio v Azienda Auton- oma delle. Ferrovie dello Stato [1986] ECR 247, para- graph 14; Case 204/87 Criminal Proceedings against Bekaert [1988] ECR 2029, paragraph 12; Joined Cases C-54/88, C-91/88 and C-14/89 Nino and Others [1990] 12 — Op. cit., paragraph 18. ECR 1-3537, paragraph 11; Joined Cases C-297/88 and 13 — Council Directive No 64/427/EEC of 7 July 1964 laying C-197/89 Dzodzi [1990) ECR I-3763, paragraph 23; Case down detailed provisions concerning transitional measures C-332/90 Steen v Deutsche Bundespost [1992] ECR I-341, in respect of activities of self-employed persons in manu- paragraph 9; Case C-206/91 Koua Poirrez v CAT [1992[ facturing and processing industries falling within ISIC ECR I-6685, paragraphs 10 and 11; Kraus, op. cit., Major Groups 23-40 (Industry and small craft industries), paragraph 15. OJ, English Special Edition, Series I, 1963-1964, p. 148.

18. In these cases, there was, independently of the nationality of the person seeking to rely upon the Community legislation at 17. In Broekmeulen v Huisarts Registratie issue, an intrinsic trans-frontier element. Commissie, 15 the Court gave the same The legislation required one Member State, reason for permitting the invocation, by a for the purpose of authorising an economic doctor of Dutch nationality, of two Council activity, to recognise educational qualifica- Directives concerning recognition of med- tions acquired by all Community nationals ical qualifications and authorisation to in another Member State, or to recognise practise as a doctor. 16 He had obtained periods of employment or self-employment his medical qualifications in Belgium. The deemed equivalent to such qualifications, Dutch authority responsible for the regis- which were directly material to that activ- tration of general medical practitioners had ity. 19 required him to undergo an additional year's training. A similar result was reached in Gullung v Conseils de l'Ordre des Avocats du Barreau de Colmar et de Saverne. 17 A person of dual nationality, who had been admitted to the legal profes- sion in one of the Member States whose 19. In Bouchoucha, 20 the defendant, a nationality he held, was permitted to rely French national, was prosecuted for prac- on the provisions of Council Directive tising osteopathy in France, an activity 77/249/EEC of 22 March 1977 to facilitate restricted to qualified doctors. He had the effective exercise by lawyers of freedom acquired a diploma in osteopathy in the to provide services 18 in the territory of the United Kingdom which permitted him to other Member State, provided the condi- pursue that activity in that country. The Court stated that it followed from the fact that he, a French national practising in 14 — Knoors, op. cit., paragraph 20. Although Knoors con- France, held a professional diploma issued cerned the right of establishment, the Court confirmed in in another Member State that the scope of Kraus, op. cit., paragraph 16, that the same reasoning must be followed as regards Article 48 of the EC Treaty. the case was not purely national and that 15 —Case 246/80 [1981] ECR 2311 (hereinafter 'Broekmeu- the applicability of the Treaty provisions on len'), paragraph 20. 16 — Council Directive 75/362/EEC of 16 June 1975 concerning freedom of movement must be consid- the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including ered. 21 However, the Court held that, in measures to facilitate the effective exercise of the right of the absence of provisions for the mutual establishment and freedom to provide services, and Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regula- tion or administrative action in respect of activities of doctors, OJ 1975 L 167, pp. 1 and 14 respectively. 19 — See also Case 271/82 Auer v Ministère Public [19831 17 — Case 292/86 [1988] ECR 111 (hereinafter 'Gullung'), ECR 2727, paragraph 20. paragraph 12. 20 — Case C-61/89 [1990] ECR I-3551. 18 — OJ 1977 L 78, p. 17. 21 — Op. cit., paragraph 11.

20. In Kraus, the Court addressed the 21. Although it does not relate to the somewhat different circumstances of a recognition of educational or other qualifi- German national who merely sought recog- cations, a brief reference should also be nition by the German authorities of his made to the Court's judgment in Singh. 28 right to use a postgraduate academic title That case related to the Indian husband of conferred on him by a university in the a United Kingdom national. They spent a United Kingdom following a course of two-year period working in Germany, after study there. The Court noted that, although which they returned to the United Kingdom possession of a postgraduate academic title to set up a business. As a consequence of is not usually a prerequisite for access to a his wife's right to freedom of movement to profession, it constitutes an advantage for exercise an economic activity, the Court the purpose of gaining entry into and held that the' husband's right to enter and prospering in such a profession. 24 It could remain in the United Kingdom with her improve its holder's chances relative to was governed by Article 52 of the EC candidates who did not have such a sup- Treaty (now, after amendment, Arti- plementary qualification by attesting to the cle 43 EC) and Council Directive 73/148/ former's fitness for a particular post and, as EEC of 21 May 1973 on the abolition of the case may be, his command of the restrictions on movement and residence language of the country where it was within the Community for nationals of awarded. 25 Furthermore, such an addi- Member States with regard to establish- tional qualification might be necessary for ment and the provision of services. 29 It access to certain academic posts, or could stated that a national of a Member State contribute to more rapid promotion, or might be deterred from leaving his country facilitate establishment as an independent of origin in order to pursue an activity as an practitioner. 26 The Court concluded, there- employed or self-employed person as envi- fore, that 'the situation of a Community saged by the Treaty in another Member State if, on returning to the Member State of which he is a national in order to pursue 22 — Ibid., paragraphs 14 to 16. 23 — Case C-234/97 [1999] ECR I-4773 (hereinafter 'Fernández de Bobadilla'). 24 — Op. cit., paragraph 18. 27 — Ibid., paragraph 23. 25 — Ibid., paragraph 19. 28 — Case C-370/90 [1992] ECR I-4265. 26 — Ibid., paragraphs 20 to 22. 29 —OJ 1973 L 172, p. 14.

an activity there as an employed or self- sufficient connection with Community law employed person, the conditions of his to justify the application of Article 48 of entry and residence, or those applied to the Treaty'. 33 his spouse and children, were not at least equivalent to those applicable to them under the Treaty or secondary law in the territory of another Member State. 30 23. The Court applied the same approach in Kremzow v Austrian State. 34 It declined to address the question whether the depri- vation of an Austrian national's liberty by virtue of a prison sentence imposed by the Austrian courts for murder and possession of firearms constituted an unlawful restric- tion on the prisoner's freedom of move- ment, stating that '[w]hilst any deprivation 22. Before returning to the application of of liberty may impede the person concerned these principles to the present case, I will from exercising his right of free move- refer to some cases which the Court has ment, ... a purely hypothetical prospect of found to fall outside the scope of Commu- exercising that right does not establish a nity law. In cases where a Community sufficient connection with Community law national challenges rules applied by his to justify the application of Community own Member State, the Court has refused provisions'. 35 to treat as a sufficient connecting factor with Community law a merely hypothetical possibility of that person exercising free- movement rights. Thus, Moser concerned a German national who had always lived and 24. Even the fact that an economic actor maintained his residence in Germany, 31 but resides in a Member State other than that in who, in order to establish a connection which he works may not be sufficient to with the Community provisions he establish a sufficient connection with Com- invoked, claimed that the German legisla- munity law. In Werner v Finanzamt tion denying him access to the teaching Aachen-Innenstadt, 36 a German national profession in that country because of who resided in the Netherlands and worked uncertainty as to his loyalty to the Basic as a self-employed dentist in Germany, Law (he was said to be a member of the where he earned virtually all his income, Communist Party) also precluded him from challenged German tax rules which denied applying for posts in schools in the other to non-residents, who were subject to tax Member States. 32 The Court did not accept only on their German income, the benefit this argument, responding that '[a] purely of rules regarding the splitting of spousal hypothetical prospect of employment in income and the deduction from taxable another Member State does not establish a 33 — Ibid., paragraph 18. 34 — Case C-299/95 [1997] ECR I-2629 (hereinafter 'Krem- 30 — Op. cit., paragraphs 19 and 20. zow'). 31 — See also, for example, Case 20/87 Ministère Public v 35 — Ibid., paragraph 16. See also, in the field of services, Case Cauchará [1987] ECR 4879, paragraphs 10 and 13; Steen C-41/90 Höfner and Elser [1991] ECR I-1979, para- v Deutsche Bundespost, op. cit., paragraph 10. graph 39. 32 — Op. cit., paragraphs 16 and 17. 36 — Case C-112/91 [1993] ECR I-429 (hereinafter -Werner·).

'Mr Werner is a German national who obtained his degrees and professional qua- lifications in Germany; he has always practised his profession in Germany and is subject to German tax legislation. The only factor which takes his case out of a purely 26. It is, of course, quite clear from the national context is the fact that he lives in a subsequent decision of the Court in Schu- Member State other than that in which he macher' 4 3 that Mr Werner's claim failed practises his profession.' 38 only because he was of the same nationality (German) as the Member State whose tax provisions he wished to challenge. In Schu- macher, the applicant was a national of Belgium, where he resided. He earned his entire income from employment in Ger- many and was subjected, as a non-resident, to essentially the same German rules as were applied to Mr Werner. His case came within the scope of Community law 25. Advocate General Darmon expressly stated that he viewed Mr Werner's situa- tion as being quite distinct from that of, for 40 — Ibid., paragraph 30; see also the Opinion of Advocate example, a Dutch national who resided in General Mischo in Case C-15/90 Middleburgh [1991] ECR I-4655, paragraph 45. the Netherlands and was self-employed in 41 — Op. cit., paragraphs 36 to 43. The non-application of the Germany, from the point of view of the Treaty rules on services in the case of a permanent change in residence was confirmed by the Court in Case C-70/95 possible application of Article 52 of the EC Sodemare and Others v Regione Lombardia [1997] Treaty. 3 9 He analysed the case-law, sum- ECR I-3395. 42 — Ibid., footnote 19 to the Opinion. The relevant directives marised above, on the assimilation of a were Council Directive 90/364/EEC of 28 June 1990 on the right of residence; Council Directive 90/365/EEC of Member State's own nationals to migrant 28 June 1990 on the right of residence for employees and workers or self-employed persons as turn- self-employed persons who have ceased their occupational activity; and Council Directive 90/366/EEC of 28 June ing on the prior exercise of the right of free 1990 on the right of residence for students, OJ 1990 L 180, pp. 26, 28 and 30 respectively. Directive 90/366/ EEC was annulled by the Court in Case C-295/90 Parliament v Council [1992] ECR I-4193 and was replaced by Council Directive 93/96/EEC, op. cit. 37 — Ibid., paragraph 17. 43 — Case C-279/93 [1995] ECR I-225. See also Case C-80/94 38 — Ibid., paragraph 16. Wielockx v Inspecteur der Directe Belastingen [1995] 39 — Ibid., paragraph 24 of his Opinion. ECR I-2493.

28. Leaving aside for the moment the fact that the applicant had not completed his 29. The criterion of a material link studies, it is of primary importance, in my between, on the one hand, a putative view, that, while those studies can be connecting factor with Community law characterised as a type of vocational train- and, on the other, the Community rules ing within the meaning of Article 127 of invoked and the circumstances in which the EC Treaty (now, after amendment, they are to be applied, was inevitably Article 150 EC), they were, none the less, satisfied in Knoors, Broekmeulen and Gul- quite remote in content both from the lung because, as I pointed out above, those banking post for which the applicant cases directly concerned the applicability of wished to be considered and from the Community legislation on the recognition certificate of bilingualism required of can- of the educational qualifications or periods didates for that post. If graduates (or of economic activity in question. Bouchou- students who have verifiably completed a cha provides more immediate support for substantial part of their course) are to use my analysis — although the French defen-

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31.1 think that this approach, whereby the 30. Kraus is a somewhat special case, as it sufficiency of a putative connecting factor related to the abstract recognition of an is judged in the light of the character of the academic title. The Court indicated that it economic activity or restrictive rule at was willing to treat the case as one issue, is underpinned by the judgment in governed by Community law because the Werner, interpreted in the light of the more postgraduate legal qualification in question extensive analysis of Advocate General 'facilitates access to a profession or, at least, Darmon referred to above. That case shows the pursuit of an economic activity'. It that not all trans-frontier factual elements based this conclusion on as concrete an are material to establishing the existence of assessment of its relevance to entry into and a connecting factor with Community law. advancement in the legal profession, either Thus, foreign residence alone did not as a practitioner or as an academic, as was entitle a German national to invoke the possible given the abstract character of the Treaty rules on establishment against Ger- case. If the applicant in that case had held a many, in whose territory he had always foreign degree in English and Polish, its pursued his economic activity. It is an open economic relevance would have had to be question — and, more to the point, an assessed by reference to an entirely differ- ent range of potential professional activ- ities. By the same token, if the applicant in 44 — Op. cit., paragraph 19.

32. I do not think that the judgment in Singh is inconsistent with the approach outlined immediately above. It is true that 34. On the other hand, it is necessary to the Court did not seek to identify any link address the alternative argument put for- between the nature of the wife's economic ward by the national court — that Arti- activity in Germany and that undertaken cles 1418 and 1421 of the Italian Civil upon her return with her husband to the Code permit the applicant to benefit from United Kingdom. However, the national the nullity erga omnes of the contested immigration rule at issue was not con- clause if it is established that it breaches the nected with any particular profession or rights of other, perhaps entirely hypotheti- economic activity, but affected freedom of cal, third parties, such as a candidate who movement as such. In those circumstances, is a national of another Member State and a different, more general approach was who holds a qualification which is equiva- justified, permitting any United Kingdom lent to the patentino. In my view, the Court does not have jurisdiction to rule on the rights of such hypothetical third parties, 45 — On the subject of barriers to exit from a Member State in even if such a ruling would be material to order to exercise an economic activity, see my Opinion of the national court's decision in the present 16 September 1999 in Case C-190/98 Volker Graf v Filzmoser Maschinenbau. case.

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The domestic law. 47 Community rules prohibiting discrimina- tion against workers on grounds of nation- ality which have been invoked by the applicant lay down a standard of great generality, whose applicability and effects vary according to the circumstances. This is particularly so as regards the discussion of indirect discrimination. 49 I have already 36. However, the present case is not, in my concluded that those rules do not apply view, comparable to cases such as Dzodzi, directly to a person in the applicant's

In addition to Dzodzi and Gmurzynska- 49 — The Court's ruling in Fernández de Bobadilla, op. cit., is a Bscher, cited above, the Court referred in both cases to good example of the kind of conditional response, closely Case 166/84 Thomasdünger v Oberfinanzdirektion Frank- finked to a party's individual circumstances, that may be furt am Main [1985] ECR 3001 and Case C-384/89 given to a question regarding recognition of educational Tomatis and Fulchiron [1991] ECR I-127. qualifications.

element in any analysis of discrimination. It Regulation No 1612/68, must be deemed would amount to a contrived or artificial null and void in so far as it authorises procedure, quite different from cases like discrimination on grounds of nationality. Dzodzi and Giloy, for the Court to seek to Article 19 of the 1994 Collective Agree- determine whether those rules could, none ment does not purport to regulate the the less, be of indirect benefit to the conditions for recruitment to be operated applicant by virtue of the general effect in by employers. It is not, in my view, Italian civil law of a finding of nullity, consistent with the underlying autonomy simply because those rules would protect a of economic actors in a market economy, in person in a quite different situation from the c o n t e x t of which R e g u l a t i o n the unconditional application of the con- No 1612/68 was clearly intended to apply, tested clause. to strain the interpretation of clauses of collective agreements which leave a parti- cular matter to be determined at the discretion of individual employers, as amounting to authorisation, within the meaning of Article 7(4), by the parties to that collective agreement of the conditions ultimately imposed. In reality, the Commis- sion's approach avoids the fundamental question, to which I will now turn, of whether Article 48 of the EC Treaty applies directly to private employment relation- ships, as does, in particular, Article 119 of (ii) Rules applicable to a private undertak- the EC Treaty (Articles 117 to 120 of the ing Treaty have been replaced by Articles 136 EC to 143 EC). The same question may be posed regarding Article 7(1) of Regulation No 1612/68. Article 3 of that Regulation may be excluded from discus- sion, as it clearly relates to provisions and administrative practices of the Member States. I do not think that the fact that the patentino is granted by a public body is sufficient to bring Article 3 into play in a 38. On the assumption that, contrary to the case such as the present. views I have expressed, the present case falls within the scope of Community law, the question referred by the national court requires the Court to address the issue of the extent to which private employers are subject to an obligation of non-discrimina- tion on grounds of nationality. I am not convinced by the argument of the Commis- sion that the contested clause must be annulled because it was permitted by Article 19 of the 1994 Collective Agree- 39. Article 7(1) of Regulation No 1612/68 ment, which, by virtue of Article 7(4) of is contained in a regulation which is, in

40. Article 48(2) of the EC Treaty is 41. It is difficult to conceive that advertise- couched in terms of the abolition of ments of vacancies, for example, open discrimination but does not expressly iden- exclusively to candidates of a given nation- tify any particular addressee of that obliga- ality, or, perhaps worse, excluding a given tion. The Court has already held it to be nationality, would escape the prohibition in applicable to rules adopted by private Article 48 of the EC Treaty. However, a bodies aimed at regulating gainful employ- combination of factors dissuades me from ment in a collective manner, because the delving further into this question in the abolition of State barriers might otherwise present case. First, these possible grounds be neutralised by obstacles arising from the for the application to private employers of exercise of their legal autonomy by asso- a prohibition of discrimination on grounds ciations or organisations not governed by of nationality were not raised in the public law. 50 The Court stated that if the grounds for the order for reference or scope of Article 48 were confined to the discussed to any useful extent in the acts of a public authority, there would be a observations submitted to the Court. The risk of creating inequality in its applica- Commission, in particular, in response to a tion. 51 It may seem surprising, therefore, question at the oral hearing, was not that the Court has not to date had occasion prepared to go beyond the suggestion, to comment on the application of Arti- which I have found unpersuasive, that the cle 48 to employment conditions specified answer is to be found in the text of the by individual undertakings. The most that 1994 Collective Agreement. Secondly, the can be said is that such a step is not present case concerns an allegation of excluded by its reasoning in the sporting indirect discrimination on grounds of association cases. At first sight, it can nationality, prohibition of which may pre- certainly be argued that Article 48(2) sent special problems and difficulties in the case of private economic actors. As I

(iii) Unlawful discrimination suffered by the applicant 43. The only potential problem with the defendant's requirement that recruitment candidates hold the patentino is that it might discriminate indirectly against, or restrict the free movement of, migrant workers in possession of equivalent quali- fications granted by other bodies. 53 Such 42. I have already indicated above that, persons could seek to invoke the Court's subject to the findings of the national court, case-law on the requirement to determine I do not see any necessary connection the equivalence of different qualifica- between the applicant's course of study in tions. 54 However, I have already stated Vienna and the patentino required by the that the applicant does not find himself in defendant of candidates for its recruitment that position, and that any discussion of competition. It is obvious, in the light of the that issue would be entirely hypothetical. I linguistic regime in the province of Bolzano conclude, therefore, that there is nothing in and of the linguistic make-up of its popula- the facts outlined to the Court which tion, that the defendant was entitled to establishes the existence of covert discrimi- require its potential employees to give nation on grounds of nationality which evidence of bilingualism. Given the number affects the applicant, or which could be of applicants which could be expected for remedied by an assessment of the equiva- its recruitment competition, it was legiti- lence of his studies to the evidence of mate for it to require such evidence to be bilingualism afforded by the patentino. provided at the date of application, by reference to relevant qualifications already acquired, to assist it in short-listing candi- 53—The case-law on the recognition of equivalent foreign dates for the competition itself. Thus, the qualifications tends to characterise national rules requiring a particular national qualification as restrictions on free fact that examinations for the patentino movement rather than as a form of indirect discrimina- were held only four times a year does not tion — see my Opinion in Volker Graf v Fikmoser Maschinenbau, op. cit., paragraph 26. appear to me to pose a problem — indeed, 54 — See, for example, Fernández de Bobadilla, loc. cit.