Case C‑391/20

Cilevičs and Others

(Request for a preliminary ruling from the Latvijas Republikas Satversmes tiesa)

 Judgment of the Court (Grand Chamber), 7 September 2022

(Reference for a preliminary ruling – Article 49 TFEU – Freedom of establishment – Restriction – Justification – The organisation of education systems – Institutions of higher education – Obligation to provide courses of study in the official language of the Member State concerned – Article 4(2) TEU – National identity of a Member State – Defence and promotion of the official language of a Member State – Principle of proportionality)

1.        Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – Question raised concerning a dispute confined within a single Member State – National provisions applicable both to own nationals and to nationals of other Member States – Jurisdiction in the light of the possible posting of persons from other Member States

(Arts 49 and 267 TFEU)

(see paragraphs 31, 32)

2.        Freedom of establishment – Freedom to provide services – Provisions of the Treaty – Respective scopes – Organisation of higher education courses for remuneration carried out on a stable and continuous basis – Analysis in the light of the freedom of establishment

(Arts 49 and 56 TFEU)

(see paragraphs 50-53)

3.        Freedom of movement for persons – Freedom of establishment – Restrictions – Restriction, brought about by national legislation, examined under the freedom of establishment – Scope – Limitations of the exercise of the rights and freedoms provided for in the Charter of Fundamental Rights – Included

(Art. 49 TFEU; Charter of Fundamental Rights of the European Union, Arts 15 to 17)

(see paragraph 56)

4.        Freedom of movement for persons – Freedom of establishment – Restrictions – Defence and promotion of the official language of a Member State – Obligation on institutions of higher education to provide their courses solely in the official language of the Member State concerned – Whether permissible – Conditions – Justification on grounds related to the protection of the national identity – Observance of the principle of proportionality

(Art. 49 TFEU)

(see paragraphs 59, 61-64, 67-70, 75, 76, 81, 83-87, operative part)

Résumé

The Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia) has been seised of an action by 20 members of the Latvijas Republikas Saeima (Parliament, Latvia), seeking a review of the constitutionality of certain provisions of the Latvian Law on higher education institutions.

As amended in 2018, that law seeks to promote the official language of the Republic of Latvia by requiring higher education institutions to provide their courses of study in that language. However, that law provides for four exceptions to that obligation. In the first place, courses of study pursued by foreign students in Latvia and courses of study organised as part of the cooperation provided for by EU programmes and international agreements may be taught in the official languages of the European Union. In the second place, classes may be taught in the official languages of the European Union, but may only account for one fifth of the number of credits. In the third place, linguistic and cultural studies and language courses may be taught in a foreign language. In the fourth and final place, joint courses of study may be taught in the official languages of the European Union.

In addition, the Latvian Law on higher education institutions does not apply to two private institutions, which are governed by special laws and may continue to offer courses of study in other official languages of the European Union.

By their action, the applicants submit in particular that by creating a barrier to entry to the higher education market and preventing the nationals and undertakings from other Member States from providing higher education services in foreign languages, the law in question undermines, inter alia, the freedom of establishment guaranteed by Article 49 TFEU.

The Latvian Constitutional Court expresses doubts as to whether legislation of a Member State that makes obligatory the use of the official language of that Member State in the field of higher education, including in private higher education institutions, while providing for certain exceptions to that obligation, constitutes a restriction on the freedom of establishment. It therefore decided to make a reference to the Court of Justice for a preliminary ruling in order to enable it to rule on the compatibility of the Law on higher education institutions with EU law.

In its judgment, the Grand Chamber of the Court finds that Article 49 TFEU does not preclude legislation of a Member State which, in principle, obliges higher education institutions to provide courses of study solely in the official language of that Member State. Such legislation must, however, be justified on grounds related to the protection of the national identity of that Member State, that is to say, that it must be necessary and proportionate to the protection of the legitimate aim pursued.

Findings of the Court

As a preliminary point, the Court notes that, in accordance with Article 6 TFEU, the European Union is to have competence to carry out actions to support, coordinate or supplement the actions of the Member States, including in the area of education. While EU law does not detract from the power of those Member States as regards, first, the content of education and the organisation of education systems and their cultural and linguistic diversity and, secondly, the content and organisation of vocational training, the Member States must, however, comply with EU law when exercising that power, in particular the provisions on freedom of establishment.

In the present case, the Court observes that even if nationals of other Member States may establish themselves in Latvia and provide higher education courses, such a possibility is in principle made subject to the obligation to provide those courses solely in the official language of that Member State. An obligation of that kind is such as to render less attractive the establishment of those nationals in Latvia and therefore constitutes a restriction on the freedom of establishment.

The Court, following the well-established model arising from its case-law, then examines whether there is a justification for the restriction that has been found to exist and carries out a review of compliance with the principle of proportionality. As regards the existence of an overriding reason in the public interest, the obligation at issue seeks to defend and promote the use of the official language of the Republic of Latvia, which is a legitimate objective that, in principle, justifies a restriction on the freedom of establishment. According to the fourth subparagraph of Article 3(3) TEU and Article 22 of the Charter of Fundamental Rights of the European Union, the European Union must respect its rich cultural and linguistic diversity. In accordance with Article 4(2) TEU, the European Union must also respect the national identity of its Member States, which includes protection of the official language of the Member State concerned. The importance of education for the implementation of such an objective must be recognised.

As regards the proportionality of the restriction found to exist, that restriction must, in the first place, be suitable for securing the attainment of the legitimate objective pursued by the legislation at issue. To that end, that legislation can be regarded as capable of ensuring the objective of defending and promoting the Latvian language only if it genuinely reflects a concern to attain it and is implemented in a consistent and systematic manner. In view of their limited scope, the exceptions to the obligation at issue, in particular for the two higher education institutions whose operation is governed by special laws, are not such as to hinder attainment of the objective in question. In allowing certain higher education institutions to benefit from a derogation arrangement, the exceptions form part of a special kind of international university cooperation and are, therefore, not such as to render the legislation at issue in the main proceedings inconsistent.

In the second place, the restriction may not go beyond what is necessary to attain the objective pursued. Member States may thus introduce, in principle, an obligation to use their official language in higher education courses of study, provided that such an obligation is accompanied by exceptions that ensure that a language other than the official language may be used in the context of university education. In the present case, such exceptions should, in order not to exceed what is necessary for that purpose, allow the use of a language other than Latvian, at least as regards education provided in the context of European or international cooperation, and education relating to culture and languages other than Latvian.