OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 8 March 2022(1)
Case C‑391/20
Boriss Cilevičs,
Valērijs Agešins,
Vjačeslavs Dombrovskis,
Vladimirs Nikonovs,
Artūrs Rubiks,
Ivans Ribakovs,
Nikolajs Kabanovs,
Igors Pimenovs,
Vitālijs Orlovs,
Edgars Kucins,
Ivans Klementjevs,
Inga Goldberga,
Evija Papule,
Jānis Krišāns,
Jānis Urbanovičs,
Ļubova Švecova,
Sergejs Dolgopolovs,
Andrejs Klementjevs,
Regīna Ločmele-Luņova,
Ivars Zariņš
joined parties:
Latvijas Republikas Saeima
(Request for a preliminary ruling from the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia))
(Reference for a preliminary ruling – Article 49 TFEU – Freedom of establishment – Article 56 TFEU – Freedom to provide services – Restriction – National legislation requiring institutions of higher education to promote and develop the national official language – Justification – Proportionality – Article 4(2) TEU – National identity – Article 13 of the Charter of Fundamental Rights of the European Union – Academic freedom)
I. Introduction
1. The year 2021 marked the 40th anniversary of the European Parliament’s Resolution on a Community charter of regional languages and cultures and on a charter of rights of ethnic minorities. (2) The resolution was relatively short, but – to my knowledge – it was one of the first instances in which the Parliament intervened in such an area, calling on Member States to ‘implement a [specific] policy in this field’. Indeed, language issues have traditionally been regarded as being closely linked to national sovereignty and identity, (3) and, thus, socially and politically very sensitive in most Member States. (4) Consequently, both the EU legislature and the EU Courts have consistently adopted a rather cautious, diplomatic and pragmatic approach to language regimes, especially when that meant imposing obligations in that regard upon Member States. (5)
2. In the preamble to the resolution, the Parliament emphasised its determination to ‘bring about a closer union among the peoples of Europe and to preserve their living languages, drawing on their diversity in order to enrich and diversify their common cultural heritage’. (6) The Parliament thus combined two objectives that, at first sight, might appear hard to reconcile: the wish to create a closer union among the European citizens, and to preserve and promote their diverse linguistic and cultural heritage.
3. Nowadays, four decades later, those two objectives remain topical and of the greatest significance to the European project. The desire to continue the process of ‘creating an ever closer union among the peoples of Europe’ appears in the preamble of both the EU Treaty and the FEU Treaty, as well as in Article 1 TEU. At the same time, the preamble to the FEU Treaty and Article 3(3) TEU also express the European Union’s will to ‘respect its rich cultural and linguistic diversity’ and to ‘ensure that Europe’s cultural heritage is safeguarded and enhanced’.
4. There is no doubt, in my view, that those objectives are not antithetic and, consequently, can and should be pursued at the same time. However, it is equally true that, in some specific sets of circumstances, they might pull the European Union in different directions. For example, national measures designed to promote and protect the use of a national language may, in practice, give rise to obstacles to the exercise, by individuals and firms, of their freedom of movement.
5. In those circumstances, it seems to me that a fair balance between those two objectives must be struck, so that they both can effectively be pursued. The present case offers such an example: by its questions, the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia) essentially asks the Court whether national legislation which, subject to some exceptions, requires institutions of higher education to offer courses only in the official national language is compatible with EU law.
II. Legal framework
A. European Union law
6. Recital 11 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (7) (‘the Services Directive’) provides, inter alia:
‘This Directive does not interfere with measures taken by Member States, in accordance with Community law, in relation to the protection or promotion of cultural and linguistic diversity and media pluralism, including the funding thereof.’
7. Article 1(1) and (4) of the Services Directive provides:
‘1. This Directive establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.
…
4. This Directive does not affect measures taken at Community level or at national level, in conformity with Community law, to protect or promote cultural or linguistic diversity or media pluralism.’
B. National law
1. The Latvian Constitution
8. Article 4 of the Latvijas Republikas Satversme (Constitution of the Republic of Latvia; ‘the Latvian Constitution’) provides, inter alia, that ‘the official language of the Republic of Latvia is Latvian’.
9. Article 105 of the Latvian Constitution provides for the right to own property, and Article 112 of the Latvian Constitution recognises the right to education. Pursuant to Article 113 of the Latvian Constitution, ‘the State shall recognise freedom of scientific, artistic and other forms of creation, and shall ensure protection for copyright and patent rights’.
2. The Law on higher education institutions
10. Article 5 of the Augstskolu likums (Law on higher education institutions) of 2 November 1995 (8) provided that the role of higher education institutions was to promote and develop the sciences and the arts. The likums ‘Grozījumi Augstskolu likumā’ (Law amending the Law on higher education institutions) of 21 June 2018 (9) amended the third sentence of Article 5 of the Law on higher education institutions as follows: ‘as part of their activities, [higher education institutions] shall promote and develop the sciences, the arts and the official language.’
11. The Law amending the Law on higher education institutions also amended Article 56 of that law. As a result, Article 56(3) of the Law on higher education institutions reads as follows:
‘In higher education institutions and institutions of higher technical and vocational education, courses of study shall be taught in the official language. Courses of study may be pursued in a foreign language only in the following circumstances:
1) Courses of study pursued by foreign students in Latvia and courses of study organised as part of the cooperation provided for by European Union programmes and international agreements may be taught in the official languages of the European Union. Where the course of study to be undertaken in Latvia lasts for more than six months or represents more than 20 credits, the number of compulsory class hours to be taken by foreign students must include the learning of the official language;
2) Classes taught in the official languages of the European Union may not account for more than one fifth of the credits for the course of study; final exams, State exams, assessed coursework and dissertations for a bachelor’s or master’s degree will not be taken into account for the purposes of that calculation;
3) Courses of study may be taken in a foreign language where necessary in order to achieve their objectives … for the following categories of courses: linguistic and cultural studies or language courses …;
4) Joint courses of study may be taught in the official languages of the European Union.’
3. The Law on the Stockholm School of Economics in Riga and the Law on the Riga Graduate School of Law
12. Article 19(1) of the Likums ‘Par Rīgas Ekonomikas augstskolu’ (Law on the Stockholm School of Economics in Riga) (10) provides: ‘In this institution, courses shall be taught in English. All work to be submitted for the award of a bachelor’s degree, a master’s degree or a doctorate shall be written and defended in English, and professional examinations shall be conducted in English.’
13. Article 21 of the Juridiskās augstskolas likums (Law on the Riga Graduate School of Law) (11) provides: ‘This institution offers courses of study that have obtained the relevant authorisation and have been granted accreditation in accordance with the legislation. Courses shall be taught in English or another official language of the European Union.’
III. Facts, national proceedings and the questions referred
14. The Latvijas Republikas Satversmes tiesa (Constitutional Court) is seised of an application lodged by 20 members of the Saeima (Latvian Parliament) (‘the applicants’). In their action, the applicants contest the compatibility of some provisions of the Law on higher education institutions, as amended – essentially, those requiring institutions of higher education to offer courses only in the official national language – with EU law.
15. Before the Latvijas Republikas Satversmes tiesa (Constitutional Court), the applicants argued that the contested provisions restrict, in the first place, the independence of private higher education institutions and the academic freedom of their teachers and students. They also maintained that the contested provisions restrict the right of higher education institutions to engage in commercial activities and to provide higher education services in return for payment, thereby infringing their property rights. Furthermore, by creating a barrier to entry to the higher education market and preventing citizens and undertakings from other EU Member States from providing higher education services in foreign languages, the contested provisions also undermine – in the view of the applicants – the right of establishment and the freedom to provide services recognised in Articles 49 and 56 TFEU, and also the freedom to conduct a business enshrined in Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
16. On 11 June 2020, the Latvijas Republikas Satversmes tiesa (Constitutional Court) gave judgment in Case No 2019‑12‑01. It decided to divide the case under consideration into two: a case concerning the compatibility of the contested provisions with Article 112 of the Latvian Constitution (‘case 1’), and a case concerning the compatibility of the contested provisions with Articles 1 and 105 of the Latvian Constitution (‘case 2’).
17. The Latvijas Republikas Satversmes tiesa (Constitutional Court) considered that it was in a position to give judgment in case 1. It found the third sentence of Article 5(1) of the Law on higher education institutions to be compatible with Article 112 of the Latvian Constitution, in conjunction with Article 113 thereof. Conversely, it declared that Article 56(3) of the Law on higher education institutions and point 49 of its transitional provisions were incompatible with Article 112 of the Latvian Constitution, in conjunction with Article 113 thereof, in so far as the contested provisions applied to private higher education institutions. However, that court decided temporarily to maintain the contested provisions in force – namely, until 1 May 2021 – in order to give the national legislature a reasonable time to adopt new legislation.
18. With regard to case 2, the Latvijas Republikas Satversmes tiesa (Constitutional Court) considered that it would have to return to its examination of the substantive issue. It found that the right to own property enshrined in Article 105 of the Latvian Constitution should be interpreted in the light of the EU principles concerning the freedom of establishment and the freedom to provide services.
19. Accordingly, entertaining doubts on the proper interpretation of the relevant provisions of EU law, on 29 July 2020 the Latvijas Republikas Satversmes tiesa (Constitutional Court) decided to stay the proceedings and to submit the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does legislation such as that at issue in the main proceedings constitute a restriction on the freedom of establishment enshrined in Article 49 [TFEU] or, in the alternative, on the freedom to provide services guaranteed in Article 56 [TFEU], and on the freedom to conduct a business recognised in Article 16 of the [Charter]?
(2) What considerations should be taken into account when assessing whether the legislation in question is justified, suitable and proportionate with regard to its legitimate purpose of protecting the official language as a manifestation of national identity?’
20. By law of 8 April 2021, which entered into force on 1 May 2021, the contested provisions were amended. Thus, on 6 September 2021, the Court of Justice asked the Latvijas Republikas Satversmes tiesa (Constitutional Court) whether it wished to withdraw its request for a preliminary ruling or to maintain it. By its reply of 5 October 2021, the Latvijas Republikas Satversmes tiesa (Constitutional Court) informed the Court of its wish to maintain its request for a preliminary ruling.
21. Written observations have been submitted by the applicants in the main proceedings, the French, Latvian, Netherlands and Austrian Governments, as well as the European Commission.
IV. Analysis
22. In the present Opinion, I shall deal with the – by all means important and delicate – issues raised by the questions referred by the Latvijas Republikas Satversmes tiesa (Constitutional Court). However, before turning to those issues, I must address the doubts, expressed by the Commission, concerning the continued relevance of the questions referred for the solution of the dispute pending before the referring court.
A. Admissibility
23. Article 267 TFEU and Article 94 of the Rules of Procedure of the Court of Justice subject the admissibility of the request for a preliminary ruling to a number of conditions of both substantive and procedural nature. One of those conditions is that the Court’s answers to the questions referred must be relevant for the resolution of the dispute pending before the referring court. In other words, the answer to those questions must be necessary to enable the referring court to ‘give judgment’ in the cases before it. (12)
24. The conditions for the admissibility of the reference must be satisfied not only at the moment when the Court is seised, but also throughout the proceedings. When, in the course of the procedure, those conditions are no longer fulfilled, the Court is to terminate the proceedings, declaring that there is no need to reply. That may be the case, for example, when the main proceedings have become devoid of purpose because of subsequent decisions of the referring court (or another national court) in the very same proceedings, or in some related proceedings, (13) or when the relevant provisions of national law are amended or repealed. (14)
25. On the basis of that case-law, the Commission expresses some doubts as to whether the present request for a preliminary ruling is admissible. The Commission notes that, by virtue of its judgment of 11 June 2020, the Latvijas Republikas Satversmes tiesa (Constitutional Court) has already found the national provisions at issue to be contrary to the national constitution. Moreover, following that judgment, the Latvian legislature has amended those provisions, with effect from 1 May 2021. (15)
26. I do not share the Commission’s doubts.
27. At the outset, it must be borne in mind that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment, and the relevance of the questions that it submits to the Court. It follows that questions referred by national courts enjoy a presumption of relevance and that the Court may refuse to rule on those questions only where it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to those questions. (16)
28. The present case does not seem to me to fall within any of the situations in which the presumption of relevance can be rebutted.
29. In that regard, I note that, by its judgment of 11 June 2020, the Latvijas Republikas Satversmes tiesa (Constitutional Court) decided, as mentioned in points 16 to 18 above, to divide the proceedings into two distinct cases: case 1 and case 2. In case 1, the referring court gave final judgment, finding the contested provisions to be incompatible with certain provisions of the Latvian Constitution. In case 2, that court considered that it could not complete the analysis as to the alleged incompatibility between the contested provisions and other provisions of the Latvian Constitution. In that case, the referring court took the view that the provisions of national law at issue had to be interpreted in conformity with certain provisions of EU law the scope of which was not sufficiently clear.
30. The questions referred by the Latvijas Republikas Satversmes tiesa (Constitutional Court) concern precisely case 2. As that court explained in its reply of 5 October 2021 to the question of the Court, that case is still pending before the referring court and requires adjudication. (17) That means that the referring court considers an answer from the Court to the questions posed still necessary to give judgment.
31. There does not appear to be anything in the case file that may call into question the assessment of the referring court in that regard. On the contrary, a number of elements suggest that an answer to the issues raised in the present reference has not become redundant.
32. First, it cannot be excluded that the examination by the Latvijas Republikas Satversmes tiesa (Constitutional Court) of the issues raised in case 2 may reveal aspects of incompatibility between the contested provisions and the national constitution – when the latter is interpreted in the light of EU law – which are additional to those identified in case 1. That situation might thus prompt an additional intervention of the Latvian legislature in order to ensure the lawfulness of the contested provisions. In fact, by means of its law of 8 April 2021, the legislature has shown its willingness to amend, and not completely repeal, the contested provisions.
33. Second, the Latvijas Republikas Satversmes tiesa (Constitutional Court) has, notwithstanding its findings in case 1, decided temporarily to maintain the contested provisions in force until 1 May 2021. Those provisions thus deployed their effects for a given period of time. The possibility that, following the decision of the Latvijas Republikas Satversmes tiesa (Constitutional Court) in case 2, the firms and individuals affected by the allegedly unlawful provisions will commence follow-up judicial proceedings (for example, seeking compensation) cannot be, a priori, ruled out.
34. On that basis, it is not certain that the judgment of the Latvijas Republikas Satversmes tiesa (Constitutional Court) in case 1 and/or the law amending the contested provisions have put an end to the alleged incompatibility between the contested provisions and EU law. In those circumstances, it is not obvious that the interpretation of the EU provisions sought bears no relation to the actual facts of the main action or its purpose, or that the problem is hypothetical. (18)
35. More fundamentally, it should not be overlooked that the proceedings currently pending before the Latvijas Republikas Satversmes tiesa (Constitutional Court) do not relate to one or more specific disputes between some physical or legal person and the public authorities. Indeed, as the referring court explained, in those proceedings – that are brought by individuals having the active legitimacy (such as members of the Latvian Parliament), in order to defend the public interest – it is required to conduct a review of legislation in abstracto, in order to determine whether the contested provisions are compatible with higher ranking rules of law.
36. In those circumstances, to consider that the questions referred are irrelevant for the purposes of resolving the case would amount, in practice, to disregarding the nature of that procedure and to defeating its very purpose.
37. In the light of the above, the reference is, in my view, admissible.
B. The questions referred
38. By its two questions, which it is appropriate to examine together, the Latvijas Republikas Satversmes tiesa (Constitutional Court) essentially asks the Court whether national legislation which, subject to some exceptions, requires institutions of higher education to offer courses only in the official national language is compatible with EU law. In that respect, the referring court entertains certain doubts regarding the interpretation to be given to Articles 49 and 56 TFEU, and Article 16 of the Charter.
39. However, in the observations submitted before the Court in the present proceedings, certain doubts are expressed with regard to the relevant EU legal framework for the analysis. Therefore, before turning to the substantive issues raised by the questions referred, it is appropriate to clarify the provisions of EU law against which the compatibility of the national measures in question should be assessed.
1. The relevant legal framework
40. In my view, in order to determine the relevant legal framework to assess the compatibility of the contested provisions with EU law, three issues must be addressed. First, does the provision of higher education courses constitute an ‘economic activity’ and, as such, fall within the scope of the EU rules on free movement of services? Second, if so, should the compatibility of the contested provisions with EU law be assessed under the FEU Treaty provisions on the right of establishment and/or the freedom to provide services, or rather under the provisions of the Services Directive? Third and last, should the Court assess, separately, the compatibility of the contested provisions with Article 16 of the Charter?
(a) Provision of higher education courses as an economic activity for the purposes of the FEU Treaty
41. The answer to the first question mentioned in the previous point is rather straightforward.
42. It is true that – as the Latvian Government emphasised – culture and education are areas that largely fall within the competence of the Member States. Indeed, according to Article 6 TFEU, in those areas the Union is only competent to ‘carry out actions to support, coordinate or supplement the actions of the Member States’. Moreover, under Article 165(1) TFEU, the Union’s action in the field of education must respect ‘the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity’.
43. However, that does not mean that those areas fall outside the scope of EU law. Nor does it mean that Member States can regulate those fields as they see fit, if that leads to a breach of a provision of EU law that may be applicable alongside the relevant national rules. Paraphrasing Advocate General Tesauro, it can be safely said that culture and education do not constitute ‘islands beyond the reach’ of EU law. (19)
44. Indeed, there is a consistent line of cases in which the Court assessed the compatibility with EU law of national measures adopted with a view to promoting the use of national or minority languages, and of national rules governing the provision of cultural and/or educational services. A significant number of those cases concerned – just like the present case – the compatibility of the national measures with EU internal market provisions. (20)
45. In particular, as regards educational activities, the Court has held that courses provided by educational establishments financed essentially by private funds constitute ‘services’ for the purposes of EU law. (21) Consequently, national laws that govern those activities must, as a matter of principle, comply with the rules on the internal market, and, more specifically, with the rules on the free movement of services. (22)
46. In the present case, I understand that the contested provisions apply to both public and private higher education institutions, regardless of whether their courses are offered for remuneration. Consequently, in so far as they apply to private institutions financed essentially by private funds, the contested provisions must comply with the provisions on the free movement of services.
(b) The TFEU provisions on services or the Services Directive?
47. The referring court has asked the Court to assess the compatibility of the contested provisions with EU law by reference, in particular, to Articles 49 and 56 TFEU. However, some interested parties who have submitted observations to the Court (in particular, the Latvian and Netherlands Governments) referred also to the provisions of the Services Directive.
48. In that regard, it must be noted that, according to Article 1(1) thereof, the Services Directive established ‘general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services’. In essence, the Services Directive was adopted with the view of going further than what is already provided for in the FEU Treaty regarding the freedom to provide services. (23) Where applicable, that directive thus constitutes, in practice, lex specialis vis-à-vis the relevant Treaty provisions. Accordingly, the Court has consistently applied the rules laid down in the Services Directive as the legal framework for determining the compatibility of national measures with the free movement of services, where those measures fell within the scope of that legal instrument, without examining the measures in the light of Articles 49 and/or 56 TFEU. (24)
49. Against that background, are the provisions of the Services Directive applicable in respect of national measures such as those at issue in the main proceedings?
50. I am of the view that, in principle, the answer should be in the negative; or, melius, that the provisions of the Services Directive do not preclude measures such as the contested provisions.
51. Pursuant to Article 2(1) thereof, the Services Directive applies to services supplied by providers established in a Member State. The term ‘service’ is defined broadly in Article 4(1) of the directive as a ‘self-employed economic activity, normally provided for remuneration’. Admittedly, courses by private higher educational institutions may be (and often are) offered for remuneration and, thus, constitute ‘services’ for the purposes of the Services Directive. (25) They also do not figure in the list of services which Article 2(2) excludes from the scope of that directive. (26)
52. Nevertheless, Article 1(4) of the Services Directive provides that the directive ‘does not affect measures taken at Community level or at national level, in conformity with Community law, to protect or promote cultural or linguistic diversity’. (27) That provision echoes recital 11 of the Services Directive, according to which the directive ‘does not interfere with measures taken by Member States, in accordance with Community law, in relation to the protection or promotion of cultural and linguistic diversity …, including the funding thereof’.
53. It is undisputed that the contested provisions have been adopted, by the national legislature, with a view to protecting and promoting the national language. Therefore, the provisions of the Services Directive cannot be applied in a manner that ‘affects’ or ‘interferes with’ that objective. (28)
54. That being said, Article 1(4) of the Services Directive does not mean that national measures adopted to protect or promote cultural or linguistic diversity can never fall foul of the EU rules on the free movement of services. Indeed, as that provision – perhaps redundantly – states, those measures are not affected by that directive only when ‘in conformity with [EU] law’.
55. It follows that the Services Directive does not dispense with the need to ascertain whether the contested provisions are consistent with Article 49 and/or Article 56 TFEU. (29)
56. If that is so, should the Court carry out an analysis under the former, the latter or both?
57. In that regard, according to settled case-law, where a national measure relates to several fundamental freedoms at the same time, the Court will in principle examine the measure in relation to only one of those freedoms, if it appears, in the circumstances of the case, that the other freedoms are entirely secondary in relation to the first and may be considered together with it. (30) To that end, the objective purpose (31) and the effects (32) of the national measure are the main elements to be taken into consideration.
58. It seems to me that, in the present case, the Court may limit its analysis to Article 49 TFEU.
59. True, as noted by the referring court, the contested provisions are also applicable in respect of higher education institutions established in foreign countries that wish to offer courses in Latvia on a temporary basis. However, it is hardly disputable that those provisions – and the legislation of which they form part – were adopted mainly to govern the activities of institutions established (or willing to establish themselves) in Latvia.
60. Those institutions are also the ones that, in most cases, will be affected by the contested provisions. Indeed, to be able to offer higher education courses, institutions normally need to equip themselves with some administrative and logistic structures of a certain significance, and obtain from the public authorities the relevant authorisations to issue valid diplomas, certificates or other formal qualifications. That is not a type of service that can be easily offered on a one-off, temporary or irregular basis. (33)
61. That is not to say that cross-border provision of such services is uncommon, let alone impossible. As a matter of fact, the exponential growth of courses provided over the internet experienced in the last years – which could possibly intensify as a result of the experience acquired during the recent pandemic – is a primary example of the existence of such a market. Yet, presently, the vast majority of institutions providing higher education courses do so in the country where they have a seat. Services provided cross-border constitute, to date, a relatively minor part of their overall economic activities.
62. In addition, I would not exclude that the issue could also be approached from the perspective of the recipients of services, which could also justify an assessment under Article 56 TFEU. (34) That would mean assessing the impact that a national measure such as the one at issue may have on the right of EU citizens to move freely within the European Union – on a temporary basis – in order to attend higher education courses. One can assume that at least some of those potential ‘international’ students would only be able, or at least prefer, to follow (some or all of the) courses in languages other than in Latvian. Recent data from the Organisation for Economic Co-operation and Development (OECD) show that there is a significant population of international students in Latvia, (35) part of which could obviously be affected by the contested provisions.
63. In that respect, the Latvian Government insists that Article 56(3) of the Law on higher education institutions ensures that, in most circumstances, foreign students may attend courses in languages other than Latvian, and in particular in the official languages of the other EU Member States. This is a point that, admittedly, is not entirely clear to me on the basis of the information contained in the case file.
64. However, that aspect is of little relevance in this context since, in my view, the most significant limitations flowing directly from the contested provisions are those placed on certain service providers, namely higher education institutions. It is indeed their economic freedom that is mainly constrained as a result of the national measure in question, and it is in fact that issue which appears to be at the heart of the dispute brought before the referring court.
65. In any event, given the similarity of the two ‘regimes’ governing the right to establishment and the freedom to provide services, I fail to see how an analysis of the compatibility of the contested provisions with EU law from the angle of Article 56 TFEU could have any meaningful difference from an analysis from the angle of Article 49 TFEU.(36)
66. In conclusion, I suggest to the Court, also for reasons of judicial economy, to assess the compatibility with EU law of the contested provisions in the light of Article 49 TFEU.
(c) Article 16 of the Charter
67. In its request for a preliminary ruling, the referring court also asks the Court whether the contested provisions are compatible with Article 16 of the Charter. That provision, entitled ‘Freedom to conduct a business’, provides that ‘the freedom to conduct a business in accordance with Union law and national laws and practices is recognised’.
68. In that regard, I do not believe that, in the present case, a specific assessment focused on Article 16 of the Charter is either necessary or appropriate.
69. To begin with, Articles 49 and 56 TFEU are, at least to a certain extent, a manifestation of the freedom enounced in Article 16 of the Charter. Indeed, the Court has consistently held that an examination of the restrictions introduced by national measures from the point of view of Articles 49 and 56 TFEU also covers possible limitations of the exercise of the rights and freedoms laid down in, inter alia, Article 16 of the Charter, so that a separate examination of the freedom to conduct a business is generally not necessary. (37)
70. In addition, one must not lose sight of the fact that Article 16 of the Charter recognises the freedom to conduct a business ‘in accordance with Union law and national laws’. Thus, when identifying the scope of that freedom, Article 16 of the Charter refers specifically to EU law, which obviously includes provisions such as Articles 49 and 56 TFEU. (38)
71. Finally, neither in the request for a preliminary ruling, nor in the observations submitted in these proceedings, could I detect any aspect of alleged incompatibility with EU law of the contested provisions which would not fully come within the ambit of Articles 49 and 56 TFEU. In other words, I found no argument which was specifically concerned with a possible breach of Article 16 of the Charter, (39) going over and beyond the protection of the economic rights of foreign-based service providers.
72. In the light of those considerations, I will, in the following sections of this Opinion, limit my analysis to examining whether the national measures at hand are compatible with Article 49 TFEU.
2. The substantive issues
73. In the sections below, I shall assess whether the contested provisions give rise to a restriction under Article 49 TFEU and, if so, whether that restriction can be justified, in the light of Article 4(2) TEU.
(a) Existence of a restriction
74. On the face of it, such legislation introduces a restriction to the right of establishment guaranteed by Article 49 TFEU. In accordance with the case-law of the Court, any measure which prohibits, impedes or renders less attractive the exercise of the freedom of establishment must be regarded as a restriction on that freedom. (40)
75. In the present case, the contested provisions make it more difficult for certain undertakings established abroad to relocate to Latvia or to open some other place of business in Latvia. As the applicants in the main proceedings correctly point out, in so far as educational courses have to be provided (almost exclusively) in Latvian, many foreign higher education institutions will be unable to use a (probably significant) part of their administrative and teaching staff in Latvia. In addition, foreign higher education institutions are precluded from offering a more diversified and competitive range of services, such as courses taught in other languages, despite there being a significant demand for those. (41)
76. In the light of the foregoing, I conclude that, in so far as they render more difficult and less attractive the exercise of the freedom of establishment for higher education institutions based in other Member States, the contested provisions give rise to a restriction under Article 49 TFEU.
(b) Justification
77. As the Court has consistently held, a restriction on the freedom of establishment is permissible only if, first, it is justified by an overriding reason in the public interest and, second, it respects the principle of proportionality. As regards proportionality, the national measure must be suitable to secure, in a consistent and systematic manner, the attainment of the objective pursued, and not go beyond what is necessary in order to attain it. In addition, the national measure must be proportionate stricto sensu inasmuch as it must strike a fair balance between the interests at stake, that is, the interest pursued by the State with the measure in question and those of the people adversely affected. It is for the Member State concerned to demonstrate that those cumulative conditions are met. (42)
78. In the present case, the Latvian Government explained that the contested provisions are expressions of its wish to protect and promote the use of the official language of the State. That government also emphasises that the official language should be considered part of its national identity and invokes, in that context, the provisions of Article 4(2) TEU.
79. In that regard, it must be noted, from the outset, that the European Union is required, under Article 4(2) TEU, to respect the national identity of the Member States, inherent in their fundamental structures, both political and constitutional. (43) The Court has already acknowledged that a Member State’s national identity may include its official language (or languages). (44) Therefore, the objective of promoting and encouraging the use of that language (or those languages) constitutes, within the EU legal order, a legitimate interest which may justify a restriction on one or more freedoms of movement. (45) Consequently, EU law does not preclude the adoption of a policy for the protection and promotion of one or more official languages of a Member State. (46)
80. Nevertheless, that does not imply that – by virtue of Article 4(2) TEU – any national measure that forms part of a policy for the protection and promotion of a Member State’s official language(s) is automatically and inherently compatible with EU law.
81. At this juncture, a brief discussion on Article 4(2) TEU may be warranted.
(1) Some brief considerations relating to Article 4(2) TEU
82. To date, the Court has not elaborated on the concept of ‘national identity’ or on the nature and scope of the ‘national identity clause’ set out in Article 4(2) TEU. Nonetheless, in the light of its wording, and considering the cases decided by the Court so far, certain aspects of (or even limitations intrinsic to) Article 4(2) TEU are worth emphasising.
83. First, as regards the nature of Article 4(2) TEU, it seems to me that that provision has, first and foremost, a dual nature. On the one hand, it requires the EU legislature to take into account Member States’ national identities when adopting legislation. Logically, a similar obligation must exist in respect of all EU institutions and bodies when they adopt other legally binding acts. In that respect, national identity may thus function also as a parameter of validity: any EU act that would irredeemably conflict with the national identity of one or more Member States would be invalid for a breach of Article 4(2) TEU. On the other hand, Article 4(2) TEU requires the EU institutions and bodies – including the EU judiciary – to take into account Member States’ national identities when interpreting and applying EU law. (47)
84. It is, however, still unclear whether and, if so, to what extent, Article 4(2) TEU may be interpreted as introducing a horizontal or general clause that Member States may invoke in order validly to claim derogations from the EU rules. Yet, in so far as (in the present case) EU law may be interpreted in a manner that, in principle, allows the national identity aspects invoked by the Latvian Government to be duly taken into account when interpreting and applying the relevant EU rules, this point need not be addressed in this Opinion.
85. Second, as regards the scope of the provision, the wording of Article 4(2) TEU makes clear that it can only be invoked with regard to core constitutional elements of a Member State. That provision in fact refers to the Member States’ national identity inherent in their ‘fundamental structures, political and constitutional’. (48) That is also confirmed by the reference, in Article 4(2) TEU, to the European Union’s duty to ‘respect [the Member States’] essential State functions’. (49)
86. In my view, it is not for the European Union to determine, for each Member State, the elements that form part of that kernel of national identity. Member States enjoy significant leeway in that respect. (50) However, Member States’ discretion cannot be without limits. Otherwise, Article 4(2) TEU would amount to an all-too-easy escape clause from the rules and principles of the EU Treaties, that could be triggered by any Member State at any time. An obligation for the EU to ‘respect’ Member States’ national identities cannot be tantamount to a right of a Member State to disregard EU law at its convenience.
87. Third, the core elements of national identity invoked by a Member State must necessarily be compatible with the European Union’s constitutional framework and, more specifically, with its founding values (Article 2 TEU) and its aims (Article 3 TEU). Article 4(2) TEU lays down the key principles governing the relationship between the European Union and the Member States, (51) and cannot be construed as re-defining what the European Union is and what it stands for. In particular, as far as the founding values are concerned, the Member States themselves have – again, with the Treaty of Lisbon – accepted them as being values that are also ‘common’ to them. Consequently, Article 4(2) TEU cannot be considered to derogate from Articles 2 and 3 TEU. (52)
88. Fourth, even when invoked with regard to national measures that are aimed at protecting a genuine element of national identity, and that element is broadly consistent with the European Union’s constitutional framework, the analysis of compatibility between the national measure in question and EU law cannot stop there. There may be other aspects of Member States’ claims under Article 4(2) TEU that, depending on the EU rules that could be applicable to the specific circumstances of the case, may be subject to judicial review.
89. In cases such as the present one, when a Member State invokes Article 4(2) TEU as a justification with regard to a possible restriction to the internal market freedoms, the case-law shows (53) – and scholarship generally agrees (54) – that the national measure should be subject to the traditional proportionality test.
90. In particular, whilst it is for the governments of the Member States to decide upon the level at which they wish to ensure the protection of the public interest in question, (55) it must be possible to subject, by way of judicial review, the questions of whether (i) the national measures make a meaningful contribution to the achievement of the stated objective; (ii) there may be other measures that are equally capable of doing so, while being less restrictive of the internal market freedoms; and (iii) the national measures may have disproportionate repercussions on the other subjects affected.
91. Fifth, in a case such as the present one, I do not believe it is for the Court to reach a firm conclusion on the proportionality of the contested provisions. The competent national courts are, to my mind, best placed to weigh up the various elements of law and fact peculiar to the Member States concerned, in order to determine whether the national measures at issue meet the proportionality test. (56)
92. National identity is normally the result of the history, culture, and sociopolitical characteristics of a specific country. It may not be an easy task, for a supranational court, to grasp fully the importance of a given element of national identity, identify the level of protection desired by the national authorities, and evaluate whether there is a reasonable relationship between the objective pursued and the means used to pursue it to that end.
93. Thus, when a genuine claim based on a national identity is put forward, unless the issues are rather straightforward, and provided that the national interest protected is broadly compatible with the EU constitutional framework, it should be mainly for the competent national courts to carry out the proportionality assessment. That does not mean, obviously, that the Court cannot provide the competent national courts with all the elements of interpretation that may be useful for them to carry out that analysis. (57)
94. It is against these principles that the arguments put forward by the Latvian Government on the basis of Article 4(2) TEU should be considered.
(2) Justification of the restriction in the present case
95. At the outset, there can hardly be any doubt that the contested provisions are genuinely designed to protect and promote the use of the official language of the State: Latvian. That is, as mentioned in point 79 above, a legitimate interest which may justify a restriction to the right of establishment enshrined in Article 49 TFEU.
96. However, the assessment relating to the proportionality of the contested provisions is by no means evident. Accordingly, this is a task that, in my view, is best left to the appreciation of the referring court.
97. Nevertheless, with a view to providing that court with some useful guidance, I shall now offer some considerations, in the light of the specific features of the contested provisions.
98. First, I would normally have no difficulty in reaching the conclusion that the contested measure is in principle suitable for achieving the objective of protecting and promoting the use of the official language of the State. As a matter of fact, by requiring teachers and students generally to use Latvian during the courses, it ensures the use and spread of that language.
99. However, the applicants in the main proceedings and the Commission express some doubts concerning the capacity of that national measure to achieve that objective in a sufficiently consistent and systematic manner. In particular, they argue that there is no objective reason to grant some special treatment to two private education institutions such as the Stockholm School of Economics in Riga and the Riga Graduate School of Law, while denying a similar treatment to other private institutions (including the foreign-based ones). Moreover, they observe that, in the national legislation, the linguistic regime for higher education institutions is stricter than the equivalent regime applicable to primary and secondary education institutions. In their view, that is unreasonable: if anything, the aim of promoting and protecting the use of the official language would seem best served by adopting a more stringent regime for the primary and secondary education institutions than for the higher education institutions.
100. I see some merit in those arguments. Yet, I must recognise that there is not enough information in the case file on those two aspects (the reasons for the special position granted to Stockholm School of Economics in Riga and the Riga Graduate School of Law, and the regime applicable to primary and secondary education institutions) that would allow me to take a firmer position with regard to the coherence of the overall system. I think that is a point for the national court to review.
101. Second, whether the contested provisions are necessary to achieve the stated objective is, in my view, more complex.
102. My doubts stem mainly from the fact that the contested measure appears to be based on the premiss that, in order to promote the use of the official language of the State, the use of other languages in higher education must inevitably be ‘sacrificed’ (or at least significantly restricted). I do not share that view.
103. The respective merits and demerits of monolingualism and multilingualism are the subject of numerous scientific works and it is certainly not for me to express a view on that. I will only observe that modern research seems generally to agree that learning two or more languages, especially at a young age, does not cause delay in the learning process, and that people who are bi- (or multi-)lingual are usually better at learning additional languages. (58) This would suggest that a measure of protection and promotion of a specific language need not be at the expense of other languages.
104. In that regard, I observe that the exceptions to the obligation to teach courses in the official language of the State are relatively few, and rather limited in scope. The effect of the contested provisions is to impose de facto monolingualism in the field of higher education, including in the private sector. The national measure thus appears to be quite radical and thus possibly over-reaching. (59)
105. For example, I wonder whether a certain expansion and relaxation of the exceptions provided for in Article 56(3) of the Law on higher education institutions would not ensure the promotion and protection of the official language of the State whilst being less restrictive vis-à-vis institutions established in other Member States.
106. Third and last, when the benefits of the contested provisions on the promotion and protection of the official language of the State are weighed against the disadvantages accruing to the various categories of individuals and firms negatively affected by them, I am not sure that the scale tips in favour of the former.
107. Indeed, on one side of the scale there is the (by all means legitimate) intention to promote a Member State’s national language and, through that, preserve the country’s culture and national identity. On the other side of the scale, however, there are several other public and private interests which the measure severely restricts or interferes with.
108. A number of those interests are recognised as meriting protection under EU law, as well as under the European Convention of Human Rights and – I suspect – also under Latvian national law. As far as EU law is concerned, some of those interests are identified in the Charter as connected to fundamental rights or freedoms. (60) Apart from the economic freedoms of service providers and recipients (which, as mentioned, are also enshrined in Article 16 of the Charter) that were just discussed, the impact on the following rights and freedoms appears not to be negligible.
109. To begin with, the measure restricts the academic freedom of teachers (set out in Article 13 of the Charter) and the right of individuals and companies to found educational establishments (set out in Article 14(3) of the Charter). Moreover, the contested provisions have also an effect on the possibility for the students themselves to choose, when possible, an education that is in conformity with their ‘pedagogical convictions’ (which may include a more intensive use of foreign languages in higher education courses). Although such a right is not expressly proclaimed in the Charter, I tend to think that it can be considered implicit in the ‘right to education’ that paragraph 1 of Article 14 of the Charter guarantees to ‘everyone’, when that provision is read in conjunction with the paragraph 3 thereof. (61)
110. In addition, the contested provisions create a discrimination based on language, a form of discrimination prohibited under Article 21(1) of the Charter, to the detriment of non-nationals employed (or employable) in the sector of higher education. In this context, I hardly need to recall that language requirements for the access to some economic activity may often give rise to indirect discrimination based on nationality, since they are more easily fulfilled by local professionals than by foreign professionals.
111. Furthermore, I must point out there are two sides to the concept of ‘language diversity’ that the European Union is required to respect under Article 22 of the Charter and Article 3(3) TEU. That concept cannot be understood as merely an expression of the principle of equality of Member States before the Treaties, set out in Article 4(2) TEU, which thus implies that the European Union should respect their official languages and consider them as having an equal standing. There is indeed an additional aspect to it: the respect of minority languages.
112. That is an issue that – as far as I understand – is crucial in the present case, because of the existence of a large Russian-speaking minority in Latvia. In that regard, I must recall that protection of minority languages is a value enshrined in several provisions of EU primary law (including Article 2 TEU and Article 21(1) of the Charter) and in numerous international instruments which the European Union and/or the Member States have signed. (62)
113. The contested provisions, by making it impossible for privately funded higher education institutions to hold courses in that language, seems to me significantly to affect the language rights of that minority. That is a fortiori true given that the exceptions provided for in Article 56(3) of the Law on higher education institutions do not apply to Russian, since it is not one of the official languages of the European Union.
114. That being said, as explained, it is ultimately for the referring court properly to assess and, where appropriate, weigh against each other, the elements illustrated in the previous points.
115. In the light of the above, I propose that the Court answer the questions referred to the effect that national legislation which, in order to develop and promote the State’s official language, requires, subject to some exceptions, institutions of higher education financed essentially by private funds, to offer courses only in that language, is compatible with EU law provided that it is suitable and necessary to achieve the stated objective, and strikes a fair balance between the interests at stake.
116. By way of conclusion, allow me a final postilla. I would like to come back to what I stated in my introduction. I fully agree with Advocate General Darmon that it is essential to preserve Europe’s cultural richness and to ensure the diversity of its linguistic heritage. (63) That said, I do not believe that this noble objective would be well served by Member States imposing de facto monolingualism in a given sector of economic activity, even when that sector is the provision of higher education courses. It is not in the interest of the Member States, nor of the European Union, to create – to use again the metaphor referred to above – 27 monolingual (or bi- or trilingual) ‘islands’ within the European Union. That is probably not the diversity and richness we desire to promote in an ‘ever closer union’ among the peoples of Europe. There is indeed no inherently incompatible binary relationship between further integration and preservation of the European’s diverse language and cultural heritage.
V. Conclusion
117. In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia) as follows:
National legislation which, in order to develop and promote the State’s official language, requires, subject to some exceptions, institutions of higher education financed essentially by private funds, to offer courses only in that language, is compatible with EU law provided that it is suitable and necessary to achieve the stated objective, and strikes a fair balance between the interests at stake.