CJEC, March 15, 1988, No 147-86

THE COURT

1 By an application lodged at the court registry on 13 june 1986 the Commission of the european communities brought an action under article 169 of the eec treaty for a declaration that the Hellenic Republic has failed to fulfil its obligations under articles 52, 59 and 48 of the eec treaty by prohibiting nationals of other member states from setting up under the same conditions as greek nationals coaching establishments known as "frontistiria" and private vocational training schools, and from giving private lessons at home, and also by restricting employment opportunities for such nationals in such schools.

2 According to the commission, under the greek legislation in force nationals of other member states are not authorized:

(i) To set up "frontistiria" which are defined as "the organization, in the same place and on a weekly basis, of courses for groups of not more than five persons or, regardless of the composition of the groups, of not more than ten persons, which have as their purpose either to supplement and consolidate instruction forming part of the curriculum for primary, secondary or higher education (the latter whether or not preparatory to university entrance), or to teach foreign languages or music or to provide general training in extra-curricular activities, for not less than three hours a day per group consisting of the same persons";

(ii) To set up private vocational training schools, that is to say schools which do not exhibit the characteristics of "frontistiria" and which provide vocational training of whatever kind;

(iii) To give private lessons at home;

(iv) To occupy the posts of director and teacher in "frontistiria" and private vocational training schools, with the exception, however, that a quota of non-greek nationals may teach in "frontistiria" engaged in the teaching of foreign languages.

3 Taking the view that the aforesaid legislation introduced a system that discriminated against nationals of other member states on grounds of nationality and was therefore contrary to articles 52, 59 and 48 of the treaty, the commission gave the greek government formal notice by letter of 30 november 1984, pursuant to the first paragraph of article 169 of the treaty. Since the greek government did not admit that it was at fault, the commission addressed a reasoned opinion to it on 28 october 1985, which evoked an adverse response on 25 february 1986. The commission accordingly instituted these proceedings.

4 Reference is made to the report for the hearing for a detailed account of the relevant national legislation and the course of the procedure, and of the conclusions, submissions and arguments of the parties, which are mentioned hereinafter only in so far as is necessary for the reasoning of the court.

The alleged infringement of articles 52 and 59 of the treaty

5 According to the commission, the fact that it is impossible for nationals of other member states to set up a "frontistirion" or a private vocational training school is contrary to article 52 of the treaty which prohibits any discrimination on grounds of nationality with regard to the right to take up activities as self-employed persons. To prohibit foreign nationals from giving private lessons at home is also contrary to article 52 and, in addition, to article 59 on freedom to provide services.

6 The greek government challenges that argument first of all on the ground that the principle of freedom of establishment laid down by article 52 cannot be applied in this case since, by virtue of the first paragraph of article 55 of the treaty, that principle does not apply to activities connected, even occasionally, with the exercise of official authority. According to the greek government, it is for each member state to define which activities in the state are connected with the exercise of official authority. That is the case as regards teaching activities in greece, in view of the fact that, under the greek constitution, the provision of instruction is a fundamental duty of the state designed to ensure in particular the moral and spiritual education of its citizens and the development of their national consciousness, and that private individuals who carry on such activities do so in their capacity as repositories of official authority.

7 In that regard it must be emphasized that, since it derogates from the fundamental rule of freedom of establishment, article 55 of the treaty must be interpreted in a manner which limits its scope to what is strictly necessary in order to safeguard the interests which it allows the member states to protect.

8 It is true that, in the absence of a community directive designed to harmonize national provisions on the setting-up of teaching establishments, the possible application of restrictions on freedom of establishment provided for by article 55 must be appraised separately in respect of each member state. However, that appraisal must take account of the community character of the limits set by article 55 to the exceptions which are permitted to the principle of freedom of establishment, in order to prevent the effectiveness of the treaty in this area from being undermined by unilateral provisions adopted by the member states.

9 Although it is for each member state to determine the role of, and the responsibilities attaching to, official authority with regard to instruction, it cannot be accepted that the mere fact that a private individual sets up a school such as a "frontistirion" or a vocational training school, or gives private lessons at home, is connected with the exercise of official authority within the meaning of article 55 of the treaty.

10 Those private activities remain subject to supervision by the official authorities which have at their disposal appropriate means for ensuring, in any event, the protection of the interests entrusted to them, without there being any need to restrict freedom of establishment for that purpose.

11 The greek government' s first objection must therefore be rejected.

12 The greek government also contends, in contesting the commission' s claim, that in view of the wording of article 16 (7) of the greek constitution, only a law can allow private individuals to set up vocational training schools. In the absence of such a law, private individuals, including greek nationals, are prohibited from setting up such schools. In that respect, it therefore maintains, there is no discrimination contrary to community law.

13 In so far as that objection relates to vocational training within the meaning of article 16 (7) of the greek constitution, it must be regarded as well founded. The commission has not been able to establish either that a national law authorizes the setting-up of private schools in that sector or that such schools in fact exist.

14 It must be pointed out, however, that the commission was referring, in these proceedings, to a community concept of vocational training, and, in a wider sense, to any kind of specialized instruction as opposed to general instruction. In that connection, the commission has established that, outside the field of application of article 16 (7) of the constitution, national legislation authorizes private individuals of greek nationality to open music and dancing schools, whilst denying that possibility to nationals of other member states.

15 It is true that the greek government also contends that it cannot be charged with any infringement even as regards those schools since, in practice, the authorizations needed to set up a school are granted to nationals of other member states, notwithstanding the fact that national legislation provides otherwise.

16 However, as the court has consistently held (see, for instance, the judgment of 13 october 1987 in case 236-85 commission v netherlands ((1987)) ecr 3989), mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the treaty.

17 It is clear from the foregoing considerations that the prohibition imposed on nationals of other member states on setting up "frontistiria" or private music and dancing schools or on giving private lessons at home is contrary to article 52 of the treaty.

18 Furthermore, the prohibition on giving private lessons at home is also contrary to article 59, in so far as it applies to nationals of other member states who move to greece in order to provide services on an occasional basis.

The alleged infringement of article 48 of the treaty

19 The commission claims that greek legislation prohibits nationals of other member states from occupying the posts of director or teacher in "frontistiria" and private vocational training schools, with the sole exception that a restricted quota of teachers of non-greek nationality may be employed in "frontistiria" engaged in the teaching of foreign languages. Such discrimination on grounds of nationality, which hinders or restricts engagement in paid employment, is contrary to article 48 of the treaty on freedom of movement for workers.

20 However, the commission acknowledges, as is clear from the reasoned opinion which it addressed to the Hellenic Republic and from the arguments which it has put forward before the court, that by virtue of articles 44 and 45 of the act concerning the conditions of accession of the Hellenic Republic and the adjustments to the treaties, the provisions of article 48 of the treaty are fully applicable, before 1 january 1988, only to nationals of other member states already employed in greece and to members of their family who fulfil certain conditions concerning length of residence in greece. It is therefore solely on account of the discrimination practised to the detriment of those two categories of persons that the commission has charged the Hellenic Republic with failing to fulfil its obligations.

21 That argument which, within those limits, has not been challenged by the greek government, must be regarded as well founded, but only in so far as it relates to the posts of director and teacher in "frontistiria" and in private music and dancing schools.

22 It follows from all the foregoing considerations that the commission' s application must be upheld in part.

Costs

23 Under article 69 (2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs. However, under the first subparagraph of article 69 (3), where each party succeeds on some and fails on other heads, the court may order the parties to bear their own costs in whole or in part. In this case, as the commission has succeeded in only part of its conclusions, the parties must be ordered to bear their own costs.

On those grounds,

The court

Hereby:

(1) Declares that, by prohibiting nationals of other member states from setting up "frontistiria" (coaching establishments) and private music and dancing schools, and from giving private lessons at home, the Hellenic Republic has failed to fulfil its obligations under articles 52 and 59 of the eec treaty;

(2) By prohibiting or by restricting access for nationals of other member states already employed in greece and of members of their families to the posts of director or teacher in "frontistiria" and in private music and dancing schools, the Hellenic Republic has failed to fulfil its obligations under article 48 of the eec treaty;

(3) The remaining claims in the application are dismissed;

(4) The parties are ordered to bear their own costs.