Kaj Lyyski v Umeå universitet (C-40/05)

Contents

Judgment of the Court (Third Chamber)11 January 2007^noteIn Case C-40/05,REFERENCE for a preliminary ruling under Article 234 EC, from Överklagandenämnden för högskolan (Sweden), made by decision of 1 February 2005, received at the Court on 3 February 2005, in the proceedingsKaj LyyskivUmeå universitet,THE COURT (Third Chamber),composed of A. Rosas, President of the Chamber, A. Borg Barthet and J. Malenovský (Rapporteur), Judges,Advocate General: C. Stix-Hackl,Registrar: H. von Holstein, Deputy Registrar,having regard to the written procedure and further to the hearing on 27 April 2006,after considering the observations submitted on behalf of:— the Swedish Government, by K. Wistrand, acting as Agent,— the Polish Government, by T. Nowakowski, acting as Agent,— the Commission of the European Communities, by L. Ström van Lier and G. Rozet, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 14 September 2006,gives the following

Judgment

1This reference for a preliminary ruling concerns the interpretation of Articles 12 EC and 39 EC.

2The reference was made in the course of proceedings between Mr Lyyski, a Swedish national employed as a teacher in a school in Finland, and Umeå universitet (Sweden) concerning the rejection of his application to follow a training course at the university.

Legal context

Community law

3Article 3(1) EC provides:‘For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:...(q) a contribution to education and training of quality and to the flowering of the cultures of the Member States;...’

4The first paragraph of Article 12 EC provides:‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

5Pursuant to Article 39(1) and (2) EC:1. Freedom of movement for workers shall be secured within the Community.2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.’

6Article 149(1) and (2) EC states as follows:1. The Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.2. Community action shall be aimed at:...— encouraging mobility of students and teachers, ......’

7Finally, pursuant to Article 150(1) and (2) EC:1. The Community shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.2. Community action shall aim to:...— facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people;...’

National law

Conditions for employment under an indeterminate teaching contract in Sweden

8Indents 1 and 2 of the first subparagraph and the second subparagraph of Paragraph 4 of Chapter 2 of the skollagen (1985:1100) (Law on schools) states that a person is qualified for employment as a teacher, pre-school teacher or recreation instructor in the public school system without limit as to time if he:1. has passed the Swedish teachers' examination or the child and youth education examination for which the Government published the conditions under Chapter 1, Paragraph 11, of the högskolelagen (Law on higher education) (1992:1434), or earlier corresponding training with its primary emphasis on the teaching subjects required by the post, or2. has received from the Högskoleverket (National Agency for Higher Education) a certificate of eligibility as laid down in Paragraphs 4a and 4b.An unqualified person may even so be employed without limit as to time if the number of qualified candidates is insufficient, if there is specific justification for his employment, if he holds equivalent professional qualifications in the subjects to be taught in the post to be filled and there is reason to believe that the candidate is suited to teaching. ...’

9Paragraph 4a of the Chapter 2 of the skollagen provides:‘A person who has completed teacher training abroad shall be issued with a certificate of competence if that training, alone or with professional experience, corresponds to the pedagogical training referred to in Paragraph 4, subparagraph 1 of that Law.’

Provisions concerning the training course at issue in the main proceedings

10The order for reference shows that, pursuant to the draft budget for 2002, an experiment has been carried out over some years involving special teacher training (‘STT’) in order to train a greater number of teachers in the light of, on the one hand, the fact that the number of students is significantly increasing and, on the other, that many teachers are entering retirement.

11The förordningen om särskilda lärarutbildningar (2001:740) (Regulation on special teacher training; ‘STT Regulation’), lays down the provision concerning STT. It gave six universities and colleges special responsibility for training teachers who lack the qualifications for employment in Swedish schools on a contract unlimited as to time or who wish to acquire an additional qualification. Under that initiative it is calculated that around 4000 teachers will receive training and become qualified. The STT Regulation entered into force on 1 November 2001 and applies until 31 December 2006.

12Paragraph 1 of the STT Regulation, under the heading ‘Application’, provides:‘This regulation contains provisions concerning higher education using special means and intended to enable students to sit the teacher's examination.’

13Paragraph 2 of the STT Regulation, under the heading ‘Training locations’, provides:‘The training courses shall be organised at the State universities and colleges designated by the Government. References to colleges in this regulation shall henceforth include both universities and colleges.’

14Paragraph 3 of the STT Regulation, under the heading ‘Training targets’, states:‘The training courses shall be given to meet the short-term need for qualified teachers and shall provide such subjects or subject areas as the colleges may decide after having consulted the municipality involved.’

15With regard to the admission requirements, Paragraph 6 of the STT Regulation provides as follows:‘A person who is not qualified for a post without limit of time under indents 1 and 2 of the first paragraph of Paragraph 4 of Chapter 2 of the skollagen is eligible for the special teacher training if:1. on the basis of earlier university education or work experience he has the ability to pass a teaching examination for teaching in the subject or subject area covered by the training, and2. is employed as a teacher under the principal of a school where the work-experience part of the training can take place.An applicant who is eligible for employment without limit of time under indents 1 and 2 of the first paragraph of Paragraph 4 of Chapter 2 of the skollagen (1985:1100) is also eligible if the training leads to his becoming qualified to teach one or more additional subjects or subject areas.’

16Paragraph 7 of the STT Regulation provides:‘Without prejudice to the provisions of Paragraph 6, the applicant shall have completed university education to such a level that the teaching examination under the first subparagraph of Paragraph 6 or the qualification under the second subparagraph of Paragraph 6 can be attained by way of training under that regulation. Corresponding knowledge that the applicant has acquired in or outside Sweden is equivalent to university education.’

17Paragraph 10 of the STT Regulation provides that the training courses are to be organised on at least a half-time basis and may run until 31 December 2006 at the latest The total training time for a single student is to give 60 points at the most The training courses are to be planned with reference to each student's earlier education and work experience.

The dispute in the main proceedings and the questions referred for a preliminary ruling

18Mr Lyyski, a Swedish national, applied to follow a course, as part of the STT programme, at Umeå universitet from the start of the academic year in the autumn of 2004.

19In his application he indicated that, during that training course, he would hold a teaching post in a Swedish-speaking senior school in Åbo (Finland).

20Umeå universitet rejected his application. It decided, on its own interpretation of the STT Regulation and that of the Swedish Ministry of National Education, that Mr Lyyski had not shown that he was eligible for the training course since he was not employed in a Swedish school and would therefore complete the practical part of the course in Finland.

21Mr Lyyski appealed to the referring court against the decision of Umeå universitet to reject his application. He argued that he should be considered eligible for admission to the training course and that, as a Swedish national residing in Finland and employed by a Swedish-speaking senior school in that Member State, he had sufficient professional knowledge to undertake a teaching career.

22Umeå universitet submitted, inter alia, that the requirement of employment in a school in Sweden in order to be admitted to the STT course is justified on objective grounds proportionate to their aims.

23Referring to Articles 12 EC and 149(1) EC and to Case 115/78 Knoors [1979] ECR 399; Case 293/83 Gravier [1985] ECR 593; Case 24/86 Blaizot [1988] ECR 379 and Case C-224/98 D'Hoop [2002] ECR I-6191, the national court takes the view that the situation in the main proceedings falls within the scope of Community law and that, accordingly, it finds itself faced with the question of the compatibility of the latter with the requirement of employment in a Swedish school for admission to the STT courses.

24In those circumstances, the Överklagandenämnden för högskolan decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:(1) Does Community law, in particular Article 12 EC, prevent the imposition, on assessment of an applicants eligibility for admission to teacher training intended in the short term to meet the need for qualified teachers in Sweden, of a requirement of employment in a Swedish school? Can such a requirement be considered justified and proportional?(2) Does it make a difference to the answer to the first question if an applicant for the training course who is employed in a school in a Member State other than Sweden is a Swedish national or a national of another Member State?(3) Does it make a difference to the answer to the first question if the teacher training is intended to be of limited duration or if the teacher training is of a longer duration?’

The questions

25By its questions, which it is appropriate to consider together, the national court asks essentially whether Community law precludes national legislation organising, on a provisional basis, training courses intended in the short term to meet the need for qualified teachers in a Member State from being applied in such a way as to reserve the benefit of that training to candidates employed in a school in that Member State and whether, in that assessment, it is important whether or not such training is on a permanent basis and whether or not the candidates are nationals of that Member State.

26In order to answer those questions, it is necessary firstly to check whether such a situation falls within the scope of application of Community law.

27In the present case, the training course for which the applicant in the main proceedings is a candidate within the STT programme is intended inter alia to train teachers who lack the qualifications for employment in Swedish schools on a contract unlimited as to time under the normal procedure governed by the skollagen. Those training courses, implemented for a certain length of time using specific financing provided by the State budget, are thus intended to award particular qualifications leading to work as a teacher on a contract unlimited as to time. It must therefore be accepted that the purpose of the STT Regulation is vocational training. Furthermore, it is offered only by certain universities and colleges.

28As the Court held in paragraph 25 of the judgment in Gravier, the conditions of access to vocational training fall within the scope of the EC Treaty (see also Case C-65/03 Commission v Belgium [2004] ECR I-6427, paragraph 25, and Case C-147/03 Commission v Austria [2005] ECR I-5969, paragraph 32).

29It also follows from the case-law that both higher education and university education constitute vocational training (see Blaizot, paragraphs 15 to 20, Case 42/87 Commission v Belgium [1988] ECR 5445, paragraphs 7 and 8, and Commission v Austria, paragraph 33). The question whether or not the basis of the training is permanent does not alter that assessment.

30In those circumstances, a decision taken in a matter of vocational training such as that made against the applicant in the main proceedings, is capable of falling within the scope ratione materiae of Community law.

31With regard to the freedom of movement for workers within the meaning of Article 39(1) EC, the Court has held that any Community national who, irrespective of his place of residence and his nationality, has exercised that right and who has been employed in a Member State other than that of residence falls within the scope of that article (see, inter alia, Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 27).

32Since such is the case of the applicant in the main proceedings, who is employed in a Member State other than that of which he is a national, his situation falls within the scope of Community law. Accordingly, it is necessary to check whether the rules thereof preclude national legislation such as the STT Regulation, which which

33Firstly, it must be noted that Article 12 EC, to which express reference is made by the referring court and which enshrines the general principle of non-discrimination on grounds of nationality applies independently only to situations governed by Community law for which the Treaty lays down no specific rules of nondiscrimination (see Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, paragraph 25; Case C-289/02 AMOK [2003] ECR I-15059, paragraph 25; and Case C-387/01 Weigel [2004] ECR I-4981, paragraph 57).

34As far as the freedom of movement for workers is concerned, that principle is implemented and given specific effect by Article 39(2) EC. There is therefore no need to express a view on Article 12 EC (Weigel, paragraphs 58 and 59).

35The Court has held on numerous occasions that the Treaty provisions relating to freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Joined Cases 154/87 and 155/87 Wolf and Others [1988] ECR 3897, paragraph 13; Case C-415/93 Bosman [1995] ECR I-4921, paragraph 94; Terhoeve, paragraph 37; Case C-190/98 Graf [2000] ECR I-493, paragraph 21; and Case C-109/04 Kranemann [2005] ECR I-2421, paragraph 25).

36It is not disputed that the recruitment of teachers on fixed-term contracts is open to all nationals of Member States who hold the necessary qualifications to teach. In that regard, the Swedish Government submits, without being contradicted on that point, that the STT courses are intended precisely for nationals of other Member States recruited as teachers in Sweden on fixed-term contracts who are more likely than Swedish nationals not to hold all the qualifications required for access to permanent teaching posts by the normal route.

37However, since national legislation such as the STT Regulation is applied in such a way as to require candidates for a training course to be employed in a school in the Member State concerned, the consequential exclusion of applications from teachers who are employed in a school in another Member State is liable, in particular, to place at a disadvantage those who, like the applicant in the main proceedings, have availed themselves of their right to free movement The application of such legislation thus appears liable to restrict the freedom of movement for workers, which is prohibited generally by Article 39 EC.

38Finally, although the requirement that candidates for STT courses must be employed in a Swedish school constitutes an obstacle to freedom of movement for workers, it could avoid the prohibition under Article 39 EC if it pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest. But even if that were so, application of that measure would still have to be such as to ensure achievement of the aim in question and not go beyond what is necessary for that purpose (see, inter alia, Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Bosman, paragraph 104; Case C-224/01 Köbler [2003] ECR I-10239, paragraph 77; and Kranemann, paragraph 33).

39It is clear from Articles 149 EC and 150 EC that organisation of both an education system and a system of vocational training is a matter for the Member States. Such responsibility implies, inter alia, the preservation or improvement of the education system, which must consequently constitute legitimate aims in the light of the provisions of the Treaty. It is not disputed that the STT Regulation comes under precisely that heading.

40With regard to the assessment of overriding requirements in the general interest, it is common ground that the adoption of the STT Regulation took place in the context of a lack of qualified teachers in Sweden recruited on contracts unlimited as to time under the normal procedure governed by the skollagen. It is clear from the file that that lack is the result in that Member State, firstly, of a large number of those teachers taking retirement, secondly, of an insufficient supply of graduates who meet the conditions for entry under the normal procedure and, finally, of an increase in the number of schoolchildren. Since it is also undisputed that recruitment on contracts unlimited as to time of graduate teachers, although open to all Member State nationals who hold the required qualifications, has been insufficient to fulfil the need for teachers in that Member State, there can be no doubt that the national authorities were right to have recourse to teachers recruited on fixed-term contracts.

41The question then arises whether the application of the STT Regulation satisfies the requirement of proportionality in relation to the objective pursued.

42Firstly, it must be noted that the STT courses are offered by only six universities and colleges using specific financing provided by the State budget, with the aim of training 4000 teachers. It is not apparent from the documents in the file that such training courses would, in those circumstances, be anything other than temporary.

43Secondly, the candidates for the special training are required to be employed in a Swedish school. It appears that that requirement, which is likely to constitute an obstacle to access to that training for teachers working in another Member State, is related to the implementation of the practical part of the special training. That part is carried out, in principle, where the teacher is working. The monitoring and assessment of that part would be manifestly more difficult to complete if it were done outside the Swedish school system.

44Thus, in order to assess whether the application of the measure at issue goes beyond what is necessary, the requirements relating to the practical part of the training in question should be examined. It appears, in the light of the information supplied by the Swedish Government at the hearing, that certain colleges may exempt the individuals concerned from the practical part Furthermore, the Government does not exclude the possibility that it may be carried out at a school other than the school where the person concerned is employed as a teacher. In those circumstances, the information before the Court does not permit it to determine for certain whether the practical part of the training constitutes an essential and obligatory element thereof.

45Moreover, the teaching carried out by the applicant in the main proceedings guarantees a priori that he possesses the aptitude required to follow a training course given in the context of the STT programme and to teach, on completion thereof, in Sweden. Although it is not certain that the candidate in question has shown any intention of actually accepting a post on a contract unlimited as to time in Sweden after such training, that does not alter the fact that his situation is comparable to that of teachers employed on fixed-term contracts in Swedish schools, on whom there is no obligation to take a post as a teacher on a contract unlimited as to time in Sweden at the end of that training course.

46In such a situation, the exclusion, as a matter of principle, of the application made by the applicant in the main proceedings on the sole ground that it is made by a person who is not employed in a Swedish school may in fact prove to be contrary to the objectives pursued and disproportionate, particularly if, when all equivalent applications from teachers employed in Swedish schools have been able to be fulfilled, the obstacles to completion of the practical part of the training course can be removed without difficulty.

47In such circumstances, it cannot be excluded that the manner in which the STT Regulation is applied goes beyond what is necessary to attain the objective of preserving and improving the Swedish education system.

48In the light of the limited information before the Court, it should be noted that it is for the referring court, before which the main action has been brought and which must assume responsibility for the subsequent judicial decision, to determine whether, in the light of the findings made in paragraphs 42 to 45 of the present judgment, the application of the STT Regulation is proportionate to the objective pursued.

49In the light of the foregoing considerations, the answer to the questions referred must be that Community law does not preclude national legislation which organises, on a provisional basis, training courses intended in the short term to meet the need for qualified teachers in a State from requiring that candidates for that training be employed in a school in that State, provided, however, that the manner in which that legislation is applied does not lead to the exclusion, as a matter of principle, of all applications made by teachers who are not employed in such a school without prior individual assessment of the merits of those applications in the light, inter alia, of the aptitude of the person concerned, and the possibility of monitoring the practical part of the training received or possibly exempting that person from it.

Costs

50Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Third Chamber) hereby rules: Community law does not preclude national legislation which organises, on a provisional basis, training courses intended in the short term to meet the need for qualified teachers in a State from requiring that candidates for that training be employed in a school in that State, provided, however, that the manner in which that legislation is applied does not lead to the exclusion, as a matter of principle, of all applications made by teachers who are not employed in such a school without prior individual assessment of the merits of those applications in the light, inter alia, of the aptitude of the person concerned, and the possibility of monitoring the practical part of the training received or possibly of exempting that person from it.