The judgment in Vilniaus tarptautinė mokykla feeds into and extensive body of case law regarding the EU fundamental freedoms, focusing specifically on the restrictions justified by the objective of promoting and defending the official language of a Member State. The ruling originates from a preliminary reference by a Lithuanian judge seeking clarification on the scope of application of Article 49 TFEU, which establishes and protects the freedom of establishment. The proceedings pending before the referring court concerned an injunction by which the Lithuanian National Language Inspectorate required certain staff members of an educational institution providing courses in English to obtain, within a few months, a certificate attesting to a certain level of proficiency in the Lithuanian language. This injunction was issued following an inspection which revealed that eighteen employees of the school did not meet the linguistic requirements prescribed by national law. In particular, since the institute – although founded by a Lithuanian citizen and situated in the Lithuanian territory – was almost entirely held by citizens of other Member States and third countries (Finnish, Danish, and U.S. citizens), the referring judge harboured doubts as to the scope of the freedom of establishment regime in relation to such a case. The preliminary questions therefore concerned the scope of application of Article 49 TFEU.

The Court first confirmed an expansive interpretation of Article 49 TFEU, according to which it also applies to the situation of a private educational institution established in a Member State whose share capital is held by a citizen of another Member State allowing him/her to exert «a definite influence on that company’s decisions and to determine its activities» (para. 33), where such an institution offers an international education program for remuneration in the Member State where it is established. Having clarified that the imposition of a certain level of language proficiency constitutes a restriction on the freedom of establishment, the judgment moves to an assessment on whether such measure is justified. Such assessment is carried out against three cumulative conditions: the pursuit of a legitimate objective of public interest, the necessity of the restrictive measure, and its proportionality in relation to the objective pursued.

In this regard, firstly, the Court acknowledged that the protection and promotion of the official language of a Member State fall within the scope of national identity, which the Union respects under Article 4(2) TEU, and which are also an expression of the cultural diversity and richness recognized and guaranteed by Article 3(3) TEU and Article 22 of the Charter. Therefore, the protection and promotion of the national language constitute an objective of general interest capable of justifying restrictions on fundamental freedoms. However, as to the necessity of the restriction implied by the language requirement, the Court found that the fact that national law imposed the language proficiency to be verified solely through a certificate issued by the Lithuanian National Agency for Education – thus precluding the possibility of demonstrating language knowledge through certifications issued by other Member States – exceeds what is necessary to achieve the objective. In the same vein, regarding proportionality, the Court considered the language requirement disproportionate to the objective pursued. In particular, since the requirement on the knowledge of the national language applies indiscriminately to all school staff, without «exception or flexibility» related to the duties actually performed by the staff members of the organization (paras. 69, 71, 80), the measure is to be regarded as disproportionate to the attainment of the objective to protect and promote the official language. The same conclusions are reached by interpreting Article 53(1) of Directive 2005/36 on the recognition of professional qualifications, which was the subject of the third preliminary question interpreted by the Court in light of Article 49 TFEU. While the final assessment concerning proportionality is ultimately left to the national judge, this decision confirms the Court’s particularly cautious approach toward restrictions on fundamental freedoms, yet it acknowledges the importance of promoting and protecting the language situating such demands within the framework of Union law through Articles 3(3) and 4(2) TEU, as well as Article 22 of the Charter.

 

(Comment by Valeria Salese)