The saga of Mr Brouillard and the EU Courts (F-148/15, T-420/13, C-298/14 ... and C-590/15 P)

By Dr Andrea Gideon (NUS Singapore and University of Liverpool).

Mr Brouillard has indeed kept the EU Courts busy in the last couple of years. Apparently keen to find his dream job, this Belgian national legally trained in France applied to the Court as a lawyer-linguist in an EPSO competition, he tried to become a linguist for the Court of Justice of the European Union (the CJEU, or the Court) through another company tendering in a procurement procedure of the Court, and he applied to become a legal secretary at the Belgian Cour de Cassation.

Unfortunately for Mr Brouillard, he was rejected every time due to his vocational master’s degree by the University of Poitiers in France (which he received following completion of a correspondence course in law, economics and management, private law, lawyer-linguist specialism) not being deemed a sufficient qualification for the positions in question.

Mr Brouillard, determinedly, initiated proceedings against the decisions in each case [cases Brouillard v Commission (F-148/15, EU:F:2016:4, only in French), Brouillard v Court of Justice (T-420/13, EU:T:2015:633, only in French) and Brouillard (C‑298/14, EU:C:2015:652) respectively]. The ‘saga of Mr Brouillard’ brings to light some inconsistencies in the EU Courts’ approach to the assessment of (university) qualifications in different settings, which is the focus of this comment.  

F-148/15 Brouillard v Commission is still pending. So far only the interim measure applied for by Mr Brouillard that, while the case is pending, he would be allowed to the next stage of the concours has been rejected.

C‑298/14 Brouillard adopted a preliminary ruling in the case where Mr Brouillard challenged his rejection from the competitive procedure to become a legal secretary at the Belgian Cour de Cassation. The ruling of the CJEU in this case was in itself not very surprising. The Court reaffirmed that Article 45 TFEU applies to situations where a national of the Member State in question (here a Belgian national participating in a selective procedure in Belgium) seeks recognition of a qualification he has obtained abroad. Yet, the CJEU further stated that such a situation cannot fall under Article 45(4) TFEU since the person in question still is a national. The Court then set out that ‘legal secretary’ is not a regulated profession and, therefore, only Article 45 TFEU rather than Directive 2005/36/EC applies. Finally, the Court restated the principle in Vlassopoulou (C‑340/89, EU:C:1991:193) by deciding that

Article 45 TFEU must be interpreted as meaning that it precludes […] the selection board for a competition for recruitment […] from making […] participation contingent on the possession of diplomas required by the legislation of that Member State or the recognition of academic equivalence of a master’s degree awarded by the university of another Member State, without taking into consideration all of the diplomas, certificates and other qualifications, and the relevant professional experience of the person concerned, by comparing the professional qualifications attested by those qualifications with those required by that legislation (C-298/14, para 67, emphasis added).

Therefore, the CJEU indirectly (but quite clearly) required the Belgian court to remedy the rejection of Mr Brouillard from the selective process to become a legal secretary (or at the very least, to have his application reassessed) on the basis that his master’s degree was not the only relevant qualification.

Interestingly, though, the Court did not seem to like the taste of its own medicine when it came to Mr Brouillard’s intent to provide the Court services as a freelance lawyer linguist. Indeed, in its own procurement decision, the Court has not held itself to the standard expected of the Member States. Instead the Court required Mr Brouillard to be excluded from a tender for the provision of translation services for not having completed a full legal education of at least five years (his master's was only partially legal and included other content, such as linguistic training). Remarkably, the Court did so without checking if other qualifications and professional experiences could be regarded equivalent.

These issues emerged in T‑420/13 Brouillard v Court of Justice (i.e. the judgment on the challenge of that decision) where the General Court (GC) lengthily establishes that the master’s degree Mr Brouillard holds is in itself not equivalent to a full five year law study, without taking anything else into consideration (para 71 seq). The GC justifies this difference in approach by saying that none of the applicant’s arguments were able to demonstrate the existence of an obstacle to the freedom of workers or freedom of establishment and that therefore it is not appropriate to apply the Vlassopoulou case law. In particular, he had not been rejected because he graduated from a French university, but because his degree did not represent five years of (exclusively) legal study. In any event, an argument that additional qualifications had to be taken into account (à la C- 298/14 Brouillard) should also be dismissed because the Court did not have the information needed to examine equivalence through other qualifications and experiences (para 96).

Yet, national authorities seem to be held to a different standard because they still have to take other degrees and experiences into account cumulatively and offer the possibility of an equivalence test, without being able to say that they did not have the information or that the applicant did not prove a hindrance to his free movement rights. This seems to indicate an internal inconsistency in the Courts’ approach to fundamentally the same issues (how to recognise or give value to a specific university qualification) in different settings.

In the eyes of the GC, the difference potentially lies in the fact that T‑420/13 Brouillard concerned a procurement decision and not rules applicable to the general access to a profession, since it emphasises the fact that decisions on professional qualification are more complex for contracting authorities:

La comparaison des diplômes effectuée par le système de la directive 2005/36 étant réalisée aux fins de l’accès à certaines activités règlementées dans les différents États membres, une telle appréciation ne saurait être confondue avec l’appréciation complexe, par un pouvoir adjudicateur, de la valeur universitaire respective des titres obtenus dans les différents États membres, dans le but de garantir que les personnes qui seront engagées dans la prestation des services faisant l’objet du marché disposent de la capacité technique suffisante (T-420/13, para 81, emphasis added).

However, the Court omits to explain why this is more complicated for a contracting authority.

One could potentially argue that professional recognition in order to gain access to a profession in another Member State on a more permanent basis makes it more proportionate to justify an extensive examination of the qualifications of an individual than the more temporary nature of a public contract. However, the Court has held a similar standard applicable in the area of freedom to provide services in the recent case X-Steuerberatungsgesellschaft (C-342/14, EU:C:2015:827). In this case a tax service company established in the UK with seats in the Netherlands and Belgium wanted to provide a tax consultancy service for a tax return to a German customer, but was hindered by the tax authorities since it had not been authorised under German law. The German law made authorisation dependent on certain qualifications. Service providers from other Member States could, however, seek such authorisation if they were providing temporal services in Germany, but only if that involved physical travel of the provider to Germany. In cases such as this, where only the service travelled, but neither the recipient nor the provider, this was not possible.

The Court thus established an infringement and, while regarding fear of tax evasion as well as consumer protection as legitimate justification grounds, it did not find this restriction proportionate here because there was no possibility of authorisation at all in such cases (i.e. did not provide any possibility of the qualification obtained by the providers to be accorded its proper value and being duly taken into account’). In so far this case is following the Vlassopoulou case law despite it only concerning short term services. X-Steuerberatungsgesellschaft would thus lead any argument that the length of the services would justify a difference ad absurdum, since in this case the service provided was a single tax return.

Overall, it seems difficult to conceive why an examination of equivalence should be less burdensome for a national authority than for the Court (acting as a contracting authority), which, by its very nature as a European institution filled with lawyers from various Member States, seems in fact more likely to be able to assess equivalence of qualifications. Furthermore, on a more general level, one might just wonder why the Court does not use the opportunity to set a positive example by applying its own case law. However, the Court still has the opportunity to do just that because, not content with the General Court’s decision, Mr Brouillard has brought an appeal before the Court (case Brouillard v Court of JusticeC-590/15 P). And so the saga continues …