Elena, a Greek national, moved to Brussels to work for the European Commission but

found the job rather dull and so she resigned and decided to dedicate herself full time to
her passion, the piano. After giving private lessons to support herself, she applied for a
permanent post at the National Conservatory in Brussels but she was not invited for an
interview. When she asked for feedback, she was told that only Belgian nationals can
apply for a teaching post, since this is a public service post. Also, all teachers at the
conservatory are required to be bilingual in French and in Dutch. Whilst Elena can
present a certificate of proficiency in Dutch awarded by a Belgian school, she has only a
certificate of proficiency in French awarded by the University of Athens, which is not
accepted by the Conservatory. Elena wonders whether EU law can help her to challenge
the decision of the Conservatory.
Advise Elena.

This given situation invites us to advise Elena (E) regarding her free movement rights. For this
we have to assess whether the refusal of a job from National Conservatory (NC) and the
bilingual requirement for teaching jobs could be considered as violation of free movement of
workers. In order to rely on these rights, we have to first assess whether E could be deemed as
a worker or not. Then we have to assess whether the measures adopted by Belgium (NC) could
be justified under the derogations and whether the measure adopted is proportionate or not. As
discussed above, this situation attracts free movement of workers rights, therefore E would be
entitled to claim free movement under Article 45 TFEU.

In order to establish E as a worker, we might look at the case of Kempf, where a court defines a
worker if the activity performed is genuine and effective economic activity. If it might not be
genuine activity, then three essential characteristics should be satisfied to be an EU worker;
service of economic value must be provided, under the direction of another person and
performance of service in return of remuneration (Lowrie-Blum). From facts, E works as a piano
teacher privately, which is an economic activity, thus is genuine economic activity. As clearly
mentioned in the facts that she supports herself, which indicates that her activities were
economically significant, not marginal. Even if her income was not substantial, it is still a
genuine and effective economic activity. From all this discussion, it could be asserted that E
could fall within the scope of worker under A.45.

As E is regarded as a worker, she will be entitled to a list of workers rights under EU law. As per
free movement rights, migrant workers are entitled to equal access to employment with the
nationals of the host MS and not subject to discrimination, so if MS has adopted a measure
which discriminates with migrant workers then it would likely be under the breach of A.45. In this
case, E being a Greek national moved to Belgium (Brussels) for job/employment, thus she
might be considered as a migrant worker so she should have the right access to employment
and advantages related to it (i.e. social or tax advantages). Therefore, rejecting from NC for the
job would likely be considered as a breach of A.45.

In order to counter this breach, Belgium could argue that the piano teaching post at NC would
likely fall under the ambit of exception of A.45. Further A.45(4) which allows member states to
restrict access to jobs in the public sector to their own nationals. In order to establish this
argument, Belgium has to prove that the post must involve participation in the exercise of power
conferred by public law and must entail duties designed to safeguard the general interest of the
state (Commission v Belgium). In our case, the post of piano teacher at NC does not appear to
involve the exercise of state powers or public authority. Teaching at a NC, even a nationally
funded public institution, is generally regarded as cultural and educational rather than involving
the exercise of administrative power that would justify the public service exception. Further from
Lowrie-Blum, court held that teaching post is a part of civil service which was not covered by the
public service exception. So keeping this precedent in front, we might be able to claim that this
post in question might not fall under the public service exception.

In relation to the second exception of linguistic knowledge, Belgium has to prove that this
requirement is mandatory to job as here certain language requirement is essential to effectively
communicate with the public. In order to establish they have to prove the linguistic knowledge
must be proportionate which means that it must be related to actual demands of the job and it
must not be set too. In our case, the country in question is Belgium, particularly Brussels, both
French and Dutch are official languages, and there may be a genuine need for bilingualism for
someone teaching at a public institution to communicate with students, staff and the local
community.

However, such a requirement should pass the proportionality to be justified. For this court would
examine whether the requirement for bilingualism is a proportionate means of achieving the
desired objective. In this case, the NC’s instance on rejecting E’s French language certificate
from Athnes could potentially be a discriminatory barrier. If E’s French proficiency is comparable
to the required standard, refusing to accept her certificate on the basis that it was awarded by a
foreign institution could be seen as an indirect form of discrimination. This could violate Article
18 TFEU which prohibits every discrimination on the basis of nationality.

The recognition of qualifications allows for the mutual recognition of certificates and diplomas
within the EU, which means that if E’s qualification of French language is recognized in Greece
or another member state, then it should not be disregarded by Belgium. Therefore, from all this
discussion, it could be said that the requirement of bilingual language would likely be regarded
as a disproportionate requirement and is contrary to Article 45.

In conclusion, the National Conservatory's restrictions on Elena appear to violate Article 45