Provisional text

delivered on 10 July 2025 (1)

Case C‑48/24

VšĮ Vilniaus tarptautinė mokykla

Valstybinė kalbos inspekcija

(Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania))

( Reference for a preliminary ruling – Article 49 TFEU – Freedom of establishment – Restriction – National legislation requiring staff of a private educational establishment to have knowledge of the official State language – Justification – National identity – Proportionality – Directive 2005/36/EC – Article 53 – Knowledge of a language necessary for practising a regulated profession )

I.Introduction

2.Language is not merely a means of communication but also a vessel of culture and identity. (2) The EU Treaties acknowledge the pivotal role of language; the fourth subparagraph of Article 3(3) TEU and Article 22 of the Charter of Fundamental Rights of the European Union both provide that the Union is to respect its linguistic diversity. Furthermore, under Article 4(2) TEU, the Union is also to respect the national identity of its Member States, which the Court has held to include the protection of their official languages. (3)

3.Against this backdrop, the Court has, on several occasions, been called to examine the interplay between the protection of the official languages of the Member States and the respect for EU fundamental freedoms. (4) The present reference for a preliminary ruling by the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) raises a similar issue and offers an opportunity for further development of the Court’s relevant case-law.

4.The referring court’s questions have arisen in the context of proceedings between the Valstybinė kalbos inspekcija (State Language Inspectorate, Lithuania; ‘the Inspectorate’) and the Vilniaus tarptautinė mokykla (Vilnius International School; ‘the School’), a private educational institution offering educational programmes solely in the English language. The dispute concerns the imposition on the School’s teaching and administrative staff of a national requirement for intermediate proficiency in the Lithuanian language – a requirement that applies to employees in certain posts involving communication with the public (‘the language requirement’). The referring court seeks guidance regarding the compatibility of that language requirement with the freedom of establishment under Article 49 TFEU as well as with Article 53 of Directive 2005/36/EC (‘the Recognition Directive’) (5) which concerns linguistic requirements for regulated professions.

II.Legal framework

A.European Union law

Article 53 of the Recognition Directive, under the heading ‘Knowledge of Languages’, reads:

‘1. Professionals benefiting from the recognition of professional qualifications shall have a knowledge of languages necessary for practising the profession in the host Member State.

…

3. Controls [of compliance with the obligation under paragraph 1] may be imposed if the profession to be practised has patient safety implications. Controls may be imposed in respect of other professions in cases where there is a serious and concrete doubt about the sufficiency of the professional’s language knowledge in respect of the professional activities that that professional intends to pursue.

…

4. Any language controls shall be proportionate to the activity to be pursued. …’

B.Lithuanian law

6.Article 14 of the Lietuvos Respublikos Konstitucija (Constitution of the Republic of Lithuania) provides that Lithuanian is the State language (‘the State language’).

7.Article 6 of the Lietuvos Respublikos valstybinės kalbos įstatymas (Law of the Republic of Lithuania on the State Language; ‘the Law on the State Language’) provides, inter alia, that ‘heads, employees and officers of … establishments providing services to the population must know the State language according to the language proficiency categories established by the Government of the Republic of Lithuania’.

8.In accordance with that Article 6, the Lithuanian Government adopted nutarimas Nr. 1688 (‘Resolution No 1688’) of 24 December 2003, by which it approved the Valstybinės kalbos mokėjimo kategorijų nustatymo ir jų taikymo tvarkos aprašas (Description of the procedure for determining and applying the categories of proficiency in the State language; ‘the Description’), annexed thereto.

9.Paragraph 6 of the Description establishes three categories of proficiency in the State language (the first category being the lowest and the third being the highest). In accordance with Paragraph 6.2 of the Description, the second category of proficiency corresponds to an intermediate level B1 of proficiency in Lithuanian. (6) Pursuant to Paragraph 8 of the Description, that second category applies, inter alia, to employees in the field of education, culture, healthcare and social security (except for teachers teaching in the State language) if, for the purpose of their work, they must communicate regularly with persons and/or complete standardised document forms.

III.Facts, national proceedings and the questions referred

10.The appellant in the main proceedings, the School, is a private educational institution registered and operating in Lithuania since 2004. It was founded by a Lithuanian national and currently has three stakeholders: a Finnish national (holding 49.96%), a Danish national (holding 25.02%) and a United States national (holding the remaining 25.02%).

11.The School has obtained the requisite authorisations from the national authorities of the Republic of Lithuania to deliver educational programmes in a language other than Lithuanian, a possibility that is afforded by national legislation. (7) More specifically, the School provides the Cambridge International AS/A level programme and the International Baccalaureate primary years and middle years programmes, all of which are taught in English (‘the English-language programmes’).

12.On 19 and 25 May 2022, the Inspectorate carried out an inspection to verify the School’s compliance with the Law on the State Language and with Resolution No 1688. It concluded that 18 of the School’s employees – of which 5 were EU nationals and the others third-country nationals – had not passed the examination for the second category of proficiency in the State language (or had not submitted the corresponding certificate), as required by Resolution No 1688 for those employees in the field of education who must communicate regularly with persons or complete standardised document forms. (8)

13.On the basis of that inspection, the Inspectorate issued an order dated 26 May 2022, requiring that the 18 employees in question – comprising both teachers and members of the administrative staff (specifically the head and deputy head of the School) – pass the relevant State language proficiency examination by 2 February 2023 (‘the contested order’). Considering that, under national legislation, (9) entities such as the School must ensure compliance with relevant legal acts, including the provisions laying down the language requirement, the contested order was addressed to the School and provided for penalties against it in the event of non-compliance.

14.The School brought an action before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), seeking the annulment of the contested order. That action was dismissed by judgment of 17 November 2022 and the School subsequently appealed before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), which is the referring court.

Against that background, that court, harbouring doubts as to the compatibility of the language requirement with Article 49 TFEU and Article 53 of the Recognition Directive, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 49 [TFEU] to be interpreted as meaning that it includes within its scope the requirement, laid down by national law, for proficiency in the State language which applies to the administrative staff and teachers of an educational establishment founded by a private natural person, which establishment implements an international secondary education programme and International Baccalaureate programmes for primary years and middle years?

(2) If the answer to the first question is in the affirmative, is Article 49 [TFEU] to be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the requirement for proficiency in the State language applies without exception, first, to all teachers working in an educational establishment founded by a private natural person, which establishment delivers an international secondary education programme and International Baccalaureate primary years and middle years programmes, and, second, to the administrative staff of such educational establishment, irrespective of any circumstances specific to the activities of the educational establishment concerned[?]

(3) Is Article 53 of [the Recognition Directive] to be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the requirement for proficiency in the State language applies, without exception, to all teachers working in an educational establishment founded by a private natural person, which establishment delivers an international secondary education programme and International Baccalaureate primary years and middle years programmes, irrespective of any circumstances specific to the activities of the educational establishment concerned[?]’

16.The Lithuanian, Latvian and Netherlands Governments, as well as the European Commission, have submitted written observations. No hearing was held.

IV.Analysis

17.By its three questions, the referring court essentially asks whether the language requirement is compatible with the freedom of establishment (Questions 1 and 2) and with Article 53 of the Recognition Directive (Question 3). In the analysis that follows, I shall examine the first two questions together (B) and subsequently turn to the third (C). However, before proceeding to the substance of the questions referred, I must address an objection to the admissibility of the present reference, raised by the Lithuanian Government (A).

A.Admissibility

18.The Lithuanian Government has submitted that the preliminary reference must be dismissed as inadmissible, arguing that the interpretation of EU law that is sought bears no relation to the actual facts or purpose of the main proceedings.

19.In particular, the Lithuanian Government claims that the language requirement is not applicable to teachers (10) working in schools, such as the one at issue, delivering educational programmes of foreign States or international organisations. Consequently, in the view of that government, the contested order must be annulled by the referring court as contrary to national law; the questions referred thus being unnecessary for the resolution of the dispute in the main proceedings.

20.In that regard, it suffices to recall that, according to settled case‑law, it is for the referring court alone to interpret the national law applicable to the dispute in the main proceedings. The Court must take into account, under the division of jurisdiction between the Courts of the European Union and the national courts, the factual and legal context of the questions referred, as defined by the national court in its preliminary reference. Consequently, irrespective of a government’s diverging interpretation of national law, the preliminary reference must be examined in the light of the referring court’s interpretation of that law. (11)

21.In the present case, the referring court has clarified, following a relevant request for clarification by the Court, that it does not share the interpretation of the Lithuanian Government. It has instead affirmed that, under the legislation applicable to the facts at issue, the language requirement must be considered to apply to both the teaching and the administrative staff of the School, an answer to the questions referred thus being of fundamental importance for deciding the case before it.

22.Consequently, in my view, the request for a preliminary ruling must be considered admissible.

B.Compatibility of the language requirement with the freedom of establishment (Questions 1 and 2)

23.By its first two questions the referring court essentially asks whether the situation at issue falls within the scope of Article 49 TFEU, enshrining the freedom of establishment, and, consequently, whether that provision precludes national legislation that, without exception, imposes the language requirement on both the teachers and the administrative staff of a private educational establishment delivering English-language programmes.

24.However, certain preliminary observations are in order regarding the relevance of an assessment under the freedom of establishment in the present case, in view of an argument raised to that effect by the Netherlands Government. I shall then examine, in turn, the applicability and application of Article 49 TFEU to the circumstances at issue.

1.Preliminary observations

25.Pursuant to well-established case-law, where a national measure relates to several fundamental freedoms at the same time, the Court will in principle examine the measure in relation to only one of those freedoms if it appears, in the circumstances of the case, that the other freedoms are entirely secondary in relation to the first one and may be considered together with it. To that end, in order to determine the most relevant fundamental freedom, the purpose of the legislation concerned must be taken into consideration. (12)

26.In connection to this, the Netherlands Government has argued that the language requirement should be assessed not under the freedom of establishment but rather under the freedom of movement of workers, given that the requirement of proficiency in the State language is imposed on the employees of the School.

27.I am not of the same view. It is understood from the order for reference that the national legislation at issue, at least as applied in the present case, is primarily directed at the School as an educational establishment. The contested order was addressed to the School on account of its failure to ensure compliance with the language requirement, the School thus being the applicant and appellant in the main proceedings. This is in fact the specificity of the present case compared to earlier related case-law, where a requirement of knowledge of a language was imposed directly on workers or self-employed persons. (13) By contrast, in this case, the requirement is imposed on the employer (the establishment), although it concerns the language skills of its employees (the workers).

28.Besides, it must be borne in mind that an assessment of the language requirement under the freedom of movement of workers would be strictly relevant only in relation to those few employees of the School who are EU nationals. On the contrary, the freedom of establishment may come into play irrespective of the nationality of the staff concerned.

29.In view of the foregoing, I consider that the most relevant fundamental freedom against which the language requirement should be assessed is the freedom of establishment. That is not to deny the relevance of the freedom of movement of workers in the case of the School; on the contrary, as the Court has held, an employer must be able to rely on the rights of free movement of its staff, in order for those rights to be truly effective. (14) In this instance, however, that freedom must be regarded as being of secondary relevance in relation to the freedom of establishment.(15) In any event, an assessment through the lens of the freedom of movement of workers would, in my view, lead to essentially the same conclusion, as will be discussed under the third question, which touches upon the right to free movement of the teachers of the School.

30.Having clarified this issue, I will now turn to the substance of the questions referred.

2.Applicability of Article 49 TFEU

31.Pursuant to settled case-law, the freedom of establishment presupposes, on the one hand, that the (natural or legal) person concerned actually pursues an economic activity, and, on the other hand, that a cross-border element exists, in the sense that the situation in question is not confined within a single Member State. (16) I will examine both these points, in turn, in relation to the present case.

(a)The pursuit of an economic activity

32.As regards the first point, it must be recalled that the Court has already held that the provision of educational courses for remuneration constitutes an economic activity falling within Chapter 2 of Title IV in Part Three of the TFEU, which covers the right of establishment, when that activity is carried on by a national of one Member State in another Member State on a stable and continuous basis (17) from a principal or secondary establishment in the host Member State. (18)

33.The referring court has nevertheless expressed doubts as to whether the activity of the School can be considered to constitute an economic activity, noting that the abovementioned case-law of the Court concerns the provision of higher education courses, whereas the School is offering programmes in primary and secondary education.

34.However, in my view, the educational level of the courses delivered is irrelevant for the determination of the economic nature of the activity pursued. Instead, what is decisive, according to the case-law of the Court, is whether the courses are provided as a service for remuneration by an establishment financed primarily by private funds (for example through tuition fees paid by pupils and their parents). Conversely, courses offered by an establishment forming part of a system of public education, financed entirely or mainly by the State, in the fulfilment of its social, cultural and educational duties towards the population, do not constitute an economic activity. (19)

34.According to the information provided in the order for reference, which it is nevertheless for the referring court to verify, the School is understood to be a private educational institution, unaffiliated with the State, that offers courses to individuals for a fee. As such, it must be regarded as engaging in an economic activity.

(b)Cross-border element

35.The Court has consistently held that Article 49 TFEU is not applicable to activities confined within a single Member State (purely internal situations) and which have no element linking them with any of the situations governed by EU law. (20)

36.It must first be recalled that Article 49 TFEU is applicable to legal persons, by virtue of Article 54 TFEU, provided that they (i) have been formed in accordance with the law of a Member State, (ii) are for-profit, and (iii) have their registered office, central administration or principal place of business within the European Union. (21) In accordance with settled case-law, the location of the registered office, central administration or principal place of business of the legal person serves as the connecting factor with the legal system of a State, in the same way as nationality does in the case of a natural person. (22)

37.It follows from the information provided by the referring court that the School, registered in Lithuania, in accordance with Lithuanian law, must be regarded as a Lithuanian legal person for the purposes of Article 49 TFEU. Consequently, this appears, prima facie, to constitute a purely internal situation (a Lithuanian legal person established in Lithuania), which, in principle, falls outside the scope of that article. (23)

38.However, in my view, the element of stakeholding and of control of the School cannot be disregarded. On the contrary, I am of the opinion that the question of whether the freedom of establishment is engaged in the present case should also be examined from the perspective of the EU nationals who have holdings in the School.

39.In that regard, I note that the Court has held that the situation where a national of a Member State acquires a holding in the capital of a company established in another Member State, which gives him or her definite influence over the company’s decisions and allows him or her to determine its activities, falls within the scope of Article 49 TFEU. Accordingly, the Court has accepted that, even where the party to the main proceedings is a domestic company, the EU Member State nationality of its principal shareholder may be relevant for the purposes of applying the freedom of establishment. (24)

40.In the present case, based on the information available, it would seem that the EU (Finnish and Danish) nationals, who together have a 74.98% holding in the School, exert such a definite influence over the latter’s decisions, management and operation. They must, hence, be understood as exercising their right to ‘set up and manage [an undertaking]’ (namely the School), within the meaning of the second subparagraph of Article 49 TFEU, as a primary establishment. The exercise of that right is clearly liable to be affected by a national measure relating to the operation of the School, such as the language requirement. In my view, that effect on the EU nationals who have holdings in the School constitutes a relevant cross-border element, such that the situation at issue cannot be regarded as purely internal.

3.Application of Article 49 TFEU

41.In the light of the above, what remains to be determined is whether the language requirement constitutes a restriction on the freedom of establishment and, if so, whether such a restriction may be justified.

(a)The existence of a restriction

42.According to established case-law, any measure that prohibits, impedes or renders the exercise of the freedom of establishment less attractive, even if applied in a non-discriminatory manner, constitutes a restriction on that freedom. (25)

43.In the present case, the language requirement clearly limits the pool of available candidates, considering that it imposes, as the referring court has clarified, an intermediate proficiency in the Lithuanian language already at the time of recruitment and regardless of the length of the employment contract. As such, to my mind, that requirement renders it more difficult and less attractive to set up, staff and operate an establishment in Lithuania delivering English-language programmes. Therefore, the language requirement must be considered to constitute a restriction on the freedom of establishment under Article 49 TFEU.

(b)The justification of the restriction

44.According to settled case-law, a restriction on the freedom of establishment is nevertheless permissible if it is justified by an overriding reason in the public interest and is subject to the principle of proportionality. (26)

(1)The existence of an overriding reason in the public interest

45.While the referring court has not expressly specified the objective of the national legislation imposing the language requirement, it may be inferred from the order for reference (subject to the referring court’s confirmation) that the objective pursued is the promotion and protection of the official language of Lithuania.

46.On that point, it suffices to recall that the Court has consistently recognised (especially in the field of education) that the promotion and protection of a Member State’s official language, as an expression of its national identity, constitutes a legitimate objective and an overriding reason in the public interest, capable, in principle, of justifying a restriction on the fundamental freedoms enshrined in the TFEU, including the freedom of establishment. (27)

47.In addition to the above, it is also worth observing that the relevant national provisions impose the language requirement specifically on workers employed in establishments which provide services to the population – in fields such as education and healthcare – if they are in regular communication with the public or must complete standardised document forms. To my mind, this suggests that the measure is not primarily concerned with whether those workers themselves use the State language per se, but with ensuring that the public they engage with can access services in that language and that the establishments concerned are able to carry out their functions effectively. This specific functional rationale, which highlights the practical significance of the use of the State language, reinforces, in my opinion, the legitimacy of the objective pursued and further underpins the justification of the restriction.

(2)The proportionality of the restriction

48.Notwithstanding the above, any restriction on the freedom of establishment must also respect the principle of proportionality. This means that the national measure concerned must be suitable for securing, in a consistent and systematic manner, the attainment of the objective pursued without exceeding what is necessary to achieve it. Furthermore, the measure must be proportionate in the strict sense, striking a fair balance between the interests at stake – namely the interests pursued by the State with the measure in question and the interests of the persons adversely affected by it. (28)

49.It is ultimately for the national courts to determine whether a national measure meets those proportionality requirements, as they are best placed to evaluate the elements of fact and law involved, especially in cases such as the present one, which concern the use of a Member State’s official language as an expression of national identity. (29) Nevertheless, the Court, which is called upon to provide answers of use to the referring court, may provide guidance to the national court. To that end, I will offer some comments on each of the three elements of proportionality.

(i)Suitability

50.As regards, first, the element of suitability, what must be assessed is whether the language requirement is apt to protect or encourage the use of the State language in the specific context of interaction with public authorities or the public in general.

51.In my view, that criterion is clearly met in relation to the administrative staff of the School (and specifically its head and deputy head of education whom the contested order concerns) (30) whose functions necessarily involve communication both with public authorities and with the parents of current or prospective pupils, as well as ensuring compliance with applicable legal obligations.

52.The same conclusion is not as readily apparent in respect of the School’s teaching staff, whose role is to deliver courses in the English language. However, as the Court has previously observed, (31) the role of teachers is not limited to the teaching that they provide. Instead, it may also involve, in certain circumstances, providing guidance or assistance to pupils (for which a degree of communication in their mother tongue may be beneficial) as well as liaising with pupils’ parents (who, despite opting for an English-language programme for their children, may themselves not speak English). Moreover, in the context of ensuring the safety of their pupils, teachers may also need to respond to emergencies requiring communication with Lithuanian emergency services. Therefore, for the teaching staff as for the administrative staff of the School, the language requirement appears to be a suitable means of attaining the objective pursued.

53.That said, it must be pointed out that a national measure can be regarded as suitable for attaining an objective only if it reflects a genuine concern to attain it and is implemented in a consistent and systematic manner. (32) On the basis of the information available, there is nothing to suggest an absence of such a genuine concern or an inconsistency in the implementation of the language requirement. On the contrary, it seems to follow from the case file that the requirement is broadly and consistently applicable, not only to all schools in Lithuania, but in general to all roles involving communication with the public (and the completion of standardised document forms) in establishments providing services to the population.

(ii)Necessity

54.I will now turn to the criterion of necessity, which involves determining whether less restrictive measures could achieve the objective pursued with equal effectiveness. While less onerous alternatives to the broad language requirement are certainly conceivable – as I will explain further below – such alternatives would consist essentially in introducing exceptions to the blanket use of the State language envisaged by the national legislation. As a result, those alternatives would not guarantee, strictly speaking, a fully equivalent level of effectiveness in achieving the objective pursued. Consequently, I consider that the language requirement satisfies the ‘necessity test’.

55.One element which, however, falls short of that test, in my opinion, is the manner in which fulfilment of the language requirement must be demonstrated. As clarified by the referring court, the only acceptable proof of a B1-level proficiency in Lithuanian is a certificate of successful completion of a specific State examination. In my view, the objective pursued could be equally achieved if knowledge of the State language could be demonstrated by other means. Indeed, as the Court has previously ruled, the fact that it is impossible to submit proof of the required linguistic knowledge by any other means – for example by equivalent qualifications obtained in other Member States – must be considered disproportionate. (33)

(iii)Proportionality stricto sensu

56.As regards proportionality stricto sensu, what must be assessed is whether the national legislation imposing the language requirement strikes a fair balance between, on the one hand, the objective of promotion and protection of the State language, and, on the other hand, the respect of the rights protected under EU law that are affected by that requirement.

57.In connection to that point, the Court has previously held that, while Member States enjoy broad discretion in their choice of the measures capable of achieving the objectives of their policy of protecting the official language (since such a policy constitutes a manifestation of their national identity for the purposes of Article 4(2) TEU), that discretion cannot justify a serious undermining of the rights which individuals derive from the provisions of the Treaties enshrining their fundamental freedoms. (34)

58.To frame the analysis on this point, it is appropriate to note that the language requirement consists of an intermediate (B1) level of proficiency in the State language, which goes beyond basic knowledge but does not reach the threshold of professional fluency. Moreover, as already noted above, the requirement applies only to employees in regular contact with the public or tasked with completing standardised document forms. However, as the referring court has emphasised, for those employees the requirement applies without any exception.

59.In that respect, as far as the teaching staff of the School is concerned, such a blanket requirement, imposing a B1-level proficiency in the State language for all teachers giving lessons in the English language, does not seem to me to strike a fair balance between the aim pursued and the burden imposed. First, the contribution to the legitimate public interest objective appears, in my view, limited in the case of a private institution whose very purpose is to provide courses in the English language, an option expressly permitted under national law and deliberately chosen by pupils (or rather their parents). (35) It is true that, even in such a context, it may be reasonable to require teachers to possess a certain knowledge of the State language in the light of the considerations set out in point 52 above. However, in my view, that knowledge need not necessarily be at level B1, nor be imposed without any exception.

60.Indeed, in the absence of any exceptions, the language requirement appears to be considerably overreaching, as it imposes an intermediate proficiency in the State language already at the time of recruitment, (36) irrespective of the language of instruction and the duration of a teacher’s employment contract. In my view, this poses significant obstacles to recruiting suitably qualified personnel, thus seriously undermining the freedom of establishment(37). In my opinion, exceptions to the blanket requirement could be envisaged without compromising the objective pursued whilst mitigating the impact on the School and its teachers (and by extension also its pupils). These could include, for example, requiring a lower level of proficiency, allowing for phased compliance or a transitional period following recruitment in order to reach the required level, linking the requirement to the expected duration of the teacher’s employment in Lithuania, allowing for ad hoc exemptions where no other qualified candidate is available,(38) or imposing the requirement only on a certain proportion of staff members, provided that the establishment as a whole continues to be able to fulfil its legal and administrative obligations.

61.As regards the administrative staff, in the light of the fundamentally different nature of their tasks compared to those of teachers, I consider that the balance could tilt differently. On the one hand, as indicated in point 51 above, the role of the administrative staff (specifically of the head of the School and the deputy head for education whom the contested order concerns) can be understood to pre-eminently require communication with parents and other external stakeholders as well as engagement with national authorities for the fulfilment of regulatory and administrative obligations. Those two specific posts could in fact be seen as the ‘public face’ of the School. Accordingly, a requirement of intermediate proficiency in the State language would appear reasonable and essential, in the context of the objective pursued.

62.On the other hand, in my opinion, the impact on the freedom of establishment is not so profound as in the case of teachers. Indeed, at least from a recruitment perspective, it would seem to me more challenging to find educators who are qualified to deliver certain specific international curricula in the English language and also possess B1 proficiency in Lithuanian than to identify suitable administrative staff with an intermediate knowledge of Lithuanian whose role does not require a specific teaching qualification nor, arguably, an excellent command of English. It may further be reasonably presumed that the specific posts of head and deputy head likely entail a long-term commitment, in the light of which acquiring intermediate proficiency in the State language appears both feasible and not unduly burdensome.

63.In the light of all of the foregoing considerations, and recalling that it is for the referring court to assess the proportionality of the measure in the specific circumstances of the case, I propose that the Court reply to the first two questions to the effect that Article 49 TFEU does not preclude national legislation which requires that the teachers and administrative staff of a private educational institution delivering English-language programmes possess an intermediate proficiency in the official State language, in so far as that legislation is justified by an objective of promoting and protecting that language and it is suitable and necessary for achieving that objective, while striking a fair balance between the interests at stake.

C.Compatibility of the language requirement with Article 53 of the Recognition Directive (Question 3)

64.By its third question, the referring court asks, in essence, whether Article 53 of the Recognition Directive precludes a language requirement, such as the one at issue, which applies without exception to all teachers of a private educational establishment that only delivers English-language programmes.

65.The Recognition Directive lays down rules for the mutual recognition of professional qualifications between Member States, intended to facilitate the freedom of movement of both self-employed and (most pertinently in the case of the School’s teachers) employed professionals in the European Union. Pursuant to Article 2(1) of the Recognition Directive, the provisions of that directive apply to all nationals of a Member State who seek to pursue a regulated profession in a Member State other than the one in which they have obtained their professional qualifications.

67.As the referring court has highlighted, teaching is a regulated profession in Lithuania. Accordingly, the Recognition Directive may be relevant in this case, though only in respect of those few among the 18 employees of the School covered by the contested order who are both teachers and nationals of another EU Member State. However, the order for reference does not specify whether those individuals have obtained their professional qualifications in a Member State (other than Lithuania), (39) thereby coming within the scope of the directive under its Article 2(1). I will nevertheless proceed with the below analysis on the presumption, subject to the referring court’s verification, that the present case does indeed fall, in part, within the scope of that directive.

68.I note, first, that Article 53 of the Recognition Directive essentially allows for the imposition on qualified professionals of a requirement of knowledge of languages ‘necessary for practising the [regulated] profession in the host Member State’. The Court has already specifically held that the requirement to have an adequate knowledge of the official State language must be regarded as necessary by reason of the nature of the post of a teacher, even when that teacher teaches in another language. (40) This is because, as elaborated on in point 52 of this Opinion, a teacher’s role is not strictly limited to the courses he or she gives, and hence the languages required of him or her are not necessarily limited to the language of instruction. Consequently, the language requirement must be regarded as permissible, in principle, under Article 53 of the Recognition Directive.

69.Nevertheless, that Article 53 must be interpreted in a manner consistent with the fundamental freedoms enshrined in the TFEU. Accordingly, as the Commission and the Netherlands Government have correctly emphasised, any language requirement allowed by virtue of that Article 53 must not adversely affect the freedom of movement of workers under Article 45 TFEU.

70.In my view, an examination of the language requirement through the lens of Article 45 TFEU would largely mirror, mutatis mutandis, the one undertaken with respect to Article 49 TFEU above.

71.Very briefly, in the interests of judicial economy, the language requirement must, in my opinion, be regarded as a restriction on the freedom of movement of workers, and arguably a form of indirect discrimination. This is because, while it is understood that it applies equally to Lithuanian nationals and to migrant workers, it is intrinsically liable to affect the latter more than the former, as it can be more easily satisfied by nationals, thus placing migrant workers at a particular disadvantage. (41) However, such a restriction could potentially be justified by an overriding reason in the public interest, such as the protection and promotion of the State language, provided that it complies with the principle of proportionality. It would ultimately be for the referring court to make a concrete assessment regarding proportionality, in support of which the considerations set out in point 48 et seq. of this Opinion in relation to the freedom of establishment would, in my view, be applicable mutatis mutandis.

72.In view of all of the foregoing, I would propose that the Court reply to the third question to the effect that Article 53 of the Recognition Directive allows for a requirement, such as the one at issue, mandating that teachers of a private educational institution delivering English-language programmes possess an intermediate proficiency in the official State language, in so far as that legislation is justified by an objective of promoting and protecting that language and it is suitable and necessary for achieving that objective, while striking a fair balance between the interests at stake.

73.Notwithstanding the above and for the sake of completeness, it is worth noting that Article 53(3) and (4) of the Recognition Directive (read in the light of recital 26 of Directive 2013/55/EU, (42) which introduced those provisions into the Recognition Directive) preclude systematic controls of professionals’ language knowledge. Such controls may only be imposed in cases where there is a ‘serious and concrete doubt’ as to the adequacy of a professional’s language knowledge and must be proportionate to the activity pursued.

V.Conclusion

73.Having regard to all of the foregoing considerations, I propose that the Court answer the questions referred by the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) as follows:

(1)Article 49 TFEU does not preclude national legislation which requires that the teachers and administrative staff of a private educational institution delivering English-language programmes possess an intermediate proficiency in the official State language, in so far as that legislation is justified by an objective of promoting and protecting that language and it is suitable and necessary for achieving that objective, while striking a fair balance between the interests at stake.

(2)Article 53 of the Recognition Directive allows for a requirement, such as the one at issue, mandating that teachers of a private educational institution delivering English-language programmes possess an intermediate proficiency in the official State language, in so far as that legislation is justified by an objective of promoting and protecting that language and it is suitable and necessary for achieving that objective, while striking a fair balance between the interests at stake.

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1Original language: English.

2See, inter alia, Friend, J.W., ‘Carriers of identity’, in Stateless Nations, Palgrave Macmillan, London, 2012, pp. 155-161.

3See judgment of 7 September 2022, Cilevičs and Others (C‑391/20, ‘the judgment in Cilevičs’, EU:C:2022:638, paragraph 68).

4See, notably, the judgment in Cilevičs, as well as judgments of 28 November 1989, Groener (C‑379/87, ‘the judgment in Groener’, EU:C:1989:599); of 4 July 2000, Haim (C‑424/97, EU:C:2000:357); and of 16 April 2013, Las (C‑202/11, EU:C:2013:239).

5Directive of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).

6Following the Common European Framework of Reference for Languages, paragraph 5.3 of the Description defines level B1 as follows: ‘“Threshold” (independent user). A person is able to … speak on a wide range of topics of everyday life and work, … to fill in standardised document forms, to write short texts on topics of everyday life and work … Also, the person is able to understand spoken language, written text and to communicate.’

7Article 72 of the Lietuvos Respublikos švietimo įstatymas (Law on Education of the Republic of Lithuania).

8I note that, at the material time, the language requirement applied to teachers specifically, also under other national provisions regulating the teaching profession in Lithuania (which have since been amended to exempt from the language requirement teachers in institutions, such as the School, delivering programmes of foreign States or international organisations). However, the contested order was not based on those provisions but rather directly on Resolution No 1688.

9Paragraph 26 of nutarimas Nr. 649 (Resolution No 649) of 6 June 2012 on the approval of the description of the procedure for issuing, suspending and revoking the consent to implement educational programmes of foreign States and international organisations.

10The Lithuanian Government’s claim of inadmissibility appears to only concern the relevance of the questions referred in so far as they cover the teachers of the School, considering that it makes no reference to its administrative staff. Consequently, it can only be construed as a claim of partial inadmissibility.

11See, inter alia, judgment of 20 October 2022, Centre public d’action sociale de Liège (Withdrawal or suspension of a return decision) (C‑825/21, EU:C:2022:810, paragraphs 37 and 38).

12See the judgment in Cilevičs, paragraphs 50 and 51 and the case-law cited.

13See, notably, the judgments cited in footnote 4 above.

14Judgment of 7 May 1998, Clean Car Autoservice (C‑350/96, EU:C:1998:205, paragraphs 19 to 21).

15I note that the national measure at issue could potentially also be examined from the perspective of the free movement of capital, which, however, likewise appears to be of secondary relevance to the freedom of establishment.

16See, inter alia, judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package) (C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 363 and 364) and judgment in Cilevičs, paragraph 31 and the case-law cited.

17It appears uncontested that the School has a fixed and lasting presence in Lithuania, pursuing its activities there on a stable and continuous basis since 2004, this element being relevant for distinguishing that the situation falls under the freedom of establishment rather than under the freedom to provide services.

18See the judgment in Cilevičs, paragraph 52 and the case-law cited.

19See judgments of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraphs 48 to 50), and of 2 February 2023, Freikirche der Siebenten-Tags-Adventisten in Deutschland (C‑372/21, EU:C:2023:59, paragraph 21 and the case-law cited).

20Judgment of 13 February 2014, Crono Service and Others (C‑419/12 and C‑420/12, EU:C:2014:81, paragraph 36 and the case-law cited).

21Judgment of 25 October 2017, Polbud – Wykonawstwo (C‑106/16, EU:C:2017:804, paragraph 32). I note that the factual and legal context presented in the order for reference, on which the Court must rely, suggests that the School satisfies those criteria, but this is of course subject to the referring court’s verification.

22Judgment of 13 July 2023, Xella Magyarország (C‑106/22, EU:C:2023:568, paragraph 45 and the case-law cited).

23It is therefore the ‘nationality’ of the School itself that renders the situation at issue ‘domestic’, rather than, as appears to have been of concern to the referring court, the Lithuanian nationality of its founder.

24See judgment of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraphs 46 and 47).

25See the judgment in Cilevičs, paragraph 61 and the case-law cited.

26Ibid., paragraph 65 and the case-law cited.

27Ibid., paragraphs 67 to 70 and case-law cited.

28Ibid., paragraph 65; see also judgment of 5 December 2023, Nordic Info (C‑128/22, EU:C:2023:951, paragraph 77), and my Opinion in the same case (C‑128/22, EU:C:2023:645, point 91 et seq.).

29See the judgment in Cilevičs, paragraphs 72 and 73, and my Opinion in the same case (C‑391/20, EU:C:2022:166, points 91 to 93).

30It follows from the order for reference that the only members of the administrative staff concerned by the contested order are the individuals holding those two specific posts. To the extent that other members of the administrative staff may also be concerned, the present analysis would be likewise relevant, given that the language requirement would only apply to them if their duties involve regular communication with the public and/or the completion of standardised document forms.

31See the judgment in Groener, paragraph 20.

32See the judgment in Cilevičs, paragraph 75 and the case-law cited.

33See judgments of 6 June 2000, Angonese (C‑281/98, EU:C:2000:296, paragraph 44), and of 5 February 2015, Commission v Belgium (C‑317/14, EU:C:2015:63, paragraph 28).

34See the judgment in Cilevičs, paragraph 83 and the case-law cited.

35This differs materially from the situation in the judgment in Groener, which concerned a public educational institution offering courses in the official State language(s).

36A sole exception is foreseen on this point for persons benefiting from international protection, who are exempt from the language requirement for two years following recognition of their status. It must also be pointed out, however, that, in practice, the Inspectorate afforded a deferral period of approximately eight months for demonstrating compliance with the language requirement.

37See point 43 above.

38In the judgment in Groener, national legislation provided for the possibility of precisely such an exception, which was taken into account to consider the requirement proportionate.

39Or whether, as per Article 3(3) of the Recognition Directive, they have worked for three years in a Member State which has recognised their professional qualifications obtained in a third country.

40See the judgment in Groener, paragraph 21, although it must be borne in mind that that case concerned the permanent post of a teacher in a public educational institution.

41See judgment of 22 June 2017, Bechtel (C‑20/16, EU:C:2017:488, paragraph 39).

42Directive of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36 and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (OJ 2013 L 354, p. 132), recital 26 of which reads, inter alia: ‘Language controls should however be reasonable and necessary for the professions in question and should not aim at excluding professionals from other Member States from the labour market in the host Member State.’