Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In connection with criminal proceedings concerning unlawfully practising the occupation of football trainer, the tribunal de grande instance (Regional Court), Lille, has asked the Court whether under Articles 48 to 51 of the EEC Treaty national administrative measures affecting the freedoms and rights guaranteed by those articles must fulfil specific minimum requirements and in particular whether they must include an express statement of reasons.

2. For a better appreciation of the issue before the Court it is useful to adumbrate the French rules with regard to the recognition of the equivalence of foreign football trainers' diplomas. They are set out in the first place in the Order of 30 July 1965 of the State Secretary for Youth and Sport listing the diplomas which give entitlement to practise the occupation of physical education or sports master (Journal officiel de la République française of 26.10.1965, p. 9457). Article 6 of that order sets up a national committee to consider applications from holders of foreign diplomas; however, the power of decision with regard to such applications is vested in the State Secretary himself, who is to take individual decisions until such time as relevant agreements have been concluded with the countries concerned.

3. Before going any further, it should be observed that by letters dated 13 June and 19 August 1985 the Minister for Youth and Sport notified Mr Heylens that he had decided to recognize his diploma as equivalent following reassessment by the Equivalence Committee. The French Government, to which the Court owes that information, admitted, however, that since that recognition is effective ex nunc it is without effect on the existence of the criminal offence; the problem raised by the tribunal de grande instance — to which it falls, in any event, to assess whether the interpretation which the Court of Justice has been requested to give is still pertinent for the purposes of the judgment — therefore remains completely relevant.

4. The relevant Community rules are laid down by Articles 48 to 58 of the EEC Treaty and, specifically as regards migrant workers, by Regulation No 1612/68 of the Council of 15 October 1968 (Official Journal, English Special Edition 1968 (II), p. 475). Article 45 of Regulation No 1612/68 provides that the Commission is to submit to the Council proposals aimed at abolishing, in accordance with the conditions of the Treaty, restrictions on eligibility for employment of workers who are nationals of Member States, where the absence of mutual recognition of diplomas, certificates or other evidence of formal qualifications may prevent freedom of movement for workers. In this sector, as in others, no directive — the directive being the instrument by which the Council is to abolish the restrictions in question — has yet seen the light of day. Can it be inferred therefrom that the restrictions in the various national legal systems are unlawful? More specifically, is each Member State entitled to lay down a requirement for a diploma issued by its national authorities, thereby excluding the validity of qualifications obtained in the country of origin or in another country albeit still a Member State of the Community?

5. Having said that, let us return to the national court's question as we have seen fit to rephrase it; can it be said that rules which are such that measures of the kind of the contested decision can be adopted remain within the limits of the power still vested in the Member States? The question arises above all as regards a particular characteristic of the decision in question: the complete absence of a statement of reasons. The letter of 8 January 1985 refers to an unfavourable opinion delivered by the Equivalence Committee, but does not set out — indeed does not even refer to — the reasons why the Committee came out with an adverse recommendation. Neither can it be told whether the reasons were given in a document submitted to the State Secretary for his use in drawing up the final decision.

6. Personally, I doubt whether under French law a measure refusing to recognize the equivalence of a foreign sports diploma is in fact exempt from the duty to state reasons (see Law No 79/587 of 21 July 1979 and the circulars of 31 August 1979 and 10 January 1980 of the Prime Minister, Journal officiel de la République française 1979, pp. 1711 and 2146, and JORF 1980, p. 465, respectively). However, whether that impression is correct or not and, if so, whether an unlawful practice is involved is for the tribunal de grande instance to determine. As has been made clear above, the Court's role is different: it has to establish whether or not national rules which do not require but authorize the administration to state reasons for decisions of refusal conflict with Community law.

7. In the light of all the foregoing considerations I propose that the Court should answer the question on which the tribunal de grande instance, Lille, asked the Court to give a preliminary ruling by order of 4 July 1986 in connection with criminal proceedings brought against Georges Heylens and others in the following terms:

1 Translated from the Italian.