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Article 16 - Freedom to conduct a business
On 12 June 2018 the Parliament adopted and on 1 January 2019 amendments to the Law on Establishment of Higher Institution providing that all establishments of higher education - state and private must implement study programmes in official language1 only, except in few cases defined by Article 56(3) of the law in question. The few cases when use of foreign languages is permitted are following: 1) if the study programmes are implements under EU programmes or international agreements use of official EU languages is permitted; 2) if the use of official languages of the EU does not exceed 1/5 of a study programme; 3) if use of foreign language is necessary for the attainment of the study aim according to the classification system in study programmes relating languages, culture and language studies; 4) if study programme is implemented in cooperation with establishments of higher institutions of other countries, however, in EU official languages only. 20 members of the Parliament submitted the application to the Constitutional Court on the compatibility of respective norm (further – Contested norm) with Articles 1 (general principles of law (legal certainty), 105 (right to property, freedom to conduct the business) and Article 112 (right to education). On the basis of this application case No.2019-12-01 was initiated. In this case the Constitutional Court adopted two principal decisions: first, that Contested norm is not compatible with Articles 112 and 113 (academic freedom) of the Constitution and, second, that separate case has to be initiated on compatibility of the contested norm with Article 1 (general principles of law – legal certainty) and Article 105 (right to property, freedom to conduct the business). On 14 July 2020 the Constitutional Court decided to refer the questions to the CJEU to in order to establish: (1) if restrictions on the use of foreign languages in establishments of higher education also restricts the right to free movement of services as provided by Article 56 of the TFEU and freedom of establishment as provided by Article 49 of the TFEU and freedom to conduct business as provided by Article 16 of the CFREU;
(2) which considerations should be taken into account in assessing compatibility and proportionality of respective restrictions with the right of the Member States to protect official language as part of national identity (Article 165 of the TFEU)?
‘The CJEU has dealt with the principle of proportionality in its case-law […]. However, if it is presumed that in present case the contested norms restrict freedom to conduct the business, then is it not sufficiently clear, if in interpreting Article 49 of the TFEU and Article 16 of the CFREU it follows that such restriction is justified, appropriate and does not exceeds what is necessary for the attainment of the legitimate aim – protection of the official language. In the view of the Constitutional Court official language has to be considered as one of the expressions of the national identity.’
“Eiropas Savienības Tiesas praksē ir plaši aplūkots samērīguma princips […]. Tomēr, ja tiek pieņemts, ka izskatāmajā lietā apstrīdētās normas ierobežo uzņēmējdarbības brīvību, tad nav nepārprotami skaidrs, vai, interpretējot Līguma par Eiropas Savienības darbību 49.pantu un Eiropas Savienības Pamattiesību hartas16.pantu,var secināt, ka šāds ierobežojums ir attaisnojams, atbilstošs un nepārsniedz to, kas vajadzīgs šī ierobežojuma leģitīmā mērķa –valsts valodas aizsardzības - sasniegšanai. Satversmes tiesas ieskatā valsts valoda uzskatāma par vienu no nacionālās identitātes izpausmēm.”