Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

Delivered on 1 March 2012 (1)

Case C-15/11

Leopold Sommer

v

Landesgeschäftsstelle des Arbeitsmarktservice Wien

(Reference for a preliminary ruling from the Verwaltunsgerichtshof (Austria))

(Accession of new Member States - Protocol concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union - Bulgaria - Applicability of Directive 2004/114/EC - Conditions for admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service - Standstill clause - Principle of preference for Union citizens - Admissibility of legislation of a Member State which makes the issue of a work permit to Bulgarian nationals subject to systematic examination of the situation in the labour market)

I - Introduction

1. The present reference for a preliminary ruling, lodged by the Verwaltungsgerichtshof (Administrative Court) Austria, concerns the interpretation of the Protocol concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union (2) ('the Protocol'), in particular Article 20 and point 1 of paragraph 14 of its Annex VI, entitled 'List referred to in Article 20 of the Protocol: transitional measures, Bulgaria', and of Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service. (3)

2. The reference has been made in the context of a dispute between Mr Sommer and the Landesgeschäftsstelle des Arbeitsmarktservice Wien (Regional Agency of the Department of Employment, Vienna, 'Employment Office') concerning the latter's refusal to issue a work permit, at Mr Sommer's request, to a Bulgarian national studying in Austria, who wishes to work as a part-time driver there.

3. The questions referred to the Court seek a ruling on the factors to be taken into account in assessing the 'standstill' obligation provided for in paragraph 14 of Annex VI, point 1, of the Protocol, and also the effect of the principle of preference for Union citizens, set out in the same paragraph, on the legal situation of Bulgarian students during the transitional period laid down in the first subparagraph of paragraph 2 of Annex VI, point 1, of the Protocol. In that context, the present reference will also enable the Court to give a ruling on the admissibility of the measures adopted by the Member States to regulate the access of Bulgarian nationals to their employment market while those measures apply.

II - The legal context

A - Union law

1. The Protocol and Annex VI

4. The Treaty of Accession was signed on 25 April 2005 and entered into force on 1 January 2007 ('the accession date').

5. Article 1(3) of the Treaty of Accession provides that 'the conditions and arrangements for admission are set out in the Protocol annexed to this Treaty. The provisions of that Protocol shall form an integral part of this Treaty'.

6. Article 20 of the Protocol relates to temporary provisions and provides, inter alia, that the measures listed in Annex VI of the Protocol apply in respect of the Republic of Bulgaria under the conditions laid down in that Annex.

7. The first subparagraph of paragraph 2 of Annex VI, point 1, of the Protocol provides that, by way of derogation from Articles 1 to 6 of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, (4) and until the end of the two-year period following the date of accession (thus until 1 January 2009), the present Member States will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Bulgarian nationals. The present Member States may continue to apply such measures until the end of the five-year period following the date of accession

8. Paragraph 14 of Annex VI, point 1, of the Protocol is worded as follows:

'The effect of the application of paragraphs 2 to 5 and 7 to 12 shall not result in conditions for access of Bulgarian nationals to the labour markets of the present Member States which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.

Notwithstanding the application of the provisions laid down in paragraphs 1 to 13, the present Member States shall, during any period when national measures or those resulting from bilateral agreements are applied, give preference to workers who are nationals of the Member States over workers who are nationals of third countries as regards access to their labour market.

Bulgarian migrant workers and their families legally resident and working in another Member State or migrant workers from other Member States and their families legally resident and working in Bulgaria shall not be treated in a more restrictive way than those from third countries resident and working in that Member State or Bulgaria respectively. Furthermore, in application of the principle of Community preference, migrant workers from third countries resident and working in Bulgaria shall not be treated more favourably than nationals of Bulgaria.'

2. Directive 2004/114

9. Directive 2004/114 entered into force on 12 January 2005. The transposition period for the directive expired on 12 January 2007, in accordance with Article 22.

10. Recital (6) to the Directive states that 'one of the objectives of Community action in the field of education is to promote Europe as a whole as a world centre of excellence for studies and vocational training. Promoting the mobility of third-country nationals to the Community for the purpose of studies is a key factor in that strategy. The approximation of the Member States' national legislation on conditions of entry and residence is part of this'.

11. According to recital (7) of the same directive, 'migration for the purposes set out in this Directive, which is by definition temporary and does not depend on the labour-market situation in the host country, constitutes a form of mutual enrichment for the migrants concerned, their country of origin and the host Member State and helps to promote better familiarity among cultures'.

12. With regard to the economic activity of students, recital (8) of the directive states that 'in order to allow students who are third-country nationals to cover part of the cost of their studies, they should be given access to the labour market under the conditions set out in this Directive. The principle of access for students to the labour market under the conditions set out in this Directive should be a general rule; however, in exceptional circumstances Member States should be able to take into account the situation of their national labour markets'.

13. Article 1 of Directive 2004/114 provides as follows:

'The purpose of this Directive is to determine:

(a) the conditions for admission of third-country nationals to the territory of the Member States for a period exceeding three months for the purposes of studies, pupil exchange, unremunerated training or voluntary service;

(b) the rules concerning the procedures for admitting third-country nationals to the territory of the Member States for those purposes.'

14. Article 2(a) of the Directive defines 'third-country national' as 'any person who is not a citizen of the European Union within the meaning of Article 17(1) of the Treaty'.

15. Chapter IV of the directive, headed 'Treatment of the third-country nationals concerned', includes Article 17, which is headed 'Economic activities by students' and provides as follows:

'1. Outside their study time and subject to the rules and conditions applicable to the relevant activity in the host Member State, students shall be entitled to be employed and may be entitled to exercise self-employed economic activity. The situation of the labour market in the host Member State may be taken into account.

Where necessary, Member States shall grant students and/or employers prior authorisation in accordance with national legislation.

2. Each Member State shall determine the maximum number of hours per week or days or months per year allowed for such an activity, which shall not be less than 10 hours per week, or the equivalent in days or months per year.

3. Access to economic activities for the first year of residence may be restricted by the host Member State

4. Member States may require students to report, in advance or otherwise, to an authority designated by the Member State concerned, that they are engaging in an economic activity. Their employers may also be subject to a reporting obligation, in advance or otherwise.'

B - National law

16. Under Paragraph 64(2) of the Niederlassungs- und Aufenthaltsgesetz (Law on establishment and residence, NAG), (5) residence permits issued to foreign students also cover economic activity as an employed person, provided that such activity is without prejudice to the requirement of studies as the sole purpose of residence.

17. Work permits are granted in accordance with the provisions of the Ausländerbeschäftigungsgesetz (Law on the employment of foreign nationals, 'AuslBG'), (6) Paragraph 4 of which is headed 'Work permit conditions' and provides as follows:

'The work permit shall be granted, unless otherwise provided hereinafter, if the situation of and developments in the labour market permit employment and it is not precluded by important public or macroeconomic interests.'

18. Paragraph 4(6) of the AuslBG regulates situations where the fixed maximum number of foreigners employed for the regions under Paragraph 13 of that Law is exceeded. In that situation, further work permits may be issued only on certain conditions which are set out in Paragraph 13.

19. Subparagraph (1) of Paragraph 4b of the AuslBG, which is headed 'Examination of the situation in the labour market', provides as follows:

'The situation of and developments in the labour market (Paragraph 4(1)) shall permit the grant of a work permit if neither an Austrian national nor a foreign national available on the labour market who is willing and able to carry out the job applied for under lawful conditions is available for the vacant position to be filled by the foreign national in respect of whom the application is made. Among the available foreign nationals preference shall be given to those who are entitled to unemployment benefits, who hold an authorisation to work, an exemption certificate or a permanent residence permit, EEA citizens (Paragraph 2(6)) and Turkish workers covered by the Association Agreement with Turkey ...'

III - The main proceedings, the questions referred and the procedure before the Court

20. On 30 January 2008 Mr Sommer, the applicant in the main proceedings, applied for a work permit to be issued to a Bulgarian national, a student, who had already resided in Austria for more than one year and whom he wished to employ as a driver for making night-time deliveries in Vienna at short notice. The application was refused by decision of the Arbeitsmarktservice of 8 February 2008 on the basis of Paragraph 4(6), point 1, of the AuslBG.

21. Mr Sommer appealed against the decision to the Arbeitsmarktservice which, by decision of 17 March 2008, rejected the appeal, referring once again to Paragraph 4(6) of the AuslBG, on the ground that the maximum number of foreign workers fixed for the Vienna region had already been exceeded and that the additional conditions laid down by that provision were not fulfilled. Mr Sommer instituted proceedings against that decision before the referring court.

22. According to the referring court, literal interpretation of the combined provisions of Articles 1(a) and 2(a) of Directive 2004/114 shows that a Bulgarian national is not within the scope of Directive 2004/114 because, by reason of Bulgaria's accession to the Union on 1 January 2007, he is no longer 'a third-country national' within the meaning of the directive. On that point, the referring court is uncertain as to the effects of Bulgaria's accession on the situation of a Bulgarian student. To be exact, the referring court wishes to know whether the change in status described above could adversely affect the legal situation of a Bulgarian student or entail less favourable treatment than that of third-country students, which would be contrary to paragraph 14 of Annex VI, point 1, of the Protocol.

23. The referring court, however, observes that the issue of a work permit is, by virtue of Paragraph 4(1) of the AuslBG, subject to examination of, first, the situation of and developments in the labour market and, secondly, important public or macroeconomic interests which may preclude the recruitment of such a worker.

24. Against that background, by decision of 9 December 2010, the Verwaltungsgerichtshof decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'1. Having regard to the first or third subparagraphs of paragraph 14 of point 1 [entitled] "Freedom of movement for persons" of Annex VI "List referred to in Article 20 of the Protocol: transitional measures - Bulgaria" [of the Protocol], does Directive 2004/114 apply to a Bulgarian student in Austria?

2. If Question 1 is answered in the affirmative: Does Union law, in particular Article 17 of Directive 2004/114, preclude a national rule which, like the provisions of the Ausländerbeschäftigungsgesetz which are relevant in the main proceedings, provides in all cases for an examination of the situation of the labour market prior to the grant of a work permit for an employer to employ a student who has already resided in Austria for more than one year (Article 3 of Directive 2004/14) and additionally makes the grant of a work permit subject to further conditions if the fixed maximum number of foreign nationals employed has been exceeded?'

25. The reference from the Verwaltungsgerichtshof was lodged at the registry of the Court on 12 January 2011.

26. Written observations were lodged by Mr Sommer, the Austrian Government and the European Commission. None of the parties has asked for a hearing to be held.

IV - Assessment

A - The legal situation of Bulgarian nationals following Bulgaria's accession to the Union

27. As the sequence of dates affecting the legal situation in the main proceedings is rather complex, it is useful to set out a synoptic table of the relevant dates for the purpose of the determining the dispute before the referring court:

28. As shown in the table, on 30 January 2008 Mr Sommer lodged the application for a work permit which is the subject of the main proceedings, concerning a Bulgarian national studying in Austria. At that date and up to the end of the two-year period following the date of accession, the Member States applied, in accordance with the first subparagraph of paragraph 2 of Annex VI, point 1, of the Protocol, national measures or the measures resulting from bilateral agreements for regulating the access of Bulgarian nationals to their labour markets. According to the same provision, the Member States could continue to apply such measures until the end of the five-year period following the date of accession.

29. However, the first subparagraph of Paragraph 14 of Annex VI, point 1, of the Protocol restricts the Member States' powers in that respect by stating that the transitional measures referred to are not to result in conditions for access of Bulgarian nationals to the labour markets of the present Member States which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.

30. At the date of signature of the Treaty of Accession, 25 April 2005, Directive 2004/114 had been in force since 12 January 2005, although the period for transposition had not expired. At the date of signature therefore, Bulgarian nationals, as third-country nationals, were covered by Directive 2004/114, the transposition period for which had not then expired.

B - Applicability of Directive 2004/114 to a Bulgarian student after Bulgaria's accession to the Union

31. The first question from the referring court is, in essence, whether, first, the standstill clause and, secondly, the principle of preference for Union citizens referred to in paragraph 14 of Annex VI, point 1, of the Protocol, entail a duty to apply Directive 2004/114 to a Bulgarian national even after Bulgaria's accession to the Union.

32. In order to reply to that question, it is necessary first to consider the extent of the obligations referred to in paragraph 14 of Annex VI, point 1, of the Protocol.

1. The standstill obligation

33. The obligation attaching to the standstill clause in the first subparagraph of paragraph 14 of Annex VI, point 1, of the Protocol aims to prevent transitional measures in the Member States from having the effect of creating, for Bulgarian nationals, conditions of access to the labour market of Member States which are more restrictive than those existing on the date of signature of the Treaty of Accession.

34. According to the Court's case-law, the purpose of standstill clauses is to prohibit the introduction of any new measure by a Member State having the object or effect of creating more restrictive conditions than those which applied before the date from which those clauses come into force. (7) A change of status from third-country national to Union citizen as a result of the accession of the country in question to the Union must not therefore entail any deterioration in the conditions of access to the labour market for the persons concerned.

35. From that point of view, the obligation upon all Member States by virtue of the standstill clause in the first subparagraph of paragraph 14 of Annex VI, point 1, of the Protocol is of a static nature. The clause aims to prevent any adverse effect on the legal situation of the persons concerned by comparison with their legal situation at the date of signature of the Treaty of Accession, which was 25 April 2005.

36. As the above table clearly shows, Directive 2004/114 was in force at the date of signature of the Treaty of Accession, but the period for implementing it had not then expired. However, the Court has consistently held that directives at that stage do not have direct effect (8) and the obligation of national courts to interpret domestic law in conformity with the provisions of those directives relates only to situations in which a 'non-conforming' interpretation might seriously compromise, after the period for transposition has expired, the attainment of the objective pursued by that directive, and does not aim to give early effect to the rules in that directive. (9)

37. In that connection, I wish to point out that I do not share the position taken by the Austrian Government and the Commission that the legislative terms of Directive 2004/14 define the terms of the standstill obligation in paragraph 14 of Annex VI, point 1, of the Protocol. At the date of signature of the Treaty of Accession, 25 April 2005, Austria was not required to apply the directive to third-country nationals or to Bulgarian nationals because the period for transposition had not then expired. A contrary interpretation could render ineffective the purpose of the period for transposition and could lead to confusion regarding the status in law of directives, which are legislative acts with certain binding effects which arise only on the completion of their implementation in national law.

38. It follows that, at the date of signature of the Treaty of Accession, Directive 2004/114 prevented Austria only from adopting measures which might seriously compromise the attainment of the objective pursued by that directive. That prohibition, which follows from the Court's case-law in Inter-Environnement Wallonie, (10) aims to ensure the effectiveness of directives after the end of the transposition period.

39. For that reason, apart from the situations covered by the case-law in Inter-Environnement Wallonie, the nature of the standstill obligation must be determined, in the present case, solely in the light of national measures or measures resulting from bilateral agreements, and not by reference to Directive 2004/114. Consequently the standstill obligation may be relevant for the purpose of assessing the legal situation in the main proceedings only if the Austrian legislation has been amended with the effect of making access to the Austrian labour market more difficult for Bulgarian students after 25 April 2005 than the access guaranteed by the relevant legislation in force before that date. (11) It is for the national court to ascertain whether that is so in the present case.

2. The principle of preference for Union citizens

40. The second subparagraph of Paragraph 14 of Annex VI, point 1, of the Protocol enshrines the principle of preference for Union citizens, by virtue of which the Member States are required, irrespective of measures taken during the transitional period, to give priority of access to their labour market to citizens of a Member State as opposed to third-country nationals. (12)

41. Whereas the obligation arising from the standstill clause is of a static nature, the principle of preference for Union citizens, which requires the Member States to give preference to Union citizens in the context of access to their labour market, is dynamic from the temporal viewpoint. In other words, Bulgarian nationals must, in accordance with second subparagraph of Paragraph 14 of Annex VI, point 1, of the Protocol, be able to benefit not also from the same improvements in their treatment as third-country nationals in a similar situation, but also preferential treatment as against the latter. Therefore the nature of that obligation may change in time.

42. In the present case, the relevant date for the purpose of assessing the situation in relation to the principle of preference for Union citizens is 30 January 2008, the date when the application for a work permit was lodged. By that date the period for implementing Directive 2004/114 had expired more than one year previously.

43. Although the conditions of access to the labour market laid down by the Directive are not directly applicable to a student of Bulgarian nationality, such as the student whom Mr Sommer wishes to employ in the main proceedings, they nevertheless constitute the minimum threshold laid down by the Protocol, which also applies to such a student during the period when the transitional measures apply. It follows that the legal effects of Directive 2004/114 relating to the legal situation of students who are third-country nationals apply also to Bulgarian students by virtue of the abovementioned obligation, which follows from the Treaty of Accession and thus from an act of primary law.

44. However, it seems to me that, in such a situation the legal effects of a directive must be treated like those of a Union Directive, and not like those of an act of primary law. Otherwise, directives applicable by virtue of the Treaty of Accession would have greater legislative force than that of other directives. (13)

45. Thus the conditions provided for by Directive 2004/114 form a parallel minimum threshold with a view to the application of the principle of preference for Union citizens. Consequently, if access to the Austrian labour market must be granted to a student who is a third-country national in accordance with the arrangements laid down by Directive 2004/114, a Bulgarian student must be able to have the benefit of such access in conditions which are at least as favourable and, furthermore, in preference to another student who is a third-country national. (14)

46. In other words, Bulgaria's accession to the Union had the consequence that Bulgarian nationals ceased to have the status of third-country nationals and became Union citizens. This change in the status of Bulgarian nationals does not mean that Directive 2004/114 is applicable to them. Nevertheless, it follows from the principle of preference for Union citizens, which is laid down by the second subparagraph of Paragraph 14 of Annex VI, point 1, of the Protocol, that it is necessary to take into account the conditions of access to the labour market laid down by Directive 2004/114 as a minimum which is also applicable to a Bulgarian student while the transitional measures are valid. (15)

47. Consequently, applying the principle of preference for Union citizens, a Bulgarian national, like the student in question in the main proceedings, cannot be treated more unfavourably (principle set out in the third subparagraph of Paragraph 14 of Annex VI, point 1, of the Protocol) than a third-country national in a similar situation. Furthermore, the Bulgarian national must be able to have access to the labour market not only in conditions as favourable as those applicable to third-country nationals, but also in preference to them.

48. However, the term 'third-country national' cannot cover persons who, by virtue of international agreements concluded between the Union and non-member countries, receive treatment equal to that of Union citizens, such as nationals of EEA countries. Interpretation to the contrary would make the arrangements laid down by the Protocol for the transitional period ineffective and could deprive of practical effect much of the first subparagraph of Paragraph 2 of Annex VI, point 1, of the Protocol, which provides for the application of national measures or measures resulting from bilateral agreements during the transitional period. (16)

49. In that context, it seem to me also useful to add that, first, in accordance with the principle of preference for Union citizens, individuals in a legal situation such as that in question in the main proceedings may, as against the host Member State, rely before the national courts on the provisions of Directive 2004/114 which, from the viewpoint of their content, are unconditional and sufficiently precise provided that the conditions laid down by the Court's case-law on the subject of the direct effect of directives are fulfilled. (17)

50. Secondly, it has consistently been held that the national courts must interpret national law, as far as possible, in the light of the wording and purpose of the directive in order to achieve the result sought by the directive. Therefore it follows from that obligation of interpretation in conformity with Community law that the national courts must interpret the relevant provisions of national law in conformity with the requirements of the directive. (18)

C - Compatibility of national legislation such as that at issue in the main proceedings with Directive 2004/114

51. By its second question the referring court asks whether, if the reply to the first question is in the affirmative, Union law, in particular Article 17 of Directive 2004/114, precludes a national rule which, like the provisions of the AuslBG which are relevant in the main proceedings, provides for an examination of the situation of the national labour market prior to the issue of a work permit to an employer on behalf of a student who has already resided in Austria for more than one year, and which additionally makes the issue of such a permit subject to further conditions if the fixed maximum number of foreign nationals employed has been exceeded for the Land (region) concerned.

1. The relationship between the objectives of Directive 2004/114 and the restrictive measures laid down by the Austrian legislation

52. In order to reply to the question from the referring court, it is necessary first to set out the objectives of Directive 2004/114.

53. According to recitals (6) and (7) of Directive 2004/114, its objectives are to promote the mobility of third-country nationals who are students to the Community for the purpose of studies. The object of that mobility is to promote Europe as a whole as a world centre of excellence for studies and vocational training. In that field, therefore, it is a matter of migration sought by the Union, which is temporary and independent of the labour market.

54. According to the first subparagraph of Article 17(1) of Directive 2004/114, students covered by the directive are entitled to be employed and to exercise self-employed economic activity outside their study time, subject to the rules and conditions applicable to the relevant activity in the host Member State. It may appear at first sight that that provision confers upon those concerned a subjective right of access to employment, at least if it is not a matter of self-employed economic activity. However, the second sentence of that provision permits the Member States concerned, notwithstanding the rule set out in the first sentence, to take account of the situation of their labour market. The second subparagraph of Article 17(1) also provides for the possibility of granting prior authorisation to students and/or employers where necessary.

55. Furthermore, Article 17(2) to (4) lists the measures which Member States are authorised to take to regulate access to employment for students who are third-country nationals. I consider that the Member States are required to use them primarily to prevent students from causing difficulties in their labour market as an additional source of labour.

56. Only after exhausting those possibilities can the host State rely on the second sentence of the first subparagraph of Article 17(1) in order to take the labour-market situation into account. On that point I consider that that provision may be applied only in exceptional cases, as appears from recital (18) to the directive, and only if the proposed measures are justified and proportionate to the desired objective.

57. That interpretation is confirmed not only by the general scheme of Directive 2004/114, but also by the objective referred to in recital (18), which states that access to the labour market under the conditions set out in the directive should be the general rule. That enables the main objective of the directive to be attained which, as mentioned above, is to promote the mobility of students who are third-country nationals to the Community for the purpose of studies and to promote Europe as a whole as a world centre of excellence for studies and vocational training.

58. Consequently, in view of the wording of Article 17(1), first subparagraph, of Directive 2004/114 and its objectives, that provision must be interpreted as meaning that access to the labour market is the rule applying to students who are third-country nationals after the first year of residence, and that restrictions on such access are the exception. It follows that the situation of the labour market can be taken into account only in exceptional cases, for example, where a sector of the labour market or a region of the host Member State is in difficulty or in the case of exceptional deterioration in the employment situation at the national level. (19)

59. In that context, I observe that the referring court is in doubt concerning the contradiction alleged to exist between the second sentence of the first subparagraph of Article 17(1) of Directive 2004/114 and Article 17(3).

60. To reconcile those two provisions, it is necessary to have recourse to an interpretation which takes account of the general scheme and the purpose of the directive. Article 17(3) permits access to the labour market to be limited for the first year of residence in connection with studies, and no justification is required. I think that possibility is necessary in order to prevent abuse of the directive and to ensure that studying is indeed the main reason for the persons concerned to reside in national territory. On that point, it must be observed that, according to recital (7) to the directive, migration for the purposes set out in the directive is temporary and does not depend on the labour-market situation in the host Member State. That is why, until the end of the first year of residence, the students concerned have access to economic activity only under the conditions and subject to the limitations laid down by national law.

61. Nevertheless, such a measure, which is for a limited period, is less restrictive than that in the second sentence of the first subparagraph of Article 17(1) of the directive. The taking account of the labour-market situation in the Member State in question, as authorised by that provision, is a general derogation which is not limited to the first year of residence, which requires, as I have already said, the existence of an exceptional situation.

62. With regard to the national legislation at issue in the main proceedings, it appears from the order for reference that that legislation requires a systematic examination of the labour market. (20) To be exact, under the relevant national legislation, in particular Paragraph 4(1) of the AuslBG, before a work permit is issued, the competent authority must systematically ascertain whether the situation of and developments in the labour market preclude employment being taken by students who are third-country nationals.

63. On the other hand, Paragraph 4b(1) of the AuslBG, which provides that a work permit may be granted to such a student only if the vacant position in question cannot be filled by an Austrian national or a foreign national treated as an Austrian national, as a Union citizen, seems to me justified in the light of the principle of preference for Union citizens, enshrined in Union law and laid down by, inter alia, the second subparagraph of paragraph 14 , Annex VI, point 1, of the Protocol.

64. Consequently, national legislation which has the effect of creating a situation in which students who are third-country nationals, covered by Directive 2004/114, do not obtain, even on completion of their first year of residence, access to the labour market generally, but only exceptionally, is incompatible with the first subparagraph of Article 17(1) of the directive.

2. Whether restrictive measures are justified

65. It does not seem to me sufficient to rely on general considerations relating to the characteristics of the labour market in the Member State concerned in order to show the existence of an exceptional situation justifying a systematic examination of the state of the labour market for the purpose of issuing a work permit to a student who is a third-country national.

66. In that connection, I would add that such a global approach cannot be sufficiently justified by the existence of even a high level of unemployment on the national labour market unless the situation is an exceptional one. (21) Directive 2004/114 was adopted notwithstanding significant unemployment in all Member States of the Union. Therefore such general considerations cannot justify the measures laid down in the national legislation in question.

67. In relation, more specifically, to the admissibility of the Austrian system at issue in the main proceedings, it is clear from the order for reference that, if the maximum fixed number of foreign nationals employed is exceeded, the issue of work permits to third-country nationals is subject not only to a systematic examination of the situation and developments in the labour market, but also to additional conditions. Given that Directive 2004/114 precludes a systematic examination of the labour-market situation, I consider that it also excludes, and with even stronger reason, national measures which go beyond systematic examination and which, furthermore, require supplementary conditions of the kind provided for by the national legislation at issue in the main proceedings for the purpose of issuing a work permit.

68. Finally, the Court has consistently held that, when adopting measures to implement EU legislation, national authorities must exercise their discretion in compliance with the general principles of EU law, which include the principle of proportionality. (22) In accordance with that principle, measures which the Member States may adopt must be appropriate for attaining their objective and must not go beyond what is necessary to achieve it. (23)

69. In that context, it must also be borne in mind that the Member States' margin of discretion cannot be used so as to compromise the principal purposes of Directive 2004/114, as set out above. (24)

70. Taking into account the abovementioned factors, it will be for the referring court to ascertain whether the national legislation meets those requirements in order to justify the restrictive measures provided for by the national legislation on access to the Austrian labour market for students who are third-country nationals.

V - Conclusion

71. In the light of all of the foregoing, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Verwaltungsgerichtshof:

(1) Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service does not apply to a Bulgarian student after the Republic of Bulgaria's accession to the European Union. However, by virtue of the principle of preference for Union citizens laid down in the second subparagraph of paragraph 14 of Annex VI, point 1, of the Protocol concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union, the provisions of Directive 2004/114 constitute, during the transitional period provided for in the first subparagraph of paragraph 2 of Annex VI, point 1, of the Protocol, the minimum threshold for the purpose of determining the conditions of access of Bulgarian students to the Austrian labour market. In particular, that principle requires Bulgarian students to be able to have such access not only in conditions which are as favourable as those applying to third-country nationals but, furthermore, in priority to the latter.

(2) Union law, in particular Article 17 of Directive 2004/114, precludes national legislation, such as that at issue in the main proceedings, which provides for systematic examination of the labour-market situation before the issue of a work permit to an employer with a view to employing a student who has already resided for more than one year in national territory and which subjects the issue of such permit to other conditions if a fixed maximum number of foreigners with employment in the territory concerned is exceeded.

1 - Original language: French.

2 - OJ 2005 L 157, p. 29. The Protocol forms an integral part of the Treaty between the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Greek Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11, 'the Treaty of Accession').

3 - OJ 2004 L375, p. 12.

4 - OJ 1968 L 257, p. 2.

5 - BGBl. I, 100/2005.

6 - It is clear from the order for reference that, in the present case, the Arbeitsmarktservice should have applied the version of the abovementioned law which was in force on 30 January 2008, the date when the national administrative procedure was initiated by the lodging of the disputed application for a work permit. With regard to Paragraph 4 of the AuslBG, that is the version published in the BGBl. I, 78/2007; with regard to Paragraph 4b of the AuslBG, the version published in the BGBl. I, 28/2004.

7 - Case C-546/07 Commission v Germany [2010] I-439, paragraph 66 and cases cited. See also, by analogy, Case C-256/11 Dereci and Others [2011] ECR I-0000, paragraph 88 and cases cited, concerning the interpretation of standstill clauses in the context of the EEC-Turkey Association Agreement.

8 - In other words, individuals can rely on that directive against the Member States concerned only after the transposition period has expired. See, to that effect, Case C-157/02 Rieser International Transporte [2004] ECR I-1477, paragraph 69.

9 - Joined Cases C-261/07 and C-299/07 VTB-VAB and Galatea [2009] ECR I-2949, paragraph 39 and cases cited, and Case C-304/08 Plus Warenhandelsgesellschaft [2010] I-217, paragraph 29.

10 - Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 45, and Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu [2011] ECR I-0000, paragraphs 78 and 79 and the cases cited.

11 - See, by analogy, Case 77/82 Peskeloglou [1983] ECR 1085, paragraphs 11 to 14.

12 - Unless I am mistaken, the first question from the referring court appears to be slightly inaccurate because, contrary to what the referring court says, the principle of preference for Union citizens is set out in the second subparagraph of Paragraph 14 of Annex VI, point 1, of the Protocol. On the other hand, the third subparagraph of Paragraph 14, to which the first question refers, provides that Bulgarian migrant workers legally resident and working in another Member State are not to be treated in a more restrictive way than migrant workers who came from a third country.

13 - The principle that acts of secondary legislation retain their status in law on the accession of States to the Union is well established in Union law. In particular, it is expressed in Article 8(1) of the Protocol, which provides that acts adopted by the institutions to which the transitional provisions laid down in the Protocol relate retain their status in law. See, to that effect, Case 203/86 Spain v Council [1988] ECR 4563, paragraph 5.

14 - Preferential treatment does not constitute discrimination against third-country nationals which is prohibited by Article 21 of the Charter of Fundamental Rights of the European Union. The same applies to the application of secondary-law measures relating to third-country nationals.

15 - In that context the Court has consistently held that the provisions of an Act of Accession which permit exceptions to or derogations from rules laid down by the EC Treaty must be interpreted restrictively with reference to the Treaty provisions in question and must be limited to what is absolutely necessary in order to attain its objective. See, to that effect, Case C-420/07 Apostilides [2009] ECR I-3571, paragraph 35 and cases cited. In the present case, this means that the status of a Bulgarian national should differ as little as possible from that of nationals of other Member States.

16 - See, by analogy, Joined Cases C-307/09, C-308/09 and C-309/09 Vicoplus and Others [2011] ECR I-0000, paragraph 35.

17 - Case C-203/10 Auto Nikolovi [2011] ECR I-0000, paragraph 61 and cases cited, and Joined Cases C-468/10 and C-469/10 ASNEF and FECEMD [2011] ECR I-0000, paragraph 51.

18 - For the obligation of interpretation in conformity with Community law, see Joined Cases C-378/07 to C-380/07 Angelidaki and Others [2011] ECR I-3071, paragraphs 197 to 207 and cases cited.

19 - In other words, a situation may be described as exceptional in at least three cases. First, there may be a regional problem where the rate of unemployment in a region is significantly higher than the national average. Secondly, the exceptional situation may also be connected with a sectoral imbalance where a particular sector of the labour market encounters serious difficulties. Thirdly, the employment situation at the national level may be exceptionally bad. The present deterioration in the employment situation in Spain may illustrate this hypothesis.

20 - It must also be observed that Case C-568/10 Commission v Austria was removed from the register by order of the president of the Court of 22 November 2011. In that case the Commission complained that Austria had failed in its obligations under Article 17 of Directive 2004/114 by retaining its national legislation as set out above. However, on 4 October 2010, the Commission withdrew the case because Paragraph 4 of the AuslBG had been amended so as to include a rule whereby the issue of a work permit for students who are third-country nationals should not be subject to systematic examination of the labour market.

21 - See above, footnote 19.

22 - Case C-145/10 Painer [2011] ECR I-0000, paragraph 105 and cases cited.

23 - Ibid., paragraph 106 and cases cited.

24 - See, by analogy, Painer, cited above, paragraph 107.

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