European Confederation Of Outdoor Employers Claims Landmark Victory In Simon Butler Case

The case that keeps on giving seems to have come to a close with a judgement in Simon Butler's favour. It remains to be seen how significant the judgement is. Butler would seem to be able to operate legally in France, but as the UK is no longer an EU member the prospect of the member nations welcoming more British instructors with open arms, irrspective of whether their awards are valid seems to be...limited. At least some of this can be blamed on Butler's more brexity supporters. 

Certainly BASI does not see an easy road ahead. In recent board minutes they recorded:

BASI attended a meeting with two government departments along with the RYA to put forward the case for help in maintaining working rights and recognition of qualifications in Europe. The situation is both uncertain and complicated, BASI is being put in touch with the Foreign and Commonwealth Office should it be necessary to negotiate bi-lateral agreements in the event of no post-Brexit trade deal being negotiated

However in a press release the European Confederation Of Outdoor Employers has claimed a landmark victory in a press release. They say:

On Wednesday 13th of May 2020, the judge of the 7th Chamber of the Appeal Court in Lyon rendered two historical judgements in favor of Simon Butler’s dossiers, as he was asked by the Court of Cassation to judge again the legal situation of M. Simon Butler and his team, who have spent the last 6 years defending their legal position before various French Courts.

The rendered judgements are crystal clear : all criminal charges against M. Simon BUTLER for:

• teaching skiing with no qualification or without the required qualification,
• employing unqualified ski instructors were declared abandoned by the criminal Jurisdiction, following M. Simon BUTLER’s previous definitive victory before Administrative Courts in December 2019.

The reasoning of the judge was clearly motivated and backed by a set of positive elements which are particularly pertinent and explicit :

1. The dead lines were not respected by the sport administration : “No answer has been given to M. BUTLER and his employees within the required deadlines, following the declaration of M. Simon BUTLER.”; 2/6

2. The administrative decision refusing to deliver him his French “carte professionnelle” that M. Simon BUTLER did not respect, was cancelled for being illegal : “On the 5th of December 2019, the Administrative Court of Appeal of Lyon has furthermore confirmed a previous judgement (…) that cancelled the decision (of the Préfet of Isère & the ministry of Sports) refusing to deliver his “carte professionnelle” to M. Simon BUTLER”;

3. M. Simon BUTLER ’ team members were all in a similar situation: “The Administrative Courts of Grenoble and Lyon have rendered similar judgements for M. Adam ALDER-COX, Alexander CASEY, Ross MEDCALF and James WILKINS and Mark GIBBS”;

4. And even more, all of them were deemed to hold the right qualification due to the establishment by Directive 2005/36/CE of a legal presumption of qualification : “M. Simon BUTLER, M. Adam ALDER-COX, Alexander CASEY, Ross MEDCALF and James WILKINS and Mark GIBBS were holding the required qualification in their host member State and were therefore deemed to hold the professional qualification that is required to exercise the profession of ski instructor in France.”

“It follows from the evidence brought to the case file that M. Simon BUTLER, Mark GIBBS and Alexander CASEY were holding the required qualifications and had followed the required training to exercise the profession of ski instructors in Great-Britain. Consequently, they were deemed to meet the obligations of qualification to exercise all or part of the activity of ski instructors on the territory of a member State, the prefectoral (of the Préfet) decisions, without proceeding to a prior analysis of these qualifications with the view to impose a test upon them, having been definitely cancelled by administrative jurisdictions.”

5. Finally, their ski instructor training must be considered as regulated in the UK : “M. Simon BUTLER, M. Adam ALDER-COX, Alexander CASEY, Ross MEDCALF and James WILKINS and Mark GIBBS, citizens of an EU country at the date of the facts, where the ski instructor training is regulated were therefore deemed, considering the qualifications that they produced and in application of articles R.212-90 3° et R.212-93 of the code du sport, exercise legally their activity (…)” 3/6

A small technicality was however maintained by the Court for an arguable lack of declaration over the year 2011, for which evidence of the declaration was missing in the dossier, M. BUTLER having in any case effectively declared in 2006 and a third time in 2013 …

This however is with no incidence on the substantial issue of the judgements. These 2 judgements are essential as they indeed concern the situation of M. Simon BUTLER, M. Adam ALDER-COX, Alexander CASEY, Ross MEDCALF, James WILKINS and Mark GIBBS but they also concern the case of any EU citizen in a similar situation as the decisions have been taken regardless the qualification of the EU citizens, on the basis of a principle.

Professional bodies, in particular in the UK like BASI and across the whole of Europe as well as French administration will have to draw all the legal consequences of these judgments that now create a very strong jurisprudence.

The legal effects of these criminal decisions, combined with the legal effects of the administrative decisions since 2016 and of the 5th of December 2019 for which they are complementary, are very important for the implementation of Directive 2005/36/EC across the EU and constitute a mile stone in national jurisprudence :

1. Deadlines linked to declarations as per Directive 2005/36/EC are imperative;

2. As a principle, professional qualifications from an EU home member States are deemed to be valid to work in a host member State until the administration of the host member State demonstrates otherwise in writing producing tangible and motivated evidence;

3. The presumption of qualification benefits to EU citizens;

4. In order to be legal, a decision from the host member State administration TO REFUSE to recognize a professional qualification from a host member State MUST BE PERFECTLY motivated under the penalty of cancelation;

Time has now come for financial compensation and for a strong apology from all those who treated him and his team, without respecting their presumption of innocence during 6 years !