butsie - 05 April 2008 12:05 AM

Clarification has also been asked for, but the court and the case number has been quoted and can be obtained freely. 

If you have any questions, I’ll be happy to answer them to the best of my ability.

Simon Butler

Hi Simon,

I cant seem to locate a link to the court case, any chance of uploading the French decision or post a link to it?

endlessride - 03 April 2008 11:47 PM

BAIML (the British Association of International Mountain Leaders) have asked me to try and achieve blanket equivalence for the IML + British MTB award combo in France (the IML already has blanket equivalence). I will try and achieve this. I suspect that it will only benefit a few people though. It will however leave a route open to others who might want to work legally in France, “all” they have to do is gain an IML award first.

I’ve read that the French IML training is changing, in some ways to be more like the British schemes. The proposal is something along these lines:-

i) BPJEPS “activités de la randonnées”. This is for walking and mountain biking leading. It will not cover you in the mountains. The important point is that it introduces an exam for all mountain bike and walking group leaders. I guess the British MTB award would be an equivalence here but it is worth them getting interested in this process.

ii) there will be an extra module (effectively the AMM) for leading both types of groups in the mountains.

Although it is not clear how this really changes the current status quo.

I’ve read through the 21 page judgement. I want to leave aside the numerous labour and social security offences and the civil actions of which the defendents were found guilty and look at the issue of ski instructor qualifications.

The defendants, Messrs Butler and Barrett Boyce and their trainees were prosecuted for working as professional ski instructors during the winter of 2003-4 and on the 24th January 2006 in Megeve without having the necessary qualifications or having passed the relevant tests imposed by the French authorities.

Mr Butler argued that the French authorities had incorrectly transposed into French law the 1992 and more recently 2005 directives on the recognition of professional qualifications and that the French courts should seek advice from the European Court to clarify this point of law. The French court noted that at the time of the case the delay for transposing the directive into French law had not yet expired (Oct 2007) so dismissed this course of action.

The court also held regarding the 1992 directive that article 4 states the host country can require that the applicant has a qualification as defined in article 3 but also that he carries out a period of training for a maximum of 3 years or that he passes an aptitude test. For example when the training that he has received relates to theoretical or practical areas substantially different from those in host country. In addition where there are extremely important reasons of national interest relating to public safety and when there is a substantial difference in level between the technical competence of the applicant and that required in France the prefet can withhold the issue of authorisation until he has passed a “test de capacite” (capability test). Further when the training of the applicant relates to areas substantially different from those in the French exam the minister in charge of sports can require that the applicant chooses either to either take an aptitude test or a training phase. The court held that these provisions were a correct interpretation by the French govt of the 1992 directive.

The prosecution claimed that the defendants had not submitted themselves to the tests required by the French authorities.

The court decided that the prosecution failed to produce any evidence that the defendant’s training or qualifications was substantially different from those required in France or that they didn’t have training that differed substantially from the French curriculum. They were therefore acquitted on these counts.

Some important points to note:
1. Bonneville is a first instance court and the case has not been appealed so the case law is very weak.
2. Any new case would be dealt with under the new 2005 directive

It is interesting that the court holds that as long as training is not substantially different from that in France then ski instructors can work in France. It is not clear where this leaves the controversial Eurotest component (which is now part of the BASI top level examination). The prosecutor failed to produce any evidence on the differences between the defendants qualifications and the level required in France so this point has not been clarified by this case.

It should be noted that an appeal could not introduce new evidence and due to the application of the new 2005 directive was maybe of limited interest.

Hi,

Thanks for the very informed post.

I am pleased to see that someone apart from me has read the actual decision.  Part of the problem was that it took an age for the French authorities to publish the transcript.

Yes this is a court of first instance so the law is weak.

The French were granted a derogation of the 1992 directive and could require instructors of other nations to sit an aptitude test (the Eurotest).  I am unsure whether this derogation applies to the 2005 directive or not.

The whole point about this topic is whether British qualifications are similar to French ones or very different.

Simon’s ski school runs along quite similar lines to local French ski schools except that it is smaller in scale so there is proper supervision of “trainees”.  The “trainees” who work for him have very similar training to the trainees who work in the French system, it is a modular program that takes several years to complete.  At the point where full qualifications are gained, the training has been virtually identical and French equivalence is automatically granted.

The reason for this is that the Eurogroup of ski Instructor nations of which Britain along with France Italy and Austria was a founder member; have worked hard to put together a joint curriculum to ensure minimum standards across Europe these are by far the most rigorous in the world.

Simon’s team have been controlled twice recently and so far as I am aware the French authorities have not prosecuted him again.  I do understand that the sports ministry insist that he is still working illegally.

I repeat what I have put in earlier posts on the subject this court case really only affects Simon and the way he operates.  It would be easy to show that a BASI ski instructor who is not fully qualified and who is trying to work independently without adequate supervision, has nowhere near the same training as the French.

The whole process has been extremely expensive for Simon and has possibly bankrupted James Barrett-Boyce.  Anyone who does try to go it alone as an independent instructor without full equivalence had better have a lot of money and very good legal advice.

It would probably be both easier and cheaper to get the full qualifications.

At least two of Simon’s team last year had everything except the Eurotest.

With regards to the Eurotest, it is now an accepted part of the European curriculum.  As most countries had a race as part of their examinations - even if it was not quite such a hard test; It will probably stay.  It remains to be seen if someone with everything except the Eurotest decides to take the French to court to have their qualifications recognized as they stand - expensive though!

Saint.

> I do understand that the sports ministry insist that he is still working illegally.

They seem reluctant to carry this further at the moment though.

> It remains to be seen if someone with everything except the Eurotest decides to take the French to court to have their qualifications recognized as they stand

I wonder if this will be difficult for a UK trained instructor to do because the governing body, BASI, accepts the Eurotest component? But what about an EU instructor qualified in a member state that has similar training but no speed test. Romania maybe? I will have to read through the 2005 directive to see if I understand it but I thought a key point was that one country couldn’t insist on qualification levels (for example, possibly, the Eurotest) which were not relevant to the profession and were more a bar to suitably qualified professionals from other member states.

One thing that gigi-lerose didn’t make clear enough is this applies to qualifications from EU member states, not Canadian or Australian qualifications.

It seems clear that if you do operate in France you should make sure all the details of URSAAF, payslips etc is 100% spot on or you will be looking for hassle. Best to employ a competent accountant.

The point about the Eurotest is it’s validity, i.e. is it necessary for a ski teacher to have such a monumentally fast time in a GS race.- Just to teach skiing?

Many critics including possibly the courts may well think it is irrelevant. 

Or is it better to have a slower pass time and other tests that better examine all round skiing and teaching knowledge.  I would suggest one would still have the same overall pass rate but that some very good teachers - French included - would not be lost to the system.

Therefore any Instructor should be able to challenge the current system providing they do not wish to work independently outside a ski school system, the way BASI choose to run their exams may well be irrelevant.

I met with a Polish ISIA instructor who lives in my valley but he cannot pass the Eurotest.  In theory he should now be able to work with any ski school that wishes to employ him the funny thing is, the meeting was instigated by a friend of his from the ESF - so not all French instructors are closed minded.  It is unlikely that a French ski school would risk prosecution though by employing him.

The sports ministry may be waiting a while - or they may hope all this will go away.  If there is a decision that goes clearly against them they may well have more problems than they can handle.  They also have to deal with a european court ruling on whether snowboarder’s stand alone qualifications are legal.

I am sure I saw a reference to ISIA changing it’s grades to red and black implying that more instructors may be accepted in France but now I cannot find it - any ideas?

Saint

gigi lerose - thank you for taking the time to review the case. Good to get an experts opinion on the practicalities and it appears to me at least that the opening post about this being a “landmark battle” is perhaps a little ambitious.

Saint - My interest in this is with regards to his school employing ISIA level trainees. As they do not have a BASI trainer or BEES 2 on staff i cant understand how they can claim that their school is providing training to their ISIA level instructors in the same way a centre de formation training school is.

Is his arguement that as a grade 1 he can supervise training along the same lines as a full cert french nationale but without having to have the CdF status?

I had posted the rumour about ISIA reds being able to work in France. What i heard was that as ISIA are intending to implement two stamps, the RED being the current ISIA and the new BLACK, a higher level based around the ISTD standard including a GS test of some description and mountain safety training. REDs will be able to work in any ski schools within ISIA member states and BLACKs can operate independently. The rumour i heard was that as all the ISIA member states voted for this (including France) that the implication was that RED level instructors will be able to work legally in France without restriction or need to carry on with training to the full nationale or ISTD level. I hasten to add this was a rumour only…

Hi,

This is very interesting.

A small organization cannot train it’s staff in the same way as a large one.  But as the court case went, are there any substantial differences?

Simon’s organization supervises its teaching team well, provides training both internally and from external sources.  The team get the opportunity to go on lots of external training modules.

I presume a requirement for BEES 2 is that is satisfies the need for race training since it is a race training qualification.  Perhaps we are wrong to compare CDF French training and what BASI instructors need.  My local ESF run a “future moniteurs” program for the kids who want to go on to teach.  It is very well run and is just as hard work as the kids in the ski club.  There was a lot of work this January to get the stagiers’ boarding up to the new levels for their exams, this was done in house since they have an ENSA snowboard trainer on the staff.  Both programs were run in house but most of the rest of the training is supplied by ENSA just as BASI does.

Certainly Simon is set up to provide mentoring support for his staff just as a maitre d’etage does in the French system.  When SIMS tried to challenge the new CDF rules they were unsuccessful, but if one can show foreign bias it may well have to be changed.

I would love to see the ISIA thing finally settled, but this raises (see CDF) the question of what type of organization can employ them?  Here we go again…

I looked on the ISIA website but it has almost no content let alone up to date news.

Where did you here the rumor?  I shall start to ask around.

It is worth remembering that this still will only apply to EU citizens or trade agreement members under the Kolpac ruling anyone, else needs a work visa.

Again for any one new to this discussion think of the potential legal costs.

Saint.

I had heard SIMs tried and failed to challenge the CDF rules. New Generation in COurchevel had applied for CdF status and were turned down due to them not having a BEES 2 on staff, which apparently is one requirement for CdF status. There may have been other reasons but i heard that it was a new rule they didnt know about and felt they had applied in good faith yet didnt get Cdf status.

I still dont understand what Simon has “won”.. Is it that he can employ grade 2’s? or is it more that the local sports ministry feels he is acting illegal but dont desire another court case. Odd as SIMs lost but you dont see them hiring grade 2’s, perhaps it is the foreign training under BASI instead of ENSA that allows him to train people?

The rumour i referred to came up during a dinner with a BASI trainer who is based in the 3V’s and an ESF instructor amongst others. The ESF guy said the talk was within his school that with the upcoming changes with ISIA creating new levels, and, with the French voting for this change the local view was that ISIA’s being allowed to work in French ski schools for an unlimited period was only a matter of time.

Dave Renouf at BASI told me directly that there will actually be 3 ISIA levels the BLACK, RED and a lower level that doesnt get a stamp and will be more of an amateur or volunteer level. He said it is progressing and one hold up was the ISIA people wanting to review Eurotest procedures and races to see if that exact test will be adopted or a similar but different version of a race test will form the minimum race component for their Black level.

Regarding the race tests I’ve a couple of French friends who have recently been through this process. Both have skied and raced since children. One in the Pyrenees where he thought the Eurotest is slightly less competitive than in the Alps. However he said there was some skulduggery at the test technique level with times being altered - probably because of a lack of oversight.

My other friend has just got his Eurotest after a number of attempts. He feels it is a bit of a lottery but one where a good strong race skier will eventually win through. It is very important what start order you get. He still has a couple of years of training with the ENSA ahead but this should just be a case of following the curriculum. As you can see French skiers do both race tests earlier in the cycle than BASI skiers.

Hopefully someone will post the judgement and other interested parties can take a look at what it means.

1 am?

Most of us were asleep!

What Simon has won is the right to keep on operating his business- which runs on the fact that teaching by his own team is included in the price, which is why he has on over 90% return rate.  Winning this part was crucial to his future, although he was offered all sorts of deals by the ESF he has always maintained that his clients would not return for external ski instruction - particularly if it was offered by non native English speaking Instructors.  He continues to face harassment by certain locals including having staff cars regularly vandalised.  So for him the decision was very important. 

Don’t forget Simon’s setup in unique to him.  Which is why it was relatively easy for him to show that there was no substantial difference between his operation and the French system.  As I have said elsewhere it may be difficult for an individual chalet operator teaching independently with, say a BASI level 2 (old grade 3) to show there is not a substantial difference in the way they work and the French system.  Substantial difference is the point.

Again for most people is it worth getting controlled, then having to pay thousands in legal costs just to be shown to be wrong.

What Simon and his instructors wanted was the right to work in a safe environment but not to take away a living from the locals.  Most local instructors are resigned to the fact that he has won.

What Simon was charged with, was employing instructors illegally i.e. of running an illegal ski school - verdict not guilty, he was not charged with running an illegal CDF.

It is very unlikely that any French ski organisation will challenge french sports ministry regulations since there may not be much of an application under european law, they also do not seem to have the mental mindset. 

ESI’s do hire grade 2’s as do ESF’s all they need is their stagiere papers and proof of enrolling with URSAFF most Brits don’t think of going the local route though, how closed minded of us.

Neither do they think of enrolling in local ski schools in Austria Switzerland or Italy.

So far as CDF’s are concerned it is my personal opinion that what we are seeing is blatant protectionism not just against foreigners but against smaller ski schools.  I am sure application of EU law will see things change but only after legal challenges probably from foreigners.

I would love to see Grade 2’s working in France and know several I would be proud to employ.  At the same time I would love to see a system where once people start a qualification system there is every incentive to finish the qualification process.  I would not wish to see anyone overly content to finish at ISIA level unless it was absolutely necessary i.e. age or injury.

Likewise I would wish to see a time limit on Grade 3’s being able to work abroad i.e. as a stagiere before gaining ISIA status - after all BASI is an educational program as well.

This debate is both interesting and valuable since we do need to examine where we wish the industry to go in the future.

So in many ways this has been a landmark decision.

Saint.

The judgement itself is 24 pages long.

It basically list the charges to each party 6 or 7 individuals, then says the the judge listened to the submissions from the prosecution and the defense then out lines the charges that were found guilty and the fines, then on the matter of illegal ski instruction, - failed to show any substantial difference between British and French system not guilty.

Davidoff - if you wish me to I will scan it and email it to you - I only have it because I popped round and got a copy from Simon.

As you can see from your friends experience becoming a ski instructor is hard work, In the Basi system you can take the eurotest whenever you feel you are ready.  It certainly can be a lottery I know of many really good French and British instructors who have been lost to the system as a result.

On advantage of the French system is that if you can pass the test technique you have a good chance of completing the course.

Don

Not sure that Simons situation is that unique.. He may not be guilty of operating a ski school but their are other similar firms, providing tuition for chalet guests. For instance Skivolution in Couchevel provides tuition for their chalet guests but all their instructors are ISTD’s..

What if say Mark Warner started providing instruction for solely their clients and they had a grade 1 on staff monitoring and training the grade 2’s providing instruction. Would this now be legal? the tour operators have been taken to court and now only provide “guiding” and are very clear with their guests that they are not allowed to offer any instruction whatsoever. How is Simons set up that uniquely different?

My understanding is that BASI grade 2’s can be employed in ESI/ESF CdF ski school and continue training through BASI on a time limited stagiere basis while training for a BASI ISTD. but must pass the Test Technique prior to getting stagiere status.

I agree that grade 3’s should be time limited for working abroad to encourage going for ISIA.

If you would scan it and post or email to me I know of a BASI trainer who is interested in reviewing the case.

scott

If you look at the theme of my posts so far here and on snowheads, you will see that I have already reached the same conclusions.

Test technique is now required yes the French say they are treating both French and English alike in this way.

ISTD’s are no problem, Grade 3’s and ISIA’s are no problem if they work in an organised, properly supervised environment.

Simon is different that he employed non ISTD’s for his business - everyone thought it was illegal but so far Simon has been proved right.  He has faced considerable disapprobation from most of the BASI community.

Mark Warner (or whoever) could possibly get away with it providing they can find an ISTD to work for them (is this likely ?).  Then what is needed - 1 ISTD for the whole of France?  It doesn’t bear thinking about does it?  It goes straight back to the days of Schools Abroad and Hourmont.  Would they wish to do this?  When they know they would be in a bigger court battle than Simon was.

BASI have all of the paperwork on this issue and have had so since March, both Simon and I have sent them copies of the judgement.

I have encouraged BASI to put some internal guidelines in place to limit the scope of what each level of qualification can do.  It is complicated because BASI is a multi sport organisation and no-one wishes stop people being encouraged to help with for example disabled ski trips.

Saint

Yup., I think we have reached the same conclusions… took me a bit longer though

I just used MW as an example to try to understand Simons situation, i doubt anyone else would fancy the headaches!

Dont get me wrong, I applaud Simon for sticking to his guns and battling on. The whole CdF thing is another matter and although i can see where the French are coming from on that i do think it somewhat unfair that a small well run french school or a BASI business partner like BASS or NewGen cannot have trainees on staff while training. I guess the french would argue do your BASI training in Aviemore not France…