Posted on: 2024-05-14 09:41:11 by davidof

I fought the law, but the law won

It’s been 5 years since British ski instructor Simon Butler won his historic victory against the French authorities earning the right to establish himself as a ski teacher in France after a 15 year struggle and multiple court appearances. The court also found in favour of a number of other defendants, holding both BASI L2 and L3 qualifications and employees of Mr Butler.

Commentators said that BASI L2 to L4s, and instructors from other countries, could now apply to work in France without passing the difficult Eurotest (now part of the CTT framework) giant slalom but have things really changed? We decided to review court decisions in the same appeals court where Mr Butler won to see what conclusions the administrative judges were reaching.

Going back to the origins of the Butler case the French Ministry of Sports claimed that the profession of Ski Instructor is unregulated in the United Kingdom. To support its case it corresponded with the Contact Point for Professional Qualifications (UK NCP). The UK NCP confirmed that neither the activity nor the profession of downhill ski instructor is regulated.

They also claimed that the Alpine Level 4 ISTD qualification does not enable its holder to demonstrate technical safety skills if it is not complemented by the completion of the Eurotest, which is a precursor to the Eurosecurity. They also claimed that Simon Butler’s professional experience did not sufficiently compensate as most of it was acquired illegally on French soil since 2002. This does appear to recognize, in alignment with European law, that the Eurotest is optional and can be compensated by professional experience acquired elsewhere.

The court decided that the Ministry of Sports was unable to justify that the lack of Eurotest was sufficient to characterize a substantial difference between the French and British diplomas and that the administration did not establish that it had actually investigated whether the professional experience acquired outside of France by Mr Butler was sufficient to cover the substantial difference it claimed. The authorities also didn’t respect deadlines.

In the wake of the Butler case a number of BASI L2s, L3s and L4s applied for professional cards to establish themselves in France.The lawyer who won Simon Butler’s case co-founded Track and Flow to help sports professionals with their applications and court proceedings. All of the cases we will look at below were in the Lyon Appeals courts.

But first, what does French law say?

“For ski instructors who are not able to take the CTT or who have failed the CTT the European directive 2005/36/CE continues to apply”

Permanent Establishment

If the applicant wishes to work on a permanent basis in France and the profession is regulated in the “home” country and the applicant is an EU/EEA national they must hold an attestation of competence or evidence of formal qualifications issued by the competent authority of an EU/EEA Member State attesting to a level of qualification at least equivalent to the level immediately below that required in France.

If the prefect decides that there is a substantial difference between the French qualification and that of the applicant and the substantial difference is not covered by the knowledge acquired during his professional experience he can ask the applicant to undertake an aptitude test or training.

Note that candidates who do not have EU/EEA nationality cannot enter the CTT as defined by (EU) 2019/907 of 14 March 2019.

If the qualification was acquired in a non-EU/EEA country (i.e. UK post Brexit) but is accepted as equivalent in an EU or EEA country they must also provide proof that they have practiced this activity full-time for at least two years in that country.

If the home Member State does not regulate access to or practice of the activity then the activity must have been pursued on a full-time basis for at least two years during the last ten years as well as holding a level of qualification at least equivalent to the level immediately below that required in France.

Service Provision

For the temporary provision of services the claimant must be legally established in an EU/EEA state and must make a prior declaration of activity before the first service is provided. The Prefect may, at the time of the first provision of services, check the service provider's professional qualifications. If he considers there is a substantial difference between the applicant’s qualifications and those required in France he can propose an aptitude test.

In practice the main advantage of Service Provision is not being subject to the French tax and social security system. This has been a bone of contention with Italian ski instructors working in Courchevel during the 2024 season with the ESF complaining of unfair competition.

Case Studies

On the 17th March 2020 (20LY02340) the court heard the appeal of a British ski instructor who had applied to provide services from 16th December 2017 to 16th April 2018. The claimant was asking for a million euros in damages. The prefect had rejected the demand on the grounds that the provision of services was for almost the entire ski season.

The court noted that where the profession is unregulated the claimant must have pursued the activity “in one or more Member States of the European Union or parties to the Agreement on the European Economic Area, on a full-time basis for at least one year or on a part-time basis for an equivalent total period”

The court found that the claimant was not established in the United Kingdom or another EU state as a ski instructor and that “his declaration concerned the activity of ski instructor on a continuous basis throughout the winter season attests to the fact that he wished to carry out this activity on French territory as part of establishment”

A similar case on the 19th April 2022 (20LY02442). The claimant who held the Austrian ‘Schilehrer-Antwärter’ diploma issued by the Tirol in 1989, wanted to provide services as an alpine ski instructor in France. On the 13th April 2018, the Prefect of the Isère informed him that his training was not such as to guarantee the safety of skiers and third parties and was substantially different from the professional qualification required on French territory “on the grounds that the training issued by the Land Tirol, lasting 10 days and whose validity is limited in most Länder and corresponding to the first and lowest level of professional qualification in a system of three levels and that the difference was not entirely covered by the knowledge that the person concerned had acquired in the course of his professional experience.

The claimant said he was established in another EU member state (Austria) so was entitled to provide services in France. However the court said that he was unable to demonstrate that he was working at “a level of qualification at least equivalent to the level immediately lower than that required on the national territory, within the meaning of Article 11 of Directive 2005/36/EC” and the prefect was justified in checking his qualifications “noting differences in matters of security concerning in particular the ability to control one's trajectories at a sustained speed over a certain period of time taking into account a significant difference in altitude and the mastery of techniques for searching for avalanche victims, this substantial difference not being covered by the professional experience of the person concerned.”

Case (19LY04565) heard on the 5th August 2021. The claimant has an L4 ISIA Card from the IASI awarded in 2014. The claimant first of all wanted to establish themselves in France and when that was rejected by the prefect they asked to provide services. However during that period parts of EU law were incorporated into French law which led to some technical issues with the claim. Furthermore The Minister of Sports said that “In France, ski slopes and off-piste routes present characteristics of length and elevation implying qualities on the part of the instructor concerning adaptation to effort and resistance to fatigue. The instructor must adapt to routes with more or less uneven terrain (obstacles, slopes, rocks, holes, degree of slope, other skiers). be able to control trajectories and modify them by being very reactive. Mastery of trajectories is therefore a safety requirement. This technical capacity is a determining element of French training which is verified through a test called the Eurotest”. The Ministry of Sports stated that the “Level 4 Alpine diploma (ISIA CARD)” does not feature a comparable sequence. The court found that the claimant did not establish his technical ability to master trajectories according to requirements linked to slope and speed for a certain duration and that his professional experience did not cover this because when he worked in Italy in 2011 it was on the basis of a BASI qualification dating from 2003 and that his experience in the Valais canton in 2015 while on the basis of the “Level 4 Alpine diploma” was subject to restrictions of Swiss federal law with respect to slopes and avalanche risk. An application for leave to appeal was made to the Conseil d’Etat on the 21st April 2022 (459161) where the claimant said that the Lyon court had “committed an error of law” by accepting the prefect’s claim that there is a “substantial difference between the professional qualification he held and that required on French territory…without investigating whether this difference, assuming it were established, was likely to harm the safety of the beneficiaries of the service and where the qualification he holds is equivalent to the relevant French qualifications under the terms of Delegated Regulation (EU) 2019/907 of March 14, 2019”. The Conseil d’Etat ruled that the grounds were unlikely to allow the appeal to be admitted and leave to appeal was refused.

Case (20LY02441) heard on the 19th April 2022 concerned a French national with an L4 Swiss qualification. The prefect claimed there was a substantial difference between the Swiss and French qualification and asked the claimant to pass both the Eurotest and Eurosecurity. You have to pass the Eurotest, a timed giant slalom before you can take the Eurosecurity.

The fact that both the claimant and the training were from EU/EEA countries and the fact that the profession of ski instruction is regulated in Switzerland counted for nothing to the courts. Indeed it was this last point that the court used to uphold the claim that the Swiss L4 training is substantially different from the French.

The Swiss federal regulations are strict on where an instructor can take clients off piste, outside of designated ski areas. The rules state that instructors can’t cover the same areas as Mountain Guides. The French rules are similar but more lax. Specifically for Switzerland:

  1. Above the tree line the slopes must be no harder than Assez Difficile. That is, slopes from 35 to 40°
  2. A comprehensive and rational risk assessment of the proposed route gives a low risk of avalanche

The court understood this to mean that fully qualified Swiss ski instructors were unable to ski the same steepness off piste slopes as French instructors and that they didn’t know how to safely backcountry ski when the avalanche risk was above 1 on the 5 point scale. The first point was to be covered by skiing a high speed giant slalom (Eurotest) and the second by the Eurosecurity training.

Both are questionable. Point 2 possibly means ski instructors should apply and log the Munter reduction method, or similar, and arrive at a residual risk of less than 1 rather than never ski on risk 2 or 3 days. It does raise the point that when working in France the only restriction would be on skiing glaciated terrain or using climbing techniques. A similar issue exists for Nordic skiing where a French instructor is entitled to lead nordic ski tours using telemark type gear. It should also be noted that when applying for equivalence in Switzerland the Swiss require similar mountain safety compensatory measures.

The court said the prefect was in his right to ask for supplementary security measures as he was unable to show that he had worked as a ski instructor at a level immediately below that required in France according to article 11 of Directive 2005/36/EC. This probably means at least 2 seasons working in Switzerland for a ski school at L3.

The court concluded that: “In comparison, French downhill ski instructors are expected to practice their profession on all slopes, with no limitations linked to altitude, avalanche risk or the layout of the ski area. Working in this profession therefore requires a high level of autonomy and technical skills, including a mastery of trajectories, which is verified by a test known as the ‘eurotest’”

Case (20LY02440) heard on the 30th March 2022 was rejected on exactly the same grounds. It can be seen that even for French nationals hoping to avoid the Eurotest the Swiss certification is not a straightforward solution, at least not without first working in Switzerland.

19th April 2022 (20LY02428) looked more promising with the claimant being a British “Alpine ski teacher ISIA” and holding “Alpine Level 4 Europeen Mountain Security” delivered by BASI but again without the Eurotest in his pocket the courts agreed with the prefect that he had not demonstrated the ability to “master his trajectories at a sustained speed over a certain period of time taking into account a significant difference in altitude verified by a test called eurotest”

The 4th April 2024 was a field day for appeals, and rejections concerning demands for Professional Cards dating from 2018 and 2019. All of them rejected on the same grounds, lacking at least 1 year’s professional experience working as a ski instructor in an EU member state under the provisions of Article 2, R. 212-90 of the Sports Code.

The claims were: A British woman, born in 1971 (22LY01434) holding an ISIA L3 dating from 2003. A British national (22LY00930), born in 1978. A claimant, born in 1964 (22LY00925). The court decided that the services provided by the claimant in France between July 2018 and March 2019 were insufficient. Claimant (22LY01443) born in 1962 and holding a BASI qualification had offered services in France between February 2018 and March 2019 but these were not considered as a full year by the court. An alpine L3 ISIA issued in 2003 by BASI to a British national born in 1970 (22LY00987). In this case he had also passed the Eurotest in December 2008 at the ripe old age of 38 but once again he couldn’t demonstrate having worked for a full year in the previous ten years. Case (22LY01441), A British national, born in 1968 and holding a L3 qualification from 2012. Finally (22LY01445) a British national born in 1953. Finally, don't think taking the Irish qualifications will help. Case (23LY01426) concerned a British national, qualified as an IASI (Irish Association of Ski Instructors) with the highest L4 diploma issued in March 2014. He claimed that the prefect had not demonstrated the existence of a substantial difference between his qualifications and those required in France but once again he did not demonstrate sufficient work experience and had failed to provide an official translation of his course content.

8 appeals, 8 rejections.


It is clear that a number of these cases were doomed to failure from the start as the applicants were unable to show sufficient professional experience to compensate for not having passed the Eurotest/Eurosecurity before applying for a French professional card. In general an applicant needs 2 to 4 full seasons of work in an EU/EEA member state working at either L3 level for EU/EEA nationals or L4 for non nationals. Probably with the Brexit deadline looming in 2020 a number of instructors tried their luck in the hope of getting accepted. However post Butler the French authorities tightened their procedures, particularly in justifying the “substantial differences” which the Eurotest and Eurosecurity are supposed to address.

It takes about 5 years from sending an application to a final decision by the Lyon appeals court. If given leave it would be possible to appeal to the Conseil d'État but this would be extremely expensive.

The claim that an L4 or even L3 instructor cannot master their trajectory, at speed and with an altitude difference appears the most dubious. The Swiss training covers exactly these scenarios but not via a Giant Slalom but with practical demonstrations. However it would be up to the claimant to prove this to the court. Thus, for the administrative courts, the Eurotest has become a “de facto” standard for instructors without sufficient professional experience. The ISIA card also has a slalom as part of the qualification, is this really substantially different from the Eurotest that it affects client security?

More worrying is that the French courts accept that experience acquired in Switzerland doesn’t count as a compensatory measure due to the more restrictive environment placed on instructors at a federal level.

The ski associations, BASI and IASI, could provide more support. One of the issues with the French court system were insufficiently prepared cases and lack of translations of supporting material. The associations could advise their members how to apply to work in France and other countries outside of the CTT and could improve the documentation of their qualifications along the lines of those of foreign bodies and provide official translations to members.

I was unable to find any court cases concerning downhill skiing that have actually been successful at appeal court level since Butler in 2019. In 2020 Guy Beaumont, a Nordic instructor, was able to prove that his BASI L3 qualification as well as his considerable professional outdoor experience was sufficient to teach cross country. There are instructors who have applied and been granted access based on their file and there may be cases won in the lower courts that were not appealed by the Ministry of Sports.


Case numbers of the Simon Butler six heard on 5 December 2019