CJEC, 4th chamber, July 14, 2005, No C-141/04

THE COURT (Fourth Chamber),

1 The reference for a preliminary ruling concerns the circumstances in which certain provisions of Council Directive 89-48-EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p. 16), may be relied upon where that directive has not been transposed, after the expiry of the period prescribed for its transposition, by the holder of a diploma falling within its scope. In the alternative, the reference concerns the interpretation of Articles 48 and 52 of the EC Treaty (now, after amendment, Articles 39 EC and 43 EC).

2 That reference was made in proceedings between Mr Peros and the Tekhniko Epimelitirio Ellados (Technical Chamber of Greece, 'the TEE'), the Greek body which keeps registers of engineers, concerning the rejection by the latter of an application by Mr Peros for registration as a mechanical engineer. Mr Peros had submitted his application on the basis of his entitlement to pursue that profession in Germany.

Law

The Community legislation

3 It is apparent from the third and fourth recitals in the preamble to Directive 89-48 that the purpose of the directive is to introduce a general system for the recognition of diplomas such as to enable nationals of Community countries to pursue all those professional activities which in a host Member State are dependent on the completion of post-secondary education and training, provided that they hold such a diploma preparing them for those activities awarded on completion of a course of studies lasting at least three years and issued in another Member State.

4 The first paragraph of Article 3 of Directive 89-48 provides:

'Where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue that profession on the same conditions as apply to its own nationals:

(a) if the applicant holds the diploma required in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State; ...

...'

5 Notwithstanding Article 3 of that directive, Article 4 authorises the host Member State, in certain circumstances which are defined in that article, to require the applicant to provide evidence of professional experience of a specific duration, to complete an adaptation period not exceeding three years or to take an aptitude test ('the compensatory measures'). The same article lays down certain rules and conditions applicable to any compensatory measures which may be required.

6 Article 6 of Directive 89-48 lists the documents proving that applicants are of good character or repute or that they have not been declared bankrupt and certifying their physical or mental health which may be required as evidence by the competent authority of the host Member State, and contains a number of provisions regarding the wording of oaths or solemn declarations which may be imposed on nationals of other Member States.

7 Under Article 9(1) of Directive 89-48, Member States were required to designate, within the period provided for in Article 12, namely by 4 January 1991, the competent authorities empowered to receive the applications and take the decisions referred to in that directive and were required to communicate that information to the other Member States and to the Commission of the European Communities.

The national legislation

8 In Greece, the engineering profession is a regulated profession pursuit of which is reserved for members of the TEE. The latter was established by the Presidential Decree of 27 November-14 December 1926 codifying the provisions on the composition of the TEE (FEK A' 430), as amended by Law No 1986-1984 (FEK A' 161), and by Presidential Decree No 512-1991 of 30 November-12 December 1991 (FEK A' 190, 'the TEE Decree').

9 Under Article 2(1) of the TEE Decree, nationals of Member States 'holding a diploma of the National Technical University of Athens ("National Metsovian Polytechnic"), of polytechnics in the country or equivalent institutions abroad' must be registered as members of the TEE 'after obtaining authorisation to pursue the profession'. Professionals are classified under nine specialities listed in Article 2(5) of that decree, including, under (c), the speciality of mechanical engineer.

10 Article 4(3) of that decree provides, inter alia, that the TEE is to conduct examinations, grant authorisations to pursue the profession of engineer in accordance with the provisions in force and keep registers of engineers.

11 Under Article 1(1) of Law No 1225-1981 of 30-31 December 1981 (FEK A' 340), the TEE had 'competence to grant authorisation to pursue their profession in Greece to engineers holding diplomas from equivalent foreign higher-education establishments'.

12 On the basis of Law No 1225-1981, Interministerial Order No ED 5-4-339 of 14 September 1984 (FEK B' 713), adopted by the Minister for Public Works and the Minister for Education and Religious Affairs, laid down the procedure for the granting, by the TEE, of authorisation to pursue the profession of engineer.

13 That interministerial order provided, in paragraph 1, that 'authorisation to pursue the profession shall be granted by the TEE, following oral tests, to engineers holding diplomas from national higher-education institutions and to engineers holding equivalent diplomas from foreign higher-education institutions'.

14 Paragraph 2(d) of that order provides that, in order to take part in those tests, holders of diplomas from abroad must submit to the TEE a 'certificate of equivalence of the diploma adduced', issued by the Inter-University Centre for the Recognition of Foreign Diplomas (Diapanepistimiako Kentro Anagnoriseos Titlon Spoudon tis Allodapis, 'the Dikatsa') established by Law No 741-1977 (FEK A' 314), as amended by Law No 1566-1985 of 30 September 1985 (FEK A' 167, 'the Dikatsa Law').

15 Under Article 2 of the Dikatsa Law, the Dikatsa is competent to recognise foreign higher-education institutions as being of an educational level equivalent to that of national higher-education institutions and to recognise equivalence between diplomas from the former and those awarded by Greek higher-education establishments. It is also competent to recognise the equivalence of educational qualifications awarded by foreign establishments of the same level to educational qualifications from Greek higher-education establishments in cases where there is no equivalent speciality in Greece.

16 In Article 4(8), the Dikatsa Law also states that, by decision of the President of the Administrative Council of the Dikatsa, 'holders of diplomas from foreign higher-education establishments, whose diploma does not represent the same knowledge content as the diploma awarded in Greece by the institution or department which is closest in terms of the education and training provided by it, shall take a further examination in specific subjects at the institution or department in question'. Under the same provision, 'if it is not possible to recognise the equivalence of a diploma, the person concerned shall be enrolled at the appropriate institution or department, to be specifically determined by the President of the Administrative Council' with a view to supplementing his training there.

17 According to the settled case-law of the Simvoulio tis Epikratias (Council of State), it follows from those provisions that the Dikatsa must, when examining the equivalence between a foreign diploma and a corresponding diploma from a Greek higher-education establishment, assess the characteristics of the foreign educational establishment awarding the diploma in question, the type of courses attended and the content of those courses. That examination by the Dikatsa does not take account of whether the diploma in question constitutes the formal qualification necessary for the pursuit of a given profession. In other words, the Dikatsa is, according to that case-law, competent to assess only the academic, and not the professional, equivalence of the foreign diploma submitted to it.

18 Directive 89-48 had not been transposed into Greek law when the period prescribed for its implementation expired (see, in that connection, Case C-365-93 Commission v Greece [1995] ECR I-499). Following the facts in the main proceedings, Presidential Decree No 165-2000 of 28 June 2000 (FEK A' 149), which was intended to transpose that directive into Greek law, as subsequently amended by Presidential Decree No 373-2001 of 22 October 2001 (FEK A' 251), was adopted.

19 Article 10 of that decree conferred exclusive competence on the Council for the Recognition of Equivalence of Higher-Education Diplomas (Simvoulio Anagnoriseos Epangelmatikis Isotimias Titlon Tritovathmias Ekpaidefsis, 'the Saeitte'), a government body set up for that specific purpose, to decide on applications for the recognition of higher-education diplomas falling within the scope of Directive 89-48. That body alone, therefore, is competent to recognise an applicant's right to pursue the relevant regulated profession in Greece and was designated, pursuant to Article 9(1) of Directive 89-48, as the competent authority empowered to receive the applications and take the decisions referred to in Directive 89-48.

20 Article 11(6) of the same decree further provides that, when a particular provision of national legislation provides, in respect of a specific profession, that a register of those entitled to pursue that profession must be kept, the decision of the Saeitte constitutes a binding requirement for the professional organisation or administrative authority to enter the person concerned in the register it keeps.

The main proceedings and the questions referred for a preliminary ruling

21 Mr Peros, a Greek national, is the holder of a diploma awarded in 1980 by the Fachhochschule Wiesbaden (Germany). That diploma entitles him to take up the profession of mechanical engineer in Germany ('Diplom-Ingenieur im Fachbereich Maschinenbau').

22 Wishing to pursue that profession in Greece, Mr Peros applied to the Dikatsa for a certificate of equivalence of his diploma. That application was rejected on 28 May 1993 by Decision No 296 of the Dikatsa on the ground that the educational establishment which had awarded the foreign diploma in question was not of an educational level equivalent to that of Greek higher-education establishments.

23 On 21 February 1995, Mr Peros submitted an application to the TEE seeking entry for himself in its registers in order to be able to pursue the profession of mechanical engineer in Greece and to be eligible for the other benefits associated with such registration. That application, which was supplemented by a subsequent, related application lodged on 21 March 1995, was rejected by Decision No 6372 of the TEE of 4 May 1995 on the following grounds:

'Entry in the register of the TEE takes place under the conditions laid down in [the TEE Decree]. For graduates of foreign educational establishments, the basic requirement is to have studied at polytechnic level and to have a formal qualification equivalent to those awarded by the National Technical University of Athens and the polytechnic institutes of the higher-education establishments in Greece. Equivalence of foreign educational qualifications is granted by the [Dikatsa]. In accordance with the foregoing, you cannot become a member of the TEE and the degree which you hold (Fachhochschule) does not entitle you to be registered as a member of the TEE'.

24 Mr Peros lodged an appeal against that rejection before the Diikitiko Protodikio Rodou (Administrative Court of First Instance, Rhodes). By Decision No 249-1998, that court held that the appellant's action was an application for annulment and therefore fell within the jurisdiction of the Simvoulio tis Epikratias, to which it referred the case.

25 In the meantime, following the transposition of Directive 89-48 into Greek law, the Saeitte, by its Decision No 4 of 5 December 2000, granted Mr Peros's application for recognition of his diploma. He was granted the right to pursue the profession of mechanical engineer in Greece without being required to complete an adaptation period or prior aptitude test. Mr Peros was subsequently granted entry in the registers of the TEE.

26 In the main proceedings, a majority withín the Simvoulio tis Epikratias takes the view that the TEE's decision of 4 May 1995 rejecting Mr Peros's application was not lawfully reasoned. According to that majority, the TEE should have examined Mr Peros's application by investigating whether the conditions laid down by the unconditional and sufficiently precise provisions of Articles 3, 4(1)(a) and (b) and (2) and 6(1) to (4) of Directive 89-48-EEC were satisfied. If so, the TEE should have recognised the appellant in the main proceedings as being entitled to pursue the profession of mechanical engineer in Greece by granting him the appropriate authorisation and entering him in its register. If not, it should have rejected the application by a reasoned decision. In any event, in the light of the provisions of Directive 89-48, the TEE could not require the Dikatsa to certify the equivalence of the appellant's diploma.

27 However, in the view of a minority within the Simvoulio tis Epikratias, rejection of the application for registration was justified on the grounds, first, that the relevant provisions of Directive 89-48 were not capable of being relied on by an individual before the TEE at the time when the application at issue was submitted and, secondly, that the authority competent to process applications had not yet been designated pursuant to Article 9(1) of that directive.

28 The Simvoulio tis Epikratias is also uncertain whether, in so far as the provisions of Directive 89-48 were not capable of being relied on before the TEE, the latter would nevertheless have been obliged, under Articles 48 and 52 of the Treaty, to ascertain whether the qualification acquired by the appellant in Germany was equivalent to Greek diplomas.

29 In those circumstances, the Simvoulio tis Epikratias decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

'(1) Are the provisions of Articles 3, 4(1)(a) and (b) and (2) and 6(1) to (4) of Council Directive 89-48... , in their original version, unconditional and sufficiently precise so that, between the date of expiry of the period prescribed for transposing the directive and the date of its belated transposition into the national law of a Member State (the host Member State), an individual was entitled, on the basis of a diploma acquired in another Member State and falling within the scope of the above provisions, to rely on those provisions before an administrative body of that Member State, to which the national legislation entrusted competence, in order to obtain from that body authorisation to take up and pursue a regulated profession in the host Member State?

(2) If, between the date of expiry of the period prescribed for transposing the above directive and the date of its belated transposition into national law, an individual was not entitled to rely on the provisions of the directive before an administrative body of the host Member State, to which the national legislation entrusted competence to issue authorisations to pursue a particular profession following examinations, the participants in which had to hold a diploma awarded by a higher-education establishment of the host Member State or a foreign diploma recognised as equivalent (following a generally applicable procedure distinguished by features similar to those set out in the grounds of the order for reference), could that administrative body, taking into account the provisions of [Articles 48 and 52 of the Treaty] ... , make authorisation to take up and pursue the above profession, applied for during the abovementioned period by the holder of a diploma acquired in another Member State, dependent on prior recognition, in accordance with the general procedure described above, of the academic equivalence of the diploma held, and on subsequent successful participation in the examinations provided for in the national legislation, or should that body itself have undertaken a comparative examination of the qualifications attested to by the diploma submitted, on the one hand, and the knowledge and qualifications required by the national legislation, on the other, and, depending on the results of that examination, exempted the person concerned wholly or in part from the requirement to take those examinations?'

The first question referred for a preliminary ruling

30 Article 3(a) of Directive 89-48 provides that the competent authority of the host Member State may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue a regulated profession on the same conditions as apply to its own nationals if the applicant holds the diploma required in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State.

31 Mr Peros is the holder of a diploma awarded in a Member State, in this case the Federal Republic of Germany. That diploma allows him to pursue the regulated profession of mechanical engineer in that Member State and his situation therefore falls within the scope of Article 3(a) of Directive 89-48. There is therefore no need for the Court to rule on the interpretation of Article 3(b) of that directive, which applies only if the profession in question is not regulated in the Member State of origin.

32 So far as concerns Article 3(a) of Directive 89-48, the Court has already ruled that it is a provision the subject-matter of which is unconditional and sufficiently precise for individuals to be entitled to rely upon it before a national court against the State where that State has failed to transpose the directive into national law by the end of the period prescribed (Case C-102-02 Beuttenmüller [2004] ECR I-5405, paragraph 55).

33 As regards the possibility of making the taking up of a regulated profession dependent on the condition that an applicant first comply with compensatory measures provided for in Article 4 of Directive 89-48, it is common ground that, in the main proceedings, no compensatory measures were imposed on Mr Peros by the Saeitte when his situation was examined in 2000. Moreover, there is nothing in the file to indicate that the qualifications produced by Mr Peros when he lodged his original application were different from those examined in 2000, in such a way as to affect the decision to allow him to pursue his profession in Greece without imposing any compensatory measures on him.

34 In any event, it is clear from the case-law that a Member State may, where there has been no transposition into national law, impose compensatory measures, such as those referred to in Article 4(1) of Directive 89-48, only in so far as they are provided for in the national legislation in force when the application in question was processed (see, to that effect, Joined Cases C-6-90 and C-9-90 Francovichand Others [1991] ECR I-5357, paragraph 21, and Case C-142-04 Aslanidou [2005] ECR I-7181, paragraphs 35 to 37).

35 The Court has also ruled that, where one or other of Directive 89-48 or Council Directive 92-51 of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89-48 (OJ 1992 L 209, p. 25) is applicable, a public body in a Member State, which is bound to comply with the rules laid down in the relevant directive, can no longer require that a candidate's qualifications be granted official recognition by the competent national authorities (Case C-234-97 Fernández de Bobadilla [1999] ECR I-4773, paragraph 27).

36 Article 6 of Directive 89-48 merely lists the documents proving that applicants are of good character or repute or that they have not been declared bankrupt and certifying their physical or mental health which may be required as evidence by the competent authority, and contains a number of provisions regarding the wordings of oaths or solemn declarations which may be imposed on nationals of other Member States. Since no such evidence or declaration was required by the competent authority of the host Member State in the main proceedings, the Court is not bound to rule on the interpretation of that provision, which, in any event, could not affect the possibility of relying on Article 3(a) of that directive.

37 Nor does the requirement under Article 9(1) of Directive 89-48 for Member States to designate the competent authorities empowered to receive the applications and take the decisions referred to in that directive preclude reliance on Article 3(a) of that directive. It is apparent from a reading of Article 9(1) in the light of the other paragraphs of the same article that the objective of that provision is to facilitate the application of the system for the recognition of diplomas introduced by Directive 89-48 by rendering the decision-making process applicable within a Member State more transparent. However, designation under Article 9(1) is not necessary in order to be able to identify the competent authorities referred to in Article 3, which are the authorities controlling the taking up of the regulated professions.

38 It is apparent from the case-law that a Member State may not rely, as against an individual, upon its failure to adopt the very provisions which are intended to facilitate the application of a system established by the directive in question (see to that effect, inter alia, Case C-141-00 Kügler [2002] ECR I-6833, paragraph 52, and Case C-45-01 Dornier [2003] ECR I-12911, paragraph 79). The failure to designate a competent authority pursuant to Article 9(1) of Directive 89-48 therefore does not preclude Article 3(a) of that directive from being relied upon as against the authority having de facto competence to regulate the taking up of a particular profession under the relevant national legislation.

39 In the main proceedings, since the taking up of the profession of engineer is reserved for members of the TEE, it appears that the TEE is a competent authority within the meaning of Article 3(a) of Directive 89-48. Consequently, the TEE may not, relying on the ground of inadequate qualifications, refuse to authorise a person in Mr Peros's position to take up the profession of engineer.

40 The answer to the first question must therefore be that, where national measures transposing Directive 89-48 have not been adopted within the period prescribed in Article 12 thereof, a national of a Member State may rely on Article 3(a) of that directive in order to obtain, in the host Member State, authorisation to pursue a regulated profession such as that of mechanical engineer. That possibility may not be made dependent on recognition of the qualifications of the person concerned by the competent national authorities.

41 In the light of the answer given to the first question, there is no need to answer the second question.

Costs

42 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Where national measures transposing Council Directive 89-48-EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, in the version in force until 31 July 2001, have not been adopted within the period prescribed in Article 12 thereof, a national of a Member State may rely on Article 3(a) of that directive in order to obtain, in the host Member State, authorisation to pursue a regulated profession such as that of mechanical engineer.

That possibility may not be made dependent on recognition of the qualifications of the person concerned by the competent national authorities.