CELEX: 62017CJ0729
Failure of a Member State to fulfil obligations
Article 258 TFEU
Article 49 TFEU
Directive 2006/123/EC
Article 15(2) and (3)
Directive 2005/36/EC
Articles 13, 14, 50 and Annex VII
Freedom of establishment
Recognition of professional qualifications
National rules on mediator training providers

By its application, the European Commission asks the Court to declare that, by restricting the legal form of mediator training institutions to non-profit companies that have to be formed of at least one Bar association and at least one business chamber in Greece, the Hellenic Republic has failed to fulfil its obligations under Article 49 TFEU and Article 15(2)(b) and (c) and (3) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (
OJ 2006 L 376, p. 36
). It further asks the Court to declare that, by making the procedure for the recognition of academic qualifications subject to additional requirements concerning the content of certificates and to compensation measures without any prior assessment as to whether there are substantial differences, and by maintaining in force discriminatory provisions which require applicants for accreditation as mediators who possess evidence of accreditation that was obtained in another country or issued by a recognised training body based in another country following training provided in Greece to demonstrate that the person concerned has taken part in at least three mediation procedures, the Hellenic Republic has failed to fulfil its obligations under Article 49 TFEU, and Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (
OJ 2005 L 255, p. 22
), as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 (
OJ 2013 L 354, p. 132
) (‘Directive 2005/36’).
Legal context
EU law
Directive 2006/123
Recital 6 of Directive 2006/123 is worded thus:
‘Those barriers [to freedom of establishment and the free movement of services between Member States] cannot be removed solely by relying on direct application of Articles [49] and [56] of the Treaty, since, on the one hand, addressing them on a case-by-case basis through infringement procedures against the Member States concerned would, especially following enlargement, be extremely complicated for national and Community institutions, and, on the other hand, the lifting of many barriers requires prior coordination of national legal schemes, including the setting up of administrative cooperation. As the European Parliament and the Council have recognised, a Community legislative instrument makes it possible to achieve a genuine internal market for services.’.
Recital 73 of that directive states:
‘The requirements to be examined include national rules which, on grounds other than those relating to professional qualifications, reserve access to certain activities to particular providers. These requirements also include obligations on a provider to take a specific legal form, in particular to be a legal person, to be a company with individual ownership, to be a non-profit making organisation or a company owned exclusively by natural persons, and requirements which relate to the shareholding of a company, in particular obligations to hold a minimum amount of capital for certain service activities or to have a specific qualification in order to hold share capital in or to manage certain companies. The evaluation of the compatibility of fixed minimum and/or maximum ariffs with the freedom of establishment concerns only tariffs imposed by competent authorities specifically for the provision of certain services and not, for example, general rules on price determination, such as for the renting of houses.’
Article 15(1) to (3) of that directive provides:
‘1.   Member States shall examine whether, under their legal system, any of the requirements listed in paragraph 2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph 3. Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions.
2.   Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:
…
(b)
an obligation on a provider to take a specific legal form;
(c)
requirements which relate to the shareholding of a company;
…
3.   Member States shall verify that the requirements referred to in paragraph 2 satisfy the following conditions:
(a)
non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality nor, with regard to companies, according to the location of their registered office;
(b)
necessity: requirements must be justified by an overriding reason relating to the public interest;
(c)
proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.’
Directive 2005/36
According to Article 1 thereof, Directive 2005/36 establishes rules according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications (‘the host Member State’) must recognise professional qualifications obtained in one or more other Member States (‘the home Member State’) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession.
It follows from Article 2(1) of that directive that the latter is to apply to all nationals of a Member State wishing to pursue a regulated profession, including those belonging to the liberal professions, in a Member State other than that in which they obtained their professional qualifications, on either a self-employed or employed basis.
Article 3(1)(a) to (c) and (e) of Directive 2005/36 provides:
‘1.   For the purposes of this Directive:
(a)
“regulated profession”: a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions, to the possession of specific professional qualifications; in particular, the use of a professional title limited by legislative, regulatory or administrative provisions to holders of a given professional qualification shall constitute a mode of pursuit. Where the first sentence of this definition does not apply, a profession referred to in paragraph 2 shall be treated as a regulated profession;
(b)
“professional qualifications”: qualifications attested by evidence of formal qualifications, an attestation of competence referred to in Article 11, point (a)(i) and/or professional experience;
(c)
“evidence of formal qualifications”: diplomas, certificates and other evidence issued by an authority in a Member State designated pursuant to legislative, regulatory or administrative provisions of that Member State and certifying successful completion of professional training obtained mainly in the Community. Where the first sentence of this definition does not apply, evidence of formal qualifications referred to in paragraph 3 shall be treated as evidence of formal qualifications;
…
(e)
“regulated education and training”: any training which is specifically geared to the pursuit of a given profession and which comprises a course or courses complemented, where appropriate, by professional training, or probationary or professional practice.
The structure and level of the professional training, probationary or professional practice shall be determined by the laws, regulations or administrative provisions of the Member State concerned or monitored or approved by the authority designated for that purpose;
…’
Article 13(1) and (2) of that directive states:
‘1.   If access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State shall permit applicants to access and pursue that profession, under the same conditions as apply to its nationals, if they possess an attestation of competence or evidence of formal qualifications referred to in Article 11, required by another Member State in order to gain access to and pursue that profession on its territory.
Attestations of competence or evidence of formal qualifications shall be issued by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that Member State.
2.   Access to, and pursuit of, a profession as described in paragraph 1 shall also be granted to applicants who have pursued the profession in question on a full-time basis for one year or for an equivalent overall duration on a part-time basis during the previous 10 years in another Member State which does not regulate that profession, and who possess one or more attestations of competence or evidence of formal qualifications issued by another Member State which does not regulate the profession.
Attestations of competence and evidence of formal qualifications shall satisfy the following conditions:
(a)
they are issued by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that Member State;
(b)
they attest that the holder has been prepared for the pursuit of the profession in question.
The one year of professional experience referred to in the first subparagraph may not, however, be required if the evidence of formal qualifications which the applicant possesses certifies regulated education and training.
…’
Article 14(1), (4) and (5) of that directive provides:
‘1.   Article 13 shall not preclude the host Member State from requiring the applicant to complete an adaptation period of up to three years or to take an aptitude test if:
(a)
the training the applicant has received covers substantially different matters than those covered by the evidence of formal qualifications required in the host Member State;
(b)
the regulated profession in the host Member State comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant’s home Member State, and the training required in the host Member State covers substantially different matters from those covered by the applicant’s attestation of competence or evidence of formal qualifications.
…
4.   For the purpose of paragraphs 1 and 5, “substantially different matters” means matters in respect of which knowledge, skills and competences acquired are essential for pursuing the profession and with regard to which the training received by the migrant shows significant differences in terms of content from the training required by the host Member State.
5.   Paragraph 1 shall be applied with due regard to the principle of proportionality. In particular, if the host Member State intends to require the applicant to complete an adaptation period or take an aptitude test, it must first ascertain whether the knowledge, skills and competences acquired by the applicant in the course of his professional experience or through lifelong learning, and formally validated to that end by a relevant body, in any Member State or in a third country, is of such nature as to cover, in full or in part, the substantially different matters defined in paragraph 4.’
Article 50(1) of Directive 2005/36 states:
‘Where the competent authorities of the host Member State decide on an application for authorisation to pursue the regulated profession in question by virtue of this Title, those authorities may demand the documents and certificates listed in Annex VII.
…’
Article 56(3) of that directive provides that each Member State must, no later than 20 October 2007, designate the authorities and bodies competent to award or receive evidence of formal qualifications and other documents or information, and those competent to receive applications and take the decisions referred to in that directive, and must forthwith inform the other Member States and the Commission thereof.
Point 1(a) to (c) of Annex VII to that directive is worded as follows:
‘1. Documents
(a)
Proof of the nationality of the person concerned.
(b)
Copies of the attestations of professional competence or of the evidence of formal qualifications giving access to the profession in question, and an attestation of the professional experience of the person concerned where applicable.
The competent authorities of the host Member State may invite the applicant to provide information concerning his training to the extent necessary in order to determine the existence of potential substantial differences with the required national training, as laid down in Article 14. Where it is impossible for the applicant to provide this information, the competent authorities of the host Member State shall address the contact point, the competent authority or any other relevant body in the home Member State.
(c)
For the cases referred to in Article 16, a certificate concerning the nature and duration of the activity issued by the competent authority or body in the home Member State or the Member State from which the foreign national comes.’
Directive 2008/52/EC
Recital 16 of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (
OJ 2008 L 136, p. 3
), is worded as follows:
‘To ensure the necessary mutual trust with respect to confidentiality, effect on limitation and prescription periods, and recognition and enforcement of agreements resulting from mediation, Member States should encourage, by any means they consider appropriate, the training of mediators and the introduction of effective quality control mechanisms concerning the provision of mediation services.’
Article 1(1) of that directive states:
‘The objective of this Directive is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings.’
Article 3(1)(b) of that directive provides:
‘For the purposes of this Directive the following definitions shall apply:
…
(b)
“Mediator” means any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation.’
Article 4(1) and (2) of that directive provides:
‘1.   Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by mediators and organisations providing mediation services, as well as other effective quality control mechanisms concerning the provision of mediation services.
2.   Member States shall encourage the initial and further training of mediators in order to ensure that the mediation is conducted in an effective, impartial and competent way in relation to the parties.’
Greek law
Law 3898/2010
Article 5(1) and (2) of Law 3898/2010 (FEK A’ 211/16.2.2010), which transposed Directive 2008/52, is worded as follows:
‘1.   Mediator training institutions may be non-profit civil-law partnerships jointly formed of at least one Bar association and at least one business chamber in Greece and operating pursuant to an authorisation issued by the department referred to in Article 7.
2.   A presidential decree, published on a proposal from the Minister for Justice, Transparency and Human Rights, the Minister for the Economy, Competition and the Merchant Navy and the Minister for Education, Lifelong Learning and Religious Affairs, shall lay down in particular the conditions governing the authorisation and operation of mediator training institutions, the content of programmes of basic education, training and further training, their duration, the places where the courses are taught, the qualifications of the trainers, the number of participants, and the penalties imposed on mediator training institutions in the event of non-compliance with their obligations. Those penalties shall consist in a fine or a temporary or permanent revocation of their operating authorisation. The criteria for the selection and calculation of penalties shall be established by the aforementioned presidential decree.
…’
Article 6(1) and (3) of that law provides:
‘1.   A “Mediator Accreditation Committee” shall be established under the supervision of the Ministry of Justice, Transparency and Human Rights. The Committee’s responsibilities shall include, inter alia, the accreditation of applicant mediators, the monitoring of compliance with the obligations incumbent on mediator training institutions and the monitoring of compliance by accredited mediators with the code of ethics. The Committee shall also be responsible for reporting to the Minister for Justice, Transparency and Human Rights with a view to the imposition of the penalties provided for in Articles 5 and 7. The Committee shall be composed of its Chairperson and four (4) members, together with the same number of alternate members. Their term of office shall be for three years.
…
3.   In order to be accredited, applicant mediators shall be required to take examinations before a Board comprised of two members of the Committee referred to in paragraph 1, who shall be appointed by the Chairperson of that Committee, and a judge, who shall be appointed in accordance with Article 41(2) of Law 1756/1988 and shall chair that Board. The Board shall determine whether the applicant possesses the knowledge and skills, and adequate training provided by the training institutions referred to in Article 5, necessary in order to be able to provide mediation services; its decision shall be in writing and duly reasoned. For the secretariat of the Committee referred to in paragraph 1 and the Examination Board, the plenary assembly of the associations of lawyers shall make available the personnel provided for in the regulation referred to in paragraph 5 of this article. By joint decision, the Minister for Finance and the Minister for Justice, Transparency and Human Rights shall determine:
(a)
the terms and amount of remuneration for Examination Board members, which shall be chargeable to the Fund for the Financing of Judicial Buildings,
(b)
the examination fees which applicants are required to pay in advance to the Board.
…’
Article 7(2) of that law, provides:
‘By decision, the Minister for Justice, Transparency and Human Rights shall:
(a)
set out the particular conditions applicable to the accreditation of mediators, as well as the procedure for the recognition of evidence of accreditation obtained by mediators in another Member State of the European Union. Such recognition, as well as any temporary or permanent revocation of accreditation, shall be contingent upon the prior agreement of the Committee referred to in Article 6(1);
(b)
draw up a code of ethics for accredited mediators;
(c)
lay down the particular conditions governing the application of penalties for infringement of the provisions of the aforementioned code. Those penalties, which shall be imposed with the agreement of the Committee referred to in Article 6(1), shall consist in the provisional or permanent revocation of accreditation; and
(d)
make provision for any related matter.’
Article 14 of Law 3898/2010 was amended by the legislative act of 4 December 2012 concerning the regulation of urgent matters falling within the competence of the Ministry of Finance, Ministry of Development, Competition, Infrastructure, Transport and Networks, the Ministry of Education and Religious Affairs, the Ministry of Culture and Sport, the Ministry of the Environment, Energy and Climate Change, the Ministry of Labour, Social Security and Social Assistance, the Ministry of Justice, Transparency and Human Rights, the Ministry of Administrative Reform and Electronic Governance, and laying down other provisions (FEK A’ 237/5.12.2012), which inserted into that article a paragraph 2, according to which ‘evidence of accreditation as a mediator issued by a training institution based in another country following training provided in Greece may be recognised, provided that that evidence was obtained no later than the date of authorisation and commencement of operation of a training institution or training institutions within the meaning of Article 5 of Law 3898/2010, and, in any event, no later than 31 December 2012’.
Law 4512/2018
Article 205 of Law 4512/2018 of 17 January 2018 on the rules of application of the structural reforms to the economic adjustment programme and laying down other provisions (FEK A’ 5/17.1.2018), is worded thus:
‘As from the entry into force of this Law, any provision to the contrary that lays down different rules in respect of any matter relating to mediation shall be repealed. The provisions of Article 1 of Law 3898/2010 shall remain in force.’
Presidential Decree 123/2011
Article 1(1) of Presidential Decree 123/2011 setting out the conditions governing the authorisation and operation of institutions for the training of mediators in civil and commercial matters (FEK A’ 255/9.12.2011) provides:
‘A mediator training institution, hereinafter referred to as an “institution”, may be a non-profit civil-law partnership jointly formed of at least one Bar association and at least one business chamber in Greece and operating under an authorisation issued by the Department for matters relating to the Profession of Lawyer and Bailiffs within the Directorate-General for Judicial Administration at the Ministry of Justice, Transparency and Human Rights (Article 5(1) of Law 3898/2010).’
Amended Ministerial Decision 109088
Paragraphs 1, 2 and 5 of Section A of the single article of Ministerial Decision 109088 of 12 December 2011, as amended by Decision 107309 of 20 December 2012 (‘amended Ministerial Decision 109088’), provides:
‘A. I hereby set out the procedure for the recognition of evidence of accreditation as a mediator issued by a training institution based in another country as follows:
Evidence of accreditation as a mediator which is issued by a training institution based in another country shall be recognised as equivalent by the Mediator Accreditation Committee in accordance with the following procedure:
1. The persons concerned shall file an application for recognition of their evidence of accreditation as a mediator.
…
2. The application form shall be accompanied by the following supporting documentation:
…
(c)
a certificate issued by the training institution, for the attention of the Mediator Accreditation Committee, as provided for in Article 6(1) of Law 3898/2010, which confirms:
(aa)
the total number of hours’ training;
(bb)
the matters taught;
(cc)
the place of training;
(dd)
the number of participants,
(ee)
the number and qualifications of the trainers;
(ff)
the procedure for the examination and assessment of candidates and the arrangements for ensuring the integrity of that procedure.
…
5. The Mediator Accreditation Committee shall accept evidence of accreditation as being equivalent provided that it has been issued by a recognised institution based in another country and the person concerned is able to demonstrate that he or she has taken part in at least three mediation procedures as a mediator, assistant mediator or counsel to one of the parties. The Committee may, at its discretion, ask the person concerned to undergo an additional examination, in particular in the case where his or her training was provided in Greece by an institution based in another country.
As regards recognition of the equivalence of evidence of accreditation obtained in another country or issued by a recognised training institution based in another country following training provided in Greece, the Mediator Accreditation Committee may accept evidence of accreditation as being equivalent even if the person concerned cannot demonstrate that he or she has taken part in at least three mediation procedures as a mediator, assistant mediator or counsel to one of the parties, provided that it is readily apparent from the information contained in the application as a whole that the applicant engages in further training and regularly practises mediation, and provided that that evidence was obtained by 31 December 2012 at the latest.’
Pre-litigation procedure
Following a complaint received by its staff, the Commission, prompted by doubts as to the compatibility of Law 3898/2010 and amended Ministerial Decision 109088 with Directives 2006/123 and 2005/36, asked the Hellenic Republic on 11 July 2013 for information on mediator training in Greece.
The Hellenic Republic replied to that request by letter of 16 September 2013.
On 11 July 2014, the Commission sent the Hellenic Republic a letter of formal notice inviting it to submit observations on the potential incompatibility of the aforementioned law and decision both with Article 15(2)(b) and (c) of Directive 2006/123 and with Articles 13 and 14 of Directive 2005/36. The Hellenic Republic replied to that letter on 12 September 2014.
On 29 May 2015, the Commission sent an additional letter of formal notice by which it reiterated its position and expressed its further concern as to the incompatibility of the Greek legislation with Article 50(1) of, and Annex VII to, Directive 2005/36, in so far as the recognition of mediation qualifications obtained in other Member States of the European Union is subject to conditions which go beyond what is permitted by that directive. The Commission was also of the view that the Greek legislation was in breach of the principle of non-discrimination enshrined in Articles 45 and 49 TFEU.
The Hellenic Republic replied to that additional letter of formal notice on 23 November 2015.
Being unconvinced by the Hellenic Republic’s replies, the Commission, on 25 February 2016, issued a reasoned opinion, served on that Member State on 26 February, by which it submitted that, first, by limiting the form of mediator training institutions to non-profit companies that must be formed of at least one Bar association and at least one business chamber in Greece, Greece had failed to fulfil its obligations under Article 49 TFEU and Article 15(2)(b) and (c) and (3) of Directive 2006/123.
Secondly, the reasoned opinion stated, by making the procedure for the recognition of academic qualifications subject to additional requirements concerning the content of certificates and to compensation measures without a prior assessment of any substantial differences, and by maintaining in force discriminatory provisions which require applicants to demonstrate that they have taken part in at least three mediation procedures, the Hellenic Republic had failed to fulfil its obligations under Articles 45 and 49 TFEU and Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36.
By its reply of 10 May 2016, the Hellenic Republic disputed the infringement alleged, on the ground, first, that mediation falls within the scope of the exception provided for in the first paragraph of Article 51 TFEU, inasmuch as it is an activity connected with the exercise of official authority. In any event, the general interest in the administration of justice was a permissible justification for restrictions on the freedom to provide services. Secondly, as regards the recognition of professional qualifications, the Hellenic Republic argued that the national provisions at issue did not deprive a mediator having acquired equivalent professional mediation qualifications in another Member State of the right to pursue that profession. Furthermore, it followed from the national provisions at issue that a mediator’s competence could be established from the information on further training contained in his or her application rather than by reference to the criterion requiring the person concerned to have taken part in three mediation procedures.
Being of a different view from the Hellenic Republic, the Commission brought the present action for failure to fulfil obligations.
The action
The scope of the action
–
Arguments of the parties
In its application, the Commission raised two complaints. First, it submitted that Article 5(1) of Law 3898/2010 and Article 1(1) of Presidential Decree 123/2011 introduced a restriction on freedom of establishment, as defined in Article 49 TFEU, and infringed Article 15(2)(b) and (c) and (3) of Directive 2006/123. Secondly, it argued that amended Ministerial Decision 109088 infringed Articles 13, 14 and 50 of, and Annex VII to, Directive 2005/36.
In its defence, without contesting the Commission’s complaints with respect to Law 3898/2010 and amended Ministerial Decision 109088, the Hellenic Republic stated that Law 3898/2010 and Presidential Decree 123/2011 had been repealed upon publication in the
Official Journal of the Hellenic Republic
on 17 January 2018 of Law 4512/2018. It follows, according to the Hellenic Republic, that the complaints put forward by the Commission in its action no longer have any point.
In the form of order sought in its reply and at the hearing, the Commission argued that this action also covers the situation arising from the aforementioned legislative amendments introduced by Law 4512/2018, in so far as, in accordance with the Court’s case-law, the system established by the contested legislation during the pre-litigation procedure has largely been maintained by the new measures adopted by the Member State after the reasoned opinion.
–
Assessment of the Court
For the purpose of determining the scope of this action for failure to fulfil obligations, it should be noted that the question whether a Member State has failed to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, to that effect, judgment of 27 April 2017, Commission v Greece,
C‑202/16
, not published,
EU:C:2017:318
, paragraph
and the case-law cited).
In the event of a later amendment to the national legislation called into question in proceedings for failure to fulfil obligations, the Commission does not change the subject matter of its action by attributing the complaints formulated against the previous legislation to the legislation arising from the amendment adopted, where the content of the two versions of the national legislation is identical (see, to that effect, judgment of 21 March 2013, Commission v France,
C‑197/12
, not published,
EU:C:2013:202
, paragraph
and the case-law cited).
Conversely, the subject matter of the dispute may not be extended to obligations arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of the infringement procedure (see, to that effect, judgment of 5 April 2017, Commission v Bulgaria,
C‑488/15
,
EU:C:2017:267
, paragraph
and the case-law cited).
Since, as just indicated, in its reply the Commission also attributed the first complaint put forward in its application to Law 4512/2018, it falls to be determined whether, in so doing, it changed the subject matter of the action.
In this instance, it does not follow either from a reading of the relevant provisions of Law 4512/2018 or from the arguments put forward by the Commission in relation to them that the content of the provisions of that law is identical to that of the provisions of the legislation previously in force.
Consequently, as the Commission’s first complaint also relates to the provisions of Law 4512/2018, that complaint changes the subject matter of the dispute and it is therefore necessary to examine the complaints as put forward in the Commission’s application without taking account of the extension of the first complaint in the reply.
In those circumstances, the complaints relating to the infringement of the provisions of Article 49 TFEU, Article 15(2)(b) and (c) and (3) of Directive 2006/123 and Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36 must be dismissed as inadmissible, in so far as they relate to Law 4512/2018.
Substance
The complaint as to infringement of Article 49 TFEU and Article 15(2)(b) and (c) and (3) of Directive 2006/123
–
Arguments of the parties
According to the Commission, it follows, first, from Article 5(1) of Law 3898/2010 and, secondly, from Article 1(1) of Presidential Decree 123/2011 that companies providing training services aimed at delivering tuition to mediators who may, on that basis, take the examination leading to the acquisition of accreditation as a mediator in Greece, must, to the exclusion of all other legal forms, take that of non-profit companies jointly composed of at least one Bar association and at least one business chamber in Greece and operate under an authorisation issued by the authority referred to in Article 7 of that law.
The Commission submits that the requirement relating to the requisite composition of the training institution and the requirement relating to the legal form which the latter must take deter not only training institutions from other countries that wish to establish themselves for the first time in Greece but also those that wish to set up a secondary establishment there, thus restricting the freedom of establishment provided for in Article 49 TFEU and Article 15(2)(b) and (c) and (3) of Directive 2006/123.
According to the Commission, it follows from Law 3898/2010 that the training courses offered by institutions that do not meet the requirements laid down by that law cannot provide access to the examination required under Article 6 of that law or, ultimately, to acquisition of the accreditation required to be able to pursue the profession of mediator in Greece.
The Commission further argues that those requirements are neither justified by an overriding reason in the general interest nor suitable for ensuring the attainment of the objective which they pursue and go beyond what is necessary to achieve that objective. They could, in addition, be applied in a potentially discriminatory manner.
Moreover, the Commission considers that, contrary to the arguments put forward by the Hellenic Republic in the pre-litigation procedure, the exception provided for in Article 51 TFUE is not applicable in the present case. First, it cannot be inferred from the order of 17 February 2005, Mauri (
C‑250/03
,
EU:C:2005:96
), which has to do with the participation of lawyers in the examination committee in question, that the national rule at issue is compatible with EU law, as Article 5 of Law 3898/2010 relates to the composition and legal form of mediator training institutions. Secondly, the failure to fulfil obligations complained of is concerned not with the mediation service as such but with mediator training services, which do not fall within the scope of the exercise of official authority, including the administration of justice.
So far as concerns overriding reasons in the general interest that may justify the restrictions at issue, the Commission submits, in the first place, that the objective of ensuring the quality of mediation might find some support in Article 4 of Directive 2008/52. However, it considers, first, that Article 4 read in the light of recital 16 of that directive is concerned with monitoring the quality of training services provided by means of mechanisms such as codes of good conduct, and, secondly, that Article 4 does not cover rules on the organisation of mediator training institutions such as those governing the requisite legal form and the holding of capital.
In the second place, the Commission argues that, although, in accordance with the Court’s case-law, protection of the recipients of mediation services and the need to ensure a high level of tuition may constitute overriding reasons in the general interest, the Hellenic Republic has still failed to show that the requirements relating to the legal form and shareholding of a company enables those objectives to be achieved.
In any event, the Commission considers that the restrictions at issue are not proportionate to the objectives pursued in so far as, first, there are less restrictive measures, such as the introduction of an adequate programme of study, the determination of criteria in respect of teachers and the material used and the setting of criteria in respect of the compulsory examinations that provide access to the profession. Secondly, the Commission observes that the Hellenic Republic already uses other, less restrictive measures to ensure a high level of tuition, such as the requirements that training be given by experienced mediators, that examinations be held before a State board and that the content and length of the training programme be established by law.
The Hellenic Republic simply states that, following the adoption of Law 4512/2018, this complaint no longer has a point.
–
Assessment of the Court
As a preliminary point, it should be noted that the first complaint in this action alleges infringement of Article 49 TFEU and infringement of Article 15(2)(b) and (c) and (3) of Directive 2006/123.
In that regard, it should be recalled, in the first place, that it follows from recital 6 of Directive 2006/123 that barriers to the freedom of establishment may not be removed solely by relying on direct application of Article 49 TFUE, owing, inter alia, to the extreme complexity of addressing barriers to that freedom on a case-by-case basis (see, to that effect, judgment of 16 June 2015, Rina Services and Others,
C‑593/13
,
EU:C:2015:399
, paragraph
), and that, consequently, a directive should be adopted on that subject.
It follows that, where a restriction of the freedom of establishment falls within the scope of Directive 2006/123, there is no need to examine it in the light also of Article 49 TFEU (see, to that effect, judgments of 23 February 2016, Commission v Hungary,
C‑179/14
,
EU:C:2016:108
, paragraph
, and of 30 January 2018, X and Visser,
C‑360/15 and C‑31/16
,
EU:C:2018:44
, paragraph
).
It therefore falls to be assessed whether the complaint alleging infringement of Article 15(2)(b) and (c) and (3) of Directive 2006/123 is well founded.
In that regard, it follows from Article 15(1) of Directive 2006/123 that Member States must examine whether, under their legal system, any requirements such as those listed in Article 15(2) are imposed and ensure that any such requirements are compatible with the conditions laid down in Article 15(3).
The cumulative conditions listed in Article 15(3) of Directive 2006/123 relate, first, to the non-discriminatory nature of the requirements concerned, which may not be directly or indirectly discriminatory according to nationality or, with regard to companies, according to the location of the registered office, secondly, to whether those requirements are necessary, which is to say that they must be justified by an overriding reason in the public interest, and, thirdly, to whether they are proportionate, inasmuch as such requirements must be suitable for securing the attainment of the objective pursued, must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.
In this instance, the Commission’s complaints seek to obtain a declaration that the national provisions which it identifies in its application impose requirements of the kind referred to in Article 15(2)(b) and (c) of Directive 2006/123, and that, since those requirements fail to satisfy the conditions set out in Article 15(3), the national provisions in question fail to have due regard for paragraphs 1 to 3 of that article.
It is important, in the first place, to ascertain whether the requirements arising from Article 5 of Law 3898/2010 are caught, as the Commission maintains, by Article 15(2)(b) and (c) of that directive.
In that regard, it must be observed that Article 15(2)(b) of Directive 2006/123 read in the light of recital 73 deals with a category of requirements that compel the service provider to take a particular legal form, including the requirement to be a legal person or a non-profit entity.
It need hardly be pointed out that the requirement relating to the legal form of mediator training institutions laid down in Article 5 of Law 3898/2010, to the effect that mediator training institutions must take the form of non-profit companies, is expressly caught by Article 15(2)(b) of Directive 2006/123 (see, to that effect, judgment of 23 February 2016, Commission v Hungary,
C‑179/14
,
EU:C:2016:108
, paragraphs
and
).
Furthermore, it should be observed that Article 15(2)(c) of Directive 2006/123 read in the light of recital 73 is concerned with another category of requirements, relating to the shareholding of a company.
The requirement relating to the composition of training institutions, to the effect that mediator training institutions must be jointly formed of at least one Bar association and at least one business chamber in Greece, which is laid down in Article 5 of Law 3898/2010, is caught by Article 15(2)(c) of Directive 2006/123.
In the second place, it must be ascertained whether the national rules at issue are caught by Article 15(3) of Directive 2006/123.
In that regard, it must be observed, first, that, in accordance with Article 15(3)(a) of Directive 2006/123, the requirements referred to in Article 15(2) are not incompatible with the provisions of that directive provided, inter alia, that they are not directly or indirectly discriminatory according to nationality or, with regard to companies, according to the location of the registered office.
In this instance, it follows from Article 5 of Law 3898/2010 that the requirements relating to the legal form, shareholding and composition of mediator training institutions apply both to training institutions established in Greece and to those established in other Member States. Consequently, those requirements are not discriminatory within the meaning of Article 15(3)(a) of that directive.
Secondly, as regards whether the national rules at issue are necessary, although the Hellenic Republic does not put forward any specific justification for Article 5 of Law 3898/2010, it follows from its line of argument put forward at the hearing before the Court that that legislation is, in accordance with Article 15(3)(b) of Directive 2006/123, such as to ensure a high level of quality in mediator training services and to facilitate the establishment of training institutions in outlying regions.
Although such reasons may constitute overriding reasons in the general interest, the fact remains that the Hellenic Republic has not put forward any arguments to show that the rules relating to the legal form and shareholding of a training company are measures that are necessary to attain those objectives.
Given that the three conditions laid down in Article 15(3) of Directive 2006/123 are cumulative, it is clear that, since the national rules at issue do not satisfy the second of those conditions, there is no need to ascertain whether the third requirement referred to in Article 15(3) is met.
It follows from all of the foregoing considerations that, by limiting the legal form of mediator training institutions to non-profit companies that must be jointly formed of at least one Bar association and at least one business chamber in Greece, the Hellenic Republic has failed to fulfil its obligations under Article 15(2)(b) and (c) and (3) of Directive 2006/123.
The complaint relating to Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36
–
Arguments of the parties
The Commission considers that the provisions of Law 3898/2010 and amended Ministerial Decision 109088 infringe Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36. It alleges that those provisions also infringe the principle of non-discrimination.
It should be noted as a preliminary point that the Commission argues, with reference to the definition of ‘regulated profession’ contained in Article 3(1)(a) of Directive 2005/36, that that directive does not require specific evidence of formal academic qualifications for access to the profession of mediator and does not limit its application to the ‘pursuit’ of a regulated profession. It submits that, although, in the absence of harmonisation, Member States remain competent to regulate that profession and to determine the conditions of access to it, the fact remains that provisions of national legislation must not constitute an unjustified obstacle to the exercise of the fundamental freedoms guaranteed by the Treaties.
Given that access to the profession of mediator is subject in Greece both to specific training and to accreditation, granted to an applicant who has passed the relevant examination, the Commission considers that the profession of mediator falls within the scope of Directive 2005/36.
It takes the view that the failure by the Hellenic Republic to designate the authorities and bodies competent to award or receive evidence of formal qualifications and other documents or information, in accordance with Article 56(3) of that directive, cannot be relied on in order to justify non-compliance with the other provisions of that directive.
As regards, in the first place, the content of the training institution certificate which a migrant mediator must produce in order to obtain accreditation to pursue that profession in Greece, the Commission observes that it is clear from amended Ministerial Decision 109088 that an application for the recognition in Greece of the evidence of formal academic qualification held by a mediator from another country must be accompanied, inter alia, by a training institution certificate confirming the teaching method, the number of participants, the number and qualifications of the trainers, the procedure for examining and assessing applicants and the arrangements for ensuring the integrity of that procedure. In its submission, such conditions go beyond what is necessary to assess the level of knowledge and professional qualifications that the holder is presumed to possess. Consequently, those conditions are contrary to Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36.
In that regard, the Commission submits that it is apparent from Article 13 of Directive 2005/36 that the competent authority of the host Member State must grant access to a regulated profession to applicants who possess an attestation of competence or evidence of formal qualifications prescribed by another Member State as a condition of access to and pursuit of that profession in its territory. While such attestations must be issued by a competent authority in a Member State and attest a certain level of professional qualification, the fact remains, according to the Commission, that Directive 2005/36 does not require that qualifications issued in other Member States attest education and training equivalent or comparable to the education and training required in the host Member State.
According to the Commission, Article 14 of Directive 2005/36 provides that the competent authorities of the host Member State may ask the applicant to provide information concerning his or her training only to the extent necessary to enable them to determine whether there are any substantial differences with the national training required by the legislation of the Hellenic Republic. In its submission, however, the conditions laid down by the national legislation do not make it possible to examine whether the training received by the person concerned covers matters substantially different from those covered by the evidence of formal qualifications required in Greek territory.
Furthermore, it follows from Article 50(1) of Directive 2005/36 that, during the recognition procedure, the competent authorities of the host Member State may require the applicant to produce the documents and certificates listed in Annex VII to that directive, such as copies of the attestations of professional competence or the evidence of formal academic qualifications giving access to the profession in question.
The Commission submits, however, that it is apparent from the second paragraph of point 1(b) of Annex VII that the competent authorities of the host Member State may invite the applicant to provide such information concerning his or her training only to the extent necessary to determine whether there are any substantial differences with the national training required. Consequently, it argues, the conditions laid down in the Greek legislation fail to have due regard not only for Article 14(1) but also Article 50(1) of, and Annex VII to, Directive 2005/36.
As regards, in the second place, the compensation measures provided for by the Hellenic Republic, the Commission recalls that paragraph 5 of Section A of the single article of amended Ministerial Decision 109088 provides that the Mediator Accreditation Committee may, at its discretion, ask the applicant to undergo an additional examination, in particular where his or her training was provided in Greece by an institution based in another country.
While the Commission accepts that Directive 2005/36 does not require that the criteria in respect of such examinations be spelled out, it nonetheless observes that, in the absence of national rules governing the examination procedure, that procedure may prove to be arbitrary or even discriminatory. It therefore takes the view that an examination procedure without a prior assessment of any substantial differences with the training required at national level fails to have due regard for the requirements laid down in Article 14 of Directive 2005/36.
The Commission further contends that one of the conditions for recognition of the equivalence of formal qualifications under the national legislation is proof that the person concerned has taken part in at least three mediation procedures as a mediator, assistant mediator or counsel to one of the parties. Mediators trained in Greece, however, are not required to meet such a condition. According to the Commission, that condition is discriminatory and contrary to Article 13 of Directive 2005/36.
As regards the Greek administration’s practice of not applying that condition if the information contained in an application provides proof of further training and regular practice as a mediator, the Commission notes that the incompatibility of the national legislation with the provisions of EU law can be permanently eliminated only by means of binding provisions having the same legal status as those that must be amended, and that, for that reason, an administrative practice cannot in itself be regarded as a valid fulfilment of the obligations arising under the FEU Treaty. In any event, the Commission submits that, under the Greek legislation, the possibility of not applying the experience requirement is available only in the case of persons who acquired evidence of accreditation as a mediator by 31 December 2012 at the latest.
The Hellenic Republic points out that amended Ministerial Decision 109088 was repealed upon the entry into force of Law 4512/2018 and therefore considers that the present complaint no longer has any point.
–
Assessment of the Court
As a preliminary point, so far as concerns the determination of the scope of Directive 2005/36 in relation to Directive 2008/52, it must be noted, as the Advocate General observed in point 46 of his Opinion, that the latter directive is not capable in the present case of affecting the applicability of Directive 2005/36. While Directive 2008/52 relates to certain aspects of mediation in civil and commercial matters, the fact remains that it does not harmonise the conditions for access to the profession of mediator.
That having been clarified, as regards whether the profession of mediator constitutes a ‘regulated profession’ within the meaning of Article 3(1)(a) of Directive 2005/36, it should be recalled that regulated profession is defined as a professional activity or group of professional activities access to which, the pursuit of which or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions, to the possession of specific professional qualifications (judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud,
C‑125/16
,
EU:C:2017:707
, paragraph
and the case-law cited).
Thus, it follows from Article 3(1)(b), (c) and (e) of Directive 2005/36 that the concept of ‘specific professional qualifications’ in Article 3(1)(a) of that directive covers all qualifications relating to training which is specifically designed to prepare candidates to exercise a given profession (judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud,
C‑125/16
,
EU:C:2017:707
, paragraph
and the case-law cited).
It must be observed, as the Advocate General noted in point 43 of his Opinion, that the profession of mediator as regulated in Greece fulfils the criteria set out in paragraphs 86 and 87 of this judgment, in so far as access to the profession is subject to the completion of training geared towards the acquisition of a professional qualification and a status specifically allowing its holder to pursue that profession, pursuant, inter alia, to Article 6(1) and (3) of Law 3898/2010.
As regards the compatibility of the legislation at issue with the provisions of Directive 2005/36, the recognition of evidence of training as a mediator is governed by Articles 10 to 14 of that directive.
Pursuant to Article 13(1) of that directive, the competent authority of the host Member State must permit applicants to gain access to and pursue a regulated profession under the same conditions as apply to its nationals if they possess an attestation of competence or evidence of formal qualifications, of the type covered by Article 11 of the directive, issued by the competent authority of another Member State for the same purpose.
While Article 14 of Directive 2005/36 provides that Article 13 thereof does not preclude the host Member State from imposing ‘compensation measures’ in the form of an adaptation period or an aptitude test on persons wishing to gain access to and pursue a regulated profession, the fact remains, as the Advocate General noted in point 56 of his Opinion, that even Article 14 itself limits that possibility to situations listed in paragraph 1 thereof.
It follows from Article 14(1)(a) of Directive 2005/36, first of all, that Member States may impose compensation measures where the training which the applicant has received covers substantially different matters from those covered by the formal qualifications required in the host Member State. Next, pursuant to paragraph 4 of that article, the expression ‘substantially different matters’ is to be understood as matters in respect of which knowledge, skills and competences acquired are essential for pursuing the profession and with regard to which the training received by the migrant shows significant differences in terms of content from the training required by the host Member State. Finally, paragraph 5 of Article 14 makes the possibility of requiring compensation measures subject to compliance with the principle of proportionality.
Furthermore, it follows from Article 50(1) of Directive 2005/36 that the competent authority of the host Member State may require the applicant to produce the documents and certificates listed in Annex VII to that directive. Point 1(b) and (c) of that annex states that production of the attestations mentioned there may be requested under the conditions laid down in those provisions.
The compatibility of the Greek legislation with Directive 2005/36 must be examined in the light of the foregoing observations.
As regards, in the first place, the procedure for the recognition of academic qualifications, which is subject to additional requirements relating to the content of the training institution certificate that a migrant mediator must provide in order to obtain accreditation to pursue that profession in Greece, it follows from paragraph 2(c) of Section A of the single article of amended Ministerial Decision 109088 that, under the Greek legislation, the training institution certificate that is provided to the Accreditation Committee must contain various items of information, including details of the place of training, the procedure for examining and assessing candidates and the arrangements for ensuring the integrity of that procedure.
It must be observed, first, that the conditions laid down in the Greek legislation do not appear in Directive 2005/36 and, secondly, that, contrary to the requirements arising under Article 14 and Article 50(1) of, and point 1 of Annex VII to, that directive, they are not, as the Advocate General noted in point 60 of his Opinion, appropriate for the purposes of carrying out a proportionate assessment of the content of the training completed by applicants.
As regards, secondly, the compensation measures which the Hellenic Republic requires to be taken by applicants for accreditation as a mediator who possess evidence of accreditation obtained in another country or issued by a recognised training institution based in another country following training provided in Greece, it must be observed that it follows from Article 14(1)(a) of Directive 2005/36 that the imposition of compensation measures presupposes an examination by which the competent authority of the host Member State seeks to determine whether there are any substantial differences between the training which the applicant has received and national training.
In this instance, it follows from paragraph 5 of Section A of the single article of amended Ministerial Decision 109088 that, as regards recognition of the equivalence of accreditation obtained in another country or issued by a training institution based in another country following training provided in Greece, the Mediator Accreditation Committee may accept such accreditation as equivalent if the applicant is able to demonstrate that he or she has taken part in at least three mediation procedures as mediator, assistant mediator or counsel to one of the parties. Furthermore, that committee may, at its discretion, require the applicant to undergo an additional examination, in particular if his or her training was provided in Greece.
In that regard, it must be observed, as the Advocate General noted in point 63 of his Opinion, that such conditions do not correspond to the type of criteria laid down in Directive 2005/36 and exceed the margin of discretion enjoyed under the directive by the competent authorities of the Member States in this sphere.
As the national legislation at issue does not provide for any prior assessment to establish whether the applicant has received training covering substantially different matters from those covered by the formal qualifications required in the host Member State, such prior assessment being necessary under Article 14 of Directive 2005/36 in order for an accreditation committee to be able to require compensation measures, it cannot be maintained that that national legislation is in conformity with Directive 2005/36.
Furthermore, paragraph 5 of Section A of the single article of amended Ministerial Decision 109088 also fails to have due regard for the obligations laid down in Article 13(1) of Directive 2005/36, in so far as persons applying for accreditation as a mediator after having obtained evidence of accreditation from a training institution based in another country are required to demonstrate that they have taken part in at least three mediation procedures, whereas such an accreditation condition does not apply to persons having obtained accreditation from a national training institution.
Those conclusions cannot be called into question by the argument that, in practice, the administrative authorities may refrain from applying such a condition, as it is common ground that, even if, in practice, the authorities of a Member State do not apply a national provision which is at variance with EU law, legal certainty nevertheless requires that that provision be amended (see, to that effect, judgment of 5 July 2007, Commission v Belgium,
C‑522/04
,
EU:C:2007:405
, paragraph
and the case-law cited).
It follows from the foregoing observations that, by making the procedure for the recognition of academic qualifications subject to additional requirements concerning the content of the certificates required and to compensation measures without any prior assessment as to whether there are substantial differences with national training, the Hellenic Republic has failed to fulfil its obligations under Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36.
Consequently, it must be held that:
–
by limiting the legal form of mediator training institutions to non-profit companies that must be jointly formed of at least one Bar association and at least one business chamber in Greece, the Hellenic Republic has failed to fulfil its obligations under Article 15(2)(b) and (c) and (3) of Directive 2006/123;
–
by making the procedure for the recognition of academic qualifications subject to additional requirements concerning the content of the certificates required and to compensation measures without any prior assessment as to whether there are substantial differences with national training, and by maintaining in force discriminatory provisions that require applicants for accreditation as a mediator who possess evidence of accreditation obtained in another country or issued by a recognised training institution based in another country following training provided in Greece to demonstrate that the person concerned has taken part in at least three mediation procedures, the Hellenic Republic has failed to fulfil its obligations under Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36.
Costs
Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for. Since the Commission has applied for costs and the Hellenic Republic has been unsuccessful, the latter must be ordered to pay the costs.

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

(1)
–
By limiting the legal form of mediator training institutions to non-profit companies that must be jointly formed of at least one Bar association and at least one business chamber in Greece, the Hellenic Republic has failed to fulfil its obligations under Article 15(2)(b) and (c) and (3) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market;
–
by making the procedure for the recognition of academic qualifications subject to additional requirements concerning the content of the certificates required and to compensation measures without any prior assessment as to whether there are substantial differences with national training, and by maintaining in force discriminatory provisions which require applicants for accreditation as a mediator who possess evidence of accreditation obtained in another country or issued by a recognised training institution based in another country following training provided in Greece to demonstrate that the person concerned has taken part in at least three mediation procedures, the Hellenic Republic has failed to fulfil its obligations under Articles 13 and 14 and Article 50(1) of, and Annex VII to, Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013.

(2)
The Hellenic Republic is ordered to pay the costs.

[Signatures]
(
*1
)	Language of the case: Greek.