CELEX: 62004CJ0141
Directive 89/48/EEC
Workers
Recognition of diplomas
Mechanical engineer

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
Francovich
and 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.
[Signatures]
*
Language of the case: Greek.