CELEX: 62007CJ0136
Failure of a Member State to fulfil obligations
Directives 89/48/EEC and 92/51/EEC
Recognition of diplomas and professional education and training
Profession of air traffic controller

Grounds
1. By its action, the Commission of the European Communities asks the Court to find that, in failing to adopt, in connection with the profession of air traffic controller, the laws, regulations and administrative provisions necessary to comply with 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) and Council Directive 92/51/EEC 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), the Kingdom of Spain has failed to fulfil its obligations under those directives.
Legal context
The Community legislation
Directive 89/48
2. Article 1 of Directive 89/48 states:
‘For the purposes of this Directive the following definitions shall apply:
(a) diploma: any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence:
– which has been awarded by a competent authority in a Member State, designated in accordance with its own laws, regulations or administrative provisions;
– which shows that the holder has successfully completed a post-secondary course of at least three years’ duration, or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course, and
– which shows that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession in that Member State,
provided that the education and training attested by the diploma, certificate or other evidence of formal qualifications were received mainly in the Community, or the holder thereof has three years’ professional experience certified by the Member State which recognised a third-country diploma, certificate or other evidence of formal qualifications.
…
(c) a regulated profession: the regulated professional activity or range of activities which constitute this profession in a Member State;
(d) regulated professional activity: a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of a diploma …
…’
3. Article 2 of the same directive states:
‘This Directive shall apply to any national of a Member State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person.
This Directive shall not apply to professions which are the subject of a separate Directive establishing arrangements for the mutual recognition of diplomas by Member States.’
4. Article 3(a) of the Directive states:
‘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. Under Article 4(1) of Directive 89/48:
‘Notwithstanding Article 3, the host Member State may also require the applicant:
…
(b) to complete an adaptation period not exceeding three years or take an aptitude test:
– where the matters covered by the education and training he has received as laid down in Article 3(a) and (b), differ substantially from those covered by the diploma required in the host Member State …’
Directive 92/51
6. The term ‘diploma’ is defined in Article 1(a) of Directive 92/51 as follows:
‘… any evidence of education and training or any set of such evidence:
– which has been awarded by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that State,
– which shows that the holder has successfully completed:
(i) either a post-secondary course other than that referred to in the second indent of Article 1(a) of Directive 89/48/EEC, of at least one year’s duration or of equivalent duration on a part-time basis, one of the conditions of entry of which is, as a general rule, the successful completion of the secondary course required to obtain entry to university or higher education, as well as the professional training which may be required in addition to that post-secondary course;
(ii) or one of the education and training courses in Annex C, and
– which shows that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession in that Member State,
– provided that the education and training attested by this evidence was received mainly in the Community, or outside the Community at teaching establishments which provide education and training in accordance with the laws, regulations or administrative provisions of a Member State, or that the holder thereof has three years’ professional experience certified by the Member State which recognised third-country evidence of education and training.
…’
7. Article 1(e) and (f) of Directive 92/51, contains the following definitions:
‘(e) regulated profession : the regulated professional activity or range of activities which constitute this profession in a Member State;
(f) regulated professional activity : a professional activity the taking up or pursuit of which, or one of its modes of pursuit in a Member State, is subject, directly or indirectly, by virtue of laws, regulations or administrative provisions, to the possession of evidence of education and training or an attestation of competence.
…’
8. The second paragraph of Article 2 of Directive 92/51 states that it is not to apply inter alia to professions which are the subject of a separate directive establishing arrangements for the mutual recognition of diplomas by Member States.
9. Under Article 3 of Directive 92/51:
‘Without prejudice to Directive 89/48/EEC, where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, as defined in this Directive or in Directive 89/48/EEC, 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 those which apply to its own nationals:
(a) if the applicant holds the diploma, as defined in this Directive or in Directive 89/48/EEC, 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
…’
10. Article 4(1) of Directive 92/51 is worded as follows:
‘Notwithstanding Article 3, the host Member State may also require the applicant:
…
(b) to complete an adaptation period not exceeding three years or take an aptitude test where:
– the theoretical and/or practical matters covered by the education and training which he has received as laid down in points (a) or (b) of the first subparagraph of Article 3 differ substantially from those covered by the diploma, as defined in this Directive or in Directive 89/48/EEC, required in the host Member State
…’
Directive 2006/23/EC
11. On 17 May 2006, Directive 2006/23/EC of the European Parliament and of the Council of 5 April 2006 on a Community air traffic controller licence (OJ 2006 L 114, p. 22) entered into force with the objective of increasing safety standards and improving the operation of the Community air traffic control system through the issuing of a Community air traffic controller licence.
National legislation
12. Directives 89/48 and 92/51 were transposed into Spanish law by Royal Decree‑Law 1665/1991 of 25 October 1991 (BOE No 280 of 22 November 1991, p. 37916), and Decree‑Law 1396/1995 of 4 August 1995 (BOE No 197 of 18 August 1995, p. 25657), respectively. The profession of air traffic controller is not included in the list of regulated professions in Spain set out in the annexes to those Royal Decrees.
13. The taking up and pursuit of that profession in Spain is specifically governed by Royal Decree 3/1998 of 9 January 1998 on the civilian professional qualification and licence of air traffic controller (BOE No 17 of 20 January 1998, p. 1968).
14. Under Article 1 of Royal Decree 3/1998:
‘To pursue, in a professional capacity, the activities of a civil air traffic controller, it shall be necessary to hold the professional civil aviation qualification of air traffic controller, along with the licence and the corresponding ratings, in accordance with the conditions laid down by this Royal Decree.’
15. Article 2 of the Royal Decree states:
‘For the purposes of this Royal Decree, the following definitions shall apply:
“Professional civil aviation qualification of air traffic controller”: the document issued by the General Directorate of Civil Aviation which certifies that the holder has successfully completed the basic training course to be an air traffic controller.
“Licence”: a document issued by the General Directorate of Civil Aviation which certifies that the holder of the professional civil aviation qualification of air traffic controller may take up and pursue the activities inherent therein for which he is authorised. The holder’s rating, along with any restrictions, shall appear in an annexed document along with a certificate of the physical and psychological fitness necessary for their application.
“Rating”: a document issued by the General Directorate of Civil Aviation, associated with a licence, specifying the circumstances, conditions and, where appropriate, the restrictions pertaining to the pursuit of certain activities of air traffic controllers.’
16. Article 3 of the same Royal Decree sets the conditions for obtaining the qualification of air traffic controller as follows:
‘1. The award of the professional civil aviation qualification of air traffic controller shall be subject to the successful completion of a course of basic education and training for air traffic controllers delivered in accordance with official programmes, which shall include a theoretical and practical knowledge of aviation law, air traffic rules and air traffic equipment and a general knowledge of aeronautics, human factors, meteorology, navigation and operational procedure s.
2. To be admitted to basic training, candidates must fulfil the following conditions:
(a) Required educational standard: an official university first degree or higher degree or successful completion of the first full cycle of a higher degree course.
(b) Fluent written and spoken Spanish and English with no observable difficulty in oral expression liable to adversely affect radio communications.
(c) Possession of the appropriate certificate of psychotechnical, physical and psychological fitness.’
17. Article 4 of Royal Decree 3/1998, which lays down the conditions for obtaining an air traffic controller licence, is worded as follows:
‘An air traffic controller licence shall be granted to candidates who:
(a) are at least 21 years old;
(b) are holders of a professional civil aviation qualification of air traffic controller;
(c) have successfully completed, the theoretical and practical education and training required in order to obtain one of the ratings mentioned in Article 7 of this Royal Decree;
(d) have successfully completed under the supervision of a qualified instructor appointed for that purpose, a three-month training period consisting of controlling air traffic effectively. The condition in subparagraph (c) of this Article may be fulfilled in the course of the period described in this subparagraph;
(e) are holders of a valid and periodically renewable certificate of physical and psychological fitness.
18. Article 7 of the Royal Decree, which lists the ratings to which reference is made in Article 4(c) of the same decree, states:
‘Provision shall be made for the following ratings:
(a) Aerodrome Control;
(b) Approach Control;
(c) Radar Approach Control;
(d) Area Control;
(e) Area Radar Control.’
19. Article 6 of the same Royal Decree states:
‘The holder of an air traffic controller licence has the right to pursue, in a professional capacity, all those activities related to the control of air traffic for which he is authorised.
The General Directorate of Civil Aviation may, however, impose restrictions on the authorisations granted for reasons of psychological fitness or because of circumstances of a technical or operational nature affecting air security.’
Pre‑litigation procedure
20. On 8 November 2000, the Commission sent the Kingdom of Spain a letter of formal notice in which it stated that the conditions for entry to the profession of air traffic controller, as laid down by Royal Decree 3/1998, were incompatible with Directives 89/48 and 92/51.
21. As it was not satisfied with the Kingdom of Spain’s reply dated 8 February 2001, the Commission, on 26 July 2001, issued a reasoned opinion inviting that Member State to take the necessary measures to comply with the directives.
22. Taking the view that the Kingdom of Spain had not taken the necessary measures to comply with its obligations resulting from the directives, the Commission, on 11 February 2003, brought a first action for failure of a Member State to fulfil its obligations.
23. By judgment of 14 October 2004 in Case C‑55/03 Commission  v Spain , the Court dismissed that action as inadmissible on the ground that the formulation of the complaints and the delimitation of the subject of the dispute, as presented by the Commission in its action, lacked clarity and coherence, thereby preventing the Court from ruling effectively on the action.
24. As a result of the various letters which the Commission and the Kingdom of Spain exchanged after judgment was delivered in Commission  v Spain , above, which, in particular, included the additional letter of formal notice of 21 March 2005, the Kingdom of Spain’s reply of 23 May 2005, the second additional letter of formal notice of 19 December 2005 and the Kingdom of Spain’s reply of 20 February 2006, the Commission, on 4 July 2006, issued an additional reasoned opinion calling on that Member State to take the necessary measures to comply with that opinion within a period of two months from receipt of that opinion.
25. As it was not satisfied with the Kingdom of Spain’s reply to that additional reasoned opinion, the Commission brought the present action.
The action
Arguments of the parties
26. The Commission claims infringement of both Directive 89/48 and Directive 92/51, inasmuch as the diploma obtained in a Member State and for which recognition is requested in Spain may fall within the scope of one or other of those directives.
27. The Commission states that the profession of air traffic controller is not included in the list of regulated professions in Spain which is to be found in the annexes to Royal Decrees 1665/1991 and 1396/1995. It is, none the less, evident that that profession is a ‘regulated profession’ within the meaning of Directives 89/48 and 92/51, since the set of qualifications required to pursue that profession in Spain constitutes a ‘diploma’ within the meaning of both of those directives. Accordingly, the Commission is of the view that it is wrong for that profession not to be covered by the mechanism for the recognition of diplomas and professional education and training acquired in other Member States which is laid down in the Royal Decrees.
28. According to the Commission, the fact that Directive 2006/23 may be considered to be a ‘separate directive’ within the meaning of Article 2 of Directives 89/48 and 92/51 is not relevant for the purposes of the present action for failure to fulfil obligations. As the end of the period for transposing Directive 2006/23 is fixed at 17 May 2008 pursuant to the first paragraph of Article 20 of that directive, Member States are required before that date to recognise diplomas issued by the other Member States in accordance with the provisions of Directives 89/48 and 92/51.
29. The Kingdom of Spain contends that those last directives are not applicable to the extent that they relate to the profession of air traffic controller since, in Spain, there is no single ‘diploma’ within the meaning of the directives, which authorises a person to pursue that profession. Only by obtaining a whole set of qualifications is a person permitted to do so.
30. With regard to Directive 2006/23, the Kingdom of Spain contends that the adoption of that separate directive shows that, previously, Community law did not have appropriate instruments for the purpose of guaranteeing the free movement of air traffic controllers and did not require Member States to recognise professional qualifications in that field. Accordingly, the conditions laid down by Member States for the pursuit of the activity of air traffic controller were not capable of being recognised by Member States under Directives 89/48 and 92/51.
31. Moreover, the Kingdom of Spain contends that the effective pursuit of the activity of air traffic controller in Spain is subject, among other conditions, to obtaining a local rating linked to a specific sector where that activity will be exercised (Aerodrome Control, Area Control, etc.). Thus, even persons who have the professional education and training corresponding to the activity of air traffic controller in Spain are unable to pursue that activity in any sector of the national territory without first obtaining such a local rating. The existence of that specific rating means that it is, necessarily, impossible for a person who has obtained education and training in another Member State to be authorised to pursue that activity in Spain.
32. With regard to that argument, the Commission claims that the ‘local’ or ‘specific’ nature of certain ratings does not signify that the profession in question is to be considered as unregulated and, accordingly, outside the scope of Directives 89/48 and 92/51. According to the Commission, the host Member State may require a candidate to complete an adaptation period or take an aptitude test before granting such a rating to the holder of a diploma issued by another Member State, in accordance with the provisions of the directives.
Findings of the Court
33. With regard to the argument relied upon by the Kingdom of Spain – according to which the profession of air traffic controller does not fall within the scope of Directives 89/48 and 92/51 since, in view of the lack of a ‘diploma’ within the meaning of those directives which would authorise the pursuit of that activity, it is not a ‘regulated profession’ – it should be pointed out that the concept of regulated profession within the meaning of the directive falls under Community law and that it follows from the definitions laid down in Article 1(c) and (d) of Directive 89/48 and 1(e) and (f) of Directive 92/51 that a provision must be considered to be regulated where access to the professional activity at issue or its exercise is governed by laws, regulations or administrative provisions creating a system under which that professional activity is expressly reserved to those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them (see, to that effect, Case C‑313/01 Morgenbesser  [2003] ECR I‑13467, paragraph 49).
34. In the present case, it is apparent from the documents before the Court that pursuit of the profession of air traffic controller in Spain is specifically governed by Royal Decree 3/1998 and that it is reserved for persons who possess certain qualifications issued by the General Directorate of Civil Aviation.
35. The Royal Decree requires, inter alia, for the pursuit of that profession, that the candidate hold the professional civil aviation qualification of air traffic controller certifying successful completion of basic education and training and that, among other conditions, he holds an official university first degree or higher degree or has successfully completed the first full cycle of a higher degree course in Spain.
36. In addition, the taking up and pursuit of the profession of air traffic controller in Spain requires, in accordance with Royal Decree 3/1998, the obtaining of an air traffic controller licence certifying that the holder of the civilian professional aviation qualification of controller may pursue the activities inherent therein for which he is authorised. Obtaining that licence is, moreover, subject to completion of a three-month training period spent controlling air traffic effectively.
37. Lastly, the Royal Decree provides that it is necessary to obtain the ‘ratings’ authorising the candidate to pursue specific activities. This is a document associated with a licence, specifying the circumstances, conditions and, where appropriate, the restrictions pertaining to the exercise of certain activities of air traffic controllers. The ratings may, inter alia, concern Aerodrome Control, Approach Control, Radar Approach Control, Area Control and Area Radar Control and are obtained following training in theory and practice.
38. Consequently, the pursuit of the activity of air traffic controller in Spain is governed by legislative provisions creating a system under which that professional activity is expressly reserved to those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them.
39. Consequently, the profession of air traffic controller in Spain must be classified as a regulated profession within the meaning of Directives 89/48 and 92/51 and thus falls within the scope of those directives.
40. That conclusion cannot be called into question by the fact that in Spain there is no training leading to a single diploma which gives the right to pursue the profession in question.
41. It is apparent from Articles 1(a) of Directives 89/48 and 92/51 that the concept of diploma includes ‘any set’ of diplomas, certificates or other evidence.
42. Furthermore, the fact that a ‘diploma’ does not take the form of a single document, but comprises a set of evidence, certificates or other documents is irrelevant, provided that the essential function of the diploma, regardless of the form it takes, is to confirm that the person concerned has successfully completed a defined course of studies which confers the professional qualifications required for the taking up of a regulated profession in the Member State concerned or in order to pursue it (see to that effect, regarding the classification of confirmation of success in an examination at the end of training as a ‘diploma’ within the meaning of Directive 89/48, Case C‑285/01 Burbaud  [2003] ECR I‑8219, paragraph 52).
43. As access to the profession of air traffic controller is subject, in Spain, to possession of a ‘diploma’ within the meaning of Directive 89/48, it follows that, in accordance with Article 3 thereof, the competent authority of that Member State may not, on the grounds of inadequate qualifications, refuse to allow a national of another Member State to take up or pursue that profession on the same conditions as those which apply to its own nationals, where the conditions set out in Article 3 are fulfilled.
44. As one of those conditions is holding a diploma as defined in Directive 89/48, the interested parties must, thus, have successfully completed a post‑secondary course of at least three years’ duration.
45. In addition, as access to the profession of air traffic controller is subject, in Spain, to possession of a ‘diploma’ as defined by Directive 89/48, it follows that, in accordance with Article 3 of Directive 92/51, the competent authority of that State may not, on the grounds of inadequate qualifications, refuse to authorise a national of another Member State to take up or pursue that profession on the same conditions as those which apply to its own nationals, if the conditions set out in that article are fulfilled.
46. One of those conditions is the possession of a diploma within the meaning of Directive 92/51. The definition of diploma contained in that directive is more extensive than that in Directive 89/48 and, in particular, does not require the parties concerned to have successfully completed a post‑secondary course of at least three years’ duration.
47. Thus, Member States are to ensure provision for the recognition of diplomas which fall either within the definition contained in Directive 89/48, or within that contained in Directive 92/51. The Spanish legislation does not provide for such recognition.
48. The Kingdom of Spain’s argument contesting that obligation of recognition under the directives, in view of the adoption, in this field, of a separate directive, namely Directive 2006/23, cannot succeed.
49. Directive 2006/23 – adopted on the basis of Article 80(2) EC, which forms part of Title V of Part Three of the EC Treaty, on the common transport policy – is, as indicated in recital 1 in the preamble to that directive, part of the ‘implementation of the Single European Sky legislation’. In order to ensure the highest standards of safety, that directive seeks, as is apparent from recital 8 thereto, ‘to harmonise the requirements as regards qualifications, competence and access to the profession of air traffic controller’. Thus, Article 1 of that directive states that its ‘objective … is to increase safety standards and to improve the operation of the Community air traffic control system through the issuing of a Community air traffic controller licence’. Pursuant to Article 4 of the directive, only controllers who hold a licence issued in accordance with the provisions of that directive may provide air traffic control services. The conditions for obtaining that licence are defined in Article 5 of Directive 2006/23, whilst Article 15 thereof governs mutual recognition of air traffic controller licences.
50. It is, therefore, necessary to state that the essential objective of Directive 2006/23 is to establish the Community rules on obtaining and maintaining air traffic controller licences, allowing that directive to be considered to be a ‘separate directive’ within the meaning of Article 2 of Directives 89/48 and 92/51. To the extent that the period for transposing Directive 2006/23 was fixed, pursuant to the first paragraph of Article 20 thereof, at 17 May 2008, recognition by a Member State of diplomas and professional education and training acquired in another Member State and allowing the taking up and pursuit of the profession of air traffic controller must be effected, generally, before that date, under the conditions laid down by Directives 89/48 and 92/51.
51. Accordingly, the argument upon which the Kingdom of Spain relies, based on Directive 2006/23, must be rejected.
52. It is necessary, lastly, to examine the argument raised by that Member State, concerning the requirement of a ‘rating’ which, pursuant to Article 2 of Royal Decree 3/1998, is a document issued by the General Directorate of Civil Aviation associated with a licence, stating the conditions and, where appropriate, the limitations pertaining to the pursuit of certain air traffic controller activities and thus concerning certain specific matters, such as Aerodrome Control, Approach Control, Radar Approach Control, Area Control and Area Radar Control. Since such a rating is specific or local in nature, it would, by definition, preclude recognition in Spain of ratings obtained in another Member State.
53. It should be pointed out in that regard that Directives 89/48 and 92/51 do not establish a system of automatic recognition. Although they recognise the right of access to regulated professions, those directives, under their respective Articles 4(1)(b), allow the host State to require an applicant who is a national of another Member State to complete an adaptation period or to take an aptitude test, in particular where the matters covered by the education a nd training he has received differ substantially from those covered by the diploma required in the host Member State, or where the profession regulated in the host Member State comprises one or more regulated professional activities which are not in the profession regulated in the Member State from which the applicant originates or comes and that difference between the professional activities in the two Member States concerned corresponds to different specific training (see, regarding Directive 89/48, Case C‑39/07 Commission  v Spain  [2008] ECR I‑0000, paragraph 39).
54. The system of mutual recognition of diplomas and professional education and training established by Directives 89/48 and 92/51 does not imply that qualifications issued by the other Member States certify that the education and training are similar or comparable to that required in the host Member State. According to the system established by those directives, a diploma is recognised not on the basis of the intrinsic value of the education and training to which it attests, but because it gives the right to take up and pursue a regulated profession in the Member State where it was awarded or recognised. Differences in the length or content of education and training acquired in the Member State of origin by comparison with that provided in the host Member State cannot suffice to justify a refusal to recognise the professional qualification concerned. At most, where those differences are substantial, they may justify the host Member State in requiring that the applicant satisfy one or other of the compensatory measures set out in Article 4 of that directive (see to that effect, regarding Directive 89/48, Case C‑330/03 Colegio  [2006] ECR I‑801, paragraph 19).
55. It follows that the specific or local character of certain ratings which a person wishing to pursue the profession of air traffic controller in Spain is required to have, pursuant to Article 2 of Royal Decree 3/1998, does not preclude the comparison of, first, the skills attested to by the diplomas or the professional education and training acquired in a Member State other than the Kingdom of Spain with the objective of pursuing that profession and, second, the knowledge and the ratings required for the pursuit of that profession in the Kingdom of Spain.
56. The argument relied on by the Kingdom of Spain must, consequently, be rejected.
57. Having regard to the foregoing considerations, it is necessary to state that, in failing to adopt, in connection with the profession of air traffic controller, the laws, regulations and administrative provisions necessary to comply with the Directives 89/48 and 92/51, the Kingdom of Spain has failed to fulfil its obligations under those directives.
Costs
58. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the Kingdom of Spain and the latter has been unsuccessful, it must be ordered to pay the costs.
Operative part
On those grounds, the Court (Second Chamber) hereby:
1. Declares that, by failing to adopt, in connection with the profession of air traffic controller, the laws, regulations and administrative provisions necessary to comply with 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 and Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48, the Kingdom of Spain has failed to fulfil its obligations under those directives;
2. Orders the Kingdom of Spain to pay the costs.