Opinion of the Advocate General — ECLI:EU:C:2003:464
Date: 2003-09-16
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Workers – Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration – Scope of Directive 89/48 – Diploma obtained after two years’ education and training – Included – Conditions (Council Directive 89/48, Art. 1(a)) 2. Freedom of movement for persons – Freedom of establishment – Workers – Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration – Directive 89/48 – The taking up or pursuit of a regulated profession on the same conditions as nationals (Article 3) – Direct effect – Education – Rules of the host State requiring, without exception, a minimum period of training of three years and covering at least two of the subjects stipulated for that profession – Not permissible (Council Directive 89/48, Art. 3, first para., (a)) 3. Acts of the institutions – Directives – Whether a Member State may rely against individuals on limitations and duties laid down by a directive which has not been implemented – Exclusion 4. Freedom of movement for persons – Freedom of establishment – Workers – Recognition of diplomas – Directive 92/51 – The taking up or pursuit of a regulated profession on the same conditions as nationals (Article 3) – Direct effect in favour of the holder of a teaching diploma obtained after two years’ education and training (Council Directive 92/51, Art. 3, first para., (a)) 1. The second subparagraph of Article 1(a) of Directive 89/48 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 must be interpreted as meaning that a qualification for the profession of teacher, formerly awarded in a Member State on the basis of a two-year period of education and training, is the same as a diploma within the meaning of the first subparagraph of that provision, where the competent authority of that State certifies that the diploma awarded following that education and training of two years’ duration is recognised as being of a level equivalent to the diploma currently awarded after three years’ study and confers the same rights in that Member State in respect of the taking up or pursuit of the profession of teacher. It is for the national court to determine, in the light of the evidence submitted by the applicant in accordance with Article 8(1) of that directive and the national provisions applicable to the assessment of such evidence, whether the final condition laid down by the second subparagraph of Article 1(a), namely that the diploma in question confers in the Member State of origin the same rights to take up or pursue the profession, must be regarded as satisfied. That condition concerns the right to pursue a regulated profession and not the remuneration and other employment conditions applicable in the Member State which recognises the equivalence of the old and new education and training. (see para. 45, operative part 1) 2. Subparagraph (a) of the first paragraph of Article 3 of Directive 89/48 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, which 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, and if that diploma was awarded in a Member State, may be relied upon by a national of a Member State as against national provisions inconsistent with that directive. That directive precludes such provisions where, for the purpose of recognising a professional teaching qualification awarded or recognised in a Member State other than the host Member State, they require, without exception, completion of a period of higher education and training of at least three years’ duration and covering at least two of the subjects stipulated for the teaching profession in the host Member State. (see para. 57, operative part 2) 3. A Member State which has failed to fulfil its obligation to transpose the provisions of a directive into national law can no more rely, as against Community citizens, upon the limitations laid down by those provisions than it can require that they perform the obligations laid down by that directive. (see para. 63) 4. In the absence of implementing measures enacted within the period prescribed in the first subparagraph of Article 17(1) of Directive 92/51 on a second general system for the recognition of professional education and training to supplement Directive 89/48, a national of a Member State may rely on subparagraph (a) of the first paragraph of Article 3 of Directive 92/51 in order to obtain in the host Member State recognition of a professional teaching qualification awarded in another Member State following education and training of two-years’ duration. (see para. 67, operative part 3)