Opinion of the Advocate General — ECLI:EU:C:1998:482
Date: 1998-10-15
Language of the case: Spanish
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: Spain

summary, that the evidenceof education and training of the person concerned have been awarded by acompetent authority in a Member State, that it attest to successful completion ofa post-secondary course of at least one year's duration, as well as any professionaltraining which is an integral part of that course, and that it have prepared theholder for the pursuit of his profession. (7) However, a host Member State mayrequire an applicant to provide evidence of professional experience where theperiod of education and training mentioned above is at least one year less than thatrequired in the host Member State, (8) and to complete either an adaptation periodof up to three years or to take an aptitude test where the theoretical and/orpractical matters covered by his education and training differ substantially fromthose covered by the diploma required in the host Member State. (9) 6. The Prado is an autonomous administrative organ with legal personalityattached to the Spanish Ministry of Culture and under the direct authority of theresponsible Minister. Article 6 of the collective agreement concluded by the Pradowith employee representatives in 1988 in respect of employees subject to labourlaw (10) provided that staff required to have a university-level qualification are to berecruited exclusively on the basis of the results of tests in a public competition. The agreement also provided that restorers must possess a title granted by one oftwo Spanish schools of restoration, or a foreign title recognised as equivalent by thecompetent body. (11) This condition appears to reflect the content of a series ofministerial decrees, the most recent being a decree of 14 March 1989 of theMinister for Education and Science, (12) Article 6 of which provided that the title ofrestorer of cultural goods be granted to persons who graduated from the Spanish school of conservation and restoration, which title was to be an indispensablecondition for participation in competitions for posts as restorers in State centres. However, this decree was repealed by a decree of 28 October 1991 of the Ministerfor Education and Science, (13) and no similar condition now exists in Spanish law. Although the exercise of a profession is, in general terms, subject to regulation onlyby measures having the rank of laws in the Spanish hierarchy of norms, it appearsfrom the order for reference, none the less, that collective agreements such as thatin question constitute one of the formal sources of law and may prescribe aparticular qualification or level of studies for access to a specific professionalcategory or post. Such conventions are binding erga omnes, at least in the sensethat they affect a person such as the applicant who does not have the prescribedqualification. 7. Royal Decree No 104/88 of 29 January 1988 regarding recognition of foreigntitles and studies provides for an expert committee to compare in every case thestudies undertaken abroad and those prescribed in the same field in Spain for thegrant of the title in question, and to make appropriate recommendations to therelevant minister. Recognition may be granted subject to conditions, such as thetaking of examinations in areas not covered by the foreign course. 8. Mme Fernández de Bobadilla (hereinafter 'the applicant) is a Spanishnational. She received a BA degree in the History of Art from Boston College inthe United States. The applicant subsequently received an award as a result of apublic competition organised by the Prado which enabled her to pursuepost-graduate studies in fine art restoration, specialising in works of art on paper,at Newcastle Polytechnic (now the University of Northumbria at Newcastle) in theUnited Kingdom, where, after two years of full-time study, both practical andtheoretical, she was granted the degree of MA in Conservation of Fine Art. Thisis one of only two such advanced courses in the United Kingdom, whose graduatesare recognised as being qualified to work in museums and galleries, includingnational institutions, and fill most senior posts in that field. (14) However, theUnited Kingdom Department of Trade and Industry has informed the Commissionthat a qualification awarded upon completion of one of these courses is notrequired by law in order to engage in such work either in the public service ormore generally. 9. The applicant then spent a number of years working on temporary contractsboth with the Prado (from 1989 to 1992, and in 1995) and with other galleries inSpain, specialising in the restoration of works of art on paper. She also worked fora time in Italy and successfully followed a number of supplementary professionalcourses in Spain, the United States and Japan. 10. A vacancy for a permanent post as restorer of works of art on paper wasadvertised by the Prado on 17 November 1992. (15) Article 4(b) of the notice ofcompetition stated that candidates were required to comply with the conditions setout in the collective agreement then applicable. The applicant was informed by aletter of 3 February 1993 that she had not been permitted to compete for the postbecause she did not have the requisite title of restorer of cultural goods. She hadapplied to the Ministry of Education and Science on 9 October 1992 for recognitionof her MA degree as equivalent to one of the prescribed Spanish titles. On9 December 1993, the expert committee which compared her studies with thoserequired for the grant of her title recommended that recognition be madeconditional on her passing further examinations in 24 theoretical and practicalfields. In response to the applicant's written submissions, the Minister confirmedthe earlier recommendation by a resolution of 20 April 1995. This process ofcomparison of studies did not take into account either the applicant's experiencesubsequent to the award of her MA degree or her other studies. 11. On 27 November 1996, the applicant applied to the Juzgado de Lo Social(Social Court) No 4 de Madrid (hereinafter 'the national court) for the annulmentof the provisions of the Prado collective agreement concerning the qualificationsrequired of restorers. As regards the application of Community law, the nationalcourt took the view, in reliance on the Court's judgment in Kraus v LandBaden-Württemberg, (16) that the legal situation was not purely internal to Spain. The national court also considered that Article 48 of the Treaty could apply to acollectively negotiated agreement between parties whose relationship is subject toprivate law, (17) especially given the status of collective agreements in Spanish law. 12. The national court did not deem art conservation and restoration to be aregulated profession in Spain. It suggested that, if a particular qualification couldbe required of candidates, there was no alternative to the long, complex andrigorous process of validation, because of the very different educational systems ofthe Member States. However, it thought that the requirement that candidates fora post have a particular qualification, or equivalent, could constitute disguiseddiscrimination, contrary to Article 48 of the Treaty, because it forced differentlyqualified persons to undergo the validation process in order to compete, thus 'inpractice rendering ineffective the qualification obtained in another Communitycountry. All candidates' qualifications, whatever their origin, could instead beassessed on their merits as part of the competition process. 13. The national court referred the following question to the Court for apreliminary ruling pursuant to Article 177 of the Treaty: 'Does the provision contained in the Collective Agreement of an AutonomousOrganization of the Spanish State which requires, for pursuit of the profession ofRestorer (a non-regulated profession), prior validation of the academic qualificationobtained in another Community country  such validation involving a comparisonof the study programmes in Spain and in the other country and the passing oftheoretical and practical tests in the subjects in the Spanish programme of studieswhich do not appear in the programme of studies of the other Community countryin question  infringe the right to freedom of movement for workers? III  Observations before the Court 14. Written observations have been received from the applicant, the MinisterioFiscal (the Spanish Public Prosecutor), the Kingdom of Spain, the Republic ofFinland and the Commission. Oral observations were also presented by theapplicant, Spain and the Commission. 15. Finland suggested that the profession of restorer of fine art might, in fact,be deemed to be regulated within the meaning of Directives 89/48/EEC and92/51/EEC. Account had to be taken of different national sociological realities and,in this case, of the character of collective agreements in Spanish law. Communitylaw accepted that collective agreements could in certain circumstances be used toimplement directives, (18) and the achievement of the Directives' objectives mightbe frustrated if they did not apply where conditions were imposed on the exerciseof a profession by these means. 16. As a result, the Court posed a question to the parties, the Commission andthe Member States, to be addressed at the hearing, regarding whether a professioncould be deemed to be regulated where a decree required persons to hold aspecified title in order to exercise that profession in the public service, or where acollective agreement entered into by an autonomous State organ required that title,or an equivalent, of persons practising that profession in their employment. Unfortunately, despite reference having been made in the report for the hearingto the Ministerial Decree of 14 March 1989, which was cited by the MinisterioFiscal in its written observations, the Court was only informed at the hearing of itsrepeal by the Decree of 28 October 1991, thus rendering the first part of thequestion superfluous. Neither the applicant nor Spain considered that a collectiveagreement could regulate a profession; it simply reflected 'the conditions prevailing on the employment market in that Member State. (19) Spain argued thata collective agreement involved the State solely in its capacity as employer, and thateven regulation by law of the qualifications required for exercise of a profession inthe public service would not constitute regulation for the purposes of the Directivesif its exercise in other contexts was unaffected. The Commission submitted thatState measures prescribing possession of particular qualifications in order topractise a profession in the public service would constitute a regulation of one ofthe 'modes of pursuit of that profession, as referred to in Article 1(d) of Directive89/48/EEC and in Article 1(f) of Directive 92/51/EEC. However, it argued that theambit of the collective agreement in question, affecting as it did a single organ ofthe State, was too limited to be considered to regulate the exercise of theprofession of restorer, even in respect of access to the public service. 17. Concerning the application of Article 48 of the Treaty, the applicantsubmitted that the requirement of validation of her United Kingdom qualificationwas a grave restriction of her freedom of movement, particularly because it failedto take account of her professional experience and further studies after the awardof that degree, contrary to the Court's rulings in Vlassopoulou (20) and Aranitis, (21)and because she was not entitled to opt for a practical demonstration of her skills. Finland made a similar argument. The applicant also stated that paragraphs 3 and4 of Article 48 of the Treaty did not permit Spain to maintain such an obstacle. The Commission submitted that the specification of the qualifications required ofemployees, including the possibility of recognising equivalent foreign qualifications,was an appropriate subject of autonomous negotiations among the social partners,and did not, in itself, appear to have a discriminatory effect. However, it took theview that the validation process was ill-adapted to the assessment of qualificationsand experience for professional purposes, as required by the Vlassopoulou andAranitis judgments, mentioned above. 18. The Ministerio Fiscal and Spain argued that the qualification requirementfor the post of restorer was indistinctly applicable, and that permitting the holdersof foreign qualifications which did not correspond to those granted in Spain tocompete for such posts would constitute reverse discrimination against persons whohad pursued comparable studies in Spain. However, the agent for Spain wasunable to name any such comparable Spanish courses at the hearing. Spain arguedthat it was entitled to impose such conditions in the interests of preserving itsnational heritage (in the case of the Prado, a reservoir of art of world renown), a general interest already recognised by the Court in the 'Tour guides cases. (22) Allof the conditions set out in Unectef v Heylens (23) for assessment of the equivalenceof qualifications were respected by the commission on validation. Furthermore,comparison of two academic qualifications should not be confused with the logicallysubsequent task of assessing a person's professional capacity; only at the latterstage should periods of practical experience be taken into account. This was notcontradicted by the judgment in Vlassopoulou, because the Court stated thatMember States could require that an individual prove that he had aptitudes notattested to by his academic qualification, (24) as the applicant in this case wasrequired to do. In any event, an employer was entitled to impose whateverconditions he thought necessary for the performance of tasks in his employment,while unions were entitled to press for the fixing by collective agreement ofobjective employment criteria. IV  Analysis 19. I should state at the outset that I agree with the national court's view thatthe present case falls within the field of application of Community law, because itinvolves a national of a Member State who, owing to the fact that she has lawfullyresided on the territory of another Member State and has there acquired avocational qualification, is, with regard to her State of origin, in a situation whichmay be assimilated to that of any other persons enjoying the rights and libertiesguaranteed by the Treaty. (25) 20. Although the national court has acted on the basis that the profession offine art restorer is not a regulated profession in Spain, that assumption has beenchallenged by Finland. The Court pursued this matter by posing a question, inadvance of the hearing, to the parties, the Commission and the Member States. This approach was influenced by the mistaken assumption that Spanish lawcontinued to reserve the title of restorer of cultural goods and access to State poststo graduates of the Spanish courses mentioned above. Furthermore, it is clear that,were the profession deemed to be regulated within the meaning of Directives89/48/EEC and 92/51/EEC, the detailed provisions of those Directives could, incertain circumstances, provide the applicant with a more satisfactory remedy thanthat likely to result from the direct application of Article 48 of the Treaty. It istherefore appropriate, in order to furnish the national court with a useful answerto its question which will assist it in deciding the case before it, to examine first the validity of its assumption. This does not entail any recasting of the national court'squestion (other than ignoring the reference to 'a non-regulated profession), as theprovisions of those Directives are part of the corpus of Community lawguaranteeing the right to freedom of movement of workers. I shall then examine,in addition, the distinct issues raised by the application of Article 48 of the Treatyto the facts of the present case. The application of Directives 89/48/EEC and 92/51/EEC 21. Directive 92/51/EEC is the more immediately relevant of the two Directives. Directive 89/48/EEC is confined to diplomas granted upon completion of coursesof at least three years' duration. Although Directive 92/51/EEC appears to beprincipally concerned with post-secondary courses of shorter duration leading to thegrant of vocational qualifications below the level of a third-level degree, itsprovisions are also applicable, in my view, to post-graduate courses, which rarelylast more than three years. The Court has already remarked on the importance ofsuch courses for career development and on the consequent importance of theirrecognition for the freedom of movement of workers. (26) None the less, it is clearthat the two Directives perform complementary roles in accordance with a commonscheme, and that they should be read together. (27) (i) The status of collective agreements 22. I shall first address the question whether a provision of a collectiveagreement between an organ of the public administration and employeerepresentatives can constitute a 'law, regulation or administrative provision which,directly or indirectly, subjects one of the modes of pursuit of a professional activityto the possession of specified qualifications. In my opinion, it can, depending onthe legal and factual context, for reasons close to those put forward by Finland. 23. As a preliminary matter, it is necessary to examine the status of collectiveagreements in the legal system of the particular Member State. Many MemberStates' legal systems attribute to the social partners the function of negotiatingcollective agreements regarding working conditions, including conditions of accessto employment, which are not only binding on the parties and their members butare also binding, or produce effects, on third parties. For example, an employermay be bound, subject to formalities such as registration, upon conclusion of acollective agreement by a body representative of his trade or industry, to extend itsbenefits and conditions even to persons who are not members of the participant trade unions. In other cases, particularly as regards employment as a State official,such effects are dependent on ratification of the agreement by a competent publicbody. 24. Where a collective agreement is attended by such consequences, whetherby operation of law or through its approval by a public body, it should, in my view,be deemed to be a law, regulation or administrative provision capable of regulatinga professional activity. This reasoning applies irrespective of the identity of theparties to the collective agreement, that is, the participating employers oremployer-representative bodies may be either public or private. In either case,what is important is that an agreement between actors in the labour market is givenmore general application, thereby affecting third parties, including workers fromother Member States, which effect is supported by public authority. It thusconstitutes, for the purposes of the Directives, a form of attribution of regulatorypower by the State to economic actors who are invested with its authority. The factthat the State may not control the exact content of such agreements, in the absenceof an overriding legislative measure, does not reduce their public and normativecharacter. (28) As Finland has pointed out, Community law already recognises thepotential normative character of collective agreements in certain circumstances. (29) 25. The order for reference states that collective agreements, includingprovisions on access to particular professional categories or posts, are one of theformal sources of law in Spain and have the effects just described, at least asregards persons employed under ordinary labour law. By virtue of the legal forcegiven to the collective agreement, it would appear that the Prado was not, in fact,free to admit persons to the competition for the post of fine art restorer who didnot possess the qualifications specified. Thus, the agreement affected persons notparty to it either directly or through membership of a representative body. Thisdistinguishes the situation in the case of an enforceable collective agreementproducing effects on third parties very markedly from that in Aranitis. (30) In thatcase, there was no legal regulation of the use for professional purposes of theacademic title in question. In practice, only persons holding that title sought such professional employment and, thus, nearly the entire body of practitioners of theprofession possessed the title. The applicant had experienced difficulties with hisqualification awarded in another Member State and sought to have it declaredequivalent to the host-State title, in reliance on Directive 89/48/EEC. The Courtstated that '[w]hether or not a profession is regulated depends on the legalsituation in the host Member State and not on the conditions prevailing on theemployment market in that Member State. (31) 26. An approach to identifying regulated professional activity which is adaptedto the individual features of the legal situation in a host Member State is in keepingwith the admonition in the seventh recital in the preamble to Directive 89/48/EECthat the term 'should be defined so as to take account of differing nationalsociological situations. It should also be noted that the Directives expressly referto another form of attributed public authority. Where a professional activity ispursued by members of a private professional association or organisation whichconfers educational awards and titles and enforces rules of professional conduct,and which is recognised in a special form by a Member State in order to promoteand maintain high professional standards, the professional activity in question isdeemed to be regulated. (32) As the recital states, such associations andorganisations 'cannot invoke their private status to avoid application of the systemprovided for by this Directive. Because a collective agreement can, in thecircumstances outlined above and by virtue of the attribution of public normativeauthority, have an effect on access to a profession equivalent to that of regulationof a professional activity by a publicly recognised professional association ororganisation, I would reject Spain's argument that a collective agreement isinvariably purely private in character. I would add, finally, that a flexible approachis envisaged by the language of the Directive where it emphasises even indirecteffects of 'laws, regulations and administrative provisions in requiring a prescribededucational qualification. (ii) The scope of regulation 27. It is also necessary, however, in the light of the circumstances of the presentcase and of the question posed by the Court before the hearing, to assess whatkinds of educational requirements can constitute regulation of a professionalactivity. It is my view that, if direct or indirect (including delegated) Stateprovisions of a legal, regulatory or administrative character require persons topossess evidence of education and training or an attestation of competence in orderto take up or pursue a professional activity only in certain limited contexts, rather than for all purposes, the professional activity in question may, none the less,constitute, to that extent, a regulated professional activity for the purposes ofArticle 1(f) of Directive 92/51/EEC. I agree with the Commission that this wasenvisaged by the Community legislator through its reference to a professionalactivity 'or one of its modes of pursuit. (33) The specific possibility that the Statemight subject the exercise of a professional activity in the public service, or with theassistance of public funds, to educational conditions which are not generallyapplicable was foreseen in Article 1(f), which deems health professions to beregulated in so far as a qualification is required for reimbursement under socialsecurity rules. 28. None the less, as has also been suggested by the Commission, Stateregulation of a professional activity must apply at some minimum level ofgenerality. This arises from the scheme of the Directives themselves. Thedefinition of a regulated professional activity, and, consequently, of a regulatedprofession, is not only essential for the purposes of identifying the circumstancesin which a host Member State is obliged to comply with the Directives, it is alsocentral, by virtue of Article 3 of both Directives, to the determination of theeducational qualifications which the host State is obliged to recognise. Theapplicant has not, however, established that she meets the requirements of eitherArticle 3(a) or (b) of Directive 92/51/EEC. 29. Article 3(a) does not refer expressly to a regulated profession orprofessional activity, but it speaks, in the case of Directive 92/51/EEC, of a'diploma ... required in another Member State for the taking up or pursuit of theprofession in question in its territory, which implicitly invokes the test inArticle 1(f) of that Directive. 30. It would be possible to argue, as regards the host State, that a professionalactivity is regulated by the State within the meaning of Article 1(f) of Directive92/51/EEC where a Community worker who applies for a post encounters alegislative, regulatory or administrative provision requiring a particular qualification,even if that requirement only applies to the post or the employer in question ratherthan being of more general application. 31. However, such an approach does not enable it to be determined whethera professional activity is regulated in the Member State where a qualification wasawarded, for the purposes of Article 3(a) of Directive 92/51/EEC, or whether it isnot regulated in the Member State where an applicant has acquired professionalexperience, for the purposes of Article 3(b) of that Directive. In suchcircumstances, it would be inconsistent with the Directives' underlying motivationof mutual recognition of Member States' requirements for the exercise of professions if a narrowly applicable regulation, confined, perhaps, to a single aspectof professional activity or to a single institution, in the Member State where theCommunity worker's qualifications were obtained, were deemed to give rise to anobligation on the part of the host State to permit him to enter any branch of thecorresponding profession, no matter how demanding its own regulations might be. 32. How is one to reconcile, on the one hand, the evident wish of theCommunity legislator, expressed in Article 1(f) of Directive 92/51/EEC, to providefor situations where the exercise of a professional activity is regulated only in part(regarding one of its modes of pursuit) in the host State with the need, for thepurposes of Article 3, to identify whether the exercise of a professional activity is,in general and abstract terms rather than in a particular concrete case, regulatedin the Member State where a Community worker has previously studied orworked? The response to this question must take into account the differingsociological realities in the Member States and, in particular, their differentmechanisms of distributing legislative, regulatory and administrative authoritybetween various levels of government. (34) In my view, where an organ ofgovernment, whether national or regional, specifies the qualifications required forsuch aspects of the exercise of a professional activity as fall within its competence,either for the purposes of public sector employment or for the purposes of generaleconomic life, the profession in question should be deemed to be regulated for thepurposes of the Directives. If such general regulation, at any level of government,of the qualifications for pursuit of a professional activity in either the public orprivate sectors (whether, in the latter case, as an employed person or in aself-employed capacity) were to escape the reach of the Directives, the achievementof their objectives would very probably be fatally frustrated. Similarly, for reasonsoutlined above, the imposition of requirements of similar scope on the basis oflegislative, regulatory or administrative authority attributed by such an organ ofgovernment to private bodies should be held to constitute regulation within themeaning of the Directives. 33. The educational requirement at issue in the present case is, however, as faras the Court has been made aware, confined to a single autonomous State institute. For that reason, it does not appear to me to have a sufficiently general scope ofapplication to constitute, on its own, regulation of a professional activity in Spain. It seems to me that the situation would be different if the national court found asimilar legacy of the now-repealed ministerial decrees in the provisions of collectiveagreements entered into individually by other public museums and galleries,especially if this were found to be the consequence of an administrative policyadopted by the Ministry of Education and Culture or by some other competentorgan of government, or if these agreements were held to have been ratified by such a governmental body. However, the Court has not been informed of any suchphenomenon. 34. By reason of the limited scope of application of the collective agreementdescribed in the order for reference, and in the absence of evidence of legislative,regulatory or administrative provisions (including, possibly, a collective agreementor a series of such agreements) of more general application, I conclude that theprofession of fine art restorer is not a regulated profession in Spain for thepurposes of Directives 89/48/EEC and 92/51/EEC. It is necessary, therefore, toexamine whether the applicant can derive a remedy from the other provisions ofCommunity law regarding the freedom of movement of workers and, in particular,from Article 48 of the Treaty. Article 48 of the Treaty 35. Both before and since the coming into force of the Directives, the Court hasconsistently stated that Member States are also subject to certain obligations, byvirtue of Article 48 of the Treaty, in respect of the recognition of diplomas awardedelsewhere in the Community. It has always acknowledged that '[i]n the absenceof harmonisation of the conditions of access to a particular occupation, theMember States are entitled to lay down the knowledge and qualifications neededin order to pursue it and to require the production of a diploma certifying that theholder has the relevant knowledge and qualifications. (35) However, it has alsoobserved that the lawful imposition of such requirements, even if applied withoutany discrimination on grounds of nationality, constitutes a restriction on theeffective exercise of the freedom of establishment or of the freedom of movementof workers guaranteed by the Treaty, and that the Member States are bound, byvirtue of Article 5 of the Treaty, to abstain from any measure which couldjeopardise the attainment of the objectives of the Treaty. (36) Thus, such nationalrules, even when they pursue a legitimate objective compatible with the Treaty andjustified by pressing reasons of public interest, must be appropriate for ensuring theattainment of the objective they pursue and must not go beyond what is necessaryfor that purpose. (37) In determining the level of education and expertiseappropriate, the Spanish authorities are entitled to be influenced by the richness of the artistic heritage of which the Prado is custodian. (38) On the other hand, adisproportionate obstacle is posed to the exercise of the right to freedom ofmovement of workers if national rules on access to a profession fail to take dueaccount of the knowledge and qualifications already acquired by the personconcerned in another Member State. (39) 36. The Court stated, therefore, in Vlassopoulou that a Member State whichreceives a request to admit a person to a profession subject to such rules 'musttake into consideration the diplomas, certificates and other evidence ofqualifications which the person concerned has acquired in order to exercise thesame profession in another Member State by making a comparison between thespecialised knowledge and abilities certified by those diplomas and the knowledgeand qualifications required by the national rules. (40) The Court continued: 'That examination procedure must enable the authorities of the host Member Stateto assure themselves, on an objective basis, that the foreign diploma certifies thatits holder has knowledge and qualifications which are, if not identical, at leastequivalent to those certified by the national diploma. That assessment of theequivalence of the foreign diploma must be carried out exclusively in the light ofthe level of knowledge and qualifications which its holder can be assumed topossess in the light of that diploma, having regard to the nature and duration of thestudies and practical training to which the diploma relates. [(41)] ... If that comparative examination of diplomas results in the finding that theknowledge and qualifications certified by the foreign diploma correspond to thoserequired by the national provisions, the Member State must recognise that diplomaas fulfilling the requirements laid down by its national provisions. If, on the otherhand, the comparison reveals that the knowledge and qualifications certified by theforeign diploma and those required by the national provisions correspond onlypartially, the host Member State is entitled to require the person concerned toshow that he has required the knowledge and qualifications which are lacking. Inthis regard, the competent national authorities must assess whether the knowledgeacquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession of the knowledgewhich is lacking. (42) 37. The fact that I have concluded above that the profession of fine art restoreris not regulated in Spain within the meaning of the Directives does not affect theabove principles. My earlier conclusion is drawn principally from the scheme andeconomy of the Directives. There is no corresponding reason to restrict theapplication of the general principles on recognition derived from Article 48 of theTreaty to generally applicable State measures setting the conditions of access to aprofession. The Court's case-law applies equally well where Member States ortheir subsidiary public bodies restrict professional access in narrowly definedcircumstances, in the case of a single State institution. The same is true, of course,of acts by private professional bodies which have similar effects, (43) and thus, bylogical extension, of the imposition of restrictions through the medium of acollective agreement between a public body and the representatives of itsemployees. As the Court stated in Walrave, 'Article 48 ... extends ... to agreementsand rules which do not emanate from public authorities. (44) In any event, in thepresent case, the reference in the notice of competition to the conditions set outin the collective agreement permits the restriction to be attributed directly to thePrado. 38. Moreover, the requirements of this case-law have also been held to applyto situations where a particular qualification is not, as such, required in order togain access to a profession. In Aranitis, the Court was concerned with theclassification of a person with a Greek diploma in geology by the employmentservice of another Member State. In that case, the Arbeitsamt (Labour Office) ofBerlin had initially classified the applicant as an 'unskilled assistant. He wassubsequently authorised to use his Greek title, which was translated into Germanin the certificate of authorisation. Having decided that the profession of geologistwas not a regulated profession in Germany for the purposes of the Directives, theCourt referred (45) to the above-quoted paragraph 16 of its judgment inVlassopoulou and continued: 'The same holds true for professional activities which are not subject by virtue oflegal provision to the possession of a diploma, so far as concerns the conditions fortaking them up or pursuing them. In such circumstances, the competent authoritiesof the host Member State responsible for classifying the nationals of other Member States, which will affect their chances of finding work on the territory of the hostMember State, are required when carrying out that classification to take intoconsideration the diplomas, knowledge, qualifications and other evidence ofqualifications that the person concerned has obtained in order to pursue aprofession in the Member State of origin or from which he comes. (46) 39. This ruling regarding classification of workers by a State employmentservice, which affects their chances of employment in that State, must apply afortiori to the case of an official national validation procedure for foreignqualifications. If there were any doubt about the possibility of the results of sucha process affecting a person's chances of employment, it is resolved by the fact thatthe collective agreement and notice of competition at issue in the present caseexpressly require fine art restorers and candidates for such posts at the Prado topossess a specified Spanish title or a foreign qualification which has been deemedto be equivalent by virtue of this official procedure. One can speak, thus, of a twinobligation: a validation procedure must be established in Spain which respects therequirements of Article 48 of the Treaty; and the Prado, when setting itsconditions of employment and assessing the eligibility of candidates, must set thoseconditions and conduct those assessments in compliance with the requirements ofArticle 48. Thus, if the official validation procedure does not satisfy thoserequirements, it is not lawful for the Prado to exclude, without further examinationof their qualifications and experience, candidates who have not succeeded ingaining recognition, through that procedure, of the equivalence of theirqualifications to those awarded in Spain. 40. In order to identify the requirements of Article 48 of the Treaty for thepurposes of the present case, it is particularly important to note the reference inparagraph 20 of the judgment in Vlassopoulou to the obligation of Member States,where there is only partial correspondence between a worker's qualification andthat used as a bench-mark in the host State, to assess whether knowledge acquiredby the person concerned either during a subsequent course of study or by way ofpractical experience is sufficient to establish equivalence. The same requirementis reflected, in my view, by the reference in the above-quoted passage from Aranitisto 'the diplomas, knowledge, qualifications and other evidence of qualifications thatthe person concerned has obtained; (47) this displays the same concern withestablishing the actual knowledge and aptitude of the person at the moment ofassessment, as distinct from the purely academic content of the original diploma. 41. The purpose of such a validation process is to assess the specialisedknowledge and aptitude of a Community worker who possesses a qualification fromone of the Member States, relative to the knowledge and aptitude evidenced by the qualification normally granted in the host Member State. For that reason, evenperiods of study or of practical experience outside the Community should, in myview, be taken into account where they complement the Community worker's basicqualification acquired in a Member State other than the host State; otherwise, afalse picture may emerge of the Community worker's actual knowledge andaptitudes. 42. Spain objected that a process of validation of academic degrees could nottake into account practical experience or subsequent studies. It is true that theCourt has outlined a two-stage process of assessment. Since Heylens, it has statedthat the assessment of the equivalence of the foreign diploma must be carried outexclusively in the light of the knowledge and qualifications of which it is evidence,having regard to the nature and duration of the studies and practical training towhich the diploma relates. (48) However, in Vlassopoulou and subsequent cases, theCourt has insisted on a second stage of assessment, of evidence that indicates thatthe person concerned possesses knowledge and aptitudes not provided for in hisoriginal studies. This stage cannot be avoided without posing a disproportionateobstacle to the exercise of the right of freedom of movement. The manner inwhich the assessment process is organised is not important, provided the ultimateassessment, which affects the Community worker's chances of employment, reflectsthe real situation. In the circumstances of the present case, mere comparison ofthe academic composition of the applicant's United Kingdom degree and of thecorresponding Spanish curriculum does not reflect her actual position, and does notsuffice in order to determine her eligibility to compete for a post in the publicservice defined by reference to the Spanish title or equivalent foreign qualifications. 43. In order to complete this account of the requirements of Article 48 of theTreaty, I wish to make reference to the requirements, first mentioned in Heylens,that reasons be given in respect of all such assessment decisions, and that a judicialremedy be available against them. (49) In addition, as the Court ruled in Kraus, theprocedure for authorisation to use a foreign academic title 'must be easy of accessto interested parties, and should not, in particular, be dependent on the paymentof excessive administration fees. (50) As a corollary of the requirement of ease ofaccess, and in order that Community workers' right to avail of employmentopportunities in other Member States not be frustrated, the assessment procedureshould result in a decision within a reasonable time. What is reasonable in anygiven case will depend, of course, on a number of factors, including the degree ofcooperation afforded to the validation body by the interested person. V  Conclusion 44. In the light of the foregoing analysis, I recommend that the Court respondas follows to the question referred by the Juzgado de Lo Social No 4 de Madrid: Where a provision contained in a collective agreement of a public body, or in anotice of competition published by such a body, requires, for the pursuit of aprofession in its employment, that applicants for such employment should possesseither an educational qualification granted in that Member State or a qualificationfrom another Member State recognised as equivalent by the competent authoritiesin that Member State, the recognition procedure must satisfy the requirements ofArticle 48 of the Treaty. In particular, where there is only a partial correspondencebetween the knowledge and aptitude certified by the foreign qualification and thosecertified by the qualification awarded in the host Member State, the competentauthorities must assess whether knowledge and aptitude acquired by other means,either during a separate course of study or by way of practical experience, aresufficient in order to prove possession of the necessary knowledge and aptitude towhich the foreign qualification does not attest. If the official validation proceduredoes not comply with this requirement, the employing public body must itself assessthe equivalence of the qualifications awarded in another Member State toCommunity nationals who apply for employment in the light of these criteria. 1: Original language: English. 2:  OJ 1989 L 19, p. 16. 3:  OJ 1992 L 209, p. 25. 4:  The same definition is to be found in Article 1(c) of Directive 89/48/EEC. 5:  Article 1(d) of Directive 89/48/EEC provides a corresponding definition of regulated modesof pursuit of a professional activity, by reference to the need for possession of a diploma. 6:  The second subparagraph of Article 1(d) of Directive 89/48/EEC contains a similarprovision, adjusted to the narrower scope of that Directive. 7:  Article 3 of Directive 89/48/EEC contains a similar, albeit narrower, provision. 8:  Article 4(1)(a) of Directive 92/51/EEC; see also Article 4(1)(a) of Directive 89/48/EEC. 9:  Article 4(1)(b) of Directive 92/51/EEC; see also Article 4(1)(b) of Directive 89/48/EEC. 10:  Boletin Oficial de la Comunidad de Madrid, 1988, No 105, Supplement. The agreement hasbeen replaced by a similar agreement concluded in 1996, Boletin Oficial de la Comunidadde Madrid, 1996, No 57, Supplement. A different legal regime is applicable to Stateofficials, whose terms and conditions of employment are chiefly governed by public law. 11:  Annex I, Definition of professional categories, Group A, Subgroup II. 12:  B.O.E. of 18 March 1989, No 66. 13:  B.O.E. of 1 November 1991, No 262. 14:  Information provided by the Conservation Unit of the United Kingdom Museums andGalleries Commission to the Spanish Ministry of Education. 15:  It appears that this post was subject to ordinary labour law, rather than to the specialregime for State officials. 16:  Case C-19/92 [1993] ECR I-1663, hereinafter 'Kraus. 17:  Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405 (hereinafter'Walrave); Case C-415/93 Union Royale Belge des Sociétés de Football Association andOthers v Bosman and Others [1995] ECR I-4921 (hereinafter 'Bosman). 18:  Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 8; Article 2(4) of theagreement on social policy concluded between the Member States of the EuropeanCommunity with the exception of the United Kingdom of Great Britain and NorthernIreland, annexed to the Protocol to the Treaty on social policy. 19:  Case C-164/94 Aranitis v Land Berlin [1996] ECR I-135, paragraph 23 (hereinafter'Aranitis). 20:  Case C-340/89 [1991] ECR I-2357, paragraphs 19 and 20. 21:  Loc. cit., paragraphs 31 and 32. 22:  Case C-154/89 Commission v France [1991] ECR I-659, paragraph 17; Case C-198/89Commission v Greece [1991] ECR I-727, paragraph 21. 23:  Case 222/86 [1987] ECR 4097, paragraph 13, hereinafter 'Heylens. 24:  Loc. cit., paragraph 19. 25:  Kraus, loc. cit., paragraph 15; see also paragraphs 16 to 18. 26:  Kraus, loc. cit., paragraphs 17 to 23. 27:  See the fourth and fifth recitals in the preamble to Directive 92/51/EEC. 28:  It is quite another question whether the Directives would be directly effective againstprivate employers, if the national implementing measures could not be interpreted toextend to such situations. As Advocate General van Gerven observed in his Opinion inCase C-188/89 Foster and Others [1990] ECR I-3313, paragraphs 11 and 16, the definitionof the State or of public authority in Community law varies according to the underlyingpurpose or reasoning of particular rules. 29:  See paragraph 14 above. The Community legislator also implicitly recognised the potentialnormative character of collective agreements in Article 7(4) of Council Regulation (EEC)No 1612/68 of 15 October 1968 on freedom of movement of workers within theCommunity, OJ, English Special Edition, First Series 1968 (II), p. 475, most recentlyconsidered by the Court in Case C-15/96 Schöning-Kougebetopoulou v Freie und HansestadtHamburg [1998] ECR I-47, paragraph 12. 30:  Loc. cit. 31:  Ibid., paragraph 23, emphasis added. 32:  Second subparagraph of Article 1(d) of Directive 89/48/EEC; second subparagraph ofArticle 1(f) of Directive 92/51/EEC. 33:  The same analysis applies, subject to appropriate adjustment with regard to the educationalqualifications required, to Article 1(d) of Directive 89/48/EEC. 34:  See, for example, the discussion of the powers of the autonomous communities in Spainto regulate the exercise of the profession of tour guide in Case C-375/92 Commission vSpain [1994] ECR I-923. 35:  Heylens, loc. cit, paragraph 10; see also Vlassopoulou, loc. cit., paragraph 9; Case C-104/91Borrell and Others [1992] ECR I-3003, paragraph 7 (hereinafter 'Borrell). 36:  Case 11/77 Patrick v Ministre des Affaires Culturelles [1977] ECR 1199, paragraph 10; Case 71/76 Thieffry v Conseil de l'Ordre des Avocats à la Cour de Paris [1977] ECR 765(hereinafter 'Thieffry), paragraph 16; Heylens, loc. cit., paragraphs 11 and 12; Vlassopoulou, loc. cit., paragraph 15; Borrell, loc. cit., paragraph 10; see also Kraus, loc.cit., paragraphs 28 and 31. 37:  Thieffry, loc. cit., paragraphs 12 and 15; Case C-106/91 Ramrath v Ministre de la Justice[1992] ECR I-3351, paragraphs 29 and 30; Kraus, loc. cit., paragraph 32. 38:  On the general interest in the protection of national treasures possessing artistic, historicor archaeological value, see Article 36 of the Treaty and Case C-180/89 Commission v Italy[1991] ECR I-709, paragraph 20. 39:  Vlassopoulou, loc. cit., paragraph 15; Borrell, loc. cit., paragraph 10. 40:  Loc. cit., paragraph 16; see also Borrell, loc. cit., paragraph 11; Commission v Spain, loc.cit., paragraph 12; Aranitis, loc. cit., paragraph 31. The Court referred in Heylens, loc. cit.,paragraph 11, to such an obligation, where the Member State's laws and regulationsprovided for the possibility of recognition of equivalent foreign diplomas. 41:  See also Heylens, loc. cit., paragraph 13, which was cited by the Court. 42:  Loc. cit., paragraphs 17, 19 and 20; see also Borrell, loc. cit., paragraphs 12 and 14; Commission v Spain, loc. cit., paragraph 13. 43:  Walrave, loc. cit., paragraphs 17 to 19 and 21; Case 13/76 Donà v Mantero [1976]ECR 1333, paragraph 17; Bosman, loc. cit., paragraphs 82 to 84. 44:  Loc. cit., paragraph 21, emphasis added; see also Bosman, loc. cit., paragraph 84; seefurther Article 7(4) of Regulation No 1612/68, cited above. 45:  Loc. cit., paragraph 31. 46:  Ibid., paragraph 32. 47:  Emphasis added. 48:  Heylens, loc. cit., paragraph 13; Vlassopoulou, loc. cit., paragraph 17; Borrell, loc. cit.,paragraph 12; Commission v Spain, loc. cit., paragraph 13. 49:  Loc. cit., paragraph 17; Vlassopoulou, loc. cit., paragraph 22; Borrell, loc. cit.,paragraph 15. 50:  Loc. cit., paragraph 39.