Opinion of the Advocate General — ECLI:EU:C:2010:306
Date: 2010-06-02
Language of the case: German
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Preliminary rulings – Reference to the Court – Court or tribunal of a Member State within the meaning of Article 234 EC – Definition (Art. 234 EC) 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 – Meaning of ‘diploma’ (European Parliament and Council Directive 2001/19; Council Directive 89/48) 3. 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 – Aptitude test (European Parliament and Council Directive 2001/19; Council Directive 89/48) 1. In order to determine whether the body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. In that regard, the Oberste Berufungs- und Disziplinarkommission (Appeals and Disciplinary Board for lawyers in Austria), the jurisdiction of which is generally agreed to be compulsory, exhibits all the features necessary in order to be classified as a court or tribunal within the meaning of Article 234 EC. (see paras 22-23) 2. With a view to gaining access, subject to passing an aptitude test, to the regulated profession of lawyer in a Member State, the provisions of Council 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, as amended by Directive 2001/19, may be relied upon by a person who holds a degree issued in that Member State on completion of a cycle of post-secondary studies lasting more than three years, and who also holds an equivalent degree issued in another Member State after additional training of less than three years and enabling him, in that latter State, to have access to the regulated profession of lawyer, which he was actually practising in the latter State on the date on which he applied for admission to the aptitude test. Such a person is indeed the holder of a ‘diploma’ within the meaning of Article 1(a) of Directive 89/48 as amended. In particular, the degree obtained in the other Member State on which that holder relies attests his acquisition by the latter of an additional qualification over and above that obtained in the host Member State. Therefore, whilst it is true that a document attesting to professional qualifications cannot be assimilated to a ‘diploma’ within the meaning of Directive 89/48 as amended without there having been an acquisition, in whole or in part, of qualifications under the educational system of the Member State which issued that document, that is not the case with the degree concerned. Moreover, the fact that that document does not attest professional training of three years undertaken in the other Member State is irrelevant in that respect, since Article 1(a), first paragraph, of the said directive does not require the cycle of post-secondary studies lasting at least three years, or lasting for an equivalent duration part time, to be undertaken in a Member State other than the host Member State. (see paras 32-36, operative part 1) 3. 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, as amended by Directive 2001/19, must be interpreted as precluding the competent authorities of the host Member State from denying a person who holds a degree issued in that Member State on completion of a cycle of post-secondary studies lasting more than three years, and who also holds an equivalent degree issued in another Member State after additional training of less than three years and enabling him, in that latter State, to have access to the regulated profession of lawyer, which he was actually practising in the latter State, authorisation to take the aptitude test for the profession of lawyer without proof of completion of the period of practical experience required by the legislation of the host Member State. (see paras 36, 41, operative part 2)