Opinion of the Advocate General — ECLI:EU:C:2007:225
Date: 2007-04-19
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Greece

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 – Directive 89/48 (Council Directive 89/48, Arts 1 and 3) 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 (Council Directive 89/48, Arts 4(1)(b), third subpara., and 10) 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 (Council Directive 89/48, Art. 8(1)) 4. 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 (Council Directive 89/48, Art. 3) 1. A Member State which fails to recognise the diplomas awarded by the competent authorities of another Member State following education and training provided within the framework of an agreement pursuant to which education and training provided by a private body in that Member State is homologated by those authorities fails to fulfil its obligations under 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. Subject to the provisions of Article 4 of Directive 89/48, subparagraph (a) of the first paragraph of Article 3 of that directive entitles any applicant who holds a ‘diploma’, within the meaning of that directive, enabling him to pursue a regulated profession in one Member State to pursue the same profession in any other Member State. Although it is true that the definition of the concept of ‘diploma’ set out in Article 1(a) of Directive 89/48 limits, to a certain extent, the applicability of that directive to qualifications acquired in non‑Member States, neither Article 1(a) nor any other provision of that directive contains any limitation as regards the Member State in which an applicant must have acquired his professional qualifications. It follows expressly from the first paragraph of Article 1(a) that it is sufficient that the education and training were received ‘mainly in the Community’. That expression covers both education and training received entirely in the Member State which awarded the formal qualification in question and that received partly or wholly in another Member State. Furthermore, no reason can justify such a limitation, since the main question, for the purposes of adjudicating on the applicability of Directive 89/48, is whether the applicant is or is not entitled to pursue a regulated profession in a Member State. According to the system put in place by that directive, 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 a regulated profession in the Member State where it was awarded or recognised. Differences in the duration or content of education and training acquired in another Member State by comparison with that provided in the host Member State are not therefore sufficient to justify a refusal to recognise the professional qualification concerned. At most, where those differences are substantial, they may, in accordance with Article 4 of that directive, justify the host Member State requiring that the applicant satisfy one or other of the compensatory measures set out in that provision. Moreover, according to the wording of Directive 89/48 itself, the education and training must not necessarily have been received in a university or in a higher education establishment. According to the second indent of Article 1(a) of that directive, it is sufficient that it is an ‘establishment of equivalent level’. Consequently, the condition imposed by that provision is not intended to ensure that the educational establishment fulfils formal conditions as to its status, but refers essentially to the level of the education and training provided. That condition is closely linked to the characteristics of the diploma awarded. The assessment carried out in this respect must therefore fall within the purview of the competent authority awarding the diploma; that authority must ensure that the diploma is conferred only on persons who are sufficiently qualified to pursue the regulated profession to which it gives access. The general system for the recognition of higher education diplomas laid down in Directive 89/48 is based on the mutual trust that Member States have in the professional qualifications that they award. That system essentially establishes a presumption that the qualifications of an applicant entitled to pursue a regulated profession in one Member State are sufficient for the pursuit of that profession in the other Member States. It is inherent in that system, which does not harmonise the education and training giving access to the regulated professions, that it is for the competent authorities awarding diplomas giving such access alone to verify, in the light of the rules applicable within the framework of their professional education and training system, whether the conditions necessary for their award are fulfilled. Article 8(1) of Directive 89/48 expressly obliges the host Member State to accept, in any event, as proof that the conditions for recognition of a diploma are satisfied, the certificates and documents issued by the competent authorities in the other Member States. The host Member State, by failing to recognise the diplomas awarded by the competent authorities of another Member State following education and training provided within the framework of an agreement pursuant to which education and training provided by a private body in the host Member State is homologated by those authorities, fails to fulfil its obligations under Articles 1 and 3 of Directive 89/48. (see paras 26-31, 34-35, 76, operative part 1) 2. A Member State fails to fulfil its obligations under 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, if it provides for the application of compensatory measures in more cases than those allowed by that directive. Notwithstanding Article 3 of Directive 89/48, Article 4 thereof authorises the host Member State, in certain circumstances which are set out in that article, to require the applicant to provide evidence of professional experience of a specific duration, to complete an adaptation period not exceeding three years or to take an aptitude test. According to the third subparagraph of Article 4(1)(b) of that directive, the host Member State which imposes such measures must, in principle, leave the choice between an adaptation period and an aptitude test to the applicant. By derogation from that principle, the host Member State may stipulate either an adaptation period or an aptitude test for professions ‘whose practice requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity’. The introduction of derogations for other professions as regards an applicant’s right to choose is subject to the application of the procedure laid down in Article 10 of that directive, which presupposes in particular communication of the draft derogation to the Commission and gives the latter the option of taking a decision to the contrary within three months of its notification. Accordingly, a provision of national law is contrary to the third subparagraph of Article 4(1)(b) and Article 10 of Directive 89/48, in so far as it derogates from the principle that the choice of the type of compensatory measures is a matter for the applicant, not only so far as concerns the professions which require knowledge of national law, but also ‘in respect of all the other professions covered by various specific provisions’. (see paras 42-43, 76, operative part 1) 3. A Member State which gives power to an authority of the host Member to assess whether ‘the educational establishment in which the applicant completed his education and training belongs to the higher education sector’ and whether ‘the applicant has the necessary professional experience, in a case where the duration of the education and education falls short by at least one year of that required in the Member State concerned in order to pursue that profession’ fails to fulfil its obligations under 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. Pursuant to Article 8(1) of Directive 89/48, the host Member State is to accept as proof that the conditions laid down in Articles 3 and 4 of that directive are satisfied the certificates and documents issued by the competent authorities in the Member States, which the person concerned is to submit in support of his application to pursue the profession concerned. Accordingly, a provision of national law is contrary to Article 8(1) of Directive 89/48 in so far as it gives power to an authority of the host Member State to verify facts which are, pursuant to that article, definitively established by certificates and documents issued by the competent authorities of the Member State of origin. (see paras 46-47, 76, operative part 1) 4. A Member State fails to fulfil its obligations under 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, if it does not allow, in the public sector, the unconditional reclassification in a higher grade of persons recruited at a level lower than that to which they would have been entitled if their diplomas had been recognised in accordance with Article 3 of Directive 89/48. The provisions of directives must be implemented with unquestionable binding force, and with the necessary specificity, precision and clarity, in order to satisfy the requirements of legal certainty. Accordingly, a provision of national law which does not ensure the necessary legal certainty for the persons concerned recruited at a level lower than that to which they would have been entitled if their diplomas had been recognised in accordance with Article 3 of Directive 89/48 to the extent that an official who has been incorrectly classified in a given grade must wait eight years from the time of his recruitment before he is eligible for reclassification in a post in a higher category and can apply for his reclassification only if a post in a higher category within the same ministry or the same public-law corporation becomes available is contrary to Article 3 of Directive 89/48. (see paras 54-59, 76, operative part 1)