Case C-149/05

Harold Price

v

Conseil des ventes volontaires de meubles aux enchères publiques

(Reference for a preliminary ruling from the Cour d’appel de Paris)

(Directives 89/48/EEC and 92/51/EEC – Workers – Recognition of professional education and training – Requirement to undergo an aptitude test without the opportunity to choose an adaptation period – Voluntary sales of chattels by public auction)

Summary of the Judgment

1. Freedom of movement for persons – Freedom of establishment – Workers – Recognition of professional education and training – Scope of Directives 89/48 and 92/51

(Council Directives 89/48, Art. 3(b), first para., and 92/51)

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, Art. 4(1), third para.)

1. Directive 92/51 on a second general system for the recognition of professional education and training to supplement 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, together with Directive 89/48, by Directive 2001/19, does not apply to an applicant relying on qualifications such as the Batchelor of Arts in Fine Arts Valuation who wishes to pursue the profession of director of voluntary sales of chattels by public auction in a Member State where the pursuit of that profession is reserved to persons holding a diploma within the meaning of Article 89/48.

However, Directive 89/48, and in particular point (b) of the first subparagraph of Article 3 thereof, may apply to such an applicant if the profession of director of voluntary sales of chattels by public auction in the Member State in which the applicant acquired the qualifications on which he relies is not a regulated profession within the meaning of Article 1(c) of that directive. It is for the national court to determine, if necessary, whether that is the case.

(see para. 49, operative part 1)

2. In order to derogate from the principle that the applicant is entitled to choose between an adaptation period or an aptitude test, the third subparagraph of Article 4(1) 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 imposes two cumulative conditions for Member States to be able to choose the compensatory measure: first, the profession concerned must be a profession the practice of which requires precise knowledge of national law. Second, the provision of advice and/or assistance concerning national law must be an essential and constant aspect of the professional activity.

As regards the first condition, a profession access to which requires a diploma in law awarded on completion of studies of at least two years’ duration is a profession the practice of which, it can be assumed, requires a precise knowledge of national law within the meaning of that provision.

As regards the second condition, for that provision to apply, it is not necessary for the activity in question to involve the provision of advice and/or assistance concerning all national law; it is sufficient that it concerns a specialised area and is an essential and constant element of that activity. In that context, reference should be made in particular to normal practice of the relevant profession.

(see paras 53, 60, operative part 2)

JUDGMENT OF THE COURT (First Chamber)

7 September 2006 ( )

(Directives 89/48/EEC and 92/51/EEC – Workers – Recognition of professional education and training – Requirement to undergo an aptitude test without the opportunity to choose an adaptation period – Voluntary sales of chattels by public auction)

In Case C-149/05,

REFERENCE for a preliminary ruling under Article 234 EC from the Cour d’appel de Paris (France), made by decision of 23 March 2005, received at the Court on 4 April 2005, in the proceedings

Harold Price

v

Conseil des ventes volontaires de meubles aux enchères publiques,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), N. Colneric, E. Juhász and E. Levits, Judges,

Advocate General: C. Stix-Hackl,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 26 January 2006,

after considering the observations submitted on behalf of:

– Mr Price, by M. Olivier-Martin, avocat,

– the Counseil des ventes volontaires de meubles aux enchères publiques, by H. Calvet, avocat,

– the French Government, by G. de Bergues and C. Bergeot-Nunes, acting as Agents,

– the Austrian Government, by E. Riedl, acting as Agent,

– the Swedish Government, by K. Wistrand, acting as Agent,

– the Commission of the European Communities, by H. Støvlbæk and D. Maidani, acting as Agents, and J.‑M.V. Visee, acting as expert,

after hearing the Opinion of the Advocate General at the sitting on 23 March 2006,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of the provisions of 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), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p.1), (‘Directive 89/48’ and ‘Directive 92/51’ respectively).

2 The reference was made in the course of proceedings brought by Mr Price, the holder of certain qualifications relating to auctioneering acquired in the United Kingdom, against the decision of the Conseil des ventes volontaires de meubles aux enchères publiques (‘Authority for voluntary sales of chattels by public auction, ‘the CVV’), by which the latter made Mr Price’s admission to the profession of director of the voluntary sale of chattels by public auction (‘director of voluntary sales’) in France subject to the successful completion of an aptitude test covering three areas: legal matters, conduct of sales by public auction and professional regulations.

Legal background

Community legislation

3 According to the third and fourth recitals in the preamble to Directive 89/48, the purpose of the directive is to introduce a general system for the recognition of diplomas such as to enable nationals of Community countries to pursue all those professional activities which in a host Member State are dependent on the completion of post-secondary education and training, provided that they hold diplomas preparing them for those activities awarded on completion of a course of studies lasting at least three years and issued in another Member State.

4 Directive 92/51 establishes a complementary general system for the recognition of professional education and training at levels not covered by the initial general system introduced by Directive 89/48, the scope of which is confined to higher levels of education.

5 Under the first subparagraph of Article 2 of Directive 89/48 and the first subparagraph of Article 2 of Directive 92/51, those two directives apply to any national of a Member State wishing to pursue a ‘regulated profession’ in another Member State.

The definition of ‘regulated profession’

6 According to the definition in Article 1(c) of Directive 89/48, which is substantially the same as the definition in Article 1(e) of Directive 92/51, a ‘regulated profession’ is the regulated professional activity or range of activities which constitute that profession in a Member State.

7 A ‘regulated professional activity’ is defined in the first subparagraph of Article 1(d) of Directive 89/48 and the first subparagraph of Article 1(f) of Directive 92/51 as 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 in the context of Directive 89/48 and to the possession of evidence of education and training or an attestation of competence in the context of Directive 92/51.

8 Under the second subparagraph of Article 1(d) of Directive 89/48, which is essentially the same as the second subparagraph of Article 1(f) of Directive 92/51 except that Directive 92/51 refers to ‘evidence of education and training’ and Directive 89/48 refers to a ‘diploma’, the following are to be treated as a regulated professional activity:

‘a professional activity … pursued by the members of an association or organisation the purpose of which is, in particular, to promote and maintain a high standard in the professional field concerned and which, to achieve that purpose, is recognised in a special form by a Member State and

– awards a diploma to its members,

– ensures that its members respect the rules of professional conduct which it prescribes, and

– confers on them the right to use a title or designatory letters, or to benefit from a status corresponding to that diploma.’

9 The third subparagraph of Article 1(d) of Directive 89/48 states that a non-exhaustive list of associations or organisations which, when the directive has been adopted, satisfy the conditions of the second subparagraph is contained in the annex to the directive. The Royal Institution of Chartered Surveyors is one of the organisations mentioned in that annex.

The definition of ‘diploma’

10 Under the second indent of Article 1(a) of Directive 89/48, in order to constitute a ‘diploma’ for the purposes of that directive a qualification must attest inter alia that the holder has successfully completed a post-secondary course of at least three years’ duration, or of an equivalent duration part-time.

11 According to point (i) of the second indent of Article 1(a) of Directive 92/51, in order to constitute a ‘diploma’ for the purposes of that directive a qualification must attest inter alia that the holder has successfully completed a post-secondary course, other than that referred to in the second indent of Article 1(a) of Directive 89/48, of at least one year’s duration or of equivalent duration on a part-time basis.

The obligation to recognise

12 The first subparagraph of Article 3 of Directive 89/48 provides:

‘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; or

(b) if the applicant has pursued the profession in question full-time for two years during the previous ten years in another Member State which does not regulate that profession, within the meaning of Article 1(c) and the first subparagraph of Article 1(d), and possesses evidence of one or more formal qualifications:

– which have been awarded by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of such State,

– which show 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 of a Member State and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course and

– which have prepared the holder for the pursuit of his profession.’

13 The first subparagraph of Article 3 of Directive 92/51 is worded as follows:

‘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; or

(b) if the applicant has pursued the profession in question full-time for two years, or for an equivalent period on a part-time basis, during the previous 10 years in another Member State which does not regulate that profession within the meaning of either Article 1(e) and the first subparagraph of Article 1(f) of this directive or Article 1(c) and the first subparagraph of Article 1(d) of Directive 89/48/EEC, and possesses evidence of education and training 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, and

– either shows that the holder has successfully completed 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 any professional training which is an integral part of that post-secondary course,

…

and

– has prepared the holder for the pursuit of his profession.’

14 The fourth subparagraph of Article 3 of Directive 92/51 also contains a derogation from the first subparagraph according to which the host Member State is not required to apply that provision where the diploma it requires is a diploma as defined in Directive 89/48, one of the conditions for the issue of which is the completion of a post-secondary course of more than four years’ duration.

Compensatory measures

15 Notwithstanding Article 3 of Directives 89/48 and 92/51, Article 4 of those directives authorises the host Member State, in 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 (‘the compensatory measures’).

16 According to the third subparagraph of Article 4(1) of Directive 89/48, which is essentially the same as the third subparagraph and the first indent of the fourth subparagraph of Article 4(1)(b) of Directive 92/51, the host Member State which applies the compensatory measures must, in principle, give the applicant the choice between the adaptation period and the aptitude test. Nevertheless, as regards 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 Member State may, by derogation from that principle, stipulate either an adaptation period or an aptitude test.

National legislation

French legislation

17 Decree No 2001-650 of 19 July 2001, implementing Articles L. 321-1 to L. 321-38 of the Code de commerce (Commercial Code) and relating to voluntary sales of chattels by public auction (JORF of 21 July 2001, p. 11760) (‘Decree 2001-650’) sets out the conditions for exercising the activity of director of voluntary sales.

18 Article 16 thereof provides that the pursuit of that profession is reserved to holders of a diploma in law and a national diploma in the History of Art, Applied Arts, Archaeology or the Plastic Arts. One of those diplomas must be at least a university degree and the other must be awarded on completion of at least a level of education and training corresponding to two years of higher education. The holders of qualifications or diplomas specifically accepted in lieu, the list of which is laid down by joint order of the Garde des sceaux, Ministre de la Justice and the Ministre chargé de l’enseignement supérieur (Keeper of the Seals, Minister for Justice and the Minister responsible for higher education), may also be admitted to that profession.

19 Under Article 45 of the decree, nationals of another Member State are regarded as having the qualification required by Article 16 inter alia where

– they have successfully completed a course of post-secondary studies of at least one year’s duration or of an equivalent duration in the case of part-time studies, which prepares them to pursue the profession of director of voluntary sales and one of the conditions of access to which is completion of the course of secondary studies required to gain access to university or higher education, and any professional training which may be required in addition to such course of post-secondary studies; and

– they hold diplomas, certificates or other evidence of formal qualifications:

(1) if they come from a Member State which regulates the taking up and pursuit of the profession and they hold one or more diplomas, certificates or other evidence of formal qualifications entitling them to carry on the activity of conducting voluntary sales of chattels by public auction, issued by the competent authority of that State;

(2) if they come from a Member State which does not regulate the taking up and pursuit of that profession and they hold one or more diplomas, certificates or other evidence of formal qualifications awarded on completion of regulated education and training, specifically oriented towards the practice of the profession,

(3) if they come from a Member State which regulates neither the taking up and pursuit of that profession nor the education and training required for its pursuit and they hold one or more diplomas, certificates or other evidence of formal qualifications and establish full-time practice of the profession in that State for at least two years during the 10 preceding years or for an equivalent period in the case of part-time practice, subject to the certification of such practice by the competent authority of that State.

20 Article 48 of Decree 2001-650 confers power on the CVV to examine applications for recognition of diplomas, certificates or other evidence of formal qualifications of persons who satisfy the requirements of Article 45 and wish to establish themselves in France.

21 Under Article 49 of the decree, the applicant must undergo an aptitude test where his education and training covers subjects which differ substantially from those stipulated by the decree or where one or more of the professional activities in question are not regulated in the Member State of origin or are regulated in a substantially different way.

The United Kingdom legislation

22 In the United Kingdom the pursuit of those professional activities is not subject to any requirement under the applicable law. However, the Royal Institution of Chartered Surveyors is involved, at least to a certain extent, in the organisation of those activities.

The main proceedings and the questions referred for a preliminary ruling

23 Mr Price, a UK national, holds a Bachelor of Arts degree with second class honours in Fine Arts Valuation. That qualification is accredited by the Royal Institution of Chartered Surveyors in the United Kingdom. According to the indications given by his lawyer at the hearing, although at one time Mr Price became a trainee member of the Royal Institution of Chartered Surveyors, he was never a fully-fledged member of that organisation because he did not undertake the two-year professional training period followed by an interview before a panel (‘Assessment of Professional Competence’ or ‘APC’) required to become a member.

24 Since he wished to pursue the profession of director of voluntary sales in France, Mr Price submitted an application to the CVV, on 8 January 2002, for recognition of diplomas, certificates or other evidence of education and training pursuant to Article 48 of Decree 2001-650.

25 By decision of 19 June 2003, the CVV requested Mr Price to undergo the aptitude test provided for in Article 49 of the decree in the following subjects: legal matters, conduct of sales by public auction and professional regulations. Mr Price made an internal appeal against that decision which was dismissed on 11 September 2003.

26 On 19 August 2003, Mr Price brought an action before the Cour d’appel de Paris (Court of Appeal, Paris) against the CVV’s decision of 19 June 2003 requiring him to sit an aptitude test.

27 According to the national court Mr Price has not established that he pursued full-time, for at least two years in the 10 years prior to his application for recognition of a diploma, the profession of director of voluntary sales certified by the United Kingdom authorities.

28 Mr Price claimed none the less that the contested decision, by depriving him of the opportunity to choose between an adaptation period and an aptitude test, infringes the provisions of Directive 92/51, which supplements Directive 89/48.

29 In support of that claim he argued that, in accordance with Article 7 of Directive 92/51, if the host Member State makes use of the possibility of requiring an adaptation period or an aptitude test it must allow the applicant the choice between them.

30 According to the national court, the CVV rightly submitted that Mr Price cannot rely on that provision since it applies only where the host State requires the possession of a certificate and not, as in this case, a diploma.

31 The defendant submitted that Mr Price’s situation is covered by the first indent of the fourth subparagraph of Article 4(1)(b) of Directive 92/51 and that, according to that provision, the Member State may retain the right to choose between the adaptation period and the aptitude test if a profession is involved the pursuit of which requires a 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 feature of the professional activity. Such is the case with respect to the activity of director of voluntary sales.

32 Mr Price challenges that interpretation of Directive 92/51 and observes that the activities of voluntary and compulsory sales are now distinct, and that the recognition he seeks is only for voluntary sales.

33 In those circumstances the Cour d’appel de Paris decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does [Directive 92/51] apply to the activity of director of voluntary sales of chattels by public auction which is governed by Articles L. 321-1 to L. 321-3, L. 321-8 and L. 321-9 of the Code de commerce?

(2) If so, can the host Member State avail itself of the derogation [from the third subparagraph of Article 4(1)(b) of Directive 92/51] provided for by [the first indent of the fourth subparagraph of Article 4(1)(b) of Directive 92/51]?’

The first question

34 It must be observed from the outset that the scope of Directive 89/48 and that of Directive 92/51 is not defined solely according to the regulated profession concerned, but also according to the qualifications of the applicant who wishes to take up that profession. The first question raised by the national court must therefore be understood as asking essentially whether Directive 92/51 applies to an applicant relying on qualifications such as those relied on by the applicant in the main proceedings, who wishes to take up the profession of director of voluntary sales in France.

35 Although the national court has asked the Court only whether Directive 92/51 applies, it is necessary, having regard to the fact that that directive complements Directive 89/48, to ascertain first of all whether the latter is applicable. Only if it is not will it be necessary to consider whether Directive 92/51 applies.

Applicable principles

36 It is clear from the general scheme of Article 3 of Directives 89/48 and 92/51 that only one of the two mechanisms for recognition of diplomas provided for in points (a) and (b) of the first subparagraph of Article 3 of those directives may apply in any particular factual context. The mechanism provided for in point (a) applies where the profession concerned is a regulated profession in the Member State where the training took place. The second mechanism, provided for in point (b), applies only where the profession concerned is not a regulated profession in that Member State.

37 If it is established that the profession concerned is a regulated profession in the Member State where training took place, under point (a) of the first subparagraph of Article 3 of the directives Directive 89/48 applies where both the diploma required by the host Member State in order to take up the profession concerned and the diploma held by the applicant are diplomas as defined in that directive. Directive 92/51 is applicable where at least one of the two diplomas at issue is a diploma within the meaning of that directive; the other diploma may be covered either by that directive or by Directive 89/48.

38 If, on the other hand, it is established that the profession concerned is not a regulated profession in the Member State where the training took place, under point (b) of the first subparagraph of Article 3 of the directives Directive 89/48 is applicable where the diploma required by the host Member State in order to take up that profession is a diploma as defined in Directive 89/48 and the applicant relies on qualifications including in particular a formal qualification awarded on the successful completion of a post-secondary course of at least three years’ duration. By contrast, Directive 92/51 is applicable in all cases where Directive 89/48 is not, provided that the diploma required by the host Member State is at least a diploma for the purposes of Directive 92/51 and the applicant relies on qualifications listed in point (b) of the first subparagraph of Article 3 of that directive, including a formal qualification awarded on completion of a post-secondary course of at least one year’s duration.

39 In order to determine whether either of those directives is applicable in this case it is necessary therefore to examine, first of all, the conditions governing practice of the profession of director of voluntary sales in France, as the host Member State, and then in the United Kingdom, as the Member State where the training took place. It will then be necessary to assess the qualifications relied on by the applicant in the main proceedings. Although it is for the national court to carry out these assessments, some clarification is required.

The Conditions governing pursuit of the profession of director of voluntary sales in France

40 It appears that the profession of director of voluntary sales is a regulated profession in France, the pursuit of which is subject to the possession of a diploma, within the meaning of Article 1(a) of Directive 89/48. In particular, under Article 16 of Decree 2001-650, the pursuit of that profession is reserved to persons holding two diplomas certifying together completion of a level of education and training equivalent to at least five years of post-secondary education, unless the diploma at issue is specifically accepted in lieu.

41 Contrary to the view taken by the Commission of the European Communities, the fact that Article 45 of Decree 2001-650 enables nationals of other Member States, who might only hold diplomas awarded on completion of a post-secondary course of at least one year’s duration, to take up that profession does not make Directive 92/51 automatically applicable.

42 Where national rules which are merely intended to transpose the provisions of Directive 92/51 requiring Member States to allow nationals of other Member States holding diplomas within the meaning of that directive to take up regulated professions on their territory, even if access to those professions is usually subject to possession of a diploma within the meaning of Directive 89/48, that transposition must not be taken into account in order to determine which directive is applicable. If that were not the case, the scope of Directive 89/48 would be so limited as to become non-existent, since each Member State is obliged pursuant to Directive 92/51 to allow nationals of other Member States who hold diplomas within the meaning of that directive and, therefore, awarded on completion of a course of a duration less than that required under Directive 89/48, to take up any regulated profession to which those directives apply, subject only to the derogation allowed by the fourth subparagraph of Article 3 of Directive 92/51.

43 In this case, everything seems to indicate that Article 45 of Decree 2001-650 merely aims to transpose into French law the provisions of Directive 92/51, a matter which is to be verified by the national court.

Conditions governing pursuit of the profession of director of voluntary sales in the United Kingdom

Regulation by the State

44 In the United Kingdom the activities of director of voluntary sales do not constitute regulated professional activities within the meaning of the first subparagraph of Article 1(d) of Directive 89/48 or the first subparagraph of Article 1(f) of Directive 92/51. In fact the relevant legislation contains no requirements for the pursuit of those professional activities in the United Kingdom.

Regulation by an association or organisation recognised by the State

45 However, it is possible that the activities of director of voluntary sales are to be treated as regulated professional activities under either the second subparagraph of Article 1(d) of Directive 89/48 or the second subparagraph of Article 1(f) of Directive 92/51, since the Royal Institution of Chartered Surveyors is involved, at least to some extent, in the organisation of those activities. If that is the case, the fact that that organisation requires its members to complete a three-year post-secondary course followed by two years’ professional training, and thus makes pursuit of the profession subject to possession of a diploma within the meaning of Article 1(a) of Directive 89/48, would make point (a) of the first subparagraph of Article 3 of Directive 89/48 applicable if the other conditions stated in the second indent of Article 1(d) of that directive were also fulfilled.

46 In that connection, it must also be observed that the Royal Institution of Chartered Surveyors is mentioned in the annex to Directive 89/48. Under the third subparagraph of Article 1(d) of that directive, that organisation therefore fulfilled the conditions of the second indent of Article 1(d) at the time the directive was adopted. However, although the Royal Institution of Chartered Surveyors is an organisation specifically recognised in the United Kingdom as regards the pursuit of the profession of chartered surveyor, it is not clear whether it enjoys the same recognition as regards the profession of director of voluntary sales. It is for the national court to determine, if necessary, whether that is the case.

Applicability of the mechanisms for recognition provided for in Article 3 of Directive 89/48 to the qualifications relied on by Mr Price

The applicability of point (a) of the first subparagraph of Article 3 of Directive 89/48

47 Point (a) of the first subparagraph of Article 3 of Directive 89/48 is applicable where the profession concerned is regulated in the Member State where the education and training took place. Since Mr Price is not a member of the Royal Institution of Chartered Surveyors the question of recognition pursuant to that provision of diplomas awarded by that organisation does not arise in this case, even if it were to be established that the profession of director of voluntary sales constitutes a regulated profession in the United Kingdom by virtue of the rules laid down by that organisation. It is clear from the case-law that the fact that Mr Price had been a trainee member of that organisation or that he completed part of the training required to become a member of that organisation is not sufficient to enable him to rely on Directive 89/48 (see, to that effect, Case C-313/01 Morgenbesser [2003] ECR I-13467, paragraphs 51 and 52).

Applicability of point (b) of the first subparagraph of Article 3 of Directive 89/48

48 Point (b) of the first subparagraph of Article 3 of Directive 89/48 is applicable if the profession concerned is not regulated in the Member State where the education and training took place. Accordingly, as is clear from paragraphs 36, 45 and 46 of this judgment, that provision is applicable only if the Royal Institution of Chartered Surveyors failed to fulfil the criteria set out in the second subparagraph of Article 1(d) of Directive 89/48 as regards the profession of director of voluntary sales and if that profession did not, therefore, constitute a regulated profession within the meaning of Article 1(c) of that directive in the United Kingdom. As already stated in paragraph 46 of this judgment, it is for the national court, if necessary, to determine whether that is the case.

49 Having regard to all of those considerations, the answer to the first question must be that Directive 92/51 does not apply to an applicant relying on qualifications such as those relied on by the applicant in the main proceedings who wishes to pursue the profession of director of voluntary sales of chattels by public auction in France. However, Directive 89/48, and in particular point (b) of the first subparagraph of Article 3 thereof, may apply to such an applicant if the profession of director of voluntary sales of chattels by public auction in the Member State in which the applicant acquired the qualifications on which he relies is not a regulated profession within the meaning of Article 1(c) of that directive. It is for the national court to determine, if necessary, whether that is the case.

The second question

50 Although the second question is based on the assumption that the answer to the first question on the applicability of Directive 92/51 is in the affirmative, it is nonetheless appropriate to answer that question in the context of Directive 89/48, which may be applicable in this case and which contains, in the third subparagraph of Article 4(1), a provision which is substantially the same as that laid down in the first indent of the fourth subparagraph of Article 4(1)(b) of Directive 92/51.

51 The question before the national court is essentially whether the profession of director of voluntary sales is, in France, a profession ‘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’ within the meaning of the third subparagraph of Article 4(1) of Directive 89/48.

52 As a preliminary point, it must be recalled that pursuant to Article 234 EC, which is based on a clear separation of functions between national courts and tribunals and the Court of Justice, the latter is empowered to rule on the interpretation or validity of Community provisions only on the basis of the facts which the national court or tribunal puts before it, and that it is for the national court or tribunal to apply the rules of Community law to a specific case (Case C-421/01 Traunfellner [2003] ECR I-11941, paragraph 21).

53 In order to derogate from the principle that the applicant is entitled to choose between an adaptation period or an aptitude test the third subparagraph of Article 4(1) of Directive 89/48 imposes two cumulative conditions for Member States to be able to choose the compensatory measure: first, the profession concerned must be a profession the practice of which requires precise knowledge of national law. Second, the provision of advice and/or assistance concerning national law must be an essential and constant aspect of the professional activity. Thus a distinction is made between the requirements governing pursuit of the profession at issue and the activities that it includes. It is appropriate to examine those two requirements separately.

The requirement of a precise knowledge of national law

54 Unlike the sectoral directives relating to specific professions, Directive 89/48 is not intended to harmonise the conditions for the taking up or pursuit of the various professions to which it applies. The Member States remain competent to define such conditions within the limits imposed by Community law. The extent to which the practice of a particular profession requires a precise knowledge of national law must therefore be determined solely in the light of national provisions.

55 Where professions are regulated by the national authorities, it may be assumed that the content of the education and training required in order to take up a regulated profession is governed by requirements connected to the practice of that profession. The content of the education and training required by a Member State which regulates that profession is therefore a criterion which is especially relevant in order to establish the requirements connected to the practice thereof.

56 As the Advocate General observed in paragraphs 116 to 119 of her Opinion, it appears in this case that the education and training relating to the profession of director of voluntary sales in France includes substantial legal education, specifically a diploma in law awarded on completion of studies of a minimum of two years’ duration.

57 In that connection, it must be observed that a profession access to which requires a diploma in law awarded on completion of studies of a minimum of two years’ duration is a profession the practice of which, it can be assumed, requires a precise knowledge of national law within the meaning of the third subparagraph of Article 4(1) of Directive 89/48.

The requirement of the provision of advice and/or assistance concerning national law

58 It must be stated at the outset that, contrary to the arguments of Mr Price and the Austrian and Swedish Governments, the application of that requirement cannot lead to the result that only ‘traditional’ legal professions, such as that of judge, notary or lawyer, fall within the scope of the derogation in the third subparagraph of Article 4(1) of Directive 89/48. As the Advocate General rightly observed in paragraphs 94 to 98, 120 and 121 of her Opinion, such an aim cannot be inferred from either the scheme of the provision concerned or its wording.

59 It is not necessary for the advice and/or assistance provided to clients to concern all national law. It is sufficient that it concerns a specialised area. In order to determine the extent to which the provision of advice and/or assistance on national law is an essential and constant element of the activity concerned, it is necessary to refer in particular to normal practice of the relevant profession. It is for the national court to decide that issue.

60 Having regard to all those considerations, the answer to the second question must be that

– a profession access to which requires a diploma in law awarded on completion of studies of at least two years’ duration is a profession the practice of which, it can be assumed, requires a precise knowledge of national law within the meaning of the third subparagraph of Article 4(1) of Directive 89/48; and

– for that provision to apply, it is not necessary for the activity in question to involve the provision of advice and/or assistance concerning all national law; it is sufficient that it concerns a specialised area and is an essential and constant element of that activity. In that context, reference should be made in particular to normal practice of the relevant profession.

Costs

61 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

1. 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/EEC, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, does not apply to an applicant relying on qualifications such as those relied on by the applicant in the main proceedings who wishes to pursue the profession of director of voluntary sales of chattels by public auction in France.

However, 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, as amended by Directive 2001/19, and in particular point (b) of the first subparagraph of Article 3 thereof, may apply to such an applicant if the profession of director of voluntary sales of chattels by public auction in the Member State in which the applicant acquired the qualifications on which he relies is not a regulated profession within the meaning of Article 1(c) of that directive. It is for the national court to determine, if necessary, whether that is the case.

2. A profession access to which requires a diploma in law awarded on completion of studies of at least two years’ duration is a profession the practice of which, it can be assumed, requires a precise knowledge of national law within the meaning of the third subparagraph of Article 4(1) of Directive 89/48, as amended by Directive 2001/19.

For that provision to apply, it is not necessary for the activity in question to involve the provision of advice and/or assistance concerning all national law; it is sufficient that it concerns a specialised area and is an essential and constant element of that activity. In that context, reference should be made in particular to normal practice of the relevant profession.

[Signatures]