OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 30 March 2004 ( )

Case C-417/02

Commission of the European Communities

v

Hellenic Republic

(Council Directive 85/384/EEC – Freedom of establishment and freedom to provide services – Architects)

Introduction

1. The present proceedings for breach of the Treaty relate to the implementation and application by the Hellenic Republic of Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services ( ) (hereinafter referred to as the ‘Architects Directive’).

2. After abandoning one of its pleas in its Reply, the Commission now claims that the Court should:

(a) Declare that

– by adopting and retaining in force Article 3(1)(c) of Presidential Decree 107/93;

– and by accepting that the Techniko Epimelitirio Elladas (TEE) (Greek Technical Board), with which a person must be registered in order to be able to pursue the profession of architect in Greece, systematically refuses to register Community nationals holding diplomas which have not been awarded in Greece which ought to be recognised under Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services,

the Hellenic Republic has failed to fulfil its obligations under that directive;

(b) the Hellenic Republic pay the costs of the proceedings.

3. In its rejoinder the Hellenic Republic contends that the Court should dismiss the action.

I – The first plea: Article 3(1)(c) and (2) of Presidential Decree 107/93

4. This plea relates to the Greek rules for determining whether an architect who wishes to establish himself in Greece is in possession of a qualification falling within the scope of the Architects Directive.

A – Legal Framework

5. Article 2 of the Architects Directive provides that the Member States are to recognise evidence of formal qualifications which have been acquired as a result of education and training fulfilling the requirements of Article 3. Under Article 7(1), a Member State which awards evidence of formal qualifications within its territory is to inform the Commission of the formal qualifications which fulfil these requirements, which are as a rule then to be published in the Official Journal in accordance with Article 7(2). Articles 8 and 9 govern the procedure for clarifying any differences of opinion over the quality of the evidence of formal qualifications.

6. In Greece, up until 17 October 2002, Article 3(1) of Presidential Decree 107/93 provided that architects with qualifications from other Member States who wished to establish themselves were required to produce a certificate from the issuing Member State, confirming that the evidence of formal qualifications fulfilled the requirements of the Architects Directive.

7. This provision has since been amended by Decree 272/2002 of 17 October 2002. Since then, the annexes to Article 13 of the Greek Presidential Decree 107/93 contain lists of the evidence of formal qualifications from other Member States which satisfy the requirements of the Architects Directive. If architects who wish to establish themselves in Greece can show evidence of one of these formal qualifications, there is no further requirement for evidence that they satisfy the requirements of the Architects Directive when applying for recognition under Article 3(1)(c) of Presidential Decree 107/93. Only if the architect were relying on other evidence of formal qualifications would he continue to be required to produce a certificate from the issuing Member State confirming that this evidence satisfied the requirements of the Architects Directive.

8. Immediately before the oral hearing on 4 March 2004, the Greek Government informed the Commission of yet a further amendment to this provision. In future, an applicant can thereunder make reference directly to the Commission’s list of qualifications which conform to the Directive, without having to provide a certificate in these cases.

B – Pre-litigation procedure and submissions of the parties

9. In the pre-litigation procedure, the Commission took the view that it would be disproportionate always to demand certificates of the conformity of evidence of formal qualifications which are not being recognised on the basis of acquired rights (what is presumably meant is Article 11 of the Architects Directive, which envisages the provision of certificates in relation to acquired rights). The Commission emphasises in its application that the Greek list does not contain all the types of evidence of formal qualifications which are contained in the list which the Commission has published pursuant to Articles 6 to 9 of the Architects Directive. The Commission points out in its reply that both updated versions of the Commission list which post-dated Presidential Decree 272/2002 have not yet been incorporated into the Greek list. It is of the view that it is not in conformity with the Architects Directive always to require certificates of conformity with the Directive where evidence of formal qualifications is submitted which is not contained in the Greek lists. In case of any doubt over the quality of any evidence of formal qualifications, the procedure outlined in Articles 8 and 9 of the Architects Directive should be followed. Only in the case of substantiated doubts over the authenticity of evidence does Article 27 of the Architects Directive provide that the host State can demand proof in this regard.

10. In the oral proceedings the Commission stated that it did not have any further objections following the most recent amendments to Greek law in relation to the plea in question. However it had not yet been possible to make a decision to withdraw this plea.

11. The Greek Government submits that a certificate from the issuing State is demanded in order to make it easier for the competent authorities to determine whether evidence of formal qualification within the meaning of the Architects Directive has been submitted. This is necessary whenever the evidence of formal qualification in question is not contained in the Greek list of evidence of formal qualifications which is to be recognised. It relies on the 15th recital in the Architects Directive according to which Member States may – in order to facilitate the application of this Directive by national authorities – prescribe that, in addition to evidence of qualifications, persons satisfying the educational and training requirements of the Directive must provide a certificate from the competent authorities of their Member State of origin or of the country from which they come stating that the evidence is that referred to by the Directive.

C – Admissibility of this plea

12. From the application and the defence, this plea must be understood as being directed against Article 3(1)(c) of Presidential Decree 107/93 as amended by Presidential Decree 272/2002. As the Commission did not abandon the plea in the oral hearing, it is irrelevant that it indicated that it has no further objections following the most recent amendments to this provision.

13. However, this plea could be inadmissible as Article 3(1)(c) of Presidential Decree 107/93 as amended by Presidential Decree 272/2002 was not the subject- matter of the letter of formal notice and the reasoned opinion.

14. According to settled case‑law, the pre-litigation procedure should give the Member State the opportunity to comply with its Community obligations and to defend itself effectively against the Commission’s objections. It follows that the subject-matter of an action under Article 226 of the EC Treaty is circumscribed by the pre-litigation procedure provided for in this provision. The action must therefore be based on the same reasoning and the same submissions as the reasoned opinion. A complaint which was not raised in this opinion is inadmissible in proceedings before the Court of Justice. ( )

15. The first plea was not raised in this form in the reasoned opinion, as Article 3(1)(c) of Presidential Decree 107/93 as amended by Presidential Decree 272/2002 no longer requires a certificate in each case but only when the evidence of formal qualification is not already included in the Greek list of diplomas which must be afforded recognition. The extent of the breach complained of is therefore markedly more limited than it was at the time of the reasoned opinion.

16. However, it does not follow that this plea is inadmissible. The Court has modified the requirement that the subject-matter of the dispute be identified in the pre-litigation procedure, in that there is no longer a need for complete correspondence between the national provisions which are specified in the reasoned opinion and the provisions which are relied on in the application. If there has been a change in the legislation between these two phases of the procedure, it is sufficient that the system established by the legislation contested in the pre‑litigation procedure has as a whole been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application. ( )

17. At least in so far as Article 3(1)(c) of Presidential Decree 107/93 as amended by Presidential Decree 272/2002 continued to require the submission of a certificate from the issuing Member State to the effect that the evidence of formal qualification fell within the Directive, the Commission’s complaint was already included in the reasoned opinion. This plea is therefore also admissible.

D – Substantiation of the plea

18. The Commission’s complaint ought to be understood in terms that a certificate of conformity of evidence of formal qualification with the Architects Directive is no longer necessary and therefore disproportionate at any rate where the evidence of formal qualifications is listed in the Commission’s notice of diplomas which are to be recognised.

19. An obligation of this kind on a Member State cannot be found in express terms in the Architects Directive. Articles 11 and 27, which envisage certificates in relation to acquired rights and in cases where there is doubt as to the authenticity of evidence, could lead, by contrary inference, to the conclusion that other certificates cannot be required. However the 15th recital, which allows certificates concerning whether evidence actually conforms with the Directive, contradicts this. The wording of the Architects Directive is therefore inconclusive on the point.

20. In any event, all requirements which make it more difficult to make an application for recognition of evidence of formal qualifications at the same time represent an obstacle to the exercise of freedom of establishment under Article 43 of the EC Treaty. This basic freedom must be taken into account when construing the Architects Directive. Any restrictions must be justified by reference to overwhelming grounds of public interest. ( )

21. Requiring the additional formality of a certificate from the issuing Member State makes the application for recognition of evidence of formal qualifications more difficult. However any State applied to has a basic interest, worthy of protection, in establishing whether the evidence of competence which has been submitted falls within the Architects Directive. It is not however necessary to produce an individual certificate from the issuing Member State if the evidence of formal qualifications is included in the Commission’s list of certificates which should be recognised. Since there is only one body in Greece – the Technical Board – which is concerned with the recognition of evidence of formal qualifications for architects, it can be demanded that this body take note of the Commission’s list which has been published in the Official Journal and make use of it in the recognition of evidence of formal qualifications. Reference to the Greek list is not however sufficient, as this list can even in theory never be updated contemporaneously with the Commission’s list, and – as the Commission rightly emphasises – has never once been even near being up to date with the Commission’s list.

22. Therefore Article 3(1)(c) of Presidential Decree 107/93 as amended by Presidential Decree 272/2002 was not compatible with the Architects Directive in conjunction with Article 43 of the EC Treaty, in so far as this provision required an accompanying certificate from the issuing Member State confirming conformity with the requirements of the Architects Directive whenever evidence of formal qualifications was submitted which was contained in the Commission’s list of certificates to be recognised. The first plea is therefore well founded.

II – The second plea: The practices of the Greek Technical Board

A – Pre-litigation procedure and submissions of the parties

23. The Commission introduced the subject-matter of the second plea into the Treaty infringement proceedings by way of a supplementary formal notice dated 9 July 1999. It alleged against Greece that the Technical Board ( ) was systematically refusing to register persons in possession of non-Greek evidence of formal qualifications which ought to have been recognised under the Architects Directive. It referred in particular to three cases in which applicants had been unsuccessfully trying to become registered for over a year. It persisted in this allegation in the reasoned opinion dated 24 February 2000.

24. In its action, the Commission in particular adduced by way of further evidence for its complaint a letter from the Greek Minister for the Environment and Planning dated 16 July 2001, which called on the Technical Board to speed up the registration process for architects entitled to recognition.

25. The Greek Government first reacted to this complaint in its response to the reasoned opinion dated 8 May 2000. It named four individuals who had already been registered. The individual cases referred to by the Commission were not addressed.

26. In its defence dated 23 January 2003 it maintained that so far 37 applications had been made and that the Technical Board had already registered nine architects. Seven further architects had been invited to become registered but two of these architects were no longer interested in registration. In its reply dated 19 May 2003, the Greek Government indicated that five other architects were nearing the end of the registration process.

27. Of the 21 remaining applicants, four of them had not submitted any documents and 17 had submitted incomplete applications. All of them had been requested to complete their applications. At the time the reply was drafted, only 10 of these applicants had completed their applications.

28. In order to clarify the facts, the Court asked the Greek Government to indicate in relation to each applicant

– when they had applied for registration

– when the Technical Board had registered them and, if relevant,

– when the Technical Board had requested applicants to complete their application.

29. The Greek Government thereafter indicated on 21 January 2004 that by this stage, 41 applications had been submitted and that the Technical Board had registered nine architects. The Greek Government did not indicate the date of application in respect of these nine applications.

30. Two applicants had abandoned any intention to become registered. Again, no further information was provided.

31. Fourteen architects had completed applications and been registered by a decision dated 8 January 2004. The applications date from the years 1988 to 2002. ( ) The Greek Government did not indicate whether and when these applicants had been requested to complete their applications.

32. A further 12 applicants had, on 30 December 2002, been requested to complete their applications but had not done so. These applications date from the years 1992 to 2002. ( )

33. Finally, one applicant, on 22 May 2003, and three further applicants, on 7 October 2003, had submitted applications without any documentation.

34. In the oral hearing, the Greek Government acknowledged that all applicants whose applications were incomplete had first been requested to produce the documents required under Presidential Decree 107/93, as amended by Presidential Decree 272/2002, by 30 December 2002. This letter had been a standard letter which attached statutory provisions. It had not, however, been made clear which documents were missing in any particular case. Prior to 30 December 2002, the practice had been to conduct only telephone conversations with applicants, for whom no records were available.

35. The Greek Government considers that, given the earthquake risk in Greece, a very careful examination of applications for registration is required.

B – Opinion

36. It should first be remembered that the Commission’s complaint must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion, that is to say, on 24 April 2000. ( )

37. The Commission alleged against Greece that the Technical Board was systematically refusing to register architects who were entitled to recognition. As indicated in the application, the Commission does not thereby mean a fundamental refusal of any recognition whatsoever, but that in the overwhelming number of cases the Technical Board unjustifiably refuses applications for recognition or makes no response at all. This clarification of the claim is not expressly included in the supplemental formal notice or the reasoned opinion. However the Commission’s complaint can also be understood in this way if construed with an eye to the reality of the situation.

38. The justification for this complaint must be examined in the light of Article 20(1) of the Architects Directive. According to that provision, the procedure for authorising the person concerned to take up the activities of an architect must be completed as soon as possible and not later than three months after presentation of all the documents relating to that person.

39. The Greek Government’s response to the Court’s request for information suggests that on 24 April 2000 at least 16 applications – i.e. at least 80% of all submitted – applications had been pending for more than three months.

40. From the Greek Government’s response, the possibility cannot be excluded that those applications were initially incomplete. In this respect it should be noted that the three-month period for admission only starts to run once a complete application has been submitted. As it is impossible to say whether or not these applications were complete or when they were made complete, as the case may be, breach of the three-month period cannot be made out.

41. Nevertheless, even before any incomplete application has been made complete, the responsible authorities are under an obligation to conduct the recognition process as quickly as possible. This follows from the wording of Article 20(1) of the Architects Directive which embodies the principle of due administrative process. ( ) The conclusion can therefore be drawn that the finding that an application is incomplete, and notification thereof to the applicant, must take place without delay. In no event should this procedural step take longer than the review of a complete application. The Technical Board should therefore, within at least three months of receipt of an application, either register the applicant or indicate to him which documents are still missing. ( )

42. As the Greek Government admitted in the oral hearing, before 30 December 2002 the Technical Board did not at least request in writing that complete applications be submitted. This practice was therefore in existence at the relevant point in time, namely at the end of the period laid down by the Commission in its reasoned opinion of 24 April 2000. The Greek Government cannot excuse itself by relying on telephone discussions, as it cannot provide substantiation or proof of either the fact or content of such discussions.

43. Finally in so far as the Greek Government seeks to rely on the particular risks of earthquakes in Greece, this cannot justify disregarding the express provisions of the Architects Directive. To the extent that particular problems exist in Greece for which the Architects Directive does not adequately provide, the Greek Government should lobby for a change to the Directive. However, in the present proceedings the Greek Government has not shown that there are any such problems.

44. It can therefore be concluded that Greece has infringed Article 20(1) of the Architects Directive, as in the majority of cases the Technical Board did not complete the recognition procedure for architects as soon as possible.

III – Costs

45. Pursuant to Article 69(2) of the Rules of Procedure, the unsuccessful party is, upon application by the other party, to be ordered to pay costs. A party who withdraws an action or a claim in the application will, under Article 69(5) of the Rules of Procedure, be ordered to pay costs if the other party has applied for costs in its observations on the withdrawal. On the application of the party withdrawing the claim, however, costs will be ordered against the other party if justified by the conduct of that party.

46. The Commission has made an application for costs and has been successful in all respects. However in its reply, it withdrew a third ground before Greece had taken any steps to defend itself against it. The conduct of Greece therefore gave no reason for either the introduction or subsequent withdrawal of this ground which would justify imposing this part of the costs on Greece. Therefore the Commission should be awarded only two thirds of the costs which it has incurred until the point of its reply, as well as all the costs which arose after the reply.

47. The Greek Government made an application for costs in its defence but neither expressly maintained such a claim in its rejoinder nor maintained it by reference to the earlier form of order sought. As a result, the Greek Government is to bear its own costs in full.

IV – Conclusion

48. I therefore propose that the Court should:

(1) Declare that

– by adopting and retaining in force Article 3(1)(c) of Presidential Decree 107/93 as amended by Presidential Decree 272/2002 and

– by accepting that the Techniko Epilmelitirio Elladas failed, in the majority of cases, to complete the procedure for recognition of architects as soon as possible

the Hellenic Republic has failed to fulfil its obligations under Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and the freedom to provide services in connection with Article 43 of the EC Treaty;

(2) The Hellenic Republic shall bear its own costs and all costs which the Commission has incurred since its reply, as well as two thirds of the costs which the Commission has incurred up until the reply. Otherwise the Commission shall bear its own costs.