WRITTEN QUESTION E-2062/99

by Laura González Álvarez (GUE/NGL) to the Commission

(12 November 1999)

Subject: Access for qualified teachers from other Member States to the Official Language School Teachers' Association in Spain

The Spanish authorities have not included the Official Language School Teachers' Association within the scope of Directive 89/48/EEC(1), and in failing to do so have barred qualified teachers from other Member States from gaining free access to the aforementioned professional teaching body.

Does the Commission believe that, in implementing the provisions of Directive 89/48/EEC, the Spanish authorities are empowered to impose unjustified limits on the number of regulated professional activities in Spain to which qualified teachers from other Member States can gain access, whilst enabling qualified Spanish teachers to gain access to all such activities?

Does the Commission believe that, in view of the provisions in force in Spain governing access to the Official Language School Teachers' Association through competitive examination (Law 1/1990, supplementary provision 15), Commission report COM(96) 46 final and Court of Justice case law, access to this teaching body constitutes a regulated professional activity as laid down by Directive 89/48/EEC?

Does the Commission believe that the failure to include the Official Language Schoolteachers' Association within Royal Decrees 1665/1991 and 1754/1998, through which Directive 89/48/EEC has been transposed into Spanish law, amounts to discrimination against citizens from other Member States with university degrees or equivalent qualifications who, unlike their Spanish counterparts, are barred from

sitting a competitive examination to gain access to the aforementioned teaching body, in contravention of Articles 48 and 52 of the EC Treaty (now Articles 39 and 43 since the Treaty was amended)?

What measures does the Commission intend to take vis-à-vis Spain in order to prevent such discrimination and to ensure that the Official Language School Teachers' Association is included amongst the regulated professional activities under Royal Decrees 1665/1991 and 1754/1998, through which Directive 89/48/EEC has been transposed into Spanish law?

(1) OJ L 19, 24.1.1989, p. 16.

Answer given by Mr Bolkestein on behalf of the Commission

(20 December 1999)

The Commission is well aware of the matter raised by the honourable Member. In the past, it has initiated an infringement procedure against Spain concerning the application 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(1). The procedure concerned access to certain public service positions which are filled through competitive examinations.

As part of the infringement procedure, the Commission examined the question of whether professional activities which require a degree or diploma awarded on completion of a certain level of education constitute a regulated profession as defined in Directive 89/48/EEC. Following an in-depth analysis, and after having issued the reasoned opinion required under Article 226 (ex Article 169) of the EC Treaty (stage two of the infringement procedure), the Commission decided to drop the infringement procedure based on the following considerations:

Under Directive 89/48/EEC, a regulated profession is considered to be a profession the taking-up of which is subject to the possession of a diploma by virtue of laws, regulations or administrative provisions. The term diploma must also be understood according to the definition given in the Directive, i.e. a diploma as a professional qualification. This Directive addresses the recognition of higher-education diplomas awarded on completion of professional training of at least three years' duration. A professional activity, or access to certain positions, which is subject to possession of a diploma of a given level in any field (i.e., in more abstract terms, an academic qualification), but not of a diploma awarded following specific training in a given field, falls outside the scope of the Directive.

Under Spanish law (Ley Orgánica 1/1990) a Licenciado degree, a degree in engineering or architecture, or an equivalent qualification is required to gain access to the Official Language School Teachers' Association. However, there is no requirement for a teaching certificate proper. Therefore, according to the Directive's definition, this profession is not regulated.

As a result, failing to include the Official Language School Teachers' Association in the law transposing Directive 89/48/EEC into Spanish law is not an infringement of that Directive, nor of Article 43 (ex Article 52) of the EC Treaty.

Nonetheless, the fact that the Directive does not apply does not mean that EU citizens who have diplomas awarded in other Member States do not have any rights with regard to access to the profession in question. In this case, the recognition of diplomas awarded in other Member States is governed by the principles established in Articles 39 and 43 of the Treaty, as interpreted in the Court of Justice's case law on the subject(2). These provisions do not specifically provide for a right to recognition of the diploma. They state only that the host Member State is required to take into account diplomas obtained in another Member State and compare them with the required national diploma. Of course, if the results of this comparison are positive, the holder of the foreign diploma must be admitted to the competition.

(1) OJ L 19, 24.1.1989.

(2) Cases C-222/86 Union nationale des entraîneurs et cadres techniques professionnels du Football (Unectef) v Heylens, [1987] ECR 4097, C-840/89 Vlassopoulou v Ministerium für Justiz, Bundes-und Europaangelegenheiten Baden-Wûrttemberg, [1991] ECR I-2357 and C-104/91 Colegio Oficial de Agentes de la Propiedad Inmobiliairia v Aguirre Borrell and others (Newman), [1992] ECR I-3003.