Report from the Commission - Review, on the basis of experience, of Council Directive 85/384/EEC of 10 June 1985 pursuant to Article 30 thereof
Date: 1997-07-08
Institutions: European Commission
Subjects: architecture, recognition of diplomas, right of establishment, town-planning profession, vocational training

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  08.07.1997 
COM(97)  350  final 

REPORT FROM THE COMMISSION 

Review, on the basis of experience, of Council Directive 85/384/EEC 
of 10 June 1985 pursuant to Article 30 thereof 

REPORT  FROM  THE  COMMISSION 

Review, on the basis of experience, of Council Directive 85/384/EEC 
of 10 June 1985 pursuant to Article 30 thereof 

I. 

INTRODUCTION 

In  accordance  with  Article 30  of  Council  Directive 85/384/EEC,  the  Commission  is  to 
review  this  Directive  on  the  basis  of  experience  and,  if  necessary,  submit  proposals  for 
amendments after consulting the Advisory Committee. 

Under  that  Article, the  report  should  have  been  submitted  in  1990.  The reasons  for  the 
delay are set out below. 

First,  certain  Member States  took  considerably 
longer  than  allowed  to  transpose 
Directive 85/384/EEC  into  national  law  (the  general  deadline  was  5 August 1987,  but 
5 August  1988  in  respect  of  Article 22).  For  example,  Belgium  did  not  transpose  the 
Directive  until  1990  and  Greece  did  so  only  in  1993, while  Italy  transposed  part  of  the 
Directive in 1992 before completing the bulk of the transposai exercise in 1995. 

Second, German unification  on 3 October 1990 meant not only that the Federal  Republic's 
new Lander had  also  to transpose  Directive  85/384/EEC  and,  accordingly, that  Germany 
had  not  yet  completed  transposai,  but  also  that  all  the  Member States  had  to  transpose 
Article 8  of  Council  Directive 90/658/EEC  of  4 December  1990  amending  certain 
Directives on the recognition of professional  qualifications  consequent upon the unification 
of  Germany  (OJ  No  L 353  of  17 December  1990),  which  deleted  Article 6  of 
Directive 85/384/EEC. 

Lastly,  the  entry  into  force  of  the  Agreement  on  the  European  Economic  Area 
(1 January  1994) and  the  accession  to  the  European  Community  of  Austria,  Finland  and 
Sweden  (1 January 1995) had  to  be  taken  into  account.  The  scope  and  impact  of  these 
developments could not be assessed immediately, and it would have been unacceptable to 
submit  an  assessment  concerning  only  twelve  of the fifteen Member States.  Austria,  for 
example, completed transposai in October 1995. 

The  above  reasons  for  the  delay  in  submitting  this  report  have  been  explained  to  the 
Member States on several occasions and have, in general, been accepted. 

A 

IL 

DIRECTIVE 85/384/EEC 

1. 

Council Directive 85/384/EEC of  10 June 1985 (OJ No L 223 of 21 August 1985), 
was  the  result  of  lengthy,  difficult  negotiations  lasting  almost  eighteen  years. 
Inevitably, the outcome was a complex  compromise between the Member States. 
Unlike  the  Directives  recognizing  medical  qualifications,  Directive 85/384/EEC 
does  not  lay  down  minimum  training  requirements  for  architecture  but  merely 
provides  for  qualitative  and  quantitative  criteria  (Articles 3  and  4  respectively) 
whereby a diploma can be recognized at Community  level (Articles 7 and 8 contain 
the relevant procedural rules). 

in 

length  of 

the  negotiations  which  culminated 

The 
the  adoption  of 
Directive 85/384/EEC  and  its  distinctive  character  in  relation  to  the  Directives 
recognizing  the  qualifications  of  certain  medical  professions  reflect  the  fact  that 
architecture is a complex, sensitive and problematic area.  The main reason for these 
difficulties  was the sometimes very pronounced  differences  between  regulations in 
the field in the Member States.  The enlargements of 1973 and  1981 meant that, four 
additional  legal  structures had to be taken into account,  and mis initially  made the 
negotiations even more complex. 

It  also  had  to  be  taken  into  account  that  architecture  is  net  regulated  in  some 
Member States  (Ireland,  Denmark.  Sweden  and  Finland,  plus Norway  in  an EEA 
context).  In other Member States (including the Netherlands, the United  Kingdom 
and  Germany)  only  the  title  of  architect  is  protected.  Lastly,  in  yet  other 
Member States  (including  Spain,  Belgium  and  France)  the  title  of  architect  is 
protected and, in addition, (with a few rare exceptions) architects enjoy  a monopoly 
in pursuing their activity.  What is more, architects' responsibilities  and  obligations 
vary  greatly  from  one  Member State to  another.  The  difficulties  caused  by  these 
sometimes very substantial differences  in. the way the profession  is regulated and in 
the field of architecture itself explain why Directive 85/384/EEC does not contain a 
precise  definition  of  architecture  (see  the  seventh,  ninth  and  tenth  recitals  and 
Article 1(2)). 

2. 

It  should  be noted that  Directive 85/384/EEC  refers  to  qualifications  enabling  the 
holder to take up activities in the field of architecture and hence to the professional 
recognition of those qualifications.  Such recognition applies only to  qualifications 
awarded by Member States to Community nationals.  Since the entry  into force  of 
the  Agreement  on the  European  Economic  Area  (1 January  1994). the  same  rules 
have  applied  to  Iceland,  Norway  and  (since 1  May 1995)  Liechtenstein.  With 
regard to Austria, Finland and Sweden, these rules had applied since  1  January 1994 
pursuant  to  the  EEA  Agreement  and  since  1  January  1995  pursuant  to  the 
EC Treaty. 

3. 

4. 

5. 

Directive 85/384/EEC  comprises  two  sets  of  provisions  on  formai  qualifications 
enabling  the holder  to take  up activities  in  the field of  architecture.  The first set 
(Chapter  II)  sets  out  the  common  arrangements  described  in  paragraph  1 above. 
The  second  (Chapter  III)  describes  the  arrangements  for  so-called  "established 
rights",  i.e.  the  mutual  recognition  of  certain  qualifications  (listed  exhaustively) 
which  need  not  meet  the  minimum  requirements  set  out  in  Chapter II  (Articles 3 
and 4) but for which the relevant studies commenced during the third academic year 
at  the  latest  following  notification  of  Directive 85/384/EEC  (5 August 1985), 
namely during the  1987/88 academic year.  Under the Agreement on the European 
Economic  Area  and  the  Treaties  enlarging  the  EC  in  1986  and  1995,  the  list  of 
"established rights" qualifications was extended to include qualifications awarded in 
the countries concerned by those three treaties (for the  1986 enlargement, this took 
the form of two Council Directives, namely 85/614/EEC of 20 December  1985 and 
86/17/EEC of 27 January 1986). 

The Directive in question also contains provisions to facilitate the effective  exercise 
of the right of establishment and freedom to provide services (Chapter V). 

However, the Directive does not provide for  complete harmonization of training in 
architecture.  Other training  courses  in architecture  which do not comply  with the 
Directive  but  are  quite  lawful  may  therefore  also  exist.  It  may  also  be  that  an 
individual completed part of his training in one Member State and another part (e.g. 
the practical training)  in another Member State, in which case he may not  possess 
the diploma  referred  to by the Directive  (either  the  "new" one  or the  "established 
rights" one).  All these courses (and the qualifications  awarded on their completion) 
must  be  taken  into  account  in  accordance  with  Article 52  of  the  EC Treaty,  as 
interpreted by the Court of Justice in its judgment of 7 May  1991 in Case C-340/89 
Vlassopoulou [1991]  ECR  1-2357. 
In  this  case  the  Court  held  that,  when  an 
application to take up a regulated profession  is submitted to a host Member State by 
a  migrant  who  is  authorized  to  practise  that  profession  in  his  home  State,  the 
migrant's  diplomas,  certificates  and  other  qualifications  and  the  professional 
experience  he has  acquired  must be  taken  into  account  by  that  Member State.  If 
those qualifications  are equivalent to those required  under the host Member State's 
legislation to work in the field of architecture, the migrant must be authorized to do 
so.  If  that  is  not  the  case,  he  must  be  afforded  the  opportunity  to  remedy  any 
shortcomings  in  his  training.  Lastly,  the  reasons  on  which  any  administrative 
decision  is based  must  be given  and  it  must  be possible to  make  it the  subject  of 
judicial proceedings in which its legality under Community law can be reviewed. 

The recognition provided for under the Directive (along with the recognition based 
directly  on  Article 52  of  the  EC Treaty)  applies  only  to  diplomas  acquired  by 
Community  nationals  in  a  Member State  of  the  Union.  Where  diplomas  were 
acquired  in  a  third  country,  recognition  is  optional  and  determined  by  each 
Member State.  The  fact  that  a  diploma  awarded  by  a  third  country  has  been 
recognized  by  one  Member State  does  not  oblige  the  others  to  do  so  (cf.  Court 
judgments 
and 
of 
C-l54/93  Tawil-Albertini). 

in  Cases  C-319/92  Haim 

9 February 

1994 

6.  The legal definition of the field of architecture and the legal arrangements governing the 
profession of architect (e.g. rights, obligations, duties, incompatibilities) are covered by 
the national law of the host Member State.  Accordingly, migrants have the same legal 
status  as  members  of  the  profession  who  acquired  their  qualifications  in  the  host 
Member State.  This may mean that certain activities that the migrant  was entitled  to 
carry out in his home country may not be carried out in the host Member State. 

m. 

TRANSPOSAL INTO NATIONAL LAW 

As  stated  above,  transposai  of  Directive 85/384/EEC  has  been  delayed -  substantially  in 
certain  cases.  But  the  current  state  of  transposai  can  be  regarded  as  quite  satisfactory 
overall.  Problems have arisen  particularly  in Italy as a result  of the excessive  length  and 
complexity of procedures. 

Transposai  of Directive 85/384/EEC has given rise to a number of Court judgments.  For 
instance, the Court found that Italy had failed  to fulfil  its obligations under the EEC Treaty 
by  not taking  measures to  transpose  Directives 85/384/EEC,  85/614/EEC and  86/17/EEC 
within the prescribed period (judgment of 11 July 1991 in Case C-296/90). 

The Court also declared that Greece had failed to fulfil  its obligations under the EEC Treaty 
by failing to take measures to transpose those same Directives within the prescribed period 
(judgment of 7 November  1991 in Case C-309/90).  It further  held that Greece had failed to 
fulfil  its  obligations  under  Articles 50 and  59 of  the  EEC Treaty  by  retaining  legislation 
which did not expressly confer on the nationals of other Member States the right to register 
as ordinary members of the Technical  Chamber of Greece, whereas access to and  exercise 
of the profession  of architect  in  Greece  is subject  to, and  facilitated  by, such  registration 
its  judgment  of 
(judgment  of  14 July 1988  in  Case  C-38/87);  subsequently, 
30 January  1992  in  Case C-328/90,  the  Court  stated  that  Greece  had  not  fulfilled  its 
obligations  under  Article  171 of  the  EEC Treaty  by  failing 
to  comply  with  the 
aforementioned judgment of 14 July 1988. 

in 

In  addition  to  the  above,  three  sets  of  infringement  proceedings  are  currently  pending, 
against Spain, Italy and Luxembourg, the first two for faulty transposai (for the proceeding 
against  Spain,  in which only  one specific  issue  is still  outstanding,  see  Section V below), 
and the third for failure to apply the Directive properly. 

Since  1987 the Commission has received a total of 42 complaints, which chiefly  hinged on 
failure  to transpose Directive 85/384/EEC, late or faulty  transposai, or failure  to apply the 
Directive  properly  in  practice.  Some  of  these  complaints  gave  rise  to  the  infringement 
proceedings  already  mentioned,  others  were  resolved  following 
the  Commission's 
intervention  with  the  Member State  concerned,  and  the  remainder  proved  unfounded  or 
irrelevant.  Four  complaints  are  under  investigation  at  the  time  of  writing  (two  against 
Belgium and two against Austria). 

In conclusion, transposai of Directive 85/384/EEC has proved to be lengthy and sometimes 
problematic.  It has  still  not been officially  completed  and difficult  cases are still  arising. 
The Commission is in touch with complainants and Member States on a regular basis and, 
where  appropriate,  infringement  proceedings  will  be  instituted  under  Article 169  of  the 
EC Treaty. 

IV.  ASSESSMENT OF THE DIRECTIVE'S IMPACT 

1. 

Since  1987  (the  general  deadline  for  transposing  Directive 85/384/EEC),  the 
Commission  has  set  up  a  mechanism  whereby  Member States  can  exchange 
statistics on the migration of architects.  These statistics point to what is, after all, a 
fairly complex situation. 

Although  migration  of  architects  within  the  Community  does  not  appear  to 
concern  large numbers of people, particularly  as regards establishment,  it may be 
that the statistics do not give the full  picture.  In countries where the profession  is 
not  regulated,  it  is very  difficult,  not to  say  impossible  in  some  cases, to  obtain 
reliable  data  since  architects  are  not  obliged  to  register  or join  a  professional 
organization.  In  addition,  the  provision  of  services  is often  difficult  to  identify, 
even  in  countries  where  the right to  practise  in  the  field  is  regulated,  since  the 
relevant  formalities  are  less  burdensome  and  simpler  (and,  in  some  cases,  even 
non-existent,  de jure  or  de facto).  All  these  factors  must  be  taken  into  account 
when assessing the impact of Directive 85/384/EEC. 

2. 

In  any  event,  migration  of  architects  within  the  Community  clearly  does  not 
involve  large  numbers  of  people.  The  available  statistics  mainly  cover 
establishment, and the small number of cases is explained by economic,  financial, 
social and cultural constraints. 

The  Directive  has  nevertheless  allowed  a  certain  number  of  architects  to  move 
freely  and  ensured  the  automatic  mutual  recognition  of  the  qualifications  in 
architecture  which  it  covers.  Between  1987  and  1995  at  least  1  500  architects 
benefited  from  the  Directive.  What  is  more,  Article 3  in  particular  is  still  an 
important  reference  point  for  training  in architecture  within  the  Community  and 
even elsewhere. 

The  Directive  thus  forms  part  of  the  existing  body  of  Community  law  and 
represents a definite advance on Directives 89/48/EEC and 92/51/EEC, which set 
up  a  general  system  for  the  recognition  of  diplomas.  That  system  does  not 
provide  for  automatic  recognition  of  diplomas  in  so  far  as  there  is  no 
coordination  of  training,  but  it  does  allow  the  host  Member State  to  impose 
additional requirements on migrants where the content or length of their training 
differs  substantially from that required in the host country in order to take up and 
practise  the profession  or activity  in  question.  In  addition,  unlike  the  "general 
system"  Directives,  Directive 85/384/EEC  lays  down  specific  arrangements  for 
the provision of services, which is very important in the field of architecture.  It 
provides migrants with more extensive rights than Directive 89/48/EEC. 

For all the above reasons, Directive 85/384/EEC continues to serve a genuinely 
useful purpose in spite of the adoption of the two aforementioned  Directives. The 
general  system  is  far  more  recent  and  is  not  yet  fully  operational  in  all 
Member States.  Accordingly,  the  Directive  should  be  retained  as  one  of  the 
sectoral directives for the recognition of professional  qualifications. 

Directive 85/384/EEC  refers  to  the  Advisory  Committee  on  Education  and 
Training  in the  Field  of Architecture  set up by  Council  Decision 85/385/EEC. 
The  Committee  is  composed  of  three  experts  from  each  Member State, 
representing  the  practising  profession,  the  universities  and  the  competent 
authorities.  Its task is to help to ensure a comparably high standard of education 
and  training  for  architects  throughout  the  Community.  It  adopts  reports  and 
recommendations  on  training  and  delivers  opinions  in  cases  where  the 
conformity  of a diploma is disputed (see below the discussion of Articles 7 to 9 
of the Directive).  Two working parties have been set up under the Committee, to 
discuss training  and diplomas.  The Committee has met eight times  since  1987 
and has adopted the reports, recommendations  and opinions listed  in the Annex 
to this report. 

V. 

ANALYSIS OF THE DIRECTIVE'S MAIN ARTICLES 

ARTICLE  1 

This Article defines the material scope of Directive 85/384/EEC.  It refers to architecture 
as opposed to architects because, in a number  of Member States, architects  are not the 
only  individuals  authorized to work in the  field.  That fact,  combined with the marked 
differences  in regulations between Member States, explains the use of the term "usually" 
in Article 1(2) (see also the ninth and tenth recitals). 

ARTICLE 2 

Article 2 affirms the fundamental  principles of equivalence of diplomas and their mutual 
recognition  by  the  Member States.  As  a  result,  migrants  have  the  same  rights, 
responsibilities  and  duties  in  the  host  country  as  architects  who  obtained  their 
qualifications  in that country. 

The  Commission  has  instituted  infringement  proceedings  against  Spain,  where  the 
transposai  legislation  provides,  with  regard  to  certain  activities  in  the  field  of 
architecture, that the  migrant's  obligations  are those  spelt  out  by the  legislation  of  the 
home  Member State  as  opposed  to  the  (more  favourable)  arrangements  provided  for 
under Spanish law. 

ARTICLE 3 

This  Article sets  out  the  conditions  which  must  be  met  by  courses  leading  to  diplomas, 
certificates  and  other  evidence  of  formal  qualifications  mutually  recognized  by  the 
Member States.  These conditions are fairly  general and merely set out the main qualitative 
principles  which  courses  must  meet  in  order  to  qualify  for  recognition  under 
Directive 85/384/EEC.1 

ARTICLE 4 

1. 

Article 4  sets  out the  requirements  as to  course  length  that  training  courses  must 
meet  in  order  to  be  recognized  under  the  Directive.  The  derogation  granted  to 
"Fachhochschulen"  in  Germany  has  been  discussed  in  a  separate  Commission 
report (COM(95) 672, 15 December  1995).  Judgments by the Court of Justice have 
clarified  the conditions under which practical training can be validly integrated into 
architecture  courses  (see  Cases C-310/90  of  21 January 1992  and  C-166/91  of 
8 April 1992). 

The length of education and training in architecture must consist of a minimum of 
four years of full-time  studies, or six years of part-time study of which at least three 
must  be  full  time,  at  a  university  or  comparable  educational  establishment. 
Education  and  training  has  to  be  concluded  by  successful  completion  of  an 
examination of degree standard. 

2. 

In  1992  the  Advisory  Committee  on  Education  and  Training  in  the  Field  of 
Architecture  adopted  a  recommendation  to  the  Member States  which  advocated 
increasing the  length  of education  and training  in architecture  to five years, to be 
followed by mandatory practical training of two years. 

The recommendation was discussed by the Member States in 1993 and 1994 (on the 
latter  occasion  by the Ad Hoc Group of  Senior Officials  Responsible  for the Free 
Movement  of  Architects,  with  the  participation  of the  countries  which  were  then 
candidates for accession).  It emerged at the time that no country was in favour  of 
establishing  mandatory  practical  training  of two years.  Regarding  the  length  of 
training, there was no consensus in favour of making five years mandatory. 

As to  substance, there  is no apparent  need to make binding that  which  is already 
allowed under Directive 85/384/EEC.  Those countries wishing to do so may set up 
a training  system based on the recommendation  (as the Netherlands did in  1995). 
The Commission therefore does not propose to amend Article 4(1). 

It  should  be  noted  that,  in  December  1993,  the  Dutch  authorities  commissioned  York  University 
(Institute  of  Advanced  Architectural  Studies)  to  carry  out  a  comparative  study  on  training  in 
architecture  in the Netherlands,  Spain,  Germany,  Belgium,  France and the United Kingdom.  The 
study was based on the criteria set out in Article 3 and was carried out independently  of the Dutch 
authorities.  It showed that the training in architecture provided  in the Netherlands enabled students 
to reach a level of competence which met the criteria of Article 3 and was comparable  to the level 
achieved  by students in the other countries covered.  Practical  training in the Netherlands could be 
improved  further. 

7 

3. 

Article 4(2) sets out special arrangements for alternatives to the traditional training 
route.  Two qualifications have been accepted to date under the procedure described 
below (Articles 7 to 9), namely the Part II examination of the RIB A (Royal Institute 
of  British  Architects)  (in  1988)  and  the  French  DPLG  (architecture  diploma 
awarded  by  the  Government)  as  part  of  the  continuing  vocational  training  and 
upward  mobility  programme  (1994), and this despite  a negative  opinion from the 
Advisory Committee (see below). 

ARTICLES 7 TQ 9 

These Articles deal with the procedure leading to recognition of diplomas, certificates  and 
other evidence of formal  qualifications  in the field of architecture  (excluding  "established 
rights";  see  under  Articles 10  to  15  below). 
It  is  a  complex  procedure  whereby 
Member States  communicate  new  qualifications  which  they  consider  to  meet  the  criteria 
laid  down  in  Articles 3  and  4  of  the  Directive.  The  other  Member States  and  the 
If  doubts  are 
Commission  then  have  three  months  in  which  to  dispute  compliance. 
expressed,  the  matter  is  brought  before  the  Advisory  Committee,  which  delivers  a 
(non-binding)  opinion  within  three  months.  The  Member State  can  then  withdraw  or 
amend  the  communication  or  the  Commission  may  institute  proceedings  pursuant  to 
Article 169 of the EC Treaty  (within three months of the opinion being  delivered).  If no 
doubts are expressed, the diploma is published  on the list provided  for  in Article 7 and is 
mutually recognized by the Member States (see also Article 8). 

With regard to the withdrawal of a diploma from that list (Article 9), if a Member State or 
the  Commission  considers  that  a diploma  no  longer  complies  with  the  Directive,  it  may 
bring  the matter  before  the Advisory  Committee, which  delivers  a (non-binding)  opinion 
within  three  months.  The  Commission  can  withdraw  a  diploma  from  one  of  the  lists 
published  in  accordance  with  Article 7  either  with  the  agreement  of  the  Member State 
concerned or following a ruling by the Court of Justice. 

Between  1987  and  1997  the  Advisory  Committee  delivered  ten  opinions  (nine  under 
Article 8 and one under Article 9) on compliance by diplomas with the criteria laid down in 
Articles  3 and  4  of the  Directive.  Two  opinions  were  positive  and  eight  were  negative 
(including the opinion delivered under Article 9).  Two of the opinions (one of which being 
the opinion delivered under Article 9) were not followed. 

The list of diplomas, certificates  and other evidence of formal  qualifications  in architecture 
(see  Article 7(2)  of 
which  are  mutually 
Directive 85/384/EEC)  is  given  in  communication  96/C 205/05  (OJ  No C 205  of 
16 July 1996, p. 6). 

the  Member States 

recognized  by 

One aspect of the procedure requires clarification.  When a diploma's compliance with the 
Directive  is  disputed,  it  follows  from  the  wording  of  Article 8 that  the  matter  must  be 
brought  before  the  Advisory  Committee  before  the  three-month  deadline  for  disputing 
compliance  expires.  This  has  often  proved  impossible  in  so  far  as  Member States  have 
often  waited  until the last day  of that deadline before  communicating  their  doubts about a 
diploma.  Provision  should  therefore  be  made  for  the  Commission  to  bring  the  matter 
before  the  Committee  no  later  than  two  months  after  expiry  of  the  period  during  which 
compliance with Directive 85/384/EEC can be disputed. 

8 

ART! 

1.  Chapter  III  of  the  Directive  sets  out  the  "established  rights"  arrangements,  which  are 
designed  to  ensure  the  recognition  of  qualifications  in  architecture  obtained  on 
completion  of  training  prior  to  the adoption  or  entry  into  force  of the  Directive.  The 
reason for this was that it was necessary  to preserve the rights of those individuals who 
were  already  authorized  to  work  in the field or  were  about to  be  authorized  to  do so, 
when the Directive was adopted/came into force.  Accordingly,  Article 10 refers  to  the 
qualifications  specified  in Article 11 where their holders  already possessed  them  at  the 
time of notification  of the Directive (5 August 1985) or where they had commenced their 
studies  leading  to  those  qualifications  during  the  third  academic  year  at  the  latest 
following  such notification  (i.e. up to and including the  1987/88 academic year).  These 
time-limits  also  apply  to  Spanish  and  Portuguese  qualifications,  given  that  Spain  and 
Portugal joined  the Community  on  1  January  1986.  For the countries which joined the 
Union in 1995, that is the key date when calculating the time-limits for established rights 
in  respect  of persons holding  qualifications  awarded by them.  The  deadline by  which 
studies  leading  to  those  qualifications  must  have  commenced  is  therefore  up  to  and 
including the  1997/98 academic year.  In the case of the EFTA countries to which  the 
EEA Agreement applies, the deadline is up to and including the  1996/97 academic year 
for  Iceland  and  Norway  and  up  to  and  including  the  1997/98  academic  year  for 
Liechtenstein. 

2. 

In  its  case-lav/,  the  Court  of  Justice  has  drawn  a  clear  distinction  between  the 
"established rights" arrangements (Chapter III) and the common arrangements provided 
for  in  Chapter II  in  respect  of  qualifications  awarded  after  the  aforementioned  dates. 
According  to  the  Court,  the  open  arrangements  enshrined  in  Articles  7  to  9  of  the 
Directive  contrast  with  the  closed,  special  and  exceptional  arrangements  by  virtue  of 
"established  rights".  The  articles  setting  out  those  arrangements  must  therefore  be 
interpreted  strictly  and  rule  out  any  broader  interpretation  or  any  interpretation  by 
analogy.  The Court clearly spelt out those principles in its judgment of 9 August 1994 in 
Case C-477/93 Dreessen v Conseil National de l'Ordre des Architectes de Belgique. 

3. 

In that connection, Ireland requested in  1990 that an additional qualification  be added to 
the  list  of  Irish  diplomas,  certificates  and  other  evidence  of  formal  qualifications 
recognized by virtue of established rights.  This request was worded as follows: 

"the  following  additional  qualification  to  Article 11(f)  of  the  Directive-  a  certificate 
issued by the competent authorities to the effect  that a person, who, on the date of entry 
into  force  of this  Directive, had,  over  a period  of at least five years prior to that  date, 
pursued architectural activities, the nature and importance of which in the opinion of the 
competent authorities give that person an established right to pursue those activities". 

The  Commission  rejected  the  Irish  request.  As  has  already  been  pointed  out,  the 
arrangements in question are special and exceptional, and qualifications  can be added to 
the list only in genuinely extraordinary  circumstances, as when countries join the Union. 
Throwing the matter open more than ten years after the Directive was adopted would be 
tantamount to calling its overall balance into question. 

In  addition,  the  qualification  proposed  by  the  Irish  authorities  consisted  of  a  simple 
attestation  to the effect  that the persons concerned  liad pursued  architectural  activitie? (a 
field  neither defined nor regulated in Ireland) which, in the opinion of the Irish authorities, 
gave them an established  right.  This is therefore  a different  case to those described in the 
seventh and eighth indents of Article 11(h) (Netherlands) and the second and third  indents 
of  Article 11 (i)  (United  Kingdom)  given  that 
in  those  two  Member States,  die 
qualifications  concerned  by  the  indents  in  question  (which  appeared  to  be  somewhat 
similar  to  the  amendment  proposed  by  Ireland)  referred  to  attestations  of  competence 
and/or registration,  such registration being required  in order to hold the professional title 
of architect and being non-existent in Ireland. 

4  The Dutch authorities have also proposed  amendments  in respect of  "established rights". 
They would like Article 12 to be simplified  as its wording is so complex that it is  difficult 
to  determine  which  documents  ("certificates")  have  to  be  recognized  by  the  Member 
States.  This concerns (at least) two certificates: 

1.  A certificate to the effect  that its holder was authorized to bear the professional  title 

of architect before the implementation of this Directive, and 

2.  A  certificate  to the  effect  that  its holder  exercised  the  activities  in  question  for  at 
least  three  consecutive  years  during  the  five  years  preceding  "the  issue  of  the 
certificate". 

The problem  is how to determine  the connection  between these  two  certificates  and the 
exact  scope  of  the  second  certificate.  Should  it  be  understood  as  meaning  that  the 
interested party effectively  exercised the activities in question, for at least three consecutive 
years during the five years preceding the issue of the first certificate  (consequently, hi any 
event,  prior  to  1985/87)  or  during  the  five  years  preceding  the  issue  of  the  certificate 
required of him, for example in 1995 (i.e. between  1990 and 1995)? 

In the first case, the requirement that a certificate  be presented  attesting to  professional 
experience can be withdrawn, according to the Dutch authorities.  Mutual, trust between 
the Member  States is required, whereby established rights acquired  in the more or less 
distant past in a Member State must be recognized by the other Member States as well. 
In the  second  case, this  requirement  should  be  explicitly  included  in  Article  12.  The 
Dutch authorities therefore propose that Article 12 be simplified or reworded. 

The  article  in question  was  clarified  by  Advocate-General  Darmon  in his  conclusions 
(points  28  to  32)  in  the  Dreessen  case  (C-477/93),  where  firstly,  he  stated  that  the 
regulations  in question  were those  of the  Member State that  awarded  the  certificate  in 
question,  which  could  refer  only  to  the  activity  carried  out  on  the  territory  of  that 
Member State.  While  Article 12  "requires  each  Member Stats  to  give  effect  to  a 
certificate  issued  to  a  Community  national  by  another  Member State  relating  to  the 
exercise by that national of activities as an architect for a specified  length of time, such a 
certificate-  as  is  shown  by  the  reference  to  'such regulations'-  can  relate  only  to 
activities  exercised  in the territory  of the  State issuing the certificate.  Consequently,  a 
Community  national who has exercised his professional  activities in one Member State 
exclusively  cannot  rely  on  any  certificate  which  may  have  been  issued  by  another 

10 

Member State  relating  to  such  activities"  (points  31  and  32  of  the  conclusions).  In 
addition,  the  decisive  period  is  that  preceding  notification  of  Directive 85/384/EEC -
5 August  1985 -  as  regards  the  first  indent  and  that  preceding  implementation  of  the 
Directive (in any event, by 5 August 1987 at the latest) as regards the second indent.  By 
those  dates  (at the  latest)  the  interested  parties  must  have  been  authorized  to hold  the 
professional  title of architect and also meet the conditions governing the right to take up 
activities in the field of architecture. For  these reasons, the Commission takes the view 
that it is not necessary to amend the article in question. 

The Dutch authorities have also requested an amendment to the eighth indent of Article 
11(h) on the grounds that the age condition is an impediment.  They propose deleting it 
and replacing it by a reference  to relevant professional  experience of ten years prior to 
the  entry  into  force  of  Directive 85/384/EEC.  However,  the  final  sentence  of 
Article 11(h)  shows  that  the  provision  in  question  is  transitional  and  provisional  in 
nature  and  will  ultimately  be  repealed  within  the  Netherlands.  To  replace  it  at  this 
juncture would be contrary to the general disposition of this provision and to the general 
equilibrium of the established rights arrangements. 

Accordingly, the Commission does not envisage proposing any amendments to the list 
of  established rights, although  Article  15, which  is  evidently  now  obsolete,  should  be 
repealed. 

ARTICLES  16 TO 32 

The Commission takes the view that any amendments concerning freedom of establishment 
and freedom  to provide services must essentially be designed to clarify  the procedures  for 
authorizing persons to take up architectural activities with a view to streamlining them, and 
to amend or repeal articles which no longer serve any purpose. 

To this end, it is proposed that Article 24 of the Directive be amended so as to make a clear 
distinction between cases of establishment  and cases of provision  of services (a point also 
raised  by  the  Netherlands).  Article 24  stipulates  that  migrants  must  furnish  proof  of  no 
previous  bankruptcy  and  of  their  sound  financial  standing.  This  requirement  is  often 
extremely  onerous for  providers of services.  In addition, the reference  in Article 24(1) to 
the prior application of Articles 17 and 18 (provisions specific to the right of establishment) 
is not consistent with the provision of services. 

It is therefore  proposed that a sentence be inserted  into Article 24(1) to the effect  that the 
information  furnished  pursuant to Articles 17 and  18 applies to cases of establishment and 
that, in cases of provision of services, it is Article 22 that applies. 

By contrast, the  Commission  cannot  accept  the Dutch request that the central  registration 
system existing in the Netherlands be made mandatory.  This is because, assuming that it is 
correctly transposed into national law, Article 28 in its present form is sufficient  to resolve 
any problems arising in this connection. 

11 

Lastiy, traditional provisions concerning transposai  of the Directive  are to be added.  The 
time-limit for transposai is 31 December 1999. 

VI. 

THIRB COUNTRIES AND ENLARGEMENT 

1. 

The  Commission  does  not  envisage  taking  action  on  a  French  proposal  that 
diplomas  awarded  by  third  countries  be  assessed  by  the  Advisory  Committee. 
Council  Recommendation  85/386/EEC  of  10 June 1985  concerning  holders  of  a 
diploma  in  architecture  awarded  in  a  third  country  is  not  legally  binding. 
In 
addition,  under  the  Council  Decision  setting  it  up,  the  Advisory  Committee  on 
Education  and  Training  in  the  Field  of  Architecture  is  not  competent  to  assess 
In  any  event,  it  does  not  have 
diplomas  awarded  by  third  countries. 
decision-making  powers, even  where  Community  diplomas  are  concerned,  but  is 
empowered merely to issue non-binding opinions. 

Regarding  Directive 89/48/EEC  and  the  general  system  for  the  recogmtion  of 
diplomas, such recognition is not automatic, as it is under Directive 85/384/EEC.  In 
addition, diplomas awarded  by third  countries  qualify  for  Community  recognition 
under  the  general  system  only  after  the  holders  of  such  diplomas  (Community 
nationals)  have  acquired  three  years'  professional  experience  attested  by  the 
Member State which first recognized the diploma. 

It should be noted that a similar proposal  concerning  the medical  professions  was 
rejected  by the authorities of the Member States and that the French position  failed 
to  win  support  at  the  October 1995  meeting  of  the  Ad  Hoc  Group  of  Senior 
Officials Responsible for the Free Movement of Architects. 

Lastly,  the  matters  referred  to  fall  within  the  remit  of  the  Community  and  the 
Member States (Opinion  1/94 of the Court of Justice  of  15 November  1994) in so 
far  as  the  Community  does  not.  have  exclusive  competence  in  cases  involving 
third-country  nationals.  And the fact  is that a not inconsiderable  number  of cases 
concern nationals of third countries. 

For  the  above  reasons,  the  Commission  does  not  feel  that  the  responsibility  for 
assessing  diplomas  awarded  by  third  countries  can  be  assigned  to  the  Advisory 
Committee on Education and Training in die Field of Architecture. 

'•b 

It should also be borne in mind that in June  1994 the Advisory Committee adopted 
a declaration in which it expressed the wish to be consulted,  in the event of  future 
enlargements,  on  the  list  of  qualifications  in  architecture  awarded  by  countries 
applying  for  accession  and  recognized  by  virtue  of  established  rights.  The 
Committee  also  expressed  its  concern  with  regard  to  certain  qualifications  in 
architecture  recognized  under  the  EEA  Agreement  and  at  the  time  of  the  1995 
enlargement, also by virtue of established rights.  The declaration was transmitted to 
the  representatives  of  the  Member States  at  the  October  1994  meeting  of  the  Ad 
Hoc Group of Senior Officials  Responsible for the Free Movement of Architects. 

12 

VII.  CONCLUSION 

In  the  light  of  the  above,  the  Commission  is  considering  presenting  a  proposal  for  a 
directive amending Directive 85/384/EEC.  In accordance with Article 3b of the EC Treaty, 
this proposal  will  comprise  only  amendments  which are necessary.  Ultimately,  once the 
general system is operating more smoothly, thought should be given to whether architecture 
should  be  integrated  into  the  general  system  set  out  in  Directive 89/48/EEC. 
In  this 
connection, it should be noted that the Commission has submitted  a report on the state of 
application  of  the  general  system  for  the  recognition  of  higher-education  diplomas 
(COM(96) 46) drawn up in accordance with Article 13 of Directive 89/48/EEC and which 
states that it is not yet possible to reach any final conclusions on the general system and that 
the review of Directive 92/51 /EEC which is scheduled to take place in 1999 will afford  the 
Commission an opportunity to re-examine the functioning  of the general system as a whole. 

In view  of the  accession  of  new  Member States, it  will  also  be  necessary  to  discuss  the 
future of the Advisory Committee and to envisage replacing, in the longer term, the current 
procedure  for  assessing  diplomas  (Articles 7  to  9  of  the  Directive)  by  a  committee 
procedure along the lines of that provided for in Article 15 of Directive 92/51/EEC. 

The  draft  proposal  for  a  European  Parliament  and  Council  Directive  would  probably  be 
structured along the following lines: 

(1) 

(2) 

Reminder that, pursuant to Article 30 of Directive 85/384/EEC, the Commission is 
obliged  to  review  that  Directive  on  the  basis  of  experience  and,  if  necessary,  to 
submit proposals for amendments after consulting the Advisory Committee; 

Clarification  of the procedure provided for  in Article 8 of the Directive, by setting 
for the Commission a deadline by which to contact the Advisory Committee, given 
that doubts are very often  expressed towards the end of the period allowed for the 
purpose; 

(3) 

Repeal of Article 15, which is now obsolete; 

(4) 

Amendment  of Article 24(1) in order to draw a clear distinction  between cases of 
establishment  and  cases  of  provision  of  services,  since  the  requisite  formalities 
concerning financial  standing are unduly onerous for providers of services and may 
duplicate  the  arrangements  provided  for  in  Article 22(3)  and  those  (concerning 
establishment only) set out in Articles 17 and 18; 

(5) 

Deadline for transposai set at 31 December 1999. 

The intention at present is to transmit this report initially to Parliament and the Council, for 
information,  and to the Economic and  Social Committee and the Advisory  Committee on 
Education and Training in the Field of Architecture so that any observations made by them 
can  be  taken  into  account  before  a  formal  proposal  amending  Directive 85/384/EC  is 
presented. 

13 

ANNEX 

REPORTS AND 
RECOMMENDATIONS 

III/D/5149/4/8 8 

Report  and  recommendations  on 
training  in  architecture:  practical 
training and experience (adopted on 
30 May 1989) 

III/D/5244/5/89 

III/D/9033/3/89 

III/D/9125/3/89 

III/D/5009/3/90 

III/F/5326/7/90 

III/F/5359/8/90 

III/F/5184/4/92 

Recommendation on the duration of  This  recommendation  was 
architectural  education  and  training  not 
all 
(adopted on 14 March 1990) 

accepted 
Member States 

by 

Report  and  recommendations  on 
relationships  in  the  teaching  and 
practice  of architecture  (adopted  on 
14 March 1990) 

Reflections  and  recommendations 
on 
on 
Article 3 
14 March 1990) 

(adopted 

Report  and  recommendations  on 
post-diploma education and training 
on 
architecture 
in 
14 March 1990) 

(adopted 

Report  and  recommendations  on 
training  of  teachers:  ethics  and 
practice 
on 
23 October 1991) 

(adopted 

and 

Report  and  recommendations  on 
education 
as 
preparation  for  full  practice  as 
supervisors  of  works  (adopted  on 
23 October 1991) 

training 

Report  and  recommendation  for  This 
amending 
Article 4 
Directive 85/384/EEC  (adopted  on  accepted 
6 October 1992) 

and 
report 
recommendation  was  not 
all 

Member States 

by 

of 

14 

III/F/5 043/6/92 

III/F/5182/3/93 

Report  and  recommendations  on 
faculties  of 
in 
project  work 
on 
(adopted 
architecture 
20 October 1993) 

Report  on  the  amendments  to  the  This report was not accepted 
sixth,  seventh  and  eighth  recitals  by all Member States 
and 
to 
Directive 85/384/EEC 
account 
of 
recommendations 
Article 4 
(doc. 
(adopted on 20 October 1993) 

of 
take 
and 
amending 
on 
III/F/5184/4/92) 

Article 23 
to 
report 

the 

III/F/5168/5/93 

III/F/5172/7/92 

Report  and  recommendations  on 
training  in  architecture  -  personal 
end-of-course  work:  content  and 
assessment 
on 
20 October 1993) 

(adopted 

Report  and  recommendations  on 
access 
studies 
architectural 
(adopted on 15 June 1994) 

to 

15 

III/D/1661/1/87 

III/D/1662/1/87 

III/D/1663/1/87 

III/D/1664/1/8 7 

III/D/1665/1/87 

III/D/895/1/88 

III/D/8303/3/93 

III/D/8304/3/93 

OPINIONS 

Opinion concerning compliance of a  Negative opinion 
Belgian diploma with Articles 3 and  Diploma not published in the 
4 of Directive 85/384/EEC (adopted  OJ 
on 29 July 1987) 

Opinion concerning compliance of a  Negative opinion 
Belgian diploma with Articles 3 and  Diploma not published in the 
4 of Directive 85/384/EEC (adopted  OJ 
on 29 July 1987) 

Opinion concerning compliance of a  Negative 
German diploma with Articles 3 and  diploma 
4 of Directive 85/384/EEC (adopted  OJ C 88, 19.10.1988 
on 29 July 1987) 

opinion, 
published 

but 
in 

Opinion  concerning  compliance  of  Negative opinion 
certain  Portuguese  diplomas  with  Diploma not published in the 
Articles 3 
and 
Directive 85/384/EEC  (adopted  on 
29 July 1987) 

of  OJ 

4 

Opinion  concerning  compliance  of  Positive opinion 
certain  United Kingdom  diplomas  Diploma 
with  Articles 3 
and 
Directive 85/384/EEC  (adopted  on 
29 July 1987) 

of  OJC 88, 19.10.1988 

4 

published 

in 

Italian 

Opinion  concerning  compliance  of  Negative opinion 
certain 
Articles 3 
and 
Directive 85/384/EEC  (adopted  on 
13 April 1988) 

of  OJ 

4 

diplomas  with  Diploma not published in the 

compliance  Negative opinion 

of  Diploma not published in the 

Opinion  concerning 
with  Articles 3 
Directive 85/384/EEC  of  the  Italian  OJ 
diplomas 
(adopted on 19 October 1993) 

in  "Ingegneria  edile" 

and 

4 

concerning 

compliance  Negative 
of  diploma 

Opinion 
with  Articles 3 
and 
Directive 85/384/EEC of the French  OJ C 350, 
architecture 
(adopted on 19 October 1993) 

diploma 

DPLG 

4 

(94/C 350/06) 

opinion, 
published 

but 
in 
10.12.1994 

16 

Positive opinion 
Diploma 
OJC 65, 
(95/C 65/03) 

published 

in 
16.3.1995 

III/D/8314/1/94 

the 
Opinion  on  compliance  of 
"Licenciatura 
em  Arquitectura" 
awarded  by  the  Escola  Superior 
Artistica  of  Oporto  with  Articles 3 
and  4  of  Directive 85/384/EEC 
(adopted on 15 June 1994) 

17 

ISSN 0254-1475 

COM{97) 350 final 

13  H  m 

Catalogue number  : CB-CO-97-343-EN-C 

ISBN  92-78-22389-1 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg 

if