CELEX: C2000/034/32
Language: en
Date: 2000-02-05 00:00:00
Title: Case C-451/99: Reference for a preliminary ruling from the Handelsgericht Wien by order of that court of 10 November 1999 in the case of Cura Anlagen Gesellschaft m.b.H. v ASL Auto Service Leasing GmbH

5.2.2000              EN                   Official Journal of the European Communities                                         C 34/17
Reference for a preliminary ruling from the Handelsge-                     — by failing to take into account the professional experi-
richt Wien by order of that court of 10 November 1999                          ence of divers who brought requests for equivalence
in the case of Cura Anlagen Gesellschaft m.b.H. v ASL                          before the French authorities,
                 Auto Service Leasing GmbH
                        (Case C-451/99)                                    the French Republic has failed to apply correctly
                                                                           Articles 39, 43 and 49 EC (formerly Articles 48, 52
                                                                           and 59 of the EC Treaty) and Article 8 of Directive
                         (2000/C 34/32)                                    92/51/EEC (1);
Reference has been made to the Court of Justice of the
European Communities by an order of the Handelsgericht                2. Order the French Republic to pay the costs.
Wien (Commercial Court, Vienna) of 10 November 1999,
which was received at the Court Registry on 26 November
1999, for a preliminary ruling in the case of Cura Anlagen
Gesellschaft m.b.H. v ASL Auto Service Leasing GmbH on the
following question:                                                   Pleas in law and main arguments
Is Article 49 et seq. EC (or alternatively Article 28 EC) to be
interpreted as precluding the application of provisions of            The hyperbaric fitness certificate provided for by the French
Member State A which prohibit an undertaking established in           Decree of 28 March 1990 is an attestation of competence
Member State A from using for more than three days, or for            within the meaning of Article 8 of Directive 92/51/EEC.
more than a year as the case may be, in Member State A a
motor vehicle which is leased from a leasing undertaking
established in Member State B and registered in Member
State B in the name of the leasing undertaking established            To comply with Article 8 of Directive 92/51/EEC, the com-
there, without obtaining a (second) registration for that motor       petent authorities of the host Member State, when ascertaining
vehicle in Member State A?                                            whether the conditions in indents (a) or (b) of that article are
                                                                      satisfied, may not ignore the knowledge and qualifications
                                                                      already acquired by the person concerned in another Member
                                                                      State and must examine the qualifications acquired in that
                                                                      Member State. However, as the French rules now stand,
                                                                      certificates obtained in the other Member States are refused
                                                                      recognition if they are not on the list in Annex III to the Decree
                                                                      of 28 January 1991, and the French authorities do not
Action brought on 30 November 1999 by the Com-                        examine on a case-by-case basis whether the training and the
mission of the European Communities against the French                qualifications obtained correspond to the French requirements.
                            Republic
                        (Case C-452/99)                               Article 8 of Directive 92/51/EEC must be interpreted in the
                                                                      light of the case-law of the Court of Justice relating to
                         (2000/C 34/33)                               Articles 39, 43 and 49 EC (formerly Articles 48, 52 and 59 of
                                                                      the EC Treaty), and in particular in the light of the Vlassopou-
An action against the French Republic was brought before the          lou (2) judgment concerning the mutual recognition of dip-
Court of Justice of the European Communities on 30 Novem-             lomas. That case-law has been extended to professional
ber 1999 by the Commission of the European Communities,               activities which, as regards the conditions for taking them up
represented by Christina Tufvesson, Legal Adviser, and Bernard        or pursuing them, are not subject by virtue of legal provision
Mongin, of its Legal Service, acting as Agents, with an address       to the possession of a diploma in the strict sense (3). Conse-
for service in Luxembourg at the office of Carlos Gómez de la        quently, the Commission considers that even if recognition
Cruz, of its Legal Service, Wagner Centre, Kirchberg.                 concerns not a diploma but an attestation of competence, the
                                                                      principle of legal certainty requires the national legal system
                                                                      to provide for a procedure ensuring that the person concerned
The Commission claims that the Court should:                          has an opportunity to discover the necessary compensating
                                                                      measures and have the benefit of a reasoned decision against
1. Declare that,                                                      which a remedy is available.
    — by failing to introduce a procedure for comparing the
        knowledge and qualifications attested by diplomas of
        divers obtained in another Member State and not               According to Vlassopoulou, if the comparison discloses that
        recognised as equivalent in France with those required        the knowledge and qualifications certified by the foreign
        by French legislation, and in any event by failing to         diploma correspond only partially to those required by the
        carry out that comparison in the case of divers holding       national provisions, the host Member State is entitled to
        Belgian qualifications who have come to work in               require the person concerned to show that he has acquired the
        France, and                                                   missing knowledge and qualifications. In this regard, the