CELEX: 62004CJ0141
Language: en
Date: 2005-07-14 00:00:00
Title: Judgment of the Court (Fourth Chamber) of 14 July 2005.#Michail Peros v Techniko Epimelitirio Ellados.#Reference for a preliminary ruling: Symvoulio tis Epikrateias - Greece.#Directive 89/48/EEC - Workers - Recognition of diplomas - Mechanical engineer.#Case C-141/04.

JUDGMENT OF THE COURT (Fourth Chamber)
      14 July 2005 (*)
      
      (Directive 89/48/EEC – Workers – Recognition of diplomas – Mechanical engineer)
      In Case C-141/04,
      REFERENCE for a preliminary ruling under Article 234 EC from the Simvoulio tis Epikratias (Greece), by decision of 30 December
         2003, received at the Court on 17 March 2004, in the proceedings 
      
      Mikhail Peros
      v
      Tekhniko Epimelitirio Ellados,
      THE COURT (Fourth Chamber),
      composed of K. Lenaerts, President of the Chamber, N. Colneric and K. Schiemann (Rapporteur), Judges,
      Advocate General: L.A. Geelhoed,
      Registrar: R. Grass,
      having regard to the written procedure,
      after considering the observations submitted on behalf of:
      –       Mr Peros, by V.G. Khatzopoulos, dikigoros,
      –       Tekhniko Epimelitirio Ellados, by A. Kristallidis, dikigoros,
      –       the Greek Government, by E. Skandalou, acting as Agent,
      –       the Commission of the European Communities, by M. Patakia and H. Støvlbæk, acting as Agents,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1       The reference for a preliminary ruling concerns the circumstances in which certain 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), may be relied upon where that directive has
         not been transposed, after the expiry of the period prescribed for its transposition, by the holder of a diploma falling within
         its scope. In the alternative, the reference concerns the interpretation of Articles 48 and 52 of the EC Treaty (now, after
         amendment, Articles 39 EC and 43 EC).
      
      2       That reference was made in proceedings between Mr Peros and the Tekhniko Epimelitirio Ellados (Technical Chamber of Greece,
         ‘the TEE’), the Greek body which keeps registers of engineers, concerning the rejection by the latter of an application by
         Mr Peros for registration as a mechanical engineer. Mr Peros had submitted his application on the basis of his entitlement
         to pursue that profession in Germany.
      
       Law
       The Community legislation
      3       It is apparent from the third and fourth recitals in the preamble to Directive 89/48 that 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 such a diploma 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       The first paragraph 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; …
      
      …’
      5       Notwithstanding Article 3 of that directive, Article 4 authorises the host Member State, in certain circumstances which are
         defined 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’). The same
         article lays down certain rules and conditions applicable to any compensatory measures which may be required. 
      
      6       Article 6 of Directive 89/48 lists the documents proving that applicants are of good character or repute or that they have
         not been declared bankrupt and certifying their physical or mental health which may be required as evidence by the competent
         authority of the host Member State, and contains a number of provisions regarding the wording of oaths or solemn declarations
         which may be imposed on nationals of other Member States. 
      
      7       Under Article 9(1) of Directive 89/48, Member States were required to designate, within the period provided for in Article
         12, namely by 4 January 1991, the competent authorities empowered to receive the applications and take the decisions referred
         to in that directive and were required to communicate that information to the other Member States and to the Commission of
         the European Communities.
      
       The national legislation
      8       In Greece, the engineering profession is a regulated profession pursuit of which is reserved for members of the TEE. The latter
         was established by the Presidential Decree of 27 November/14 December 1926 codifying the provisions on the composition of
         the TEE (FEK A’ 430), as amended by Law No 1986/1984 (FEK A’ 161), and by Presidential Decree No 512/1991 of 30 November/12
         December 1991 (FEK A’ 190, ‘the TEE Decree’).
      
      9       Under Article 2(1) of the TEE Decree, nationals of Member States ‘holding a diploma of the National Technical University of
         Athens (“National Metsovian Polytechnic”), of polytechnics in the country or equivalent institutions abroad’ must be registered
         as members of the TEE ‘after obtaining authorisation to pursue the profession’. Professionals are classified under nine specialities
         listed in Article 2(5) of that decree, including, under (c), the speciality of mechanical engineer.
      
      10     Article 4(3) of that decree provides, inter alia, that the TEE is to conduct examinations, grant authorisations to pursue
         the profession of engineer in accordance with the provisions in force and keep registers of engineers.
      
      11     Under Article 1(1) of Law No 1225/1981 of 30/31 December 1981 (FEK A’ 340), the TEE had ‘competence to grant authorisation
         to pursue their profession in Greece to engineers holding diplomas from equivalent foreign higher‑education establishments’.
      
      12     On the basis of Law No 1225/1981, Interministerial Order No ED 5/4/339 of 14 September 1984 (FEK B’ 713), adopted by the Minister
         for Public Works and the Minister for Education and Religious Affairs, laid down the procedure for the granting, by the TEE,
         of authorisation to pursue the profession of engineer.
      
      13     That interministerial order provided, in paragraph 1, that ‘authorisation to pursue the profession shall be granted by the
         TEE, following oral tests, to engineers holding diplomas from national higher-education institutions and to engineers holding
         equivalent diplomas from foreign higher-education institutions’. 
      
      14     Paragraph 2(d) of that order provides that, in order to take part in those tests, holders of diplomas from abroad must submit
         to the TEE a ‘certificate of equivalence of the diploma adduced’, issued by the Inter‑University Centre for the Recognition
         of Foreign Diplomas (Diapanepistimiako Kentro Anagnoriseos Titlon Spoudon tis Allodapis, ‘the Dikatsa’) established by Law
         No 741/1977 (FEK A’ 314), as amended by Law No 1566/1985 of 30 September 1985 (FEK A’ 167, ‘the Dikatsa Law’).
      
      15     Under Article 2 of the Dikatsa Law, the Dikatsa is competent to recognise foreign higher‑education institutions as being of
         an educational level equivalent to that of national higher‑education institutions and to recognise equivalence between diplomas
         from the former and those awarded by Greek higher‑education establishments. It is also competent to recognise the equivalence
         of educational qualifications awarded by foreign establishments of the same level to educational qualifications from Greek
         higher-education establishments in cases where there is no equivalent speciality in Greece. 
      
      16     In Article 4(8), the Dikatsa Law also states that, by decision of the President of the Administrative Council of the Dikatsa,
         ‘holders of diplomas from foreign higher-education establishments, whose diploma does not represent the same knowledge content
         as the diploma awarded in Greece by the institution or department which is closest in terms of the education and training
         provided by it, shall take a further examination in specific subjects at the institution or department in question’. Under
         the same provision, ‘if it is not possible to recognise the equivalence of a diploma, the person concerned shall be enrolled
         at the appropriate institution or department, to be specifically determined by the President of the Administrative Council’
         with a view to supplementing his training there.
      
      17     According to the settled case‑law of the Simvoulio tis Epikratias (Council of State), it follows from those provisions that
         the Dikatsa must, when examining the equivalence between a foreign diploma and a corresponding diploma from a Greek higher-education
         establishment, assess the characteristics of the foreign educational establishment awarding the diploma in question, the type
         of courses attended and the content of those courses. That examination by the Dikatsa does not take account of whether the
         diploma in question constitutes the formal qualification necessary for the pursuit of a given profession. In other words,
         the Dikatsa is, according to that case‑law, competent to assess only the academic, and not the professional, equivalence of
         the foreign diploma submitted to it. 
      
      18     Directive 89/48 had not been transposed into Greek law when the period prescribed for its implementation expired (see, in
         that connection, Case C‑365/93 Commission v Greece [1995] ECR I‑499). Following the facts in the main proceedings, Presidential Decree No 165/2000 of 28 June 2000 (FEK A’ 149),
         which was intended to transpose that directive into Greek law, as subsequently amended by Presidential Decree No 373/2001
         of 22 October 2001 (FEK A’ 251), was adopted. 
      
      19     Article 10 of that decree conferred exclusive competence on the Council for the Recognition of Equivalence of Higher‑Education
         Diplomas (Simvoulio Anagnoriseos Epangelmatikis Isotimias Titlon Tritovathmias Ekpaidefsis, ‘the Saeitte’), a government body
         set up for that specific purpose, to decide on applications for the recognition of higher‑education diplomas falling within
         the scope of Directive 89/48. That body alone, therefore, is competent to recognise an applicant’s right to pursue the relevant
         regulated profession in Greece and was designated, pursuant to Article 9(1) of Directive 89/48, as the competent authority
         empowered to receive the applications and take the decisions referred to in Directive 89/48.
      
      20     Article 11(6) of the same decree further provides that, when a particular provision of national legislation provides, in respect
         of a specific profession, that a register of those entitled to pursue that profession must be kept, the decision of the Saeitte
         constitutes a binding requirement for the professional organisation or administrative authority to enter the person concerned
         in the register it keeps.
      
       The main proceedings and the questions referred for a preliminary ruling
      21     Mr Peros, a Greek national, is the holder of a diploma awarded in 1980 by the Fachhochschule Wiesbaden (Germany). That diploma
         entitles him to take up the profession of mechanical engineer in Germany (‘Diplom‑Ingenieur im Fachbereich Maschinenbau’).
      
      22     Wishing to pursue that profession in Greece, Mr Peros applied to the Dikatsa for a certificate of equivalence of his diploma.
         That application was rejected on 28 May 1993 by Decision No 296 of the Dikatsa on the ground that the educational establishment
         which had awarded the foreign diploma in question was not of an educational level equivalent to that of Greek higher‑education
         establishments.
      
      23     On 21 February 1995, Mr Peros submitted an application to the TEE seeking entry for himself in its registers in order to be
         able to pursue the profession of mechanical engineer in Greece and to be eligible for the other benefits associated with such
         registration. That application, which was supplemented by a subsequent, related application lodged on 21 March 1995, was rejected
         by Decision No 6372 of the TEE of 4 May 1995 on the following grounds:
      
      ‘Entry in the register of the TEE takes place under the conditions laid down in [the TEE Decree]. For graduates of foreign
         educational establishments, the basic requirement is to have studied at polytechnic level and to have a formal qualification
         equivalent to those awarded by the National Technical University of Athens and the polytechnic institutes of the higher‑education
         establishments in Greece. Equivalence of foreign educational qualifications is granted by the [Dikatsa]. In accordance with
         the foregoing, you cannot become a member of the TEE and the degree which you hold (Fachhochschule) does not entitle you to
         be registered as a member of the TEE’.
      
      24     Mr Peros lodged an appeal against that rejection before the Diikitiko Protodikio Rodou (Administrative Court of First Instance,
         Rhodes). By Decision No 249/1998, that court held that the appellant’s action was an application for annulment and therefore
         fell within the jurisdiction of the Simvoulio tis Epikratias, to which it referred the case.
      
      25     In the meantime, following the transposition of Directive 89/48 into Greek law, the Saeitte, by its Decision No 4 of 5 December
         2000, granted Mr Peros’s application for recognition of his diploma. He was granted the right to pursue the profession of
         mechanical engineer in Greece without being required to complete an adaptation period or prior aptitude test. Mr Peros was
         subsequently granted entry in the registers of the TEE.
      
      26     In the main proceedings, a majority withín the Simvoulio tis Epikratias takes the view that the TEE’s decision of 4 May 1995
         rejecting Mr Peros’s application was not lawfully reasoned. According to that majority, the TEE should have examined Mr Peros’s
         application by investigating whether the conditions laid down by the unconditional and sufficiently precise provisions of
         Articles 3, 4(1)(a) and (b) and (2) and 6(1) to (4) of Directive 89/48/EEC were satisfied. If so, the TEE should have recognised
         the appellant in the main proceedings as being entitled to pursue the profession of mechanical engineer in Greece by granting
         him the appropriate authorisation and entering him in its register. If not, it should have rejected the application by a reasoned
         decision. In any event, in the light of the provisions of Directive 89/48, the TEE could not require the Dikatsa to certify
         the equivalence of the appellant’s diploma.
      
      27     However, in the view of a minority within the Simvoulio tis Epikratias, rejection of the application for registration was
         justified on the grounds, first, that the relevant provisions of Directive 89/48 were not capable of being relied on by an
         individual before the TEE at the time when the application at issue was submitted and, secondly, that the authority competent
         to process applications had not yet been designated pursuant to Article 9(1) of that directive. 
      
      28     The Simvoulio tis Epikratias is also uncertain whether, in so far as the provisions of Directive 89/48 were not capable of
         being relied on before the TEE, the latter would nevertheless have been obliged, under Articles 48 and 52 of the Treaty, to
         ascertain whether the qualification acquired by the appellant in Germany was equivalent to Greek diplomas.
      
      29     In those circumstances, the Simvoulio tis Epikratias decided to stay the proceedings and to refer the following questions
         to the Court for a preliminary ruling:
      
      ‘(1) Are the provisions of Articles 3, 4(1)(a) and (b) and (2) and 6(1) to (4) of Council Directive 89/48… , in their original
         version, unconditional and sufficiently precise so that, between the date of expiry of the period prescribed for transposing
         the directive and the date of its belated transposition into the national law of a Member State (the host Member State), an
         individual was entitled, on the basis of a diploma acquired in another Member State and falling within the scope of the above
         provisions, to rely on those provisions before an administrative body of that Member State, to which the national legislation
         entrusted competence, in order to obtain from that body authorisation to take up and pursue a regulated profession in the
         host Member State?
      
      (2)   If, between the date of expiry of the period prescribed for transposing the above directive and the date of its belated transposition
         into national law, an individual was not entitled to rely on the provisions of the directive before an administrative body
         of the host Member State, to which the national legislation entrusted competence to issue authorisations to pursue a particular
         profession following examinations, the participants in which had to hold a diploma awarded by a higher-education establishment
         of the host Member State or a foreign diploma recognised as equivalent (following a generally applicable procedure distinguished
         by features similar to those set out in the grounds of the order for reference), could that administrative body, taking into
         account the provisions of [Articles 48 and 52 of the Treaty] … , make authorisation to take up and pursue the above profession,
         applied for during the abovementioned period by the holder of a diploma acquired in another Member State, dependent on prior
         recognition, in accordance with the general procedure described above, of the academic equivalence of the diploma held, and
         on subsequent successful participation in the examinations provided for in the national legislation, or should that body itself
         have undertaken a comparative examination of the qualifications attested to by the diploma submitted, on the one hand, and
         the knowledge and qualifications required by the national legislation, on the other, and, depending on the results of that
         examination, exempted the person concerned wholly or in part from the requirement to take those examinations?’
      
       The first question referred for a preliminary ruling
      30     Article 3(a) of Directive 89/48 provides that the competent authority of the host Member State may not, on the grounds of inadequate
         qualifications, refuse to authorise a national of a Member State to take up or pursue a regulated profession on the same conditions
         as apply to its own nationals 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.
      
      31     Mr Peros is the holder of a diploma awarded in a Member State, in this case the Federal Republic of Germany. That diploma
         allows him to pursue the regulated profession of mechanical engineer in that Member State and his situation therefore falls
         within the scope of Article 3(a) of Directive 89/48. There is therefore no need for the Court to rule on the interpretation
         of Article 3(b) of that directive, which applies only if the profession in question is not regulated in the Member State of
         origin.
      
      32     So far as concerns Article 3(a) of Directive 89/48, the Court has already ruled that it is a provision the subject-matter
         of which is unconditional and sufficiently precise for individuals to be entitled to rely upon it before a national court
         against the State where that State has failed to transpose the directive into national law by the end of the period prescribed
         (Case C‑102/02 Beuttenmüller [2004] ECR I‑5405, paragraph 55).
      
      33     As regards the possibility of making the taking up of a regulated profession dependent on the condition that an applicant
         first comply with compensatory measures provided for in Article 4 of Directive 89/48, it is common ground that, in the main
         proceedings, no compensatory measures were imposed on Mr Peros by the Saeitte when his situation was examined in 2000. Moreover,
         there is nothing in the file to indicate that the qualifications produced by Mr Peros when he lodged his original application
         were different from those examined in 2000, in such a way as to affect the decision to allow him to pursue his profession
         in Greece without imposing any compensatory measures on him.
      
      34     In any event, it is clear from the case‑law that a Member State may, where there has been no transposition into national law,
         impose compensatory measures, such as those referred to in Article 4(1) of Directive 89/48, only in so far as they are provided
         for in the national legislation in force when the application in question was processed (see, to that effect, Joined Cases
         C‑6/90 and C‑9/90 Francovichand Others [1991] ECR I‑5357, paragraph 21, and Case C‑142/04 Aslanidou [2005] ECR I‑7181, paragraphs 35 to 37).
      
      35     The Court has also ruled that, where one or other of Directive 89/48 or Council Directive 92/51 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) is applicable, a public body in a Member State, which is bound to comply with the rules laid down in the relevant directive,
         can no longer require that a candidate’s qualifications be granted official recognition by the competent national authorities
         (Case C‑234/97 Fernández de Bobadilla [1999] ECR I-4773, paragraph 27).
      
      36     Article 6 of Directive 89/48 merely lists the documents proving that applicants are of good character or repute or that they
         have not been declared bankrupt and certifying their physical or mental health which may be required as evidence by the competent
         authority, and contains a number of provisions regarding the wordings of oaths or solemn declarations which may be imposed
         on nationals of other Member States. Since no such evidence or declaration was required by the competent authority of the
         host Member State in the main proceedings, the Court is not bound to rule on the interpretation of that provision, which,
         in any event, could not affect the possibility of relying on Article 3(a) of that directive. 
      
      37     Nor does the requirement under Article 9(1) of Directive 89/48 for Member States to designate the competent authorities empowered
         to receive the applications and take the decisions referred to in that directive preclude reliance on Article 3(a) of that
         directive. It is apparent from a reading of Article 9(1) in the light of the other paragraphs of the same article that the
         objective of that provision is to facilitate the application of the system for the recognition of diplomas introduced by Directive
         89/48 by rendering the decision‑making process applicable within a Member State more transparent. However, designation under
         Article 9(1) is not necessary in order to be able to identify the competent authorities referred to in Article 3, which are
         the authorities controlling the taking up of the regulated professions. 
      
      38     It is apparent from the case‑law that a Member State may not rely, as against an individual, upon its failure to adopt the
         very provisions which are intended to facilitate the application of a system established by the directive in question (see
         to that effect, inter alia, Case C‑141/00 Kügler [2002] ECR I-6833, paragraph 52, and Case C‑45/01 Dornier [2003] ECR I‑12911, paragraph 79). The failure to designate a competent authority pursuant to Article 9(1) of Directive 89/48
         therefore does not preclude Article 3(a) of that directive from being relied upon as against the authority having de facto
         competence to regulate the taking up of a particular profession under the relevant national legislation.
      
      39     In the main proceedings, since the taking up of the profession of engineer is reserved for members of the TEE, it appears
         that the TEE is a competent authority within the meaning of Article 3(a) of Directive 89/48. Consequently, the TEE may not,
         relying on the ground of inadequate qualifications, refuse to authorise a person in Mr Peros’s position to take up the profession
         of engineer.
      
      40     The answer to the first question must therefore be that, where national measures transposing Directive 89/48 have not been
         adopted within the period prescribed in Article 12 thereof, a national of a Member State may rely on Article 3(a) of that
         directive in order to obtain, in the host Member State, authorisation to pursue a regulated profession such as that of mechanical
         engineer. That possibility may not be made dependent on recognition of the qualifications of the person concerned by the competent
         national authorities.
      
      41     In the light of the answer given to the first question, there is no need to answer the second question.
       Costs 
      42     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 (Fourth Chamber) hereby rules:
      Where national measures transposing 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,
            in the version in force until 31 July 2001, have not been adopted within the period prescribed in Article 12 thereof, a national
            of a Member State may rely on Article 3(a) of that directive in order to obtain, in the host Member State, authorisation to
            pursue a regulated profession such as that of mechanical engineer.
      That possibility may not be made dependent on recognition of the qualifications of the person concerned by the competent national
            authorities.
      [Signatures]
      * Language of the case: Greek.