CELEX: 62009CC0424
Language: en
Date: 2010-11-30
Title: Opinion of Mr Advocate General Mengozzi delivered on 30 November 2010. # Christina Ioanni Toki v Ypourgos Ethnikis paideias kai Thriskevmaton. # Reference for a preliminary ruling: Symvoulio tis Epikrateias - Greece. # Directive 89/48/EEC - Points (a) and (b) of the first subparagraph of Article 3 - Recognition of higher education diplomas - Environmental engineer - Activity deemed to be a regulated professional activity - Applicable mechanism of recognition - Meaning of ‘professional experience’. # Case C-424/09.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 30 November 2010 (1)
      
      Case C‑424/09
      Christina Ioanni Toki
      v
      Ipourgos Ethnikis Paidias kai Thriskevmaton
      (Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece))
      (Workers – Recognition of higher-education diplomas – Recognition conditions applicable in the case of an activity deemed to be a regulated activity or an activity not regulated
         in the State where education and training took place – Environmental engineer – Professional experience – Research in the professional field and actual pursuit of the profession)
      I –  Introduction
      1.        With this reference for a preliminary ruling, the Court is asked to clarify the recognition conditions applicable under 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, (2) as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (3) (‘Directive 89/48’), where the application for authorisation to pursue a professional activity relates to an activity deemed
         to be an activity regulated in the Member State where education and training took place, within the meaning of the second
         paragraph of Article 1(d) of that directive and where the applicant is not a full member of the professional organisation
         in question. At the same time, the Court will have to examine the question of whether research in the field of environmental
         engineering may be considered to constitute actual pursuit of the profession of environmental engineer within the meaning
         of the abovementioned directive. 
      
      II –  The legal context
      A –    The secondary law of the European Union 
      1.       Directive 89/48
      2.        Directive 89/48 constitutes the relevant legal context at the material time for the main proceedings, although the directive
         has since been repealed. (4)
      
      3.        The first subparagraph of Article 1(a) of Directive 89/48 defines ‘diploma’ as follows:
      
      ‘Any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence:
         
      
      –        which has been awarded by a competent authority in a Member State, designated in accordance with its own laws, regulations
         or administrative provisions; 
      
      –        which shows that the holder has successfully completed a post‑secondary course of at least three years’ duration, or of an
         equivalent duration part‑time, at a university or establishment of higher education or another establishment of similar level
         and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary
         course, and 
      
      –        which shows that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession
         in that Member State, 
      
      provided that the education and training attested by the diploma, certificate or other evidence of formal qualifications were
         received mainly in the Community, or the holder thereof has three years’ professional experience certified by the Member State
         which recognised a third-country diploma, certificate or other evidence of formal qualifications.’
      
      4.        Article 1(c) of Directive 89/48 defines ‘regulated profession’ as ‘the regulated professional activity or range of activities
         which constitute this profession in a Member State’. 
      
      5.        The first subparagraph of Article 1(d) of Directive 89/48 defines ‘regulated professional activity’ as follows:
      
      ‘… a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member
         State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of
         a diploma. The following in particular shall constitute a mode of pursuit of a regulated professional activity:
      
      –        pursuit of an activity under a professional title, in so far as the use of such a title is reserved to the holders of a diploma
         governed by laws, regulations or administrative provisions … .’
      
      6.        The second and third subparagraphs of Article 1(d) of Directive 89/48 provide as follows:
      
      ‘Where the first subparagraph does not apply, a professional activity shall be deemed to be a regulated professional activity
         if it is pursued by the members of an association or organisation the purpose of which is, in particular, to promote and maintain
         a high standard in the professional field concerned and which, to achieve that purpose, is recognised in a special form by
         a Member State and
      
      –        awards a diploma to its members, 
      –        ensures that its members respect the rules of professional conduct which it prescribes, and 
      –        confers on them the right to use a title or designatory letters, or to benefit from a status corresponding to that diploma.
      A non-exhaustive list of associations or organisations which, when this Directive is adopted, satisfy the conditions of the
         second subparagraph is contained in the Annex. Whenever a Member State grants the recognition referred to in the second subparagraph
         to an association or organisation, it shall inform the Commission thereof, which shall publish this information in the Official
         Journal of the European Communities’. 
      
      7.        Article 1(e) of Directive 89/48 states that ‘professional experience’ means ‘the actual and lawful pursuit of the profession
         concerned in a Member State’. 
      
      8.        The first subparagraph of Article 2 of Directive 89/48 provides that ‘this Directive shall apply to any national of a Member
         State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person’.
      
      9.        Article 3 of Directive 89/48 reads as follows:
      
      ‘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; or 
      
      (b)      if the applicant has pursued the profession in question full-time for two years during the previous ten years in another Member
         State which does not regulate that profession, within the meaning of Article 1(c) and the first subparagraph of Article 1(d),
         and possesses evidence of one or more formal qualifications: 
      
      –        which have been awarded by a competent authority in a Member State, designated in accordance with the laws, regulations or
         administrative provisions of such State, 
      
      –        which show that the holder has successfully completed a post‑secondary course of at least three years’ duration, or of an
         equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level
         of a Member State and, where appropriate, that he has successfully completed the professional training required in addition
         to the post-secondary course and 
      
      –        which have prepared the holder for the pursuit of his profession. 
      However, the two years’ of professional experience referred to in the first subparagraph may not be required where the qualification
         or qualifications held by the applicant and referred to in this point were awarded on completion of regulated education and
         training.
      
      The following shall be treated in the same way as the evidence of formal qualifications referred to in the first subparagraph:
         any formal qualifications or any set of such formal qualifications awarded by a competent authority in a Member State if it
         is awarded on the successful completion of training received in the Community and is recognised by that Member State as being
         of an equivalent level, provided that the other Member States and the Commission have been notified of this recognition.’
      
      10.      The first subparagraph of Article 9(1) of Directive 89/48 provides that ‘Member States shall designate, within the period
         provided for in Article 12, the competent authorities empowered to receive the applications and take the decisions referred
         to in this Directive’.
      
      11.      The list in Annex I of Directive 89/48 of professional associations or organisations which satisfy the conditions of the second
         subparagraph of Article 1(d) includes the Engineering Council.
      
      2.       Directive 2005/36/EC 
      12.      Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional
         qualifications (‘Directive 2005/36’) (5) succeeded Directive 89/48 (6) with effect from 20 October 2007.
      
      13.      Recital 14 of the preamble to Directive 2005/36 states that ‘the mechanism of recognition established by Directives 89/48/EEC
         and 92/51/EEC remains unchanged’.
      
      14.      The first subparagraph of Article 13(2) of Directive 2005/36 states that ‘access to and pursuit of the profession, as described
         in paragraph 1, shall also be granted to applicants who have pursued the profession referred to in that paragraph on a full-time
         basis for two years during the previous 10 years in another Member State which does not regulate that profession, providing
         they possess one or more attestations of competence or documents providing evidence of formal qualifications’.
      
      B –    National law 
      15.      Directive 89/48 was transposed into the Greek legal system by Presidential Decree 165/2000 of 28 June 2002, (7) which was amended successively by presidential decrees 373/2001 of 18 October 2001 (8) and 385/2002 of 23 December 2002 (9) (‘Decree 165/2000’).
      
      16.      Article 2(3) of Decree 165/2000 defines a regulated profession as ‘the regulated professional activity or range of activities
         which constitute this profession in a Member State’.
      
      17.      Article 2(4) of Decree 165/2000 defines ‘regulated professional activity’ as ‘a professional activity, in so far as the taking
         up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue
         of laws, regulations or administrative provisions, to the possession of a diploma. The following in particular shall constitute
         a mode of pursuit of a regulated professional activity:
      
      (a)      pursuit of an activity under a professional title, in so far as the use of such a title is reserved to the holders of a diploma
         governed by the provisions of the Member State;
      
      (b)      …
      A professional activity shall be deemed to be a regulated professional activity if it is pursued by the members of an association
         or organisation the purpose of which is, in particular, to promote and maintain a high standard in the professional field
         concerned and which, to achieve that purpose, is recognised in a special form by a Member State and:
      
      (a)      awards a diploma to its members,
      (b)      ensures that its members respect the rules of professional conduct which it prescribes, and
      (c)      confers on them the right to use a title, abbreviation or status corresponding to that diploma.
      A non-exhaustive list of associations or organisations which satisfy the conditions of this paragraph is contained in the
         annex to Article 9 of this decree. Whenever a Member State grants the recognition referred to in this paragraph to an association
         or organisation, it shall inform the Commission thereof, which shall publish this information in the Official Journal of the
         European Communities.
      
      …’
      18.      Article 2(5) of Decree 165/2000 defines ‘professional experience’ as ‘the actual and lawful pursuit of the profession concerned
         in a Member State’.
      
      19.      Article 4(1) of Decree 165/2000 provides as follows:
      
      ‘Where the taking up or pursuit of a regulated profession in Greece is subject to possession of the diploma referred to in
         Article 2, the Council referred to in Article 10 of this decree may not, on the grounds of inadequate qualification, 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 if the applicant: 
      
      (a)      holds the diploma referred to in Article 2, which was awarded and is required in another Member State for the pursuit of the
         profession in question in that Member State, or 
      
      (b)      has pursued that profession full-time for two years over the last 10 years in another Member State which does not regulate
         that profession within the meaning of Article 2(3) and (4) of this decree, and has acquired one or more educational or training
         qualifications which must:
      
      (i)      have been awarded by a competent authority in a Member State;
      (ii)      show that the holder has successfully completed a post-secondary course of at least three years’ duration, or of an equivalent
         duration part-time, at a university or establishment of higher education or another establishment of that level of a Member
         State and that he has successfully completed the professional training required in addition to the post secondary course,
         and
      
      (iii) prepare the applicant for the pursuit of that profession.
      The two years’ professional experience referred to the first paragraph above are not compulsory if the qualification(s) held
         by the applicant and referred to under this point attest to regulated education and training.’
      
      20.      Article 10 of Decree 165/2000 set up, under the Ministry for National Education and Religious Affairs, a collegiate body,
         the Council for the Recognition of the Equivalence of High Education Diplomas (Simvoulio Anagnorisis Epangelmatikis Isotimias
         Titlon Tritovathmias Ekpaidefsis, ‘Saeitte’). 
      
      21.      Article 11(1) of Decree 165/2000 provides that ‘the right to pursue a specific profession in accordance with the terms of
         the present decree shall be recognised in a specially reasoned decision by the Council for the Recognition of the Equivalence
         of Higher Education Diplomas’.
      
      III –  The main proceedings and the questions referred 
      22.      Ms Christina Ioanni Toki, a Greek national, studied for two years in the Technology Department of a technological educational
         establishment in Patras (Greece). Then, under the European Community Course Credit Transfer System, she took a one-year course
         in engineering with environmental studies at Sheffield Hallam University (United Kingdom), where she was awarded the degree
         of Bachelor of Engineering with Environmental Studies in 1997. She then followed a course of studies in the Environmental
         Engineering Department of the University of Portsmouth, on completion of which she was awarded the degree of Master of Science
         in 1998.
      
      23.      On 1 September 1999 Ms Toki was recruited as a researcher in the Department of Civil Engineering of the University of Portsmouth
         with a yearly salary of GBP 8 000 and social insurance cover. According to the letter of recommendation from the principal
         lecturer who supervised her work, her work included assisting the work of undergraduate and postgraduate students. She also
         took part in a research project in collaboration with a British private company which specialises in waste processing technology,
         consisting of assessing the efficiency of an innovative method of processing urban waste water. As the same time she was a
         member of a research group in environmental technology. 
      
      24.      In April 2002 Ms Toki registered voluntarily with the Chartered Institution of Water and Environmental Management (CIWEM)
         as a graduate and then as a trainee in the register of the Engineering Council, which is the first stage towards final registration.
         The court documents indicate that she did not become a full member of the Engineering Council. In order to become a full member,
         registered as a Chartered Engineer, the title which the Engineering Council confers upon its members, she would have had to
         undergo a special procedure, conducted within the Engineering Council, consisting in an assessment of her postgraduate education
         and her professional experience and a discussion of her professional qualifications. 
      
      25.      On 4 July 2003 Ms Toki submitted an application to the Saeitte for recognition of the right to pursue in Greece the regulated
         profession of environmental engineer, in accordance with the provisions of Decree 165/2000 implementing Directive 89/48 and
         taking account of her professional experience in the United Kingdom. On 8 March 2005 the Saeitte adopted Report No 96 rejecting
         her application on the ground that she did not possess an engineering diploma conferred in the United Kingdom in so far as
         she did not possess the regulated title of ‘chartered engineer’. Therefore she had not acquired professional rights in the
         State of origin (the United Kingdom), as required by Decree 165/2000. According to the Saeitte, the profession of environmental
         engineer is regulated in Greece, but not in the United Kingdom. Nevertheless the Saeitte concluded, from the fact that the
         Engineering Council confers the title of Chartered Engineer, that the activity in question is regulated. However, Ms Toki
         did not possess that title. According to the Saeitte, Article 4(1) of Decree 165/2000 provides for the recognition procedure
         referred to in Article 3(a) of Directive 89/48 to be applied in cases where the person concerned comes from a Member State
         where the pursuit of the profession which is the subject of the application is regulated and controlled by associations or
         organisations recognised by that State in accordance with the provisions of the second subparagraph of Article 1(d) of the
         directive. 
      
      26.      On 29 March 2005 Ms Toki lodged an objection to the Saeitte Report No 96 on the ground that the Saeitte had unlawfully failed
         to take into consideration her three years’ professional experience as an employed researcher in the Department of Civil Engineering
         of a British university, her stage 1 registration with the Engineering Council and her registration with the CIWEM. After
         receiving information from the Engineering Council, the Saeitte reconsidered Ms Toki’s application and on 12 April 2005 again
         rejected it for the same reasons. She therefore brought an action before the Symvoulio tis Epikrateias against the Minister
         for National Education and Religion for the annulment of the Saeitte Report No 98 upholding its decision of 8 March 2005.
         
      
      27.      Before the referring court Ms Toki claimed that the Saeitte unlawfully rejected her application on the basis of Article 4(1)(a)
         of Decree 165/2000 whereas it should have examined it in the light of Article 4(1)(b) because the profession of environmental
         engineer is not regulated in the United Kingdom. She submits that she does possess a diploma within the meaning of Article
         2(1) of the Decree and that she was able to prove three years’ professional experience in the course of the last ten years
         in the United Kingdom.
      
      28.      Finding that it was faced with a difficulty in interpreting European Union law, the Simvoulio tis Epikrateias decided to stay
         the proceedings and, by a decision received by the Court on 28 October 2009, decided to refer the following two questions
         to the Court for a preliminary ruling on the basis of Article 234 EC:
      
      ‘(1)      Is point (b) of [the first subparagraph of] Article 3 of Directive 89/48 … to be interpreted as meaning that the mechanism
         for recognition provided for therein applies to cases in which, in the Member State of origin, the profession in question
         is regulated within the meaning of the second subparagraph of Article 1(d) of the directive, but the person concerned is not
         a full member of an association or organisation which fulfils the conditions of that paragraph? 
      
      (2)      [If the reply to the first question is in the affirmative] for the purpose of point (b) of [the first subparagraph of] Article 3
         of Directive 89/48 … does pursuit of a profession full-time in the Member State of origin mean pursuit in a self-employed
         or employed capacity of the actual profession authorisation to pursue which is being sought in the host Member State in reliance
         on Directive [89/48], or may it also cover employment on research work in a scientific field related to the profession in
         an establishment that is in principle not for profit?’
      
      IV –  The procedure before the Court
      29.      The applicant in the main proceedings, the Greek Government and the European Commission have submitted written observations
         to the Court. 
      
      30.      At the hearing, which took place on 12 October 2010, the applicant in the main proceedings, the Greek Government and the European
         Commission put forward their oral observations. 
      
      V –  Legal analysis
      A –    The first question
      31.      In order to reply to the first question from the referring court, it is necessary to establish that the professional activity
         in question falls within the scope of Directive 89/48. Next it will be necessary to determine the category of professional
         activity, within the meaning of the directive, to which the activity at issue in the main proceedings belongs in the Member
         State where education and training took place. When that has been established, there will only remain the question of the
         recognition conditions that are applicable. 
      
      1.      The activity of environmental engineer falls within the scope of Directive 89/48
      32.      First of all, I have already pointed out that Directive 89/48, although repealed, forms the relevant legal context at the
         time when Ms Toki submitted her application to the Saeitte. (10)
      
      33.      In addition, as the profession of engineer in general, or environmental engineer in particular, has not been the subject of
         sectoral harmonisation, it falls within the general framework of Directive 89/48.
      
      34.      Finally, the court documents indicate that the profession of environmental engineer is regulated in Greece, thus satisfying
         the condition laid down by the first subparagraph of Article 2 of Directive 89/48. (11) In addition, as Ms Toki refers to diplomas showing that she successfully completed a post-secondary course of at least three
         years’ duration in another Member State, (12) it must be concluded that the activity in question falls within the scope of Directive 89/48. 
      
      2.      Classification of the activity of environmental engineer in the Member State where education and training took place
      35.      There being no doubt that the profession of environmental engineer is a profession regulated in the host Member State – the
         Hellenic Republic – , in order to determine the relevant conditions for recognition, it is necessary to ascertain whether
         that activity constitutes, having regard to Directive 89/48, a regulated activity, an activity which is deemed to be a regulated
         activity, or a non‑regulated activity in the Member State where education and training took place – the United Kingdom. 
      
      36.      The question of whether the profession of environmental engineer is regulated in the United Kingdom has given rise to contradictory
         statements by the parties concerned, but those statements are not based on a particularly detailed assessment. However, the
         referring court points out that the legislation in force in the United Kingdom does not lay down any conditions whatever for
         taking up the profession of engineer or that of environmental engineer. (13) The referring court adds that the role of the Engineering Council consists in organising procedures for assessing the professional
         competence of its members and granting a title to those who fulfil the requisite conditions. The Engineering Council also
         lays down rules of professional ethics with which its members undertake to comply and it acts as a disciplinary authority
         in that respect. Although some of the written observations are ambiguous on this point, it has never been asserted that the
         activity of environmental engineer is subject to becoming a member of the Engineering Council and thereby holding the title
         of Chartered Engineer. On the contrary, when questioned on that point at the hearing before the Court, Ms Toki’s representative
         stated that she could work as an environmental engineer in the United Kingdom without being a member of the Engineering Council,
         which was not challenged by any of the other parties present. 
      
      37.      In those circumstances it appears that, contrary to the assertions of the Saeitte, the work of an environmental engineer cannot
         be regarded as a regulated activity within the meaning of Article 1(c) and the first subparagraph of Article 1(d) of Directive
         89/48. The Court has held that ‘where the conditions for taking up or pursuing a professional activity are directly or indirectly
         governed by legal provisions, whether laws, regulations or administrative provisions, that activity constitutes a regulated
         profession. Access to, or pursuit of, a profession must be regarded as directly governed by legal provisions where the laws,
         regulations or administrative provisions of the host Member State create a system under which that professional activity is
         expressly reserved to those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them’.(14) However, it has not been shown that the fact of not being a member of the Engineering Council is such as to prevent taking
         up the activity of an environmental engineer. 
      
      38.      The second subparagraph of Article 1(d) of Directive 89/48 envisages precisely the situation where a professional activity
         is pursued by the members of ‘an association or organisation the purpose of which is, in particular, to promote and maintain
         a high standard in the professional field concerned and which, to achieve that purpose, is recognised in a special form by
         a Member State …’. As stated in the third subparagraph of Article 1(d) of Directive 89/48, Annex I of the directive gives
         a non-exhaustive list of the associations or organisation which fulfil the conditions of the second subparagraph, and they
         include the Engineering Council. (15) Professional activities pursued in that context are classified by the directive as professional activities which are deemed
         to be regulated professional activities. The Engineering Council therefore awards a ‘diploma’ to its members, (16) but that is not an invariable requirement for all persons wishing to pursue the professional activity of environmental engineer.
         
      
      39.      In the United Kingdom, therefore, an environmental engineer is not required to be compulsorily registered beforehand with
         the Engineering Council. Although it may be thought that a Chartered Engineer has a commercial advantage or is in a more favourable
         position with regard to access to the employment market, (17) that is only a presumption and in any case it does not call into question the certainty that possession of that title is
         not a necessary preliminary to the pursuit of the professional activity in question. 
      
      40.      That clarification is important because it confirms that it is perfectly possible to pursue the activity of engineer without
         being a Chartered Engineer, in other words, without being a member of a professional association referred to in the second
         subparagraph of Article 1(d) of Directive 89/48. It also explains why this is only a case of an activity deemed to be a regulated professional activity. Furthermore, in view of the list annexed to the directive, it seems clear to me that the
         European Union legislature intended to point out the existence of those professional associations and organisations and their
         historical and cultural significance in the Member States concerned, (18) but certainly not the fact that registration with them is compulsory. (19) In those circumstances, the fact that Ms Toki is not a full member of the Engineering Council is not in any case an obstacle
         to her taking up the activity of environmental engineer in the Member State where education and training took place. 
      
      41.      Finally, the existence of the Engineering Council and its recognition by the directive bear witness to the fact that the activity
         of engineer (more specifically, environmental engineer) may be classified in two different ways for the purpose of Directive
         89/48.
      
      42.      Where the person concerned has become a full member of the Engineering Council on a voluntary basis that person is given the
         title of Chartered Engineer. The professional activity which that person pursues must then be classified as a professional
         activity deemed to be a regulated activity because the second subparagraph of Article 1(d) of the directive provides that
         ‘a professional activity shall be deemed to be a regulated professional activity if it is pursued by the members of an association
         or organisation’ such as those referred to by that provision.
      
      43.      On the other hand, where the person concerned pursues his activity without being a member of an association or organisation
         such as those referred to by the second and third subparagraphs of Article 1(d), that activity cannot be considered to be
         an activity deemed to be a regulated activity in the Member State where education and training took place, within the meaning
         of the same provision. 
      
      44.      Consequently, the activity of environmental engineer which Ms Toki claims to have pursued, (20) that is to say, without being a full member of the Engineering Council, and without possessing the title of Chartered Engineer,
         must be classified as an unregulated professional activity. 
      
      45.      As the Greek Government correctly pointed out in its written observations, in 2003, the year when Ms Toki submitted her first
         application to Saeitte, the Commission had adopted a similar position before the Petitions Committee of the European Parliament
         in relation to a Greek national who was in a situation similar in every respect to that of Ms Toki. (21) The Commission had then clearly indicated that, as the profession of engineer was not regulated by any particular measure
         in the United Kingdom, there were two possible situations, depending on whether the person concerned was a Chartered Engineer
         or not. It is therefore quite surprising that the position taken by the Commission in its written observations is the complete
         opposite as it submits, without qualification, that the pursuit of the profession of environmental engineer is regulated within
         the meaning of the combined provisions of the first and second subparagraphs of Article 1(d) and that the recognition conditions
         applicable are those for regulated professions. 
      
      46.      The subsequent development of European Union law, and in particular Directive 2005/36, confirms that one and the same professional
         activity may be classified in two different ways under Directive 89/48, depending on the conditions under which that activity
         is pursued (as a member or non-member). Directive 2005/36 repealed and replaced Directive 89/48 which, as I have said, was
         not applicable ratione temporis when Ms Toki submitted her application. Article 3(2) of Directive 2005/36 applies to any ‘profession practised by the members (22)of an association or organisation listed in Annex I’ (which includes the Engineering Council) and provides that such profession
         is to be deemed to be as a regulated profession. (23)
      
      47.      However, even if the Court were to find that the fact that an association or organisation concerning a specific professional
         activity satisfies the conditions of the second subparagraph of Article 1(d) of Directive 89/48 has the consequence of conferring
         upon that activity the status of a professional activity which is deemed to be a regulated professional activity, even where
         that activity is pursued by persons who are not members of the organisation, that finding will not affect the determination
         of the relevant conditions for recognition, as I shall now show. 
      
      3.      Determination of the conditions for recognition applying to the professional activity of environmental engineer in the situation
         of the applicant in the main proceedings 
      
      48.      Directive 89/48 sets up a system which, ‘by strengthening the right of a European citizen to use his professional skills in
         any Member State, supplements and reinforces his right to acquire such skills wherever he wishes’. (24) However, as the Court has already had occasion to point out, ‘the recognition method established by Directive 89/48 does
         not lead to automatic and unconditional recognition of the diplomas and professional qualifications concerned’. (25) Article 3 of the directive accordingly lays down two different recognition procedures and only one of them may apply in any
         particular factual context. (26)
      
      49.      Point (a) of the first subparagraph of Article 3 of Directive 89/48 applies where the profession is regulated in the Member
         State where education and training took place. In that case, the competent national authority must establish that the applicant
         possesses the diploma required by that State in order to take up the same activity, regulated in both the host Member State
         and that where education and training took place. 
      
      50.      For its part, point (b) of the first subparagraph of Article 3 of the directive provides for a different recognition procedure,
         based on the professional experience gained in the Member State where education and training took place and ‘which does not
         regulate that profession, within the meaning of Article 1(c) and the first subparagraph of Article 1(d)’. Consequently the
         scope of point (a) of the first subparagraph of Article 3 is determined by reading it in conjunction with point (b) of the
         first subparagraph of Article 3 which leads to the conclusion, by a contrario reasoning, that the procedure laid down by point (b) of the first subparagraph of Article 3 applies where, in the Member
         State where education and training took place, the profession or professional activity is deemed to be regulated. 
      
      51.      If the Court considers, as I suggest, that the activity of environmental engineer which Ms Toki claims to have pursued is
         not a regulated activity in the Member State where education and training took place, the recognition conditions which will
         have to apply are those laid down by point (b) of the first subparagraph of Article 3. 
      
      52.      If, on the other hand, the Court takes the view that the activity of environmental engineer which Ms Toki claims to have pursued
         is a professional activity which is deemed to be a regulated professional activity (within the meaning of the second subparagraph
         of Article 1(d) of Directive 89/48), the Court will have to take into account the fact that the conditions of point (a) of
         the first subparagraph of Article 3 apply only with regard to regulated activities (within the meaning of Article 1(c) and
         the first subparagraph of Article 1(d) of that directive). 
      
      53.      The recognition procedure provided for by point (b) of the first subparagraph of Article 3 applies both where the profession
         is not regulated in the Member State where education and training took place and also where the activity is an activity which
         is deemed to be a regulated activity within the meaning of the second subparagraph of Article 1(d).
      
      54.      However, in the Court’s case-law the situation does not appear to be so clear. 
      
      55.      The Court has held that ‘point (b) of the first subparagraph of Article 3 [of Directive 89/48] applies only if the profession
         in question is not regulated in the Member State [where education and training took place]’, (27) but did not specifically distinguish professional activities which are deemed to be regulated professional activities. 
      
      56.      The Court’s position in that connection in the Price case (28) is somewhat surprising. Mr Price held a Bachelor of Arts degree accredited by one of the organisations referred to in the
         second subparagraph of Article 1(d), and listed in the annex to the directive. However, he was never a member of the organisation
         in question (the Royal Institution of Chartered Surveyors). Although the question before the Court did not concern the recognition
         procedure applicable in that situation, the Court stated that, ‘since Mr Price is not a member of the Royal Institution of
         Chartered Surveyors the question of recognition pursuant to point (a) of the first subparagraph of Article 3 of diplomas awarded
         by that organisation does not arise in this case, even if it were to be established that the profession [in question] constitutes
         a regulated profession in the United Kingdom by virtue of the rules laid down by that organisation’. (29) The Court suggests here that if Mr Price had been a member of that organisation and had held the diploma awarded by it, the
         relevant recognition procedure would have been point (a) of the first subparagraph of Article 3 although the professional
         activity in question is an activity which is only deemed to be a regulated activity under the second subparagraph of Article
         1(d). The Court therefore concludes that ‘point (b) of the first subparagraph of Article 3 of Directive 89/48 is applicable
         if the profession concerned is not regulated in the Member State where education and training took place. Accordingly, … that
         provision is applicable only if the Royal Institution of Chartered Surveyors failed to fulfil the criteria set out in the
         second subparagraph of Article 1(d) of Directive 89/48’. (30) For the reasons set out above, that finding seems to me clearly contrary to the wording of point (b) of the first subparagraph
         of Article 3 and it would be appropriate for the Court to take the present opportunity to rectify its case-law on that point.
         
      
      57.      In that connection I must point out that, so far as the activities covered by second subparagraph of Article 1(d) of Directive
         89/48 are concerned, it is important to bear in mind the full wording of ‘a professional activity … deemed to be a regulated
         professional activity’. In so far as the recognition procedure applicable to such activities is not exactly the same as that
         for regulated activities within the meaning of the first subparagraph of Article 1(d) the former are not treated in entirely
         the same way as the latter. Therefore it is extremely misleading to continue to designate as regulated activities activities
         which are only deemed to be regulated professional activities under Directive 89/48. 
      
      58.      Finally – and these last remarks are also relevant only if the Court concludes that the activity of environmental engineer
         which Ms Toki claims to have pursued is a professional activity which is deemed to be a regulated professional activity within
         the meaning of the second subparagraph of Article 1(d) of the directive – it must be noted that Decree 165/2000 did not fully
         implement point (b) of the first subparagraph of Article 3 of Directive 89/48, which has probably led to the Saeitte’s continuing
         confusion. Article 4(1)(b) of the decree, which provides for the application of the recognition conditions laid down in Article
         3(b) of Directive 89/48, refers to Article 2(3) (31) and to Article 2(4) in its entirety, (32) in order to define a regulated professional activity in the Member State of origin, instead of confining itself to the first
         subparagraph of Article 2(4). This has had the effect, taking account of the Saeitte decision, of excluding application of
         the recognition conditions laid down in Article 3(b) of the directive in cases where the person concerned comes from a Member
         State where the pursuit of the profession which is the subject of the application submitted pursuant to the directive is partly
         controlled by associations or organisations recognised by that State in accordance with the second subparagraph of Article 1(d)
         of the directive. Consequently, point (b) of the first subparagraph of Article 3 of the directive was not correctly transposed.
         
      
      59.      That being so, there is nothing to prevent Ms Toki from pleading that provision before the referring court. For a long time
         the Court has taken the view that ‘the directive [89/48] is intended … to accord rights to nationals of other Member States’ (33) and has held that ‘[point (a) of the first subparagraph of Article 3] of Directive 89/48 is a provision the subject-matter
         of which is unconditional and sufficiently precise. Individuals are therefore entitled to rely upon that provision before
         a national court in order to have national provisions inconsistent with the directive disapplied.’ (34) I, for my part, consider that the same must apply to point (b) of the first subparagraph of Article 3 because Article 3 seems
         to me to form an indivisible whole, at least so far as the whole of the first subparagraph is concerned. 
      
      60.      I propose that the reply to the first question should be that point (b) of the first subparagraph of Article 3 of Directive
         89/48 must be interpreted as meaning that the recognition procedure for which it provides is applicable in cases where, in
         the Member State where education and training took place, the profession is deemed to be a regulated professional activity
         within the meaning of the second subparagraph of Article 1(d) of the directive. As point (b) of the first subparagraph of
         Article 3 of Directive 89/48 is applicable to activities deemed to be regulated activities in the Member State where education
         and training took place and also to non-regulated activities, whether the person concerned is a full member or not of an association
         or organisation fulfilling the conditions of second subparagraph of Article 1(d) of the directive does not affect the recognition
         procedure applicable. 
      
      B –    The second question
      61.      Should the Court find that the recognition conditions applicable in Ms Toki’s situation, at the time when it was assessed
         by Saiette, are those laid down by point (b) of the first subparagraph of Article 3 of Directive 89/48, the referring court
         asks whether the professional experience which she acquired as a research worker in a university between 1999 and 2002 can
         be regarded as the full-time pursuit of the profession of environmental engineer for two years during the previous ten years.
         
      
      1.      Admissibility of the second question
      62.      First of all, I observe that the admissibility of the second question from the referring court is not immediately obvious.
         As the referring court was dealing with an application for the annulment of the contested decision adopted by Saiette, if
         the Court of Justice agrees to follows my proposals relating to the first question, that will be sufficient for the referring
         court to find that the contested decision should be annulled and to refer the matter back to the authorities. In addition,
         the decision is based on the procedure in the national legislation corresponding to point (a) of the first subparagraph of
         Article 3 of Directive 89/48, so that Saiette has given a ruling on whether Ms Toki can rely on an equivalent diploma, but
         not on the question of whether the professional experience she gained in the United Kingdom as a research worker could be
         validly taken into account in the recognition procedure provided for by point (b) of the first subparagraph of Article 3 of
         the directive. Finally, if the case were again to be brought before the Greek authorities, they could no longer give a ruling
         on the basis of Directive 89/48, which was repealed by Directive 2005/36. (35)
      
      63.      In spite of all that, there are several factors which persuade me that the question is admissible. 
      
      64.      First, none of the interested parties which lodged written observations has disputed that the second question is admissible.
         
      
      65.      Second, according to settled case‑law, in the context of the procedure established by Article 234 EC, now Article 267 TFEU
         ‘it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the
         subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary
         ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently,
         where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a
         ruling’. (36) Only in exceptional circumstances can the Court examine the conditions in which a case was referred to it by the national
         court in order to confirm its own jurisdiction. (37) More particularly, ‘the Court may refuse to rule on a question referred for a preliminary ruling by a national court only
         where it is quite clear that the interpretation of European Union law that is sought bears no relation to the actual facts
         of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual
         or legal material necessary to give a useful answer to the questions submitted to it’. (38) I am conscious of the reasoning of the referring court, which states that it is necessary to provide the authorities, whose
         decision will certainly be annulled, with the guidance they need in order to adopt a new decision. The interpretation which
         is sought of the provision of European Union law has an obvious connection with the main proceedings, whether on the basis
         of Directive 89/48 or on that of Article 13(2) of Directive 2005/36, which reproduces the recognition conditions provided
         for by Directive 89/48. Consequently, none of the three situations identified by the Court to justify a refusal to give a
         ruling on a question referred to it is present in this case.
      
      66.      Finally, I observe that recital 14 of the preamble to Directive 2005/36 states clearly that ‘the mechanism of recognition
         established by Directives 89/48/EEC and 92/51/EEC remains unchanged’. Therefore the clarification provided by the Court in
         its reply to the second question will be relevant, whether on the basis of Directive 89/48 or that of Directive 2005/36. 
      
      67.      In those circumstances I suggest that the Court should admit the second question and proceed with its examination.
      
      2.      The concept of full-time pursuit of the profession 
      68.      Where the recognition conditions of point (b) of the first subparagraph of Article 3 of Directive 89/48 are applicable, the
         national authority cannot refuse access to the activity in question if the applicant has pursued the profession in question
         full-time for two years in another Member State which does not regulate that activity. The second subparagraph of Article
         3 of the directive makes it clear that the first subparagraph does refer to professional experience. However, Article 1(e)
         of Directive 89/48 defines professional experience as ‘the actual and lawful pursuit of the profession concerned in a Member
         State’. Therefore, in order to reply to the second question from the referring court, it is necessary to determine whether
         Ms Toki’s activity in the university which employed her from 1999 to 2002 can be regarded as the full-time pursuit of the
         profession of environmental engineer.
      
      69.      Ms Toki’s situation is unusual in so far as, in order to be authorised to pursue the profession of environmental engineer
         in Greece, she claims three years’ professional experience, not as an environmental engineer as such, but as a researcher
         in the field of environmental engineering. She was employed for three years as a researcher by the University of Portsmouth.
         In that capacity she was involved in assisting students and undertook various kinds of academic activity (such as forming
         part of a research group in environmental technology, preparation of reports, presentation of scientific data to the academic
         world and to industry). It appears from the court documents that she also worked in cooperation with a private company specialising
         in technologies relating to the processing of liquid waste and, in that context, she carried out laboratory analyses for the
         purpose of monitoring the quality of sewage sludge treatment. According to Ms Toki, the last-mentioned activity is an essential
         aspect of the profession of environmental engineer.
      
      70.      In view of the wording of the question and the observations of the applicant in the main proceedings, which stressed that
         aspect, I must mention, first, that it is not disputed, and there is no doubt, that research activity such as that carried
         out by Ms Toki constitutes the pursuit of a professional activity as an employed person. The referring court considered it
         right to point out, in the wording of the second question, that Ms Toki’s professional activity as a researcher was in an
         establishment which was in principle non‑profit‑making. Whether the establishment in question was profit‑making or not is
         of absolutely no significance with regard to the main proceedings The only relevant point is whether professional experience
         was gained by way of professional activity as an employed or self-employed person. The fact that Ms Toki was employed by the
         University of Plymouth is, however, not contested. 
      
      71.      The problem, therefore, is not to determine whether activity in university research may be considered professional experience
         in itself. The real question, which is more difficult, is whether that research activity, which was carried out at least partly
         in a field which, it seems, is related to the field of environmental engineering, to use the phrase used by the referring
         court, can be properly deemed to constitute actual pursuit of that profession within the meaning of European Union law. 
      
      72.      In other words, if Ms Toki had wished to be authorised to pursue the profession of research worker in Greece, and assuming,
         of course, that the recognition conditions applicable to non-regulated activity or activity deemed to be regulated activity
         were then applicable, her experience at a university of another Member State would obviously have to be taken into account.
         
      
      73.      The doubts in the present case arise from the fact that Ms Toki refers to three years’ professional experience in the field
         of research, but in connection with the field of environmental engineering. The difficulty is increased by the fact that none
         of the parties has commented on the existence and the extent of the alleged connection between Ms Toki’s activities at the
         university and those she would have been required to carry out in the ‘actual’ pursuit of the profession of environmental
         engineer.
      
      74.      The full-time pursuit required by the directive refers, as I have already said, to the professional experience acquired in
         the Member State which does not regulate the profession. Therefore it relates to ‘the actual and lawful pursuit of the profession
         concerned’. ‘Profession concerned’ must mean the profession to which the application for recognition submitted in the host
         Member State relates. Ms Toki’s application concerns the activity of environmental engineer. In view of the foregoing, it
         must be said that the experience acquired by Ms Toki as a researcher cannot, a priori, be deemed fully to be actual pursuit
         of the activity of environmental engineer because that is precisely not the profession which she pursued in the United Kingdom.
         In that connection, point (b) of the first subparagraph of Article 3 of Directive 89/48 makes it clear that recognition presupposes
         the pursuit of ‘the profession in question’, that is to say, the profession to which the application for access or for authorisation
         to pursue relates. That is also, in essence, the conclusion reached by the Commission in its abovementioned reply to the Petitions
         Committee of the European Parliament. (39)
      
      75.      The Court has already held, in a ruling on the basis of Directive 89/48 concerning diplomas required by the Member State where
         education and training took place, when that State regulates access to ‘the profession in question’ in its territory, that
         ‘the expression “the profession in question”, employed in point (a) of the first subparagraph of Article 3 of the Directive,
         must be construed as covering professions which, in the Member State of origin and the host Member State, are identical or
         analogous or, in some cases, simply equivalent in terms of the activities they cover’. (40) I consider that, logically, the Court’s interpretation applies also to point (b) of the first subparagraph of Article 3,
         which refers to the full-time pursuit of ‘the profession in question’.
      
      76.      Further, the Court’s interpretation of ‘the profession in question’ allows some flexibility, in that the expression may also
         apply to professions which are equivalent in terms of the activities they cover. Consequently it will be for the national
         authority responsible for the recognition of diplomas and professional experience, which in the present case is the Saeitte,
         to determine whether the tasks carried out by Ms Toki in the context of her collaboration with the specialist private company
         may constitute, as she claims, an essential aspect of the activity of an environmental engineer, that is to say, an essential
         aspect of an equivalent profession within the meaning of the Court’s case-law. 
      
      77.      When the Saeitte has assessed the connection between Ms Toki’s activities during her period of employment at the university
         and those activities involved in actually pursuing the profession of environmental engineer, it will then be necessary to
         determine whether, in the three years she spent at the university as a researcher, she was actually engaged full-time for
         at least two years in activity constituting an essential aspect of the profession of environmental engineer, since it appears
         from the file that, in those three years, she carried out other activities which manifestly have no connection with the actual
         pursuit of the profession of environmental engineer (such as assisting students). 
      
      78.      I would also add that the possibility cannot be ruled out that the pursuit of activities which are only connected with the
         professional activity in relation to which the application for access was submitted, although they cannot constitute actual
         pursuit of that profession, contribute to the acquisition and subsequent consolidation of the applicant’s knowledge of that
         activity. However, it is probable that the collaboration between Ms Toki and the private company did not permit her to pursue
         all the activities which she would have to carry out when actually pursuing the profession of environmental engineer. For
         example, she was not in contact with customers. It may also be presumed that familiarity with the national rules on planning
         and the environment is also necessary for environmental engineers, and that is perhaps lacking in Ms Toki’s case so far as
         Greek legislation is concerned. 
      
      79.      For the sake of completeness, mention should be made of the possibility that the national authority may decide that compensatory
         measures are appropriate in the case of the applicant in the main proceedings. (41) That would be the case if the Saeitte were to find that the profession of environmental engineer in Greece comprises one
         or more regulated professional activities which are not in the profession pursued by the applicant in the Member State in
         which education and training took place, and that difference corresponds to specific education and training required in Greece
         and covers matters which differ substantially from those covered by the education and training adduced by the applicant. (42)
      
      80.      The compensatory measures which would then be ordered would have to take due account, in accordance with the principle of
         proportionality, of Ms Toki’s previous experience, although it is not sufficient to entitle her to take up the abovementioned
         activity immediately without any other formalities.
      
      81.      The case-law does not give rise to any doubts in that respect since the Court has already had occasion to state that ‘the
         scope of Article 4 of Directive 89/48, which expressly authorises compensatory measures, must be restricted to those cases
         where they are proportionate to the objective pursued.’ (43) Furthermore, the ordering of compensatory measures in accordance with the principle of proportionality is now expressly provided
         for by Article 14(5) of Directive 2005/36. (44) Consequently, when laying down compensatory measures, if necessary, the national authority will have to take into consideration
         all relevant practical experience for pursuing the profession to which the application relates and which may make up, at least
         in part, for the knowledge lacking in the initial education and training. 
      
      82.      In those circumstances I suggest that the reply to the second question should be that, under Directive 89/48 as well as Directive 2005/36,
         the full-time pursuit of the profession must be understood as the actual pursuit of the same profession, that is to say, the
         profession for which the application for authorisation was submitted. It is for the national authority to ascertain whether
         the tasks carried out by the applicant in the main proceedings in the context of her research work may constitute an equivalent
         profession in terms of the activities covered within the meaning of the Court’s case-law. Finally, if the national authority
         orders compensatory measures, it will be necessary to define them in accordance with the principle of proportionality, taking
         account of the connection between the profession which the applicant wishes to be authorised to pursue in the host Member
         State and the professional experience gained in the Member State where education and training took place.
      
      VI –  Conclusion
      83.      I therefore propose that the Court reply as follows to the questions referred by the Symvoulio tis Epikrateias:
      
      (1)      Point (b) of the first subparagraph of Article 3 of Council Directive 89/48/EEC of 21 December 1988 must be interpreted as
         meaning that the recognition procedure for which it provides is applicable in cases where, in the Member State where education
         and training took place, the profession is deemed to be a regulated professional activity within the meaning of the second
         subparagraph of Article 1(d) of the directive. As point (b) of the first subparagraph of Article 3 of Directive 89/48 is applicable
         to activities deemed to be regulated activities in the Member State where education and training took place and also to non-regulated
         activities, whether the person concerned is a full member or not of an association or organisation fulfilling the conditions
         of the second subparagraph of Article 1(d) of the directive does not affect the recognition procedure applicable.
      
      (2)      Under Directive 89/48 as well as Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005, the
         full-time pursuit of the profession must be understood as the actual pursuit of the same profession, that is to say, the profession
         for which the application for authorisation was submitted. It is for the national authority to ascertain whether the tasks
         carried out by the applicant in the main proceedings in the context of her research work may constitute an equivalent profession
         in terms of the activities covered within the meaning of the Court’s case-law. Finally, if the national authority orders compensatory
         measures, it will be necessary to define them in accordance with the principle of proportionality, taking account of the connection
         between the profession which the applicant wishes to be authorised to pursue in the host Member State and the professional
         experience gained in the Member State where education and training took place.
      
      1 –	Original language: French.
      
      2 –	OJ 1989 L 19, p. 16.
      
      3 –	OJ 2001 L 206, p. 1.
      
      4 –	See Point 12 et seq. of this Opinion.
      
      5 –	OJ 2005 L 255, p. 22.
      
      6 –	See Article 62 of Directive 2005/36.
      
      7 –	FEK A’ 149 of 28 June 2000.
      
      8 –	FEK A’ 251 of 22 October 2001.
      
      9 –	FEK A’ 334 of 31 December 2002.
      
      10 –	See point 2 of this Opinion.
      
      11 –	See also Case C‑164/94 Aranitis [1996] I‑135, paragraph 17. 
      
      12 –	See recital 3 of the preamble to and Article 1(a), second indent, of Directive 89/48. 
      
      13 –	Although it is for the referring court to examine the conditions governing the pursuit of the profession in question, that
         is without prejudice to clarification by the Court (see Case C‑149/05 Price [2006] ECR I‑7691, paragraph 39).
      
      14 –	Aranitis, cited above, paragraphs 18 and 19.
      
      15 –	See paragraph 21 of the chapter of the annex relating to the United Kingdom.
      
      16 –	See the first indent of the second  subparagraph of Article 1(d) of Directive 89/48.
      
      17 –	In any case it is irrelevant because the Court clearly stated, with regard to the classification of a regulated profession
         in the host Member State, that ‘whether or not a profession is regulated depends on the legal situation in the host Member
         State and not on the conditions prevailing on the employment market in that Member State’ (Aranitis, cited above, paragraph 23). 
      
      18 –	On that point it should be noted that the annex relates only to associations and organisations in the United Kingdom or
         Ireland. 
      
      19 –	For example, I find it somewhat difficult to believe that in the United Kingdom the profession of librarian involves compulsory
         registration with the Library Association, which is another of the professional associations and organisations referred to
         in the annex to the directive (it has since become the Chartered Institute of Library and Information Professionals).
      
      20 –	This careful wording is necessary in view of the second question referred to the Court, which is bound to lead precisely
         to the issue of the extent to which Ms Toki actually pursued the activity of environmental engineer. 
      
      21 –	Petition 786/2002 of Mr L. Kounis, who held an engineering diploma issued in the United Kingdom but who was not a member
         of the Engineering Council and therefore did not possess the title of Chartered Engineer. He applied for his diploma to be
         recognised in Greece so that he could pursue the professional activity of engineer there, but this was refused by Saeitte.
         
      
      22 	Emphasis added.
      
      23 –	Article 52(2) states, for its part, that ‘where a profession is regulated in the host Member State by an association or
         organisation within the meaning of Article 3(2), nationals of Member States shall not be authorised to use the professional
         title issued by that organisation or association, or its abbreviated form, unless they furnish proof that they are members
         of that association or organisation’. Therefore that provision relates only to the conditions for using the professional title
         issued by the association in question  and it cannot be inferred from that provision, any more than from the terms of Directive
         89/48, that only members of those associations are authorised to pursue the professional activity in question.
      
      24 –	See recital 13 in the preamble to Directive 89/48.
      
      25 –	Case C‑274/05 Commission v Greece [2008] ECR I‑7969, paragraph 39. 
      
      26 –	Price, cited above, paragraph 36.
      
      27 –	Case C‑141/04 Peros [2005] ECR I‑7163, paragraph 31.
      
      28 –	Price, cited above. 
      
      29 –	Ibid., paragraph 47. 
      
      30 –	Ibid., paragraph 48.
      
      31 –	Corresponding to Article 1(c) of Directive 89/48.
      
      32 –	Corresponding to Article 1(d) of Directive 89/48.
      
      33 –	Case C-365/93 Commission v Greece [1995] ECR I-499, paragraph 9. 
      
      34 –	Case C-102/02 Beuttenmüller [2004] ECR I-5405, paragraph 55; to the same effect, Peros, cited above, paragraph 32. 
      
      35 –	Article 63 of Directive 2005/36 provided that Member States were to comply with the provisions of the directive by 20 October
         2007 at the latest. 
      
      36 –	Case C‑440/08 Gielen [2010] ECR I‑0000, paragraph 27 and case-law cited.   
      
      37 –	Ibid., paragraph 28 and case-law cited.
      
      38 –	Ibid., paragraph 29 and case-law cited.
      
      39 –	The Commission argued that the professional experience required under point (b) of the first subparagraph of Article 3
         of Directive 89/48 must be acquired in the same profession as that for which the person concerned is qualified and seeks recognition.
         The Commission considered that, as Mr Kounis put forward only his experience as a lecturer, he could not claim the professional
         experience required as an engineer (Petition 786/2002, cited above).
      
      40 –	Case C‑330/03 Colegio [2006] ECR I‑801, paragraph 20.  
      
      41 –	Article 4 of Directive 89/48, later Article 14 of Directive 2005/36.
      
      42 –	The third indent of point (b) of the first subparagraph of Article 4 of Directive 89/48, later Article 14, first subparagraph,
         (c), of Directive 2005/36. The latter presupposes that the national authority recognises a sufficient connection between Ms
         Toki’s activity and the activity of an environmental engineer and that there was full-time pursuit of the connected activity
         for the conditions of Point (b) of the first subparagraph of Article 3 of Directive 89/48 to be found to have been fulfilled.
      
      43 –	Colegio, cited above, paragraph 24, and Case C‑197/06 Van Leuken [2008] ECR I‑2627, paragraph 39. 
      
      44 –	Article 14(5) of Directive 2005/36 provides that the provisions relating to compensation [sic] measures, in particular
         Article 14(1) of the directive, ‘shall be applied with due regard to the principle of proportionality. In particular, if the
         host Member State intends to require the applicant to complete an adaptation period or take an aptitude test, it must first
         ascertain whether the knowledge acquired by the applicant in the course of his professional experience in a Member State or
         in a third country, is of a nature to cover, in full or in part, the substantial difference referred to in paragraph 4’.