CELEX: 62001CC0255
Language: en
Date: 2004-04-01
Title: Opinion of Mr Advocate General Tizzano delivered on 1 April 2004. # Panagiotis Markopoulos and Others v Ypourgos Anaptyxis and Soma Orkoton Elegkton. # Reference for a preliminary ruling: Symvoulio tis Epikrateias - Greece. # Reference for a preliminary ruling - Eighth Directive 84/253/EEC - Articles 11 and 15 - Approval of persons responsible for statutory auditing of accounting documents - Possibility of approving persons who have not passed an examination of professional competence - Conditions on which nationals of other Member States may be approved. # Case C-255/01.

OPINION OF ADVOCATE GENERALTIZZANOdelivered on 1 April 2004(1)
         Case C-255/01Panagiotis Markopoulos and OthersvThe Minister for DevelopmentandThe Institute of Certified Auditors(Reference for a preliminary ruling from the Symvoulio tis Epikrateias (Greece))
            (Directive 84/253/EEC  –  Articles 11 and 15  –  Persons responsible for carrying out the audits of accounting documents  –  Approval  –  Examination of professional competence)
            
      
         
        1.        By order of 12 June 2001, the Symvoulio tis Epikrateias (Greek Council of State; ‘the Council of State’) referred to the Court
      for a preliminary ruling two questions concerning the interpretation of the Eighth Directive 84/253/EEC on the approval of
      persons responsible for carrying out the statutory audits of accounting documents (‘the eighth directive’). 
         			(2)
         		
      
        2.        The referring court essentially wishes to know when a Member State may adopt transitional provisions approving particular
      categories of persons to carry on the activity of auditing accounting documents without requiring them to sit an examination
      of professional competence. The Court is also asked to determine whether professional persons who have already been approved
      in one Member State may take up that activity in another Member State without sitting such an examination.
      
      
      I –  Legislative background
       A – Community law The fourth and seventh directives
      
        3.        In order to protect members of limited companies and third parties dealing with such companies (first recital), the Council
      adopted the Fourth Directive 78/660/EEC (‘the fourth directive’) which coordinates national provisions concerning the presentation
      and content of the annual accounts of public and private companies. 
         			(3)
         		
      
        4.        For our purposes, it will be recalled that the fourth directive requires companies ‘to have their annual accounts audited’
      and to have the consistency of their annual accounts with the annual report verified ‘by one or more persons authorised by
      national law to audit accounts’, with Member States being permitted to exempt from this audit only companies of minor economic
      and social importance (Article 51). 
         			(4)
         		
      
        5.        The fourth directive was subsequently supplemented by the seventh directive 83/349/EEC (‘the seventh directive’), 
         			(5)
         		 which imposes the same audit requirement in relation to the consolidated accounts and consolidated annual report of groups
      of companies (Article 37).
       The eighth directive
      
      
        6.        By the eighth directive, with which we are most concerned here, the Council then set about harmonising the qualifications
      of those responsible for carrying out these audits required by Community law.
      
      
        7.        More specifically, the directive harmonises the qualifications of persons responsible, in terms of Article 1(1), for:
      ‘(a)   carrying out statutory audits of the annual accounts of companies and firms and verifying that the annual reports are consistent
      with those annual accounts in so far as such audits and such verification are required by Community law;
      (b)     carrying out statutory audits of the consolidated accounts of bodies of undertakings and verifying that the consolidated annual
      reports are consistent with those consolidated accounts in so far as such audits and such verification are required by Community
      law’.
      
      
        8.        The directive provides that the audits in question may be carried out only by approved persons (Article 2), and a natural
      person may be approved, under Article 4, ‘only after having attained university entrance level, then completed a course of
      theoretical instruction, undergone practical training and passed an examination of professional competence of university,
      final examination level organised or recognised by the State’.
      
      
        9.        Article 11 provides, however, that:
      ‘1.     The authorities of a Member State may approve persons who have obtained all or part of their qualifications in another State
      provided they fulfil the following two conditions: 
      (a)     the competent authorities must consider their qualifications equivalent to those required under the law of that Member State
      in accordance with this Directive; and
      (b)     they must have furnished proof of the legal knowledge required in that Member State for purposes of the statutory auditing
      of the documents referred to in Article 1(1). The authorities of that Member State need not, however, require such proof where
      they consider legal knowledge obtained in another State sufficient.
      …’.
      
      
        10.      Furthermore, Article 15 provides that:
      ‘Until one year after the application of the provisions referred to in Article 30(2), those professional persons who have
      not been approved by individual acts of the competent authorities but who are nevertheless qualified in a Member State to
      carry out statutory audits of the documents referred to in Article 1(1) and have in fact carried on such activities until
      that date may be approved by that Member State in accordance with this Directive’.
      
      
        11.      In this regard, Article 19 specifies that:
      ‘None of the professional persons referred to in [Article] 15 … may be approved by way of derogation from Article 4 unless
      the competent authorities consider that they are fit to carry out statutory audits of the documents referred to in Article
      1 (1) and have qualifications equivalent to those of persons approved under Article 4’.
      
      
        12.      Article 30, finally, provides that:
      ‘1.     Member States shall bring into force before 1 January 1988 the laws, regulations and administrative provisions necessary for
      them to comply with this Directive. They shall forthwith inform the Commission thereof.
       2.       Member States may provide that the provisions referred to in paragraph 1 shall not apply until 1 January 1990.
      …’.
      
      
       B – National law Certified accountants and ‘ordinary’ accountants
      
        13.      According to the order for reference, auditing of accounting documents was carried out in Greece by two categories of professional
      persons: certified accountants and ‘ordinary’ accountants.
      
      
        14.      Certified accountants belonged to an Institute, to become members of which they had to succeed in a competitive examination.
      
         			(6)
         		 The members of the Institute had a ‘mandatory clientele’ or statutory monopoly on certain types of work, including, from
      1986 on, auditing the annual accounts and consolidated accounts of the larger public limited companies, partnerships limited
      by shares and private limited companies. 
         			(7)
         		
      
        15.      Certified accountants also had an ‘optional clientele’, meaning that they could be chosen freely for auditing work by commercial
      companies operating in any form and all the legal persons provided for in the Civil Code. Choosing a certified accountant
      conferred a number of benefits. Accounts audited by a certified accountant had enhanced probative value in courts. 
         			(8)
         		 In addition, they facilitated dealings with tax authorities, social security bodies 
         			(9)
         		 and banks. 
         			(10)
         		
      
        16.      As mentioned above, auditing of accounts was carried on by ‘ordinary’ accountants as well as by certified accountants. That
      category comprised Greek practitioners who were not members of a professional institute and practitioners approved in other
      States.
      
      
        17.     ‘Ordinary’ accountants practised their profession without having first to pass examinations or succeed in competitions. However,
      they were allowed to carry out only such activities as fell outside the monopoly of certified accountants. In addition, their
      audits did not carry enhanced probative value nor did they confer on the companies that used them the benefits that came with
      audits done by certified accountants.
       The provisions governing ordinary accountants adopted subsequent to the approval of the eighth directive 
      
      
        18.      In order to bring its national rules into line with the eighth directive, Greece enacted a series of measures repeatedly modifying
      the rules governing access to the profession by persons already licensed to practise in other Member States and approval to
      practise for persons not members of a professional institute but having practised as auditors for a long time.
      
      
        19.      The first measure was Presidential Decree 15/1989 (FEK 5A of 5 January 1989, ‘Decree 15/89’) ‘adapting the Legislation on
      Certified Accountants to the Provisions of the Eighth EEC Directive’, which essentially retained the established Institute
      of Certified Accountants with its existing structure.
      
      
        20.      So far as concerns us here, that decree provided that practitioners approved in other Member States who had passed an examination
      of professional competence and held qualifications equivalent to those of members of the Institute could be designated certified
      accountants (Article 5). It was also provided that until 1 January 1990 practitioners already carrying out statutory audits
      of annual accounts and consolidated accounts in Greece and who were deemed fit to carry out audits of accounting documents
      could be designated certified accountants directly, without having to sit an examination (Article 6(3) and (4)).
      
      
        21.      There followed Presidential Decree 226/1992 (FEK 120/A of 14 July 1992, ‘Decree 226/92’) which established a new institute:
      the Institute of Certified Auditors (Article 1).
      
      
        22.      Those already affiliated to the Institute of Certified Accountants automatically acquired membership of the new institute.
      For ordinary accountants with 15 years auditing experience and accountants approved in other Member States with 10 years auditing
      experience, however, admission was subject to passing the examination of professional competence in the same way as all new
      prospective auditors (Article 24(1) and (2)).
      
      
        23.      However, that requirement for those categories of ordinary accountant to sit an examination was removed by Article 2(7) of
      the subsequent Presidential Decree 121/1993 (FEK 53A of 12 April 1993, ‘Decree 121/93’) only to be reintroduced by Article
      18(3) of Law 2231/1994 (FEK 139A of 31 August 1994, ‘Law 2231/94’).
      
      
        24.      That last provision, too, was in turn amended by Article 3(2) of Law 2257/1994 (FEK 197/A of 23 November 1994, ‘Law 2257/94’)
      which provided as follows:
      ‘After the third paragraph of Article 18 of Law 2231/1994 (FEK 139A), paragraphs 3(a), 3(b) and 3(c) shall be inserted, which
      state as follows:
      “3(a) Any person holding a degree from a higher educational establishment as required by Article 10(1) of Presidential Decree
      226/1992 shall be exempt from the examination prescribed by Article 18(3) of Law 2231/1994 and shall be considered lawfully
      entered on the rolls of the Institute of Certified Auditors provided for by Article 13 of Presidential Decree 226/1992, provided
      that he can demonstrate, by the date of publication of this Law, 18 years previous experience of auditing work in Greece and
      that he was instructed to carry out auditing work in Greece as at 1 January 1989, as shall any person who has obtained approval
      to pursue the profession of certified accountant or auditor in another Member State of the European Union or in the United
      States of America, Canada, Australia, New Zealand or South Africa and has 10 years previous experience of auditing work, at
      least three of which were in Greece, as at 1 January 1989. The Supervisory Board of the Institute of Certified Auditors shall
      decide within two months whether the foregoing conditions are met. …”.’
      
      
      II –  Facts and procedure 
        25.      The dispute in the main proceedings arose out of the adoption by the Supervisory Board of the Greek Institute of Certified
      Accountants of Decision No 75 of 19 January 1995 (‘Decision 75/95’), by which 60 applicant certified auditors were admitted
      to the Institute without having sat an examination of professional competence as they satisfied all the conditions laid down
      in Article 18(3a) of Law 2231/1994.
      
      
        26.      Some of the applicants in question are Greek nationals with degrees in economics or business studies and 15 years auditing
      experience in the financial or legal accounting sector, 
         			(11)
         		 while the others are Greek nationals or nationals of other European Community Member States who are approved to practise
      the profession of certified accountant or auditor in other Member States and have 10 years previous experience of auditing
      work.
      
      
        27.      The certified auditors Panagiotis Markopoulos, Anastasios Keratsis and Evengellos Poulis (‘the applicants in the main proceedings’)
      brought proceedings before the Council of State seeking to have Decision 75/95 set aside. The certified auditors Christos
      P. Panagiotidis, Georgis Samothrakis, Stefanos G. Pantzopoulos and Richard G. Kesley intervened in those proceedings.
      
      
        28.      The Council of State had doubts as to the compatibility of Article 18(3a) of Law 2231/94 with the eighth directive and referred
      the following questions to the Court for a preliminary ruling under Article 234 EC:
      ‘(a)   May the national legislature, on the basis of Article 15 of the Eighth Council Directive 84/253/EEC of 10 April 1984 (OJ 1984
      L 126, p. 20), make use of the power provided for by that article and provide for the possibility for various categories of
      persons to be approved to audit accounting documents, in derogation from the permanent rules, that is to say without first
      sitting an examination of professional competence, when the Member State in question has already, before the adoption of the
      directive, laid down that examination in national law? In any event, may the national legislature make repeated use of the
      power to adopt transitional provisions on the basis of the abovementioned article of the directive, in particular after the
      deadline of 1 January 1991 (Article 15 in conjunction with Article 30(2) of the directive)?
      (b)     Does Article 11 of the Directive simply mean that, if a candidate for approval to audit accounting documents in a Member State
      of the European Union has obtained, under the regime which applied before harmonisation, some of the required qualifications
      in another Member State, the Member State from which approval is sought regards those qualifications as having been obtained
      in that same State and does not introduce an exception to the generally applicable rule that approval is granted only after
      an examination of professional competence has been passed? Or is it to be interpreted as allowing a person holding an approval
      to audit accounting documents which has been granted to him in a Member State under the regime which applied before harmonisation
      to receive the corresponding approval in another Member State without being obliged to sit an examination of professional
      competence, but just on a simple finding that his qualifications are equivalent?’
      
      
        29.      In the ensuing proceedings, written observations were submitted by the applicants in the main proceedings, the certified auditors
      Mr Panagiotis and Mr Samothrakis, the Greek and Spanish Governments, and the Commission.
      
      
        30.      At the hearing held on 11 February 2004, oral submissions were made by the applicants in the main proceedings, the Institute
      of Certified Auditors, Mr Samothrakis, the Greek and Spanish Governments, and the Commission.
      
      
      III –  Legal analysisThe first question
        31.      By the first question referred, the Council of State asks two things. First, it asks whether the power conferred by Article
      15 of the eighth directive to adopt transitional provisions concerning the approval of persons responsible for carrying out
      the statutory auditing of accounting documents could be exercised even by those Member States, such as Greece, which made
      entry to the profession of certified auditor subject to an examination of professional competence. If the answer is in the
      affirmative, it asks whether the national legislature was entitled to make repeated use of that power after 1 January 1991.
      (i)     The first part of the first question
      
      
        32.      To begin with the first issue, I note first of all that in the order for reference the Council of State states that there
      were two schools of thought among its members. 
      
      
        33.      According to one view, supported by the majority on the referring court, the power to grant approval to particular categories
      of practitioners, by way of derogation from the requirement laid down by Article 4 of passing an examination of professional
      competence, was exercisable only by those States which did not, prior to the adoption of the directive, make entry to the profession of auditor subject to the passing of a professional
      examination. It followed that the Greek legislature, which had already made admittance to the Institute of Certified Accountants
      subject to a competitive examination, was not entitled to make use of that power. According to a contrary and minority view,
      however, all the Member States were at liberty to adopt transitional provisions for the benefit of practitioners under Article
      15.
      
      
        34.      As the Greek Government and the Commission rightly observed, Article 15 does not impose any limitation as to the States that
      may adopt transitional provisions. The Community legislature thought fit that ‘the Member States’, without distinction, should be ‘authorised to adopt transitional provisions for the benefit of professional persons’ (sixth
      recital) 
         			(12)
         		 and provided that each Member State may approve particular categories of professional persons to carry out statutory audits
      of accounting documents. All Member States were therefore entitled to make use of the power conferred by the eighth directive
      to adopt transitional provisions.
      
      
        35.      Article 15 does, on the other hand, impose a specific limitation with regard to the categories of professional persons that
      can be approved by way of derogation to the requirements laid down by Article 4. It provides that ‘[u]ntil one year after
      the application of the provisions referred to in Article 30(2), those professional persons who have not been approved by individual
      acts of the competent authorities but who are nevertheless qualified in a Member State to carry out statutory audits of the documents referred to in Article 1(1) and have in fact carried on such activities until that date may be approved by that Member State in accordance with this Directive’. 
         			(13)
         		
      
        36.      As the applicants in the main proceedings rightly observed, and as the Commission also acknowledges, it seems to me that Member
      States were entitled, by virtue of that provision, to approve for the purpose of carrying out audits of the documents referred
      to in Article 1(1) only those professional persons who, prior to the date laid down by that provision, held the qualifications
      required under national law to carry out such audits and who were in fact doing so. 
      
      
        37.      That interpretation is based in the first place on the wording of Article 15, which permits a Member State to approve professional
      persons who: (i) are qualified ‘in a Member State’ to carry out the audits required by Community law and who (ii) have in fact already carried out such audits.
      
      
        38.      That reading of the provision seems to me also to be consistent with the principle of the protection of legitimate expectations,
      which requires the Community legislature to take into account the legitimate expectations of interested persons, expectations
      which must not be prejudiced by subsequent modifications of the Community legislation on auditing of accounts.
      
      
        39.      By the fourth directive, as we have seen above (paragraphs 3 to 5), the Community legislature imposed an obligation on Member
      States to require the annual accounts of public and private limited companies to be audited and the consistency of those accounts
      with the annual report to be verified ‘by one or more persons authorised by national law to audit accounts’. 
         			(14)
         		 That obligation was subsequently extended by the seventh directive to the consolidated accounts and consolidated annual reports
      of groups of companies.
      
      
        40.      Under those directives, therefore, each Member State had an obligation to introduce the audits in question, but had discretion
      as to the qualifications it required of those it would approve for the purposes of carrying them out.
      
      
        41.      Only later, with the adoption of the eighth directive, was such approval made subject to uniform requirements, which were
      potentially stricter and at any rate different from those previously stipulated by national law.
      
      
        42.      It was for this very reason, in my view, that the framers of the eighth directive decided that ‘the Member States should …
      be authorised to adopt transitional provisions for the benefit of professional persons’ (sixth recital). It was possible that
      there were those who, prior to the eighth directive, were authorised by national law to carry out audits of the kind required
      by Community law and who, after the adoption of that directive, would no longer have been able to do so because they did not
      satisfy the new conditions laid down therein.
      
      
        43.      It is therefore reasonable to infer that the eighth directive sought to protect the legitimate expectations of such persons.
      On the other hand, there do not seem to be grounds for supposing that it sought also to afford similar protection to those
      who, while carrying on, based on various qualifications, the activity of auditing accounts prior to Community harmonisation,
      did not hold the qualifications required by national law to carry out the audits stipulated by the fourth and seventh directives.
      
      
        44.      In the present case, the applicants in the main proceedings maintained at the hearing that, up to the time limit laid down
      in Article 15, only certified accountants were authorised under Greek law to carry out the audits stipulated by Community
      law and referred to in Article 1(1). That assertion was disputed by the Commission, however, which claimed instead that, up
      to that time, ordinary accountants too carried out audit activities that fell within the sphere of application of the eighth
      directive.
      
      
        45.      From the information set out in the order for reference it is not possible to say for certain which of these two claims is
      true. It is therefore for the national court, which alone has jurisdiction to interpret national law, to decide the matter.
      
      
        46.      To conclude on this point, it is my view that all Member States were entitled to adopt transitional provisions, in accordance
      with Article 15, for the benefit of professional persons who, before the time limit specified therein, possessed the qualifications
      necessary in the relevant Member State to carry out statutory audits of the documents referred to in Article 1(1) of that
      directive and did in fact carry out such audits.
      (ii)   The second part of the first question
      
      
        47.      In order to answer the first question, there still has to be resolved the issue of whether Member States were entitled to
      repeatedly adopt transitional provisions after 1 January 1991.
      
      
        48.      On this issue, too, there were two schools of thought within the Council of State. According to the majority view, Greece
      could exercise the power to adopt transitional provisions, under Article 15, only until 1 January 1991, as a result of the combined effect of Article 15 and Article 30(2) of the eighth directive. Article 18(3a) of Law 2231/94,
      as amended by Law 2257/94 published on 23 November 1994, was therefore incompatible with the eighth directive.
      
      
        49.      According to the minority view, on the other hand, Article 15 imposed an outright obligation  to adopt transitional provisions for the benefit of professional persons, which had to be complied with, not by 1 January
      1991, but within one year after the entry into force, in each Member State, of the provisions giving full effect to the directive. In the instant case, accordingly, the one-year period was to be calculated from the date of adoption of Decree 226/92, published
      on 14 July 1992, which gave full effect to the eighth directive in Greek law. But even the deadline arrived at by that calculation
      was not an absolute one and did not therefore preclude the possibility of further transitional provisions being introduced
      within a reasonable time. According to this interpretation, therefore, the disputed national provision adopted in November
      1994 was compatible with the eighth directive.
      
      
        50.      The applicants in the main proceedings subscribed to the view expressed by the majority on the national court.
      
      
        51.      Mr Samothrakis and the Greek Government, on the other hand, agreed with the minority view that Article 15 obliges the Greek legislator to adopt transitional provisions for the benefit of professional persons. That obligation was correlative
      to a full-blown right on the part of the persons concerned to be approved by way of derogation from the provisions of the
      eighth directive requiring an examination of professional competence to be passed. The right in question flowed from the directive
      and could not be prejudiced by any delay on the part of the Member State in adopting the national provisions necessary for
      approval to be obtained.
      
      
        52.      The Commission, too, albeit for partly different reasons, espouses the view of the Council of State minority. It argues that
      the time limit of one year laid down by Article 15 is to be calculated from the date of ‘actual’ implementation of the eighth
      directive. Unlike the minority, however, the Commission submits that ‘actual’ implementation occurred only with the adoption
      of Decree 121/93, published on 12 April 1993. Article 18(3a) of Law 2231/94, although not published until 23 November 1994
      (in other words, over a year after the date of ‘actual’ implementation), should none the less be considered within time, since
      it amounted in effect to no more than a retrospective ‘reactivation’ of the transitional provisions that had been adopted
      in time with Decree 121/93.
      
      
        53.      Although motivated by the understandable need to safeguard expectations that individuals may have acquired over the years,
      the Council of State minority view, adopted with various qualifications by Mr Samothrakis, the Greek Government and the Commission,
      is one to which I cannot subscribe. Article 15, in my view, gives Member States a power to adopt transitional provisions by the strict  deadline of 1 January 1991.
      
      
        54.      I note, as a preliminary point, that Article 15 does not impose an obligation on Member States but simply gives them a power to adopt transitional provisions. As we have seen, the Community legislature decided simply that Member States should be
      ‘authorised to adopt transitional provisions for the benefit of professional persons’ (sixth recital) 
         			(15)
         		 who prior to the eighth directive were lawfully carrying on, in accordance with the provisions of national law, the auditing
      of accounts contemplated by the fourth and seventh directives.
      
      
        55.      Those professional persons, according to Article 15, ‘may be approved by [a] Member State’ 
         			(16)
         		 if, as provided in Article 19, ‘they are fit to carry out [such audits]’ and if they ‘have qualifications equivalent to those
      of persons approved under Article 4’. What this amounts to, therefore, in terms of Community law, is a largely discretionary
      power on the part of the individual Member States to safeguard the expectations of particular categories of professional persons.
      
      
        56.      Unlike the Commission, moreover, I take the view that the power in question had to be exercised by the strict deadline of January 1991.
      
      
        57.      I would recall that according to well-settled case-law, ‘the provisions relating to the periods allowed for implementing’
      a directive ‘are no less binding than the provisions of any other rule of Community law’. The directives ‘would be ineffective
      if the desired aims are not achieved [by Member States] within the prescribed time-limits’. Moreover, ‘the existence of differences
      in the rules applied in the Member States after these periods have expired might result in discrimination’. 
         			(17)
         		
      
        58.      For the same reasons, that binding character must, I believe, likewise attach to provisions of directives laying down time
      limits by which Member States may adopt transitional provisions. Non-compliance with such time limits by Member States would
      also prejudice the aims sought to be achieved by a directive and would create disparities between national rules.
      
      
        59.      That having been stated, I would recall that:
      –         under the first paragraph of Article 30, Member States were required to bring into force the laws, regulations and administrative
      provisions necessary for them to comply with the eighth directive ‘before 1 January 1988’;
      –         under the second paragraph, however, they could stipulate that ‘the provisions … [would not] apply  until 1 January 1990’; 
         			(18)
         		–         under Article 15, finally, Member States could adopt transitional provisions, ‘[u]ntil one year after the application of the provisions  referred to in Article 30(2)’.
      
      
        60.      If the latest date that could be set for the application  of the provisions implementing the eighth directive was 1 January 1990, it is clear that the one-year time limit laid down for the adoption
      of the corresponding transitional provisions expired on 1 January 1991 precisely.
      
      
        61.      As the applicants in the main proceedings and the Spanish Government rightly observed, this interpretation, which flows clearly
      from the wording of the two provisions quoted above, is the only one to preserve legal certainty and safeguard the uniform
      application of Community law. It means that there is for all Member States a single time limit by which particular categories
      of persons may be approved, by way of derogation to the requirements laid down by Article 4 and, in particular, the condition
      of having passed an examination of professional competence, to carry on the auditing of accounts required by Community law.
      
      
        62.      Those fundamental requirements of Community law are not satisfied, on the other hand, by the interpretation of the provision
      in question put forward by the Council of State minority and adopted by the Commission. Having the one-year time period start
      from the ‘complete’ or ‘actual’ implementation of the directive in the individual Member States would mean that the time limit
      for the adoption of the transitional provisions would be tied to a most uncertain condition and, what is more, would differ
      from State to State.
      
      
        63.      This is tellingly illustrated in the very case before us. The Council of State minority and the Commission, despite proposing
      the same method for calculating the time limit in question, take two different dates as the starting point. For the former,
      time starts to run on 14 July 1992, the date of publication of Decree 226/92. According to the Commission, on the other hand,
      the period commences on the date of adoption of the later Decree 121/93.
      
      
        64.      Moreover, the impugned interpretation would have the paradoxical consequence of ‘favouring’ Member States which delay ‘complete’
      implementation of the directive. They would retain the power to grant approvals in derogation from the requirements of the
      eighth directive longer than Member States that diligently gave effect to the implementation provisions by the deadline of
      1 January 1990.
      
      
        65.      In the instant case, it was not until 23 November 1994, well over three years after the expiry of the strict deadline of 1
      January 1991, that the Greek legislature published Law 2257/94, inserting into Law 2231/94 the disputed provision of Article
      18(3a). Even were one to concede the Commission’s point that the law in question merely reintroduced a derogation already
      provided for by Decree 121/93, published on 12 April 1993, the time limit would still have been exceeded.
      
      
        66.      The Greek provision in question must therefore be considered incompatible with the directive in either case since it was adopted
      after the strict time limit laid down by Article 15. 
      
      
        67.      For the reasons set out above, I therefore take the view that Article 15 of the eighth directive precludes a Member State
      from making use, after 1 January 1991, of the power to grant approval to carry out statutory audits of the accounting documents
      referred to in Article 1(1) of that directive to professional persons who, up to that date, had the necessary qualifications
      and carried on the auditing of such documents in that State, without requiring them to pass the examination of professional
      competence provided for under Article 4 of that directive.
      
      
        68.      I propose therefore that the answer to be given to the first question is that under Article 15 of the eighth directive all
      Member States were entitled to grant approval to carry out statutory audits of the accounting documents referred to in Article
      1(1) of that directive to professional persons who, up to 1 January 1991, had the qualifications necessary to carry out statutory
      audits of such documents in that Member State and who in fact carried out such audits, without requiring them to pass the
      examination of professional competence provided for under Article 4 of that directive. That power had to be exercised by the
      strict time limit of 1 January 1991.
      The second question
      
        69.      By its second question, the Council of State asks whether, under Article 11, professional persons approved in one Member State
      to audit accounting documents may obtain approval to carry on that activity in another Member State without being required
      to sit an examination of professional competence.
      
      
        70.      The Council of State is unanimous in the view that Article 11 of the directive means simply that if the person seeking approval
      has obtained one of the qualifications in another Member State, under the rules in force prior to harmonisation, that qualification
      must be treated by the State in which approval is sought as if it had been obtained in that State, without making any exception
      to the general principle that approval is granted only after the examinations of professional competence have been passed.
      
      
        71.      I cannot go along with that view.
      
      
        72.      I would first note that the recognition of qualifications to practise a regulated profession, such as that of auditor, is
      now governed by Directive 89/48/EEC 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 (‘Directive 89/48’). 
         			(19)
         		
      
        73.      That directive, which is applicable to the facts of the main proceedings, is based on the general rule that a Member State
      in which entry to a particular profession is subject to possession of a diploma may not refuse to authorise a national of
      a Member State to take up that profession if the person in question holds the diploma required in another Member State for
      the taking up of the profession in question. It thus imposes, as a general rule, a full-blown obligation on Member States
      to recognise professional qualifications, such as auditing qualifications, obtained in another Member State.
      
      
        74.      However, there is no analogous obligation laid down by the eighth directive, which merely announces, in its 12th recital,
      that ‘recognition of the approval given to nationals of other Member States for the purpose of carrying out [statutory] audits
      [of accounting documents] [would] be specifically regulated by Directives on the taking up and pursuit of activities in the
      fields of finance, economics and accountancy, as well as on the freedom to provide services in those fields’.
      
      
        75.      Pending such directives, which have never in fact been adopted, it does, however, contain a special provision which, to my
      mind, enables us to resolve the present case even without having to resort to the general rule contained in Directive 89/48.
      
      
        76.      That provision is in fact Article 11, which, while it does not make recognition of an auditing qualification obtained abroad
      obligatory, does give Member States the power to ‘approve [for the purposes of carrying on the activity of auditing statutory documents] persons who have obtained all
      or part of their qualifications in another State’ provided ‘the competent authorities … consider their qualifications equivalent  to those required under the law of that Member State in accordance with [the] Directive’.
      
      
        77.      Contrary to the view expressed by the referring court, the applicants in the main proceedings and the Greek Government, the
      provision in question does not make it a condition of approval that professional persons approved in other Member States must
      possess the same qualifications as those required by national law in accordance with the directive and, in particular, that
      they must have passed a professional examination the same as that organised in the host State.
      
      
        78.      As the Commission rightly observes, under the scheme of Article 11 the prerequisite for approval is in fact a finding of equivalence  between the qualifications of such professional persons and the qualifications required in the State in which they wish to
      establish themselves in order to carry on the activity of auditing accounts.
      
      
        79.      In the absence of specific provisions governing that assessment of equivalence, it seems to me that it must be carried out
      by the competent authorities in accordance with the obligations imposed on Member States by the Treaty, in particular its
      provisions on the right of establishment (Article 43 EC).
      
      
        80.      In that regard, I would recall that the Court has already held on several occasions that that article requires a Member State
      ‘which receives a request to admit a person to a profession to which access, under national law, depends upon the possession
      of a diploma or a professional qualification [to] take into consideration the diplomas, certificates and other evidence of
      qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by
      making a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications
      required by the national rules’. 
         			(20)
         		
      
        81.      If that comparative examination of diplomas ‘results in the finding that the knowledge and qualifications certified by the
      foreign diploma correspond to those required by the national provisions, the Member State must recognise that diploma as fulfilling
      the requirements laid down by its national provisions’. 
         			(21)
         		
      
        82.      If, on the other hand, the comparison reveals that the knowledge and qualifications correspond only partially, ‘the host Member
      State is entitled to require the person concerned to show that he has acquired the knowledge and qualifications which are
      lacking’. In that event, the competent national authorities must again assess ‘whether the knowledge acquired in the host
      Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession
      of the knowledge which is lacking’. 
         			(22)
         		
      
        83.      It seems to me that, in the instant case, Article 18(3a) of Law 2231/94, in the part dealing with persons already approved
      to carry out audits of accounts in other Member States, is compatible with Article 11, interpreted in the light of the above
      principles developed by the Court. That article authorises the approval of such professional persons provided that the Supervisory
      Board of the Institute of Certified Auditors determines that they have ‘obtained approval to pursue the profession of certified
      accountant or auditor in another Member State of the European Union’ and that they satisfy the further condition of ‘10 years
      previous experience of auditing work, at least three of which were in Greece’. It seems to me that, as required by Article
      11, the Greek legislature, in the first instance, and the professional governing body, in the second instance, have made a
      comparison between the qualifications of the foreign professional persons and those required by the national rules in accordance
      with the eighth directive, have come to the conclusion that they are equivalent, and have therefore granted the approval sought.
      
      
        84.      For the reasons set out above, I therefore take the view that Article 11 of the eighth directive permits a Member State to
      grant approval to carry out the statutory auditing of accounting documents to professional persons already approved in another
      Member State, without requiring them to sit an examination of professional competence, if their qualifications are deemed
      by the competent authorities to be equivalent to those prescribed by the law of the host Member State in accordance with the
      directive.
      
       
      IV –  Conclusion
        85.      In the light of the above considerations I therefore propose that the Court should answer the questions referred by the Symvoulio
      Tis Epikrateias in the following terms:
      ‘(1)   Under Article 15 of the Eighth Council Directive 84/253/EEC of 10 April 1984 based on Article 54(3)(g) of the Treaty on the
      approval of persons responsible for carrying out the statutory audits of accounting documents, all Member States were entitled
      to grant approval to carry out statutory audits of the accounting documents referred to in Article 1(1) of that directive
      to professional persons who, up to 1 January 1991, had the qualifications necessary to carry out statutory audits of such
      documents in that Member State and who in fact carried out such audits, without requiring them to pass the examination of
      professional competence provided for under Article 4 of that directive. That power had to be exercised by the strict time
      limit of 1 January 1991.
      (2)     Article 11 of the Eighth Directive 84/253 permits a Member State to grant approval to carry out the statutory auditing of
      accounting documents to professional persons already approved in another Member State, without requiring them to sit an examination
      of professional competence, if their qualifications are deemed by the competent authorities to be equivalent to those prescribed
      by the law of the host Member State in accordance with the directive.’
      
      
       1 –
         
         Original language: Italian.
      
      2 –
         
         Eighth Council Directive 84/253/EEC of 10 April 1984 based on Article 54(3)(g) of the Treaty on the approval of persons responsible
            for carrying out the statutory audits of accounting documents (OJ 1984 L 126, p. 20).
            
         
      
      3 –
         
         Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain
            types of companies (OJ 1978 L 222, p. 11).
            
         
      
      4 –
         
         Specifically, Article 51(2) allows Member States to exempt from the audit requirement ‘companies which on their balance sheet
            dates do not exceed the limits of two of the three following criteria:
            	– balance sheet total: 1 000 000 EUA,
            	– net turnover: 2 000 000 EUA,
            	– average number of employees during the financial year: 50’ (Article 11).
            
         
      
      5 –
         
         Seventh Council Directive of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193,
            p. 1).
            
         
      
      6 –
         
         Article 2, paragraphs 5, 7 and 8, of Royal Decree 737/1961 (Official Gazette 186/A).
            
         
      
      7 –
         
         Presidential Decrees 409/1986 (FEK 191/A of 28 November 1986) and 419/1986 (FEK 197/A of 19 December 1986).
            
         
      
      8 –
         
         Article 2(1)(c) of Legislative Decree 3329/1955.
            
         
      
      9 –
         
         Article 5(3) of Legislative Decree 3329/1955.
            
         
      
      10 –
         
         Article 32 of Law 5076/1931.
            
         
      
      11 –
         
         With regard to that group of applicant auditors, note that under Article 18(3a) of Law 2257/91 the experience requirement
            was 18 years at the time of publication of the Law.
            
         
      
      12 –
         
         Emphasis added.
            
         
      
      13 –
         
         Emphasis added.
            
         
      
      14 –
         
         Emphasis added.
            
         
      
      15 –
         
         Emphasis added.
            
         
      
      16 –
         
         Emphasis added.
            
         
      
      17 –
         
         Case 52/75 Commission v Italy [1976] ECR 277, paragraph 10; see also Case 79/72 Commission v Italy [1973] ECR 667, paragraph 7.
            
         
      
      18 –
         
         Emphasis added.
            
         
      
      19 –
         
         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).
            
         
      
      20 –
         
         Case C-340/89 Vlassopoulou [1991] ECR I-2357, paragraph 16. On this point, see also the recent judgments in Case C-232/99 Commission v Spain [2002] ECR I-4235, paragraph 21, and in Case C-313/01 Morgenbesser [2003] ECR I-0000, paragraph 57.
            
         
      
      21 –
         
         .Vlassopoulou, paragraph 19.
            
         
      
      22 –
         
         .Vlassopoulou, paragraph 20.