Teresa Fernández de Bobadilla v Museo Nacional del Prado, Comité de Empresa del Museo Nacional del Prado and Ministerio Fiscal.
Date: 1999-07-08
12 Public bodies must also comply with 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) and Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48 (OJ 1992 L 209, p. 25).
14 It must, however, be borne in mind that the definition of a regulated profession for the purposes of Directives 89/48 and 92/51 is a matter of Community law.
16 The effect of Article 1(d) of Directive 89/48 and Article 1(f) of Directive 92/51 is 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 (see Case C-164/94 Aranitis [1996] ECR I-135, paragraph 18).
17 The right to take up or pursue a profession must be regarded as directly governed by legal provisions where the laws, regulations or administrative provisions of the Member State concerned create a system under which that professional activity is expressly restricted to those who fulfil certain conditions and entry to it is denied to those who do not (see Aranitis, cited above, paragraph 19).
19 The Court has already held that a Member State may leave the implementation of the objectives pursued by Community directives to social partners through collective agreements, but the State is still responsible for fulfilling its obligation to ensure that the directives are fully implemented by adopting such provisions as may be appropriate (Case 143/83 Commission v Denmark [1985] ECR 427, paragraphs 8 and 9).
27 Finally, where one or other of Directives 89/48 or 92/51 is applicable, a public body in a Member State which is bound to comply with the rules laid down in the relevant directive can no longer require that a candidate's qualifications be granted official recognition by the competent national authorities.
29 The Court has already had occasion to set out, inter alia in Case C-340/89 Vlassopoulou [1991] ECR I-2357, the conditions with which the competent authorities of a Member State must comply when they receive a request to admit a person to a profession to which entry under national law depends on the possession of a diploma or professional qualification.
30 In contrast to Vlassopoulou, this case concerns a Spanish national seeking to practice her profession in Spain.  However, if a national of a Member State, owing to the fact that he has lawfully resided on the territory of another Member State and has acquired a professional qualification there, finds himself with regard to his State of origin in a situation which may be assimilated to that of a migrant worker, he must also be entitled to enjoy the rights and freedoms guaranteed by the Treaty (see, to that effect, Case C-19/92 Kraus [1993] ECR I-1663, paragraphs 15 and 16).
31 It is clear from paragraph 16 of the judgment in Vlassopoulou that the competent authorities of the host Member State must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to practice that profession in another Member State by comparing the specialised knowledge and abilities certified by those diplomas with the knowledge and qualifications required by the national rules.
32 If that comparative examination of diplomas results in the finding that the knowledge and qualifications certified by the diploma awarded in another Member State correspond to those required by the national provisions, the competent authorities of the host Member State must recognise that diploma as fulfilling the requirements laid down by its national provisions.  If, on the other hand, the comparison reveals that the knowledge and qualifications certified by the foreign diploma and those required by the national provisions correspond only partially, the competent authorities are entitled to require the person concerned to show that he has acquired the knowledge and qualifications which are lacking (judgment in Vlassopoulou, cited above, paragraph 19).
33 In that regard, the competent national authorities must assess whether the knowledge acquired by the candidate, either during a course of study or by way of practical experience, is sufficient to show possession of knowledge which is lacking (see, to that effect, the judgment in Vlassopoulou, cited above, paragraph 20).