Maria Aslanidou v Ypourgos Ygeias & Pronoias.
Date: 2005-07-14
33. So far as concerns Article 3(a) of Directive 89/48, the wording of which is essentially identical to that of Article 3(a) of Directive 92/51, the Court has already ruled that it is a provision the subject-matter of which is unconditional and sufficiently precise for individuals to be entitled to rely upon it before a national court against the State where the latter has failed to transpose the directive into national law by the end of the period prescribed (Case C‑102/02 Beuttenmüller  [2004] ECR I‑5405, paragraph 55). The same finding applies to Article 3(a) of Directive 92/51, since, according to the fifth recital in the preamble to that directive, the complementary general system introduced by it is expressly based on the same principles and contains mutatis mutandis the same rules as the initial general system introduced by Directive 89/48.
34. As regards the possibility of making access to a regulated profession dependent on the condition that an applicant first comply with compensatory measures provided for in Article 4 of Directive 92/51, the Court has held in the context of Directive 89/48 that, in principle, if that is provided for by the national legislation in force at the time when the application in question is processed, the competent authority is entitled to require the person concerned to comply with the compensatory measures provided for in Article 4(1), if the conditions laid down therein for that purpose are satisfied (see, to that effect, Case C‑285/01 Burbaud [2003] ECR I‑8219, paragraph 55).
35. However, if the imposition of such compensatory measures is not provided for by the national legislation in force, it is apparent from the case‑law that a Member State which has failed to fulfil its obligation to transpose the provisions of a directive into national law can no more rely, as against Community citizens, upon the limitations laid down by those provisions than it can require that they perform the obligations laid down by that directive (see, to that effect, Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I-5357, paragraph 21, and Beuttenmüller , paragraph 63).
36. It is for the national court, where appropriate, to determine to what extent the national legislation in force at the time of processing the application in question allowed the imposition of compensatory measures such as those provided for in Article 4(1) of the relevant directive. In that regard, it should be recalled that, according to settled case-law, where a situation falls within the scope of a directive, the national court is required, when applying its domestic law, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive (see, to that effect, inter alia, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 119).
37. In any event, the Court has already ruled that, 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 (Case C‑234/97 Fernández de Bobadilla  [1999] ECR I-4773, paragraph 27).
40. It is apparent from the case-law that a Member State may not rely, as against an individual, upon its failure to adopt the very provisions which are intended to facilitate the application of a system established by the directive in question (see to that effect, inter alia, Case C‑141/00 Kügler  [2002] ECR I-6833, paragraph 52, and Case C‑45/01 Dornier  [2003] ECR I‑12911, paragraph 79). The failure to designate a competent authority pursuant to Article 13(1) of Directive 92/51 therefore does not preclude Article 3(a) of that directive from being relied upon as against the authority with de facto competence to regulate the taking up of a particular profession under the relevant national legislation.