Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado.
Date: 2006-01-19
19. Next, regarding the scheme of the Directive, the system of mutual recognition of diplomas established by the Directive does not imply that diplomas awarded by the other Member States certify that the education and training are similar or comparable to that required in the host Member State. According to the system established by the Directive, a diploma is not recognised on the basis of the intrinsic value of the education and training to which it attests, but because it gives the right to take up a regulated profession in the Member State where it was awarded or recognised. Differences in the organisation or content of education and training acquired in the Member State of origin by comparison with that provided in the host Member State are not sufficient to justify a refusal to recognise the professional qualification concerned. At most, where those differences are substantial, they may justify the host Member State’s requiring that the applicant satisfy one or other of the compensatory measures set out in Article 4 of that directive (see, to that effect, Case C-102/02 Beuttenmüller  [2004] ECR I-5405, paragraph 52).
20. It follows that, as rightly pointed out by the Advocate General in points 40 to 43 of his Opinion, the expression ‘the profession in question’, employed in Article 3(a) 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. This interpretation is corroborated by the second indent of Article 4(1)(b) of the Directive. In the cases to which that provision refers, the competent national authorities are required to take account of each of the activities covered by the profession in question in both Member States concerned, in order to determine whether it is ‘the profession in question’ and, if so, whether one of the compensatory measures provided for by that provision should be applied. That means that, although the Directive treats a regulated profession as a whole, it nevertheless recognises that there are, in reality, separate professional activities and corresponding education and training. It follows that a case-by-case approach, tailored to each of the professional activities covered by a regulated profession, is not contrary to or beyond the scope of the general scheme of the Directive.
23. Lastly, the foregoing reasoning is fully supported by a teleological interpretation of the Directive. It is apparent from the 3rd and 13th recitals in the preamble to the Directive that its primary objective is to make it easier for persons holding diplomas awarded in a Member State to take up corresponding professional activities in the other Member States and to strengthen the right of European nationals to utilise their professional expertise in any Member State. The Court also notes that the Directive was adopted on the basis of Article 57(1) of the EC Treaty (now, after amendment, Article 47(1) EC). It is apparent from the wording of the latter provision that the purpose of directives such as the one at issue in the present proceedings is to facilitate the mutual recognition of diplomas, certificates and other evidence of formal qualifications by laying down rules and common criteria which result, as far as possible, in automatic recognition of those diplomas, certificates and other evidence of formal qualifications. However, it is not the purpose of those directives to make recognition of such diplomas, certificates and other evidence of formal qualifications more difficult in situations falling outside their scope, nor may they have such an effect (Case C-31/00 Dreessen  [2002] ECR I-663, paragraph 26).
24. The Court notes that the scope of Article 4(1) of the Directive, which expressly authorises compensatory measures, must be restricted to those cases where they are proportionate to the objective pursued. In other words, although those measures are expressly authorised, they may, in certain cases, be a highly dissuasive factor for a national of a Member State exercising his rights under the Directive. An adaptation period and an aptitude test both call for considerable time and effort on the part of the party concerned. A non-application of those measures might be significant, and even decisive, for a national of one Member State wishing to take up a regulated profession in another Member State. In cases such as those at issue in the main proceedings, partial taking-up of the profession in question, granted at the request of the party concerned, dispensing that party from having to comply with the compensatory measures and allowing him to take up immediately professional activities for which he is already qualified, would be in keeping with the objectives pursued by the Directive.
28. It should be borne in mind that the second paragraph of Article 43 EC provides that freedom of establishment is to be exercised under the conditions which the legislation of the country of establishment lays down for its own nationals. It follows that, where the taking-up or pursuit of a specific activity is regulated in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with those conditions (Case C-55/94 Gebhard  [1995] ECR I-4165, paragraph 36; and Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 25).
29. The conditions for taking up the profession of civil engineer have not thus far been the subject of harmonisation at Community level. That being so, the Member States retain the power to define those conditions, as the Directive does not restrict their powers on this point. They must, however, exercise their powers in this area in a manner which respects the basic freedoms guaranteed by the EC Treaty (see Joined Cases C-193/97 and C-194/97 De Castro Freitas and Escallier  [1998] ECR I-6747, paragraph 23; Case C-58/98 Corsten  [2000] ECR I-7919, paragraph 31; and Mac Quen , paragraph 24).
30. It is settled case-law that national measures liable to hinder or make less attractive the exercise of those freedoms can be justified only if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see, inter alia, Case C-19/92 Kraus  [1993] ECR I-1663, paragraph 32; Gebhard , paragraph 37; Case C-424/97 Haim  [2000] ECR I-5123, paragraph 57; and Mac Quen , paragraph 26).
32. Regarding the objective of the legislation at issue in the main proceedings, the Court acknowledges that, as pointed out by the Spanish and the Swedish Governments, partial recognition of professional qualifications could, theoretically, have the effect of fragmenting the professions regulated in a Member State into various activities. That would lead essentially to a risk of confusion in the minds of the recipients of services, who might well be misled as to the scope of those qualifications. The protection of the recipients of services, and consumers in general, has already been held by the Court to be capable of justifying restrictions on the freedom of establishment and the freedom to provide services (Case 220/83 Commission  v France  [1986] ECR 3663, paragraph 20; Case C-124/97 Läärä and Others  [1999] ECR I-6067, paragraph 33; and Case C-6/01 Anomar and Others  [2003] ECR I-8621, paragraph 73).
34. The first scenario concerns cases where, in the Member State of origin and the host Member State, the degree of similarity between the two professions is such that they both may be regarded as ‘the profession in question’ within the meaning of Article 3(a) of the Directive. In such a case, any shortcomings in the applicant’s education or training in relation to that required in the host Member State may be effectively made up for through the application of the compensatory measures provided for in Article 4(1) of the Directive, thereby ensuring full integration of the party concerned into the professional system in the host Member State.
35. The second scenario, by contrast, concerns cases which, as rightly pointed out by the Commission, are not covered by the Directive because the differences between the fields of activity are so great that in reality the full programme of education and training is required. Viewed objectively, this is a factor which is liable to discourage the party concerned from pursuing, in another Member State, one or more activities for which he is qualified.
36. It is for the authorities and, in particular, the competent courts in the host Member State to determine, in each specific case, to what extent the content of the education and training obtained by the party concerned is different from that required in that State. In the present case, the Tribunal Supremo found that the content of the education and training required, respectively, for the profession of civil engineer specialising in hydraulics in Italy and the profession of civil engineer in Spain involves differences which are so great that the application of a compensatory measure or adaptation requirement would in effect amount to requiring the party concerned to complete a fresh, complete programme of education and training.
37. Moreover, in specific cases such as the present, one of the decisive issues is whether the professional activity which the party concerned wishes to pursue in the host Member State may, objectively, be separated from the rest of the activities covered by the corresponding profession in that State. It is first and foremost up to the national authorities to answer that question. However, as noted by the Advocate General in points 86 and 87 of his Opinion, one of the decisive criteria in this respect is the issue of whether that activity may be pursued, independently or autonomously, in the Member State where the professional qualification in question was obtained.
38. When the activity in question may objectively be separated from the rest of the activities covered by the profession in question in the host Member State, the conclusion is that the dissuasive effect caused by the preclusion of any possibility of partial recognition of the professional qualification in question is too serious to be offset by the fear of potential harm to recipients of services. In such a case, the legitimate objective of protection of consumers and other recipients of services may be achieved through less restrictive means, particularly the obligation to use the professional title of origin or the academic title both in the language in which it was awarded and in its original form, and in the official language of the host Member State.