Robert Koller.
Date: 2010-12-22
22. In that regard, it should be borne in mind that, according to settled case-law, in order to determine whether the body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, inter alia, Case C-54/96 Dorsch Consult  [1997] ECR I-4961, paragraph 23; Case C-53/03 Syfait and Others  [2005] ECR I‑4609, paragraph 29; and Case C-246/05 Häupl  [2007] ECR I-4673, paragraph 16).
26. It should be noted that the concept of a ‘diploma’, as defined in Article 1(a) of Directive 89/48 as amended, constitutes the cornerstone of the general system for the recognition of higher education diplomas laid down by that directive (see, in particular, Case C-286/06 Commission  v Spain  [2008] ECR I-8025, paragraph 53).
29. As regards the condition referred to in Article 1(a), first indent, of Directive 89/48 as amended, it should be noted that, in Case C-311/06 Consiglio Nazionale degli Ingegneri  [2009] ECR I-415, the Court held, in paragraph 48 of its judgment, that that condition was satisfied in relation to the qualifications relied on by a person who had sought enrolment in the register of engineers in Italy, in that each of those qualifications was awarded by a competent authority, designated respectively in accordance with Italian and Spanish legislation. That condition is likewise satisfied in relation to qualifications such as those of Mr Koller, each of them having been awarded by a competent authority, designated respectively in accordance with Austrian and Spanish legislation.
30. As regards the condition referred to in Article 1(a), second indent, of Directive 89/48 as amended, it should be noted that a person such as Mr Koller, as the Court also held in paragraph 49 of its judgment in Consiglio Nazionale degli Ingegneri in relation to the person at issue in that case, satisfies the condition that the holder must have successfully completed a post-secondary course of at least three years’ duration at a university. That fact is expressly evidenced by the degree certificate which was awarded to Mr Koller by the University of Graz.
31. As regards the condition referred to in Article 1(a), third indent, of Directive 89/48 as amended, it is clear from the recognition decision by the Spanish Ministry of Education and Science, and in any event from Mr Koller’s enrolment with the Madrid Chamber of Lawyers, that Mr Koller has the professional qualifications required for access to a regulated profession in Spain (see, to that effect, Consiglio Nazionale degli Ingegneri , paragraph 50).
33. Therefore, whilst it is true that a document attesting to professional qualifications cannot be assimilated to a ‘diploma’ within the meaning of Directive 89/48 as amended without there having been an acquisition, in whole or in part, of qualifications under the educational system of the Member State which issued that document (see, to that effect, Consiglio Nazionale degli Ingegneri , paragraph 55), that is not the case with the degree relied upon by Mr Koller in the main proceedings.
38. As the holder of a ‘diploma’ within the meaning of Article 1(a) of Directive 89/48 as amended, a person such as Mr Koller enjoys, in accordance with Article 3, first paragraph, subparagraph (a), of that directive, access to the regulated profession of lawyer in the host Member State.
39. However, since the profession is one the exercise of which requires a precise knowledge of national law and an essential and constant element of which is the provision of advice and/or assistance concerning national law, Article 3 of Directive 89/48 as amended does not prevent the host Member State from requiring, pursuant to Article 4(1)(b) of the latter, that the applicant take an aptitude test, provided that State first verifies whether the knowledge acquired by the applicant in the course of his professional experience is capable of covering, in whole or in part, the substantial difference referred to in the first subparagraph of that latter provision.