Commission of the European Communities v Kingdom of Spain.
Date: 2008-10-23
53. In assessing this complaint, it must be pointed out that the concept of ‘diploma’, defined in Article 1(a) of Directive 89/48, constitutes the cornerstone of the general system for the recognition of higher education diplomas laid down by that directive.
62. Further, although the definition of the concept of ‘diploma’ set out in Article 1(a) of Directive 89/48 limits, to a certain extent, the applicability of that directive to qualifications acquired in non‑Member States, neither Article 1(a) nor any other provision of that directive contains any limitation as regards the Member State in which an applicant must have acquired his professional qualifications.
63. It follows expressly from the first paragraph of Article 1(a) of Directive 89/48 that it is sufficient that the education and training were received ‘mainly in the Community’. It has already been held that that expression covers both education and training received entirely in the Member State which awarded the formal qualification in question and that received partly or wholly in another Member State (Case C‑102/02 Beuttenmüller  [2004] ECR I‑5405, paragraph 41).
64. Furthermore, no reason can justify such a limitation, since the main question, for the purposes of adjudicating on the applicability of Directive 89/48, is whether the applicant is or is not entitled to pursue a regulated profession in a Member State. According to the system put in place by that directive, a diploma is recognised not 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 ( Beuttenmüller , paragraph 52, and Case C‑330/03 Colegio [2006] ECR I‑801, paragraph 19).
67. Since those complainants were entitled to pursue the regulated profession in question in a Member State other than that in which they are applying to pursue that profession, their situation cannot be categorised as purely internal and the line of argument of the Kingdom of Spain based, in this respect, on the judgment in Joined Cases C‑225/95 to C‑227/95 Kapasakalis and Others  [1998] ECR I‑4239, paragraphs 18 and 19, must therefore be rejected. As the Commission has observed, the Court held in that judgment that Directive 89/48 was not applicable since the applicants in the main proceedings had not worked, studied or obtained a diploma in another Member State.
69. In that respect, it is true that nationals of a Member State cannot attempt, under cover of the rights created by the Treaty, improperly to circumvent their national legislation. They may not improperly or fraudulently take advantage of provisions of Community law (Case 115/78 Knoors  [1979] ECR 399, paragraph 25; Case C‑61/89 Bouchoucha  [1990] ECR I-3551, paragraph 14; Case C‑212/97 Centros [1999] ECR I-1459, paragraph 24; and Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I‑7995, paragraph 35).
70. However, although the national courts may, case by case, take account – on the basis of objective evidence – of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely, they must nevertheless assess such conduct in the light of the objectives pursued by those provisions ( Centros , paragraph 25).
72. In those circumstances, the fact that a national of a Member State who wishes to pursue a regulated profession chooses to take up that profession in his preferred Member State cannot of itself constitute an abuse of the general system of recognition laid down by Directive 89/48. The rights of nationals of a Member State to choose the Member State in which they wish to acquire their professional qualifications is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the EC Treaty.
78. The Court has already ruled that, where Directive 89/48 is applicable, a public body in a Member State, which is bound to comply with the rules laid down in that directive, can no longer require that a candidate’s qualifications be homologated by the competent national authorities as a prior condition for taking up the profession in question (see, to that effect, Case C‑234/97 Fernández de Bobadilla  [1999] ECR I-4773, paragraph 27, and Case C‑141/04 Peros  [2005] ECR I‑7163, paragraph 35).