Ingeborg Beuttenmüller v Land Baden-Württemberg.
Date: 2004-04-29
41. It must be noted that the conditions referred to in the preceding paragraph are satisfied by a diploma such as that awarded in Austria upon completion of a two-year period of education and training received entirely within that Member State provided that the competent authority certifies that that diploma is regarded as equivalent to the diploma currently granted after three years’ study and confers the same rights in respect of the taking up and pursuit of the profession of teacher in that State. The expression ‘education and training received in the Community’ covers both education and training received entirely in the Member State which awarded the diploma or certificate in question and that received partly or wholly in another Member State.
52. The Commission rightly pointed out that the system of mutual recognition of diplomas established by Directive 89/48 does not imply that diplomas awarded by the other Member States certify an education and training similar or comparable to that required in the host Member State. According to that system, 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 teacher education and training acquired in another Member State by comparison with that provided in the host Member State are not therefore 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 requiring that the applicant satisfy one or other of the compensatory measures set out in Article 4 of the directive.
54. According to the Court’s case-law, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where that State has failed to implement the directive in national law by the end of the period prescribed or where it has failed to implement the directive correctly (see, inter alia, Case 103/88 Fratelli Costanzo  [1989] ECR 1839, paragraph 29; Case C-141/00 Kügler  [2002] ECR I-6833, paragraph 51; and Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others  [2003] ECR I-4989, paragraph 98).
55. In that regard, Article 3(a) of Directive 89/48 is a provision the subject-matter of which is unconditional and sufficiently precise. Individuals are therefore entitled to rely upon that provision before a national court in order to have national provisions inconsistent with the directive disapplied.
63. First, as the Advocate General pointed out in point 87 of his Opinion, 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. The Land Baden-Württemberg cannot therefore rely upon the derogation laid down by the final subparagraph of Article 3 of Directive 92/51 as against an individual since it has failed to transpose that directive.
64. Second, the interpretation of the final subparagraph of Article 3 of Directive 92/51 put forward by the Land Baden-Württemberg is, in any event, incorrect. It is apparent from several provisions of that directive, in particular Article 1(g) and the first indent of Article 4(1)(a) thereof, that the term ‘post-secondary course’ is distinct from that of ‘probationary practice’, even though professional training may consist of a post-secondary course plus a period of probationary practice. There is no evidence to suggest that the final subparagraph of Article 3 of that directive does not take account of that distinction. Furthermore, a provision which derogates from the general principle established by that directive, that the host Member State may not refuse the right to take up a regulated profession to a national of a Member State who possesses the qualification required by a Member State other than the host Member State in order to take up that profession, must be interpreted strictly (see, by analogy, Kügler , paragraph 28). Consequently, the final subparagraph of Article 3 of Directive 92/51 must be regarded as referring only to the duration of the post-secondary course and the period of probationary practice may not be included in the calculation of the minimum period of four years, which is one of the conditions for the application of that derogation.