C-166/91
ECLI:EU:C:1992:146
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BAUER
OPINION OF ADVOCATE GENERAL DARMON delivered on 25 M a r c h 1992 *
Mr President, 4. The Appeals Committee questions the Members of the Court, Court on the scope of the concept of 'four years of studies' within the meaning of Article 11 of the directive as follows: 1. The preliminary reference from the Conseil d'Appel d'Expression Française de l'Ordre des Architectes (the Francophone Appeals Committee of the Association of 'Must the third subparagraph of Article Architects) (hereinafter the Appeals 11 (a) be interpreted in such a way that Committee') once more requests an inter- education and training which lasts for four pretation from the Court of Council years and which includes two integrated Directive 85/384/EEC of 10 June 1985 on "Praxissemester", supervised by the Fach- the mutual recognition of diplomas, hochschule of Stuttgart, must be regarded certificates and other evidence of formal as four years of studies?' qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (hereinafter 'the 5. It is not disputed 4 that Mr Bauer, who directive'). 1 commenced his studies in architecture on 9 March 1984, was entitled to rely on the transitional measures applicable, pursuant to 2. On 9 February 1989, Mr Bauer, a Article 10 of the directive, to all Community German national, obtained the Diploma of nationals who commenced their studies in Architecture ('Diplom- Ingenieur (Fach- the third academic year at the latest hochschule)') awarded by the Fachhoch- following notification of the directive schule of Stuttgart, Germany. This diploma (August 1985). attested to four years of studies which included two practical semesters (Praxisse- mester). 6. The latter lays down, in Chapter III entitled 'Diplomas, certificates and other 3. Residing in Belgium, Mr Bauer applied evidence of formal qualifications enabling to have his name entered on the list of the holder to take up activities in the field trainees of the Association of Architects for of architecture by virtue of established rights the province of Brabant and was refused on or existing national provisions', transitional 26 June 1990 by the Council of the rules which must be carefully distinguished Association of Architects 2 on the ground from the definitive rules governed by that his diploma did not comply with the Chapter II entitled 'Diplomas, certificates requirements of the directive. 3 and other evidence of formal qualifications enabling the holder to take up activities in * Original language: French. the field of architecture under the 1 — OJ 1985 L 223, p. 15. professional title of architect'. 2 — Confirming, on appeal, an earlier decision of 30 March 1990. 3 — See the decision of the Appeals Committee at p. 2. 4 — Ibid.
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7. Although the definitive rules do not of Architects for the province of Limburg in provide for the harmonization of education reliance upon Article 4(l)(a). The and training, they do lay down the criteria application was refused on the ground that for their recognition. Chapter II does not the applicant's diploma did not meet the list the diplomas to be recognized by the requirements laid down in the directive. Member States but prescribes mutual recog- nition of the diplomas, certificates and other evidence of formal qualifications which meet the requirements laid down in Articles 3 and 4. 10.
Asked whether such education and training complied with the requirements of Article 4, the Court ruled that this article 'must be interpreted as meaning that education and training which lasts for four 8. In addition to the qualitative years and which includes practical semesters requirements laid down in Article 3 organized and supervised by the Fachhoch- concerning the content of the teaching, schule must be regarded as four years of which must maintain a balance between the full-time studies'. 6 theoretical and practical aspects of the education and training in architecture and ensure that these are acquired, there is also a requirement laid down in Article 4 as to the length of the studies.
Article 4(l)(a) 11. "With regard to the transitional rules, provides that the total length of education Article 10 provides that the Member States and training must consist of a minimum of are to recognize the diplomas listed in either four years of full-time studies in a Article 11 and give these the same effect university or comparable educational estab- within their territory as the diplomas which lishment, or at least six years of study at a they themselves award in architecture. university or comparable educational estab- lishment of which at least three must be full
time. Notwithstanding this, Article 4(l)(b) provides that the requirements laid down in the directive will be met in the case of the 12. The German diplomas listed in Article education and training given over three 11 include those awarded by the Archi- years by the German 'Fachhochschulen' tecture Departments of the Fachhoch- provided that such education and training is schulen, it being laid down that when these supplemented by a four-year period of attest to a period of study of less than four professional experience in that State. years but of at least three years, a minimum of four years of professional experience is also required. 7 It follows a contrario that when the education and training consists of
9. In Case C-310/90 Conseil National de four years of studies the requirement of a l'Ordre des Architectes v Egle 5 (hereinafter period of professional experience does not 'Egle') the applicant, holder of a diploma apply. 8 In the context of the transitional awarded by the Fachhochschule of rules, the diplomas awarded by the Fach- Constance following four years of studies hochschulen are subject to three different which included two practical semesters, had sets of rules: applied to have his name entered on the Register of the Council of the Association 6 — Ibid., operative part of the judgment. 7 — Note the similar wording in subparagraph 2 of Article
4(1). 5 — [1992] ECR I-177. 8 — See my Opinion in Egle supra, paragraphs 18 and 21.
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— where the length of the studies is less these comply with the requirements laid down than three years, the Member States do in Articles 3 and 4. 9The host State is bound not have to recognize the diploma; by the list laid down in Article 11. 10 Article 10 of the directive does in fact specify that these diplomas need not necessarily fulfil 'the minimum requirements laid clown in Chapter II'. — where the length of the studies is less than four years but includes at least three years, the diploma must, in order to be recognized, be accompanied by a 16. Thus, a diploma awarded by the Fach- certificate attesting to four years of hochschulen must be unconditionally professional experience; recognized as long as the length of the studies is four years.
— where the length of the studies is at least four years, the diploma must be 17. Does training and education given by recognized by the Member States. the Fachhochschule of Stuttgart which lasts four years and which includes two Praxisse- mester meet with this requirement and in particular are these part of the 'length of the studies' within the meaning of Article 11? 13. It should be noted that, very logically, That is the question raised by the Appeals the diplomas of persons falling within Committee. Chapter III who undertook their studies prior to the entry into force of the directive are subject to less severe requirements than those laid down in Article 4. This explains 18. I will say at the outset that there can be why in the context of the transitional rules no doubt about the matter, taking into there is no requirement for the studies to account the answer given by the Court in have been undertaken full time. Egle coupled with the paradox that would arise if the Praxissemester were included in the length of the studies in the context of the definitive rules and not in the context of the transitional measures, though the latter 14. In the context of the definitive rules the are less demanding. directive lays down requirements. It is for the Member States within whose territory 9 — The reference in the third subparagraph of Article 11(a) to an application to become an architect is Article 4(1)(b) is solely aimed at determining the requirements which must be fulfilled by the certificates made to verify that the applicant's diploma attesting to a period of four years' professional experience meets with these requirements: the 'host' in the Federal Republic of Germany in cases where the education and training lasts three years. Member State has a power of appraisal. 10 — As to the extent of the powers of the host State in a different context, see my Opinion in Case 130/88 Van de Bijl [1989] ECR 3039 (judgment of 27 September 1989) on the extent of the host Member State's control where auth- orization to undertake a self-employed professional activity is granted pursuant to a certificate attesting to a professional activity granted by the competent authority of the state from which the person concerned comes. The 15. On the other hand Article 11 sets out Court ruled that the checking of the validity of this the list of diplomas which the Member certificate by the host State must be limited to manifest inaccuracies (see paragraphs 22 and 27 of the said States must recognize without verifying that judgment).
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19. In the present case, as already noted, integral part of these studies, as is laid down the applicant undertook his studies at the in Paragraph 7 of the Regulations governing Fachhochschule of Stuttgart. This the studies and examinations of the Fach- educational establishment is subject to the hochschule of Stuttgart. 15 same rules as the Fachhochschule of Constance attended by the applicant in the Egle case. The third subparagraph of Paragraph 31 of the Law governing the 23. This principle is not called in question Fachhochschulen of Baden-Würtemberg of by the fact that prior education and training 4 June 1982 1 1specifies that: 'In principle, a or professional experience may be taken course in a Fachhochschule is spread over into account for the purposes of calculating four years. As a general rule, it includes the length of a practical semester. Indeed, three years of studies at the Fachhochschule apart from the fact that the taking into and two semesters of professional account of the prior education and training experience (Praxissemester)'. 12 presupposes the approval of the Fachhoch- schule, it can only replace the first Praxisse- mester. Similarly, the second practical semester may only be substituted by prior professional experience in 'exceptional' circumstances and on condition that it 20. In my Opinion in Egle, 1 3I took the lasted several years and that it led to the view that the practical semesters, as long as acquisition of a complete training. 16 these were supervised by the educational establishment, were an integral part of the studies undertaken in a Fachhochschule and had to be taken into account when calcu- 24. Performed under the supervision of one lating the four-year period. The Court of the educational establishment's adopted this view in its ruling. teachers, 17 the practical semester leads to the granting not only of a 'training certificate' (Ausbildungsnachweise), but also of a 'recognition certificate' (Anerkennung), without which a student cannot complete his studies. 18 21. I will therefore limit myself to a few observations in answer to the new arguments raised by the defendant in the main proceedings. 25. Moreover, the existence within the educational establishment of an office for the trainees and the care with which the Praxissemester are regulated by the estab- lishment demonstrate, in my opinion, that the latter cannot be separated from the rest 22. Far from being a professional trai- of the course of studies. neeship independent of the studies undertaken, 14 the Praxissemester is an 15 — Annex 2 to the order for reference. 16 — See Chapter 5.4.2(h) of the detailed provisions of the Studies Regulations at Annex 2 to the order for reference. 11 — Annex 9 to the order for reference, see paragraph 1 for its 17 — Annex 10 to the order for reference. scope of application. 18 — Paragraph 7(5) of the general observations of the Studies 12 — Ibid. Regulations, Annex 2 to the order for reference; see also 13 — Paragraphs 11 to 16. the fifth subparagraph of Chapter 5.2 of the detailed 14 — Observations of the defendant at p. 10. provisions, ibid.
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26. Finally, as already noted, the third 'That requirement of professional subparagraph of Article 11(a) lays down a experience in the case of training given over different set of rules for the education and three years would be meaningless if training training given by the Fachhochschulen over consisting of four years of studies was also a period of three years. These are only to fall within the scope of that rule. If the recognized when accompanied by four years Community legislature had wished to bring of professional experience. within its scope all courses of architectural training provided in the Fachhochschulcn in the Federal Republic of Germany, it would 27. As the Court pointed out in Egle with not have distinguished between those lasting respect to Article 4(1): three years and those lasting four years.' 19
28. Therefore, I propose that the Court give the following ruling:
The third subparagraph of Article 11(a) of Council Directive 85/384/EEC of 10 June 1985, on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, must be interpreted as meaning that education and training which lasts for four years and which includes two integrated 'Praxissemester' supervised by a 'Fach- hochschule' as referred to in that provision, must be regarded as comprising four years of studies within the meaning of the latter.
19 — Paragraph 14 of the judgment supra.
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