C-447/93
ECLI:EU:C:1994:274
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DREESSEN v CONSEIL NATIONAL DE l'ORDRE DES ARCHITECTES
OPINION OF ADVOCATE GENERAL DARMON delivered on 29 June 1994
Mr President, 3. With respect to the general scheme, the Members of the Court, directive does not list the diplomas which the Member States are to recognize. It merely defines the criteria as to content (Article 3) and length (Article 4) of the edu cation and training which those diplomas must satisfy for recognition in Member States other than that in which they are awarded. Each State must communicate and update the list of diplomas which it consid 1. This is the third time 1 that the Court has ers meet those criteria, together with the had to interpret Council Directive establishments and authorities awarding 85/384/EEC of 10 June 1985 on the them; lists and updates must be published by mutual recognition of diplomas, certificates the Commission in the Official Journal of the and other evidence of formal qualifications European Communities and may, after the in architecture, including measures to facili advisory committee has been consulted, be tate the effective exercise of the right of challenged before the Court of Justice. establishment and freedom to provide servic 2 es (hereinafter 'the directive').
4. The open system of the general scheme contrasts with a closed system of transitional arrangements for entry to activities in the 2. The directive contains two groups of pro field of architecture 'by virtue of established visions relating to 'diplomas, certificates and rights or existing national provisions'. other evidence of formal qualifications enabling the holder to take up activities in the field of architecture'. The first group — in Chapter II — deals with the general scheme for activities in the profession. The second group — in Chapter III — regulates the transitional arrangements.
5. The directive was intended to take account here of the situation of Community * Original language: French. nationals who had obtained or were about to 1 — Judgments in Case C-310/90 Nationale Raad van de Orde van Architecten v Egle [1992] ECR 1-177 and Case C-166/91 obtain qualifications, 'even if those qualifica Bauer v Conseil National de l'Ordre des Architectes [1992] ECR I-2797. tions do not fulfil the minimum require 2 — OJ 1985 L 223, p. 15. ments' — in other words, all the criteria —
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'laid down in Chapter II'. There then fol 8. That restricts the Court's power of inter lows, in Article 11, a list of those diplomas; pretation even further. It must be borne in the list is exhaustive and binding on each mind that the directive is the outcome of a 4 Member State, which 'shall recognize' the long drafting process which is said to have diplomas on the list, any procedure for chal lasted for 18 years. It may be presumed that lenging them being excluded. As the Court that process involved detailed tight negotia held in the Bauer judgment, 5 tions between Community institutions and Member States.
'The Member States are thus obliged to rec ognize those diplomas, without checking 9. There can therefore be no question of whether they meet the criteria laid down in adding, under the pretext of interpretation 6 Chapter II of the directive'. which moreover relates to a concept of national law, to the lists of national diplomas adopted by the Community legislature. Any other approach would amount to usurping the place of the legislature.
6. Because they set up a transitional system based on established rights, because they impose on the Member States, without any possibility of challenge, an obligation to rec ognize in their territory various diplomas 10. Those are the principles which should in awarded by other Member States even if my opinion be followed by the Court in the they do not fulfil the minimum require interpretation of the provisions of Chapter ments, and because those diplomas are listed III and hence of Articles 13 to 15 of the exhaustively, the provisions of Chapter III directive. I have felt obliged to dwell on this must be interpreted restrictively. point because those provisions provide the yardstick against which to measure the posi tion of the plaintiff in the main proceedings, Mr Nicolas Dreessen.
7. But that is not all. The diplomas listed in Article 11 are national qualifications. In respect of them, that article — unlike Arti cles 3 and 4 — does not create any Commu nity concepts. It merely gives Community 11. Mr Dreessen, of Belgian nationality and effect to national concepts. residing in Belgium, was awarded on 16 Feb ruary 1966, in Germany, a construction engi neer's diploma in general building construc tion ('Ingenieur für Hochbau, Abteilung 3 — Article 10. allgemeiner Hochbau') by the Aachen State 4 — Ibid. Civil Engineering College (Staatliche Inge 5 — Cited in note 1 above. 6 — Paragraph 9. nieurschule für Bauwesen Aachen).
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12. From August 1966 to December 1991 he the Court's interpretation of the relevant worked as an employee in various architects' rule of Community law. offices, and on 12 December 1991, after the insolvency of his last employer, he applied for his name to be placed on the register of the Architects' Association of the Province of Liège. His application was refused on 29 April 1993 by the National Council of the Architects' Association on the ground that 16. The wording of the question indicates his diploma was not equivalent to one of that the Appeals Committee seeks to know those referred to in the directive. whether Mr Dreessen's diploma can be regarded as one of those referred to in the third or fourth indent of Article 11(a).
13. Mr Dreessen appealed against that deci sion to the French Language Appeals Com mittee of the Architects' Association, which 17. As far as the third indent is concerned, I asks the Court to interpret 'the expression shall be brief. In his observations Mr Drees "Architektur/Hochbau" department' in sen merely states that the Ingenieurschule Article 11 of the directive 'and for a ruling which awarded him his diploma had become on whether a diploma awarded in 1966 by a Fachhochschule within the meaning of the the "Allgemeiner Hochbau" department of directive. If that were accepted, it would the "Staatliche Ingenieurschule für Bauwesen nevertheless still be the case that in order to Aachen" must be treated as equivalent to a be recognized in Belgium, the diploma diploma awarded by the "Architektur" would have to have been awarded by the department for the purposes' of that article. department of architecture, and Mr Dreessen does not claim that it was.
14. The significance of the question put to the Court is clearly apparent; a finding that 18. It is in fact the fourth indent of Arti Mr Dreessen's diploma is included in the list cle 11(a) of the directive which is at the heart in Article 11 would oblige Belgium to recog of the issue. nize it.
19. That provision requires the Member 15. I note to begin with that it is not for the States to recognize 'the diplomas (Prüfung Court give a direct answer to the second part szeugnisse) awarded before 1 January 1973 of the question. It is in fact for the national by the departments of architecture of "Inge tribunal to give that answer, in the light of nieurschulen"...'.
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20. Mr Dreessen's diploma was awarded 24. That argument fails to convince. Admit before 1 January 1973. It was awarded by an tedly, every rule of Community law must Ingenieurschule. The fact remains that it was have a meaning, but once again it is neces awarded not by the 'Architektur' depart sary to distinguish in Chapter III between ment, but by the 'Allgemeiner Hochbau' what belongs to the Community sphere — department. such as the requirement in Article 10 that 'each Member State shall recognize ...' and the exhaustive nature of the list in Article 11 — and what depends on categories of national law, as is the case with the diplomas referred to in that provision.
21. To be sure, Mr Dreessen has produced certificates from the Architects' Association of North Rhine-Westphalia and the Ministry of Science and Research of North Rhine- Westphalia which state that his diploma ful fils the conditions in the fourth indent of Article 11(a). But those authorities cannot — any more than the Court can — add to the provisions of the directive, without taking 25. Whether or not there were departments the place of the Community legislature. of architecture in the Ingenieurschulen before 1973 is no doubt of essential impor tance for the outcome of the main proceed ings, but irrelevant from the point of view of the Court's function. If that designation was incorrect or incomplete, it was for the Mem ber State in question, that is, the Federal Republic of Germany, to seek and obtain an 22. Consequently, if a diploma awarded amendment to the directive in order to cor before 1 January 1973 by an Ingenieurschule rect that error or omission. was not awarded by a department of archi tecture, its holder cannot claim the benefit of the fourth indent of Article 11(a) on that basis.
26. The Commission's representative stated 23. It was argued that before 1973 the Inge at the hearing that no attempt had been made nieurschulen did not have departments of to do that. The Court cannot, by adopting a architecture and that, to make that provision broad interpretation of a restrictive provision meaningful, diplomas such as that awarded or even by analysing a concept of national to Mr Dreessen should be taken into account law, take the place of the Community legis under that head. lature or the Member State in question.
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27. Mr Dreessen relied before the Appeals 28. The national tribunal observed that, Committee on another provision of the according to his submissions, Mr Dreessen directive, Article 12, which states that: had pursued his professional activities since obtaining his diploma in Belgium exclusively, and considered that he could not rely on Article 12. It therefore did not ask the Court for an interpretation of that provision.
'Without prejudice to Article 10, each Mem ber State shall recognize, by giving them as regards the taking up and pursuit under the professional title of architect of the activities 29. In his observations Mr Dreessen returns referred in Article 1, the same effect within to that provision, and asks the Court for a its territory as the diplomas, certificates and ruling on it in order to provide the national other evidence of formal architectural quali tribunal with a proper answer. fications which it issues:
— certificates issued to nationals of Member States by Member States in which there 30. Like the national tribunal, I consider are regulations at the time of notification that Article 12 is of no relevance in a situa of this Directive governing the taking up tion such as the present one. and pursuit of the activities referred to in Article 1 under the professional title of architect, stating that the holder has received authorization to bear the profes sional title of architect before the imple mentation of this Directive and has effec tively exercised the activities in question under such regulations for at least three 31. While that provision requires each Mem consecutive years during the five years ber State to give effect to a certificate issued preceding the issue of the certificate; to a Community national by another Mem ber State relating to the exercise by that national of activities as an architect for a specified length of time, such a certificate — as is shown by the reference to 'such regula 8 tions' — can relate only to activities exer cised in the territory of the State issuing the ' 7 certificate.
7 — My emphasis. 8 — My emphasis.
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32. Consequently, a Community national on any certificate which may have been who has exercised his professional activities issued by another Member State relating to in one Member State exclusively cannot rely such activities.
33. I therefore propose that the Court rule as follows:
Article 11 of Council Directive 85/384/EEC of 10 June 1985 on the mutual recog nition of diplomas, certificates and other evidence of formal qualifications in archi tecture, including measures to facilitate the effective exercise of the right of estab lishment and freedom to provide services can be relied on only by Community nationals who hold the diplomas, certificates and other evidence of formal qualifi cations expressly and exhaustively listed in that provision. It follows that, for a Member State to be obliged to recognize it, a diploma awarded before 1 Janu ary 1973 by an Ingenieurschule must have been awarded by a department of archi tecture.
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