C-164/94

ARANITIS v L A N D BERLIN

OPINION OF ADVOCATE GENERAL LÉGER delivered on 26 October 1995 *

1. The Oberverwaltungsgericht (Higher assistant' even though Mr Aranitis had pro- Administrative Court) Berlin has referred duced the Greek diploma awarded at the end two questions to the Court on the interpre- of his studies. tation of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional edu- cation and training of at least three years' duration (hereinafter 'the directive'). '

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5. According to the Senatsverwaltung, the Article 1 of the directive, it referred the fol- directive is not applicable to the facts as set lowing questions to this Court for a prelim- out. It takes the view that the scope of the inary ruling: directive is limited to regulated professions. The profession of geologist is not regulated in Germany. The Senatsverwaltung therefore based its refusal on the provisions of Ger- man municipal law.

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8. The second question on interpretation employed person if the person concerned is clarifies the first. It calls for an answer as a not in possession of a diploma, as might be secondary point. The first question asked by the case where someone has begun to study the national court is whether the directive is geology but has not (successfully) completed applicable to a profession such as that of his studies.' 4 geologist in Germany. While access to and pursuit of that profession are not regulated by public authorities, examination of the German employment market reveals that only persons who have a German diploma in geology gain access to the profession. Does Nevertheless, it wonders whether the scope the directive apply in such a case? In other of the directive might not cover other situa- words, does the way in which the employ- tions. I shall go on to define the term 'regu- ment market operates correspond to the con- lated profession' after giving a brief exposi- cept of a 'regulated profession'? The answer tion of the general system as I see it. given to that question will in effect deter- mine the definition of 'regulated profession' for the purposes of the directive and whether or not, in circumstances such as those of this case, the directive is applicable. The general system

Its origin I would point out that this is the first time that the Court has been asked to rule on the definition to be given to this term.

10. The discussions of the European Coun- cil at its meeting in Fontainebleau in June 1985 brought forth the directive establishing a general system for the recognition of uni- versity diplomas with a view to making it 9. The national court assumes that the pro- easier to exercise freedom of establishment. fession of geologist is not regulated in Ger- In adopting a fresh approach to the recogni- many. This is apparent from the order for tion of diplomas, no longer on a vertical reference: basis, that is to say by reference to distinct occupations or professions, 5 but on a hori- zontal basis, that is to say by reference to

13. The basis for recognition resides in the fact that the profession or occupation for which the migrant worker has trained in his Member State of origin is the same as that 11. Because it is general in nature, the direc- which he wishes to pursue in the host Mem- tive is capable of applying to any profession, ber State. 8 However, what is original about including that of geologist, thus saving the the general system is that in principle this trouble of drawing up an exhaustive list of equivalence of education and training is not the professions concerned. demonstrated by comparing the education and training and noting their similarity but by comparing the fields of professional activ- ity and assuming that, if the main activities are the same, the education and training leading to them must be sufficiently simüar to justify recognition. 9 12. The reply given by Mr Bangemann on behalf of the Commission to Question N o 1062/90, asked by Mrs Mayer, as to whether the directive applied to the profession of geologist, 7 must be interpreted in the light 14. The basis for recognition of diplomas of those considerations: also explains the limits of recognition. The objective pursued by the Community legisla- ture is accordingly clearly set forth in the third recital in the preamble to the directive. The directive is intended to be a means of overcoming the obstacle to free movement caused by diplomas in the case of the pursuit 'The directive which, being general rather of '(...) professional activities which in a host than sectoral in nature, marks a new Member State are dependent on the comple- approach by the Commission to the recogni- tion of post-secondary education and train- tion of diplomas and covers a wide variety of ing, provided [that nationals of Community occupations and professions, can be applied countries] hold such a diploma preparing to geologists provided that they qualified b y them for those activities (...)'. , 0 being awarded a higher-education diploma on completion of education and training of at least three years' duration.' 8 — Fifth recital in the preamble to the directive. 9 — To that effect, see Beuve-Méry J. J.: 'La reconnaissance des diplômes: le système général adopté le 21.12.1989 par le Conseil des Communautés européennes', Revue du marché 6 — First, second and third recitals in the preamble to the direc- commun, N o 336, April 1990, p. 293. tive. 10 — Third recital in the preamble to the directive, emphasis 7 _ OJ 1991 C 35, p. 12. added.

11 — Tenth recital in the preamble to the directive. 12 — Third, fifth, eighth, ninth and tenth recital in the preamble to the directive. 13 — First paragraph of Article 2, emphasis added.

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'Where, in a host Member State, the taking Member State, it could be said that the pro- up or pursuit of a reguhted profession is sub- fession in question is indirectly regulated. ject to possession of a diploma (...)'• 14 The directive would therefore be applicable.

Consequently, the host Member State would 19. The concept of a 'regulated profession' is have to take measures enabling a diploma thus the key concept both for determining awarded in one Member State to be recog- the scope of the general system 15 and for the nized as being essentially equivalent to a uni- adoption of national measures implementing versity diploma awarded in the host Member the system. 16 Consequently, it is of funda- State. ' 7 mental importance to define that term in order to determine the scope of the general system.

22. Another definition of the concept of reg- ulated profession is possible: a 'ideological Definition of 'regulated profession' definition', 18 that is to say, one reflecting the aim pursued by the directive.

Analysis of Article 1(c) and (d)

27. With regard to the first situation, posses- sion of a given document evidencing qualifi- cation is the necessary condition for the per- 25. The wording of Article 1(c) and (d) son concerned to be able to begin to pursue expressly refers to a purposive definition of that activity. It is not hard to identify those the term 'regulated profession': cases.

It may be said that the activity is reguUted '(c) (...) the regulated professional activity '(...) where that requirement appears in pro- or range of activities which constitute visions laid down by the State. Those provi- this profession in a Member State; sions either set out themselves the qualifica- tion requirements or else give a professional body the power to set them. It is those pro- visions, or the measures adopted on the basis of the powers they grant, which must be adapted in order to implement the direc- tive(s)'.

(d) (...) a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of hws, regulations or administrative provisions, to the pos- 28. It is more difficult to identify the cases session of a diploma.' ' 9 covered by the second situation. That is why Article 1(d) of the directive specifically dis- tinguishes three ways in which a professional 19 — Emphasis added. activity may be pursued.

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33. Here, access to the professional activity is unrestricted but its pursuit is subject to possession of specific evidence of qualifica- tions. 30. A professional title will be defined as the name used in an activity which is carried o n for remuneration and which demonstrates a particular qualification in this field. A name can become a professional title only if public authorities define the conditions for confer- 34. That is the case as regards the profession ring it, either directly, or by giving a particu- of non-physician psychologist in Germany lar body (in particuhr an examining board or where practice as a psychologist is not in a professional council) the power to do so, principle subject to qualification conditions, and if they protect that name by imposing but in respect of which social security reim- penal sanctions when it is used improperly. burses the cost of only those services which are provided by qualified professionals. The Community legislature draws the following conclusion: pursuit of a professional activity within an institution such as social security makes it a reguhted profession.

31. The involvement of the state in the determination of the way in which the title is conferred is decisive. It distinguishes such a name or title from descriptions, the use of 35. (c) The second and third paragraphs of Article 1(d) provide for the third and Ust

20 — Article 1(d), first paragraph, first indent provides as fol- lows: 'pursuit of an activity under a professional title, in so 21 — 'pursuit of a professional activity relating to health, in so far far as the use of such a title is reserved to the holders of a as remuneration and/or reimbursement for such an activity diploma governed by laws, regulations or administrative is subject by virtue of national social security arrangements provisions'. to the possession of a diploma.'

— demand that their members should pos- sess a certain degree of education and training and should observe rules of pro- fessional conduct; 38. Adoption of a broad definition of the term would ineluctably involve at least four major disadvantages. — have been recognized in one way or another by the public authorities as being

22 — 'Where the first subparagraph does not apply, a professional activity shall be deemed to be a regulatea professional activ- 39. First, accepting a broad definition would ity if it is pursued by the members of an association or amount to saying that the directive is not organization the purpose of which is, in particular, to pro- mote and maintain a high standard in the professional field addressed to the Member States but to econ- concerned and which, to achieve that purpose, is recognized in a special form by a Member State and: omic entities operating on the employment — awards a diploma to its members, market. Article 14 of the directive provides, — ensures that its members respect the rules of professional conduct which it prescribes, and however, that: — confers on them the right to us-i a tide or designatory letters, or to benefit from a status corresponding to that diploma. A non-exhaustive list of associations or organizations which, when this Directive is adopted, satisfy the condi- tions of the second subparagraph is contained in the Annex. Whenever a Member State grants the recognition referred to in the second subparagraph to an association or organiza- tion, it shall inform the Commission thereof, which shall publish this information in the Official Journal of the Euro- pean Communities.' 'This Directive is addressed to the Member 23 — Seventh recital in the preamble to the directive. States.'

27 — Paragraphs 15 to 19 of this Opinion. 24 — Paragraph 14 of this Opinion. 28 — Paragraphs 27 to 37 of this Opinion. 25 — Tenth recital in the preamble to the directive. 29 — The national court has acknowledged as much, as have all 26 — [1993] ECR 1-1663, paragraph 35. the interveners at the hearing.

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Professionals are subject only to the laws of tain diploma to make use of a diploma which the employment market and the way in they do not have. which it works and not to any legal con- straints.

46. In the light of those explanations, I sug- 45. As I have shown, the aim of the directive gest that the Court should give a negative is not to require the Member States to alter answer to the first question referred by the the structure of professional activities. Still national court. less can its purpose be either to oblige econ- omic agents to take steps to recruit employ- ees not having qualifications specifically sought or to turn truth upside down by allowing persons who do not possess a cer- 47. The second question becomes irrelevant.

48. F o r all the reasons set o u t above, I p r o p o s e t h a t t h e C o u r t reply as follows t o the question referred b y the O b e r v e r w a l t u n g s g e r i c h t , Berlin: