C-164/94

JUDGMENT OF 1. 2. 1996 — CASE C-164/94

J U D G M E N T O F THE C O U R T (Sixth Chamber) 1 February 1996*

In Case C-164/94,

R E F E R E N C E to the Court under Article 177 of the E C Treaty by the Oberver- waltungsgericht Berlin for a preliminary ruling in the proceedings pending before that court between

Georgios Aranitis

and

ARANmS v LAND BERLIN

Advocate General: P. Léger, Registrar: D . Loutermann-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

— the German Government, by Ernst Röder, Ministerialrat in the Federal Minis- try of Economic Affairs, and Bernd Kloke, Regierungsrat in the same Ministry, acting as Agents,

— the Greek Government, by Evi Skandalou, legal assistant in the European Communities Legal Department in the Ministry of Foreign Affairs, and Stama- tina Vodina, specialist assistant in the same department, acting as Agents,

— the Italian Government, by Umberto Leanza, head of the Legal Department in the Ministry of Foreign Affairs, assisted by Pier Giorgio Ferri, Avvocato dello Stato, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 26 October 1995,

gives the following

Judgment

1 By order of 25 April 1994, received at the Court on 16 June 1994, the Oberver- waltungsgericht (Higher Administrative Court), Berlin referred to the Court for a preliminary ruling under Article 177 of the E C Treaty two questions on the inter- pretation of Articles 1(c) and (d) and 7(1) 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 education and training of at least three years' duration (OJ 1989 L 19, p . 16, hereinafter 'the directive').

2 Those questions were raised in proceedings brought by Mr Aranitis ('the appli- cant') against the Land Berlin concerning the latter's refusal to recognize the Greek diploma awarded on the completion of a higher-education geology course as equivalent to the German diploma awarded on completion of a comparable course and consequently to authorize the applicant to use the title attaching to the Ger- man diploma, namely 'Diplom-Geologe'.

3 The directive sets out the circumstances in which a Member State is required to recognize that higher-education diplomas awarded on the territory of another Member State are equivalent to those awarded on its own territory. In accordance with the second paragraph of Article 2, the directive does not apply to professions

7 The seventh recital in the preamble to the directive makes it clear that the idea of regulated professional activity is not confined to those professional activities to which access in a Member State is subject to the possession of a diploma but applies also to professional activities to which access is unrestricted when they are practised under a professional title reserved to the holders of certain qualifications.

8 Where nationals of Member States fulfil the conditions for the taking up or pursuit of a regulated profession on the territory of a host Member State, Article 7 of the

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JUDGMENT OF 1. 2. 1996 — CASE C-164/94

directive confers the dual right to use the professional title of the host Member State corresponding to that profession (Article 7(1)) and to use their lawful aca- demic title and, where appropriate, the abbreviation thereof deriving from their Member State of origin or the Member State from which they come, in the lan- guage of that State (Article 7(2)).

9 The applicant is a Greek national. In 1979, after studying geology for four years in a Greek university, he obtained a diploma as 'Ptichiouchos Geologos'. He worked in Greece as a geologist from 1977 to 1990, except for a break of two years' mil- itary service.

i3 By decision of 19 December 1991, the Verwaltungsgericht rejected that appeal. It upheld the decision of the Senatsverwaltung that it was doubtful whether the pro- fession of geologist could be regarded as a regulated profession for the purposes of the directive. It concluded that the title of 'Diplom-Geologe' was not a profes- sional title within the meaning of Article 7(1) of the directive, but a university degree distinguishing a holder of the diploma awarded on completion of an aca- demic course for the purposes of Article 7(2). Consequently, the applicant was entitled only to use the academic title acquired in his country of origin, in the lan- guage of that State.

14 The applicant appealed against that decision to the Oberverwaltungsgericht Berlin.

is Since it considered that resolution of the case required interpretation of the direc- tive and, in particular, of the concept of 'regulated profession', the Oberverwal- tungsgericht Berlin decided to stay the proceedings and refer to the Court of Jus- tice the following questions for a preliminary ruling:

'1. Is Article 1(c) in conjunction with Article 1(d) 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 education and training of at least three years' duration to be interpreted as meaning that there is a regulated profession even where, whilst there are no provisions gov- erning the taking up and pursuit of the profession, the only education and

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ARANmS v LAND BERLIN

i9 Access to, or pursuit of, a profession must be regarded as directly governed by legal provisions where the laws, regulations or administrative provisions of the host Member State create a system under which that professional activity is expressly reserved to those who fulfil certain conditions and access to it is prohib- ited to those who do not fulfil them.

20 In this case, the national court makes it clear in its first question that the profes- sion of geologist is not regulated in Germany since 'there are no provisions gov- erning the taking up and pursuit of the profession'. Accordingly, a profession such as that of geologist in Germany cannot be regarded as directly regulated for the purposes of the directive.

21 The question whether the taking up or pursuit of such a profession is to be regarded as indirectly regulated within the meaning of Article 1(d) of the directive must next be considered.

22 Although there are no provisions in the host State governing the taking up or pur- suit of the profession in question, in practice only persons holding the title 'Diplom-Geologe' seek such employment as a rule. Moreover, according to the applicant, German employers seek to recruit only candidates possessing the title 'Diplom-Geologe'. Accordingly, persons pursuing the profession of geologist nearly always possess that diploma.

27 A decision such as that of the Arbeitsamt to class the applicant as an unskilled assistant does not constitute grounds for considering the profession in question to be indirectly regulated. Although the reasons for that decision have never been made clear, there is nothing to indicate that it forms part of any indirect legal con- trol of access to or pursuit of that profession in Germany.

28 I n a d d i t i o n , t h e decision of t h e Senatsverwaltung t o a n n u l t h e decision of t h e A r b e i t s a m t a n d t o a u t h o r i z e t h e applicant t o use his title in its G r e e k form, as well as the fact that it added the literal translation 'Diplomierter Geologe' in brackets on the certificate of authorization demonstrate that there is no indirect regulation of the profession of geologist in Germany.

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ARANrnS v LAND BERLIN

29 Since there are no legal rules to regulate the profession in the host Member State either directly or indirectly, the provisions of the directive cannot be applicable.

30 In order to give the national court a complete answer, it must however be added that, even if the directive is not applicable, Article 6 of the E C Treaty (formerly Article 7 of the EEC Treaty) prohibits any discrimination by Member States on grounds of nationality. Furthermore, the Member States are required by Article 48 of the EC Treaty to secure freedom of movement for workers within the Com- munity and by Article 52 to secure their freedom of establishment.

33 In the light of all those considerations, Article 1(c) in conjunction with Article 1(d) of the directive must be interpreted as meaning that a profession cannot be described as regulated when there are in the host Member State no laws, regula- tions or administrative provisions governing the taking up or pursuit of that pro- fession or of one of its modes of pursuit, even though the only education and training leading to it consists of at least four and a half years of higher-education studies on completion of which a diploma is awarded and, consequently, only per- sons possessing that higher-education diploma as a rule seek employment in, and pursue, that profession.

The second question

34 Having regard to the answer given to the first question, there is no need to give a decision on the second.

Costs

35 The costs incurred by the German, Greek and Italian Governments and the Com- mission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

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Murray Ragnemalm

Delivered in open court in Luxembourg on 1 February 1996.

R. Grass C. N . Kakouris

Registrar President of the Sixth Chamber

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