C-421/98

COMMISSION V SPAIN

OPINION OF ADVOCATE GENERAL ALBER delivered on 11 May 2000 *

I — Introduction the Architects Directive (cited below). The Commission considers that the mutual recognition of corresponding qualifications allows unrestricted freedom to exercise the profession.

II — Relevant Legal Provisions

(1) Community Law 1. The present Treaty-infringement pro- ceedings concern the conformity of a Span- Council Directive 85/384/EEC of 10 June ish legal provision with the Architects 1985 on the mutual recognition of diplo- Directive 85/384/EEC. In Spain, despite mas, certificates and other evidence of general recognition of their professional formal qualifications in architecture, qualifications, architects from other Mem- including measures to facilitate the effective ber States are permitted to exercise their exercise of the right of establishment and profession in all fields in which Spanish freedom to provide services 1 (hereinafter: architects work only if they are permitted the 'Architects Directive' — where articles to do so in their country of origin. Where are cited without further reference, they are this is not the case, they are required to also from the Architects Directive) work in collaboration with another mem- ber of the profession who is authorised to pursue those activities and who holds a qualification which is recognised under (a) Scope of the Architects Directive Spanish law (to be precise, this case relates to the drawing-up of construction projects and the supervision of construction work, 2. Article 1 provides: activities which, in other countries, are apparently not carried out by architects, as in Spain, but rather by civil engineers). The Commission takes the view that the Span- '1. This Directive shall apply to activities in ish rules contravene Articles 2 and 10 of the field of architecture.

3. In regard to the diplomas and other evidence of formal qualifications 'enabling the holder to take up activities in the field of architecture under the professional title of architect' (as stated under Chapter II), 5. In regard to the education and training Article 2 provides: of architects, the sixth recital in the pre- amble to the Architects Directive states:

'Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications acquired as a result of 'methods of education and training for education and training fulfilling the those practising professionally in the field requirements of Articles 3 and 4 and awar- of architecture are at present very varied;..., ded to nationals of Member States by other however, provision should be made for Member States, by giving such diplomas, progressive alignment of education and certificates and other evidence of formal training leading to the pursuit of activities qualifications, as regards the right to take under the professional title of architect.' up activities referred to in Article 1 2 and pursue them under the professional title of architect pursuant to Article 23(1), the same effect in its territory as those awarded by the Member State itself.' 6. The 19th recital in the preamble states further:

4. Article 10, the wording of which is essentially identical to that of Article 2, governs recognition of diplomas and other 'this Directive introduces mutual recogni- tion of diplomas..., without concomitant coordination of national provisions relating 2 — Pursuant to Article 1(2), the reference is to 'those activities usually pursued under the professional title of architect'. to education and training.'

10. A list of diplomas etc. which fulfil the criteria laid down in Articles 3 and 4 must be sent to the other Member States and the Commission and published in the Official Journal of the European Communities (Article 7). Where doubts arise as to whe- 8. an understanding of the structural ther a diploma meets the criteria laid down design, constructional and engineering in Articles 3 and 4, the Commission must problems associated with building bring the matter before the Advisory Com- design, mittee on Education and Training in the Field of Architecture (Article 8). The same is to apply in the event of uncertainty as to whether a diploma etc. still meets those requirements (Article 9). In such a case, a 9. an adequate knowledge of physical Member State is also entitled to consult the problems and technologies and of the Advisory Committee. Pursuant to Arti- function of buildings so as to provide cle 9(2) the Commission must withdraw a them with internal conditions of com- diploma from one of the lists published in fort and protection against the climate, the Official Journal of the European Com-

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munities, either in agreement with the been subject to harmonisation or defini- Member State concerned or following a tion. Reference may be made to the ninth ruling by the Court of Justice. and tenth recitals in the preamble to the Architects Directive, which read:

(d) Use of academic titles

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(2) National Law 30 October 1990, Spain invoked Article 56 of the EC Treaty (now, after amendment, Article 46 EC), as well as the specific respects which serve to distinguish the present Directive from other sectoral direc- tives providing for mutual recognition of Real Decreto No 1081/1989 of 28 August qualifications and involving full harmoni- 1989 (Boletín Oficial del Estado No 214 of sation of minimum education and training 7 September 1989, p. 28449) (hereinafter: requirements. the 'Decree').

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pursue in Spain activities other than and 10 of the Architects Directive. The host those which they are authorised to Member State cannot differentiate in pursue in their country of origin on regard to the qualifications certified by a the basis of the qualifications awarded diploma by imposing additional require- by the latter, unless they collaborate ments on holders of foreign qualifications. with another member of the profession The Commission holds that to do so would authorised to pursue those activities jeopardise the practical effectiveness of the and who holds a qualification which is Architects Directive. The principle of equal likewise recognised under Spanish law, treatment, as laid down in Article 2, would the Kingdom of Spain has failed to be rendered ineffective if a Member State fulfil its obligations under Articles 2 were able to restrict, without justification, and 10 of Directive 85/384; the professional activities of architects holding foreign qualifications, in compar- ison to those architects who hold Spanish qualifications.

(2) order the Kingdom of Spain to pay the costs. 19. The Commission states further that every holder of an architectural diploma in the Community has completed theoreti- cal and practical training which fulfils the 17. The Kingdom of Spain claims that the requirements laid down in Articles 3 and 4. Court should: At no time has Spain argued that diplomas in other Member States serve to certify education and training not meeting these requirements. However, that alone could justify it in refusing to recognise a diploma or introducing the obligation to work in — dismiss the action; and collaboration with another member of the profession.

therefore, the Commission argues, not lead may invoke Article 56 of the EC Treaty and a Member State to refuse mutual recogni- thereby render a harmonising directive tion of qualifications. Such differences ineffective — even where such harmonisa- could only, pursuant to Article 16(2), make tion is minimal —, when this directive itself it possible for the host Member State to lay contains in-built protective clauses against down rules governing the conditions for any endangerment of public safety. Fur- using the title of architect. thermore, the Commission points out that Article 56 of the EC Treaty is the subject of very restrictive interpretation by the Court. In this context the Commission refers to its pleadings in Case C-114/97, 4which state 21. Furthermore, the Commission refers to that justification under Article 56 is possi- its detailed study as well at to the observa- ble 'only if it is directed against a genuine tions of the Member States pertaining and sufficiently serious threat affecting one thereto, as well as to a comparative study of the fundamental interests of society' and compiled in 1997 by an ad-hoc committee the existence of such a threat must be on education and training for architects. 3 shown by the Member State 'on the basis of The Commission argues that neither docu- an assessment of the individual conduct of ment permits the conclusion that the activ- persons'. ities and responsibilities of an architect in Spain are fundamentally different to those in other Member States.

26. The Spanish Government begins by pointing out that Article 10(2) of the Decree contains a fundamental limitation of its own scope in as much as it is only applicable in regard to the drawing up of 29. In this context the Spanish Government constructions projects and the assumption refers to the judgment in Bouchoucha. 5It of control over works. The restriction on contends that the Court ruled in that case, the mutual recognition of diplomas con- that, in the absence of a Community tained in Article 10(2) of the Decree is thus, definition of the activity in question, each in the Spanish Government's view, not of a Member State is free to regulate the exer- general nature. cise of that activity.

fication under Article 56 of the EC Treaty. academic titles, Spain contends that the Article 10(2) of the Decree is intended to disputed Article 10(2) of the Decree only alleviate the situation in which a particular contains rules governing the use of aca- professional title does not reflect the full demic titles, and thereby conforms to competence of its holder (for example as to Article 16(2) of the Architects Directive, the technical details in regard to the which it is designed to transpose into structural stability of buildings). Calcula- national law. tions carried out in regard to certain structures, the running of simulations with a view to testing ground stability and calculating the resistance of concrete, as done by Spanish architects, are activities which, according to the Spanish Govern- 34. The Commission challenges the view ment, do not typically fall under the that Article 10(2) of the Decree transposes professional profile of an architect as set Article 16(2) of the Architects Directive out in the Directive. Where the Commis- inasmuch as it does not relate to use of sion contends that, pursuant to the Direc- academic titles, but serves rather to restrict tive, an architect may, under certain cir- the scope of activities. cumstances, be in a position to exercise a greater number of activities in the host Member State than he was originally trained to carry out, it is clear that a restriction is justified on grounds of public safety. V — Analysis

rather the effective point and purpose of 38. It is in fact evident, on reading the sixth these rules is — as indicated by Arti- and 19th recitals in the preamble, that the cle 57(1) of the EC Treaty (now, after Architects Directive was neither intended amendment, Article 47(1) EC), on which nor able to achieve harmonisation in regard the Architects Directive is based — to to either vocational education and training facilitate access to and exercise of a liberal or the area of activities open to architects. profession. It would be contrary to this Existing differences were consciously taken purpose to seek again to restrict the possi- into account by the Community legislature bility of exercising such a profession. The and may therefore not be used to bring the first recital in the preamble to the Archi- Directive's applicability into question.

37. The Kingdom of Spain contends that which that Member State has designated the restriction introduced by it in respect of as belonging to the profession of architect. the mutual recognition of diplomas applies only to certain activities that do not come within the scope of the Architects Directive. It is true that the Member States are free to define those activities, which, according to 39. The rule at issue in the present case, Article 1, are usually pursued under the contained in Article 10(2) of the Royal professional title of architect. This means Decree, however, serves to distinguish, in that each Member State is to define the Spain, different fields of activity, according scope of activities for architects within its to their scope: on the one hand one has territory. However, under Article 2 of the an •— extensive — field for holders of Architects Directive, each Member State is Spanish qualifications; on the other, one required not only to recognise foreign has the field of activities open to holders of qualifications, but also accord those quali- a qualification ·— also recognised — fications, in regard to the exercise of awarded in another Member State.

Such

unequal treatment lies not only in the fact the simplification of the effective exercise that the area of activities open to them may, of the right of establishment or the freedom sometimes, suffer restrictions compared to to provide services. Under the Directive, that of holders of Spanish qualifications, such an examination is precisely no longer but also in the fact that they are required to required once a qualification meets the demonstrate that their qualification allows requirements laid down in Articles 3 and 4 access, in their State of origin, to the same or comes under Article 10 of the Architects area of activities as that granted by a Directive. Spanish qualification. To this extent it is also irrelevant that — as the Spanish Gov- ernment contends — there is only a lim- ited area of activities in which architects are not treated equally. Regardless of any debate on whether or not one is in fact 42. The Kingdom of Spain holds the view dealing with a limited area of activities, all that architects who have not acquired holders of foreign qualifications are Spanish qualifications lack the training affected by this restriction. The qualifica- required for certain activities pursued by tions awarded by other Member States are architects in Spain. It cannot be inferred thus not accorded the same effect as are from Articles 3 and 4 of the Architects Spanish qualifications. Directive that such extensive education and training is required. Reference is also made in this context to the procedure under Articles 7 to 9 6 of the Architects Directive. This procedure serves to move any exam- ination of qualifications up-stream and to 41. Even if one were to assume that dispel any doubts as to whether those activities in the field of architecture, within qualifications recognised and published in the meaning of the Directive, include only the Official journal meet the requirements those activities which are usually pursued, laid down in Articles 3 and 4 of the in all Member States, under the profes- Architects Directive. There is no provision sional title of architect, this would not lead allowing subsequent examination of quali- to a different conclusion. Admittedly, such fications by Member States. Article 9 even an approach would lead one to concentrate sets out the possibility of examining a on the area of activities common to all qualification that has already been pub- Member States. However, this would lished if a Member State or the Commis- restrict the Directive's scope on the one sion has doubts as to whether that qualifi- hand, while on the other hand requiring an cation still meets the requirements laid examination of the activities to which a down in Articles 3 and 4. recognised qualification granted access in the Member State of origin, as well as an examination as to whether these activities coincided with those carried on by an architect in the other Member States. This would require a detailed comparative study 43. The Spanish Government has not made in order to recognise each individual qua- use of any of these possibilities but has, in lification. It would in that case no longer be possible to speak of any generally applic- able mutual recognition of qualifications or 6 — See point 10 above for the content of these articles.

effect, introduced a generally applicable, because the passage cited by Spain is to the subsequent examination of foreign qualifi- effect that Member States are free to cations. This is not possible within the regulate the exercise of that activity pro- framework of the Directive. vided that this does not result in discrimi- nation. However, the provision at issue here does precisely that. Moreover, Bou- choucha involved the 'professional practice of osteopathy' for which there was an 'absence of Community legislation'. 8 44. In regard to the Spanish Government's submission that Articles 3 and 4 do not define the Directive's scope — it being rather a matter for individual Member States to designate the area of activity covered by the profession of architect — it should be reiterated here that Spain has 47. It must therefore be held that Arti- designated not one, but several areas of cle 10(2) of the Decree fails to recognise in activity, which results in unequal treatment full qualifications from other Member of holders of qualifications from other States, resulting in discrimination against Member States. the holders of qualifications from other Member States and consequently a restric- tion of the right of establishment and the freedom to provide services. At issue here is indirect discrimination, inasmuch as the unequal treatment is not linked to nation- 45. Nor are the differences, pointed out by ality but rather to the country in which the the Spanish Government in this connection, qualifications in question were obtained. between the areas of activity of architects in More nationals of other Member States are the individual Member States relevant in affected by this rule than Spanish nationals. this context. The Community legislature intended that qualifications awarded on the successful completion of education and training, and which meet the criteria laid down in Articles 3 and 4, should be mutually recognised throughout the Com- munity and thereby allow unrestricted access to those activities pursued by archi- 48. The Spanish Government also main- tects. tains that these restrictions are justified on grounds of public health and security pursuant to Article 56 of the EC Treaty. The Spanish Government contends that a non-Spanish architect, who does not pos- sess the required knowledge in regard to 46. The Spanish Government's reference to the structural and stability characteristics the judgment of the Court in Bouchoucha 7 of buildings, constitutes a danger when also does not allow any other conclusion, working in this area in Spain.

51. Heading 8 of Article 3 specifies that an architect's education and training must equip him with an understanding of the structural design and constructional and 53. Even if this were not the case for all engineering problems associated with Member States, other possibilities are open building design. It is questionable whether to the host Member State for protecting the this covers all issues arising in conjunction service recipient or client. Such protection with the structural and stability character- might, for example, be achieved by requir- istics of building. In any event, it ensures ing the person benefiting from the Directive that the holder of a recognised qualification to use the academic title in force in his possesses an elementary understanding and Member State of origin in a form pre- basic capabilities in regard to the construc- scribed by the host Member State. This tion and engineering of buildings. Refer- option is provided for under Article 16(2) ence may be made in this regard to the of the Architects Directive in the event that report of the ad-hoc committee of 4 Feb- the academic title of the Member State of ruary 1997, 10 which contains information origin can be confused with a title in the from individual Member States provided host Member State requiring additional education or training which the beneficiary has not completed. In this way it can be 9 — Judgment in Cast' CM 14/97 (cited in footnote 4, paragraph 46), with further reference to the judgementin Case 30/77 made clear that the qualification in ques- Bonchereau [1977] 1999, paragraph 35; judgement in Case C-355/98 Commission v Belgium [2000] ECU I-1221. tion is not identical to that usually awarded paragraph 28; see also, in another context. Case C-54/99 in the host Member State, without having Église de Scientologie de Paris and Others [2000] ECR I-1335, paragraph 17. to indicate the extent of education and 10 — Annex 8 to the application. training.

56. It must therefore be held that the rule introduced by Spain in Article 10(2) of Decree No 1081/1989 precludes mutual recognition of qualifications in the field of 55. Nor does the restriction of the right of architecture, as provided for under Arti- establishment and the freedom to provide cles 2 and 10 of Directive 85/384. This rule services introduced by Spain respect the restricts the right of establishment and the principle of proportionality. The same freedom to provide services by denying result can be achieved with less restrictive qualifications from other Member States measures, such as, for example, those under the same effect as those awarded in Spain. Article 16(2) of the Architects Directive. A This, however, is precisely the purpose of simple reference to the professional codes the Directive — even if the areas of activ- of conduct in force in the various Member ity as well as education and training are not States is not sufficient in this context, since identical amongst the various Member these are adopted by the relevant profes- States. The restriction introduced by Spain sional associations. Even if such codes were is unjustified.

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VI — Costs the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for by the successful party. Since the Kingdom of Spain has been unsuccess- ful in the present case, it must pay the costs 57. Pursuant to the first subparagraph of in accordance with the form of order Article 69(2) of the Rules of Procedure of sought by the Commission.