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fulfil its obligations did the Italian Republic 7. In this action, which was brought on transpose partially Directive 85/384, by 9 August 1999, the Commission of the Presidential Decree No 129 of 27 January European Communities applies for the 1992 4(hereinafter 'Decree No 129/92'). Court: Article 12 of the Decree provided for further transposition measures within a period of six months. These were enacted on 10 June 1994 in Decree No 776 of the (1) to declare that the Italian Republic has Ministry of Universities and Scientific and failed to fulfil its obligations under Technological Research 5(hereinafter 'De- Articles 12, 20, 22, 27 and 31 of cree No 776/94'). Council Directive 85/384/EEC of 10 June 1985 on the mutual recogni- tion of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the 5. For reasons of clarity, the individual right of establishment and freedom to provisions of these decrees are cited in provide services, as amended and, as relation to the individual pleas in law, so regards point ((3)) below, under far as necessary. Article 59 of the EC Treaty (now, after amendment, Article 49 EC)

1) by failing to take all the meas- ures necessary to implement I I I— Procedure and applications Articles 4(1), second subpara- graph, 4(2), 7, 11 and 14 of Directive 85/384 (EEC),

IV — Analysis 3) by prohibiting architects providing services in Italy from having an infrastructure there (Article 9(1) of Decree No 129/92); 9. First of all, it must be pointed out that the Italian Republic, in a written response to a request by the Court and in the oral hearing, referred to more recent provisions 4) by requiring architects providing of Italian law which put architects from services to register with the other Member States in a better position by regional professional body for comparison with the Italian provisions architects (Article 9(3)) of Decree considered here. Even if this were correct, No 129/92 and Articles 7 and 8 of it would be immaterial for the present Decree No 776/94), contrary to dispute. These provisions were adopted the provisions of Article 22 of the only after the action had been brought directive; and and only long after the expiry of the period

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14. The Italian Republic relies on the fact 12. Article 11 appears in Chapter III of that the provisions of the directive are Directive 85/384, which contains transi- directly applicable, as they are sufficiently tional provisions for the protection of established rights. This article contains a list of evidence of formal qualifications 7 — Corrigendum to Council Directive 86/17/EEC of 27 January 1986 amending, on account of the accession of Portugal, Directive 85/384 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective 6 — See, for example, the judgment in Case C-152/98 Commis- exercise of the right of establishment and freedom to sion v Netherlands [2001] ECR 1-3463, paragraph 21. provide services (OJ 1986 L 87, p. 36).

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clear, precise and unconditional. Direct 17. Direct effect constitutes only a mini- effect precludes a failure to fulfil obli- mum guarantee for the individual citizen. gations. The requisite additions were This minimum guarantee, imposed on implemented at the time of subsequent Member States under Article 189(3) of the amendments. Direct effect does not create EC Treaty (now Article 249(3) EC), cannot any problem of legal certainty either, as justify a Member State in absolving itself Italian law does not contain any provisions from taking in good time implementing that are incompatible with the directive. measures sufficient to meet the purposes of each directive. 9

19. Under Article 5(1) of the EC Treaty (now Article 10(1) EC) in conjunction with Article 189(3) of the EC Treaty, the Member States are obliged to transpose directives exactly and in full.10 Admittedly, 16. The Commission takes the view that the Italian Republic transposed the direc- the direct effect of a directive cannot be a tive by means of two decrees, but it did not substitute for the direct transposition of the adopt any provisions relating to directive into the internal legal system. As Articles 4(1), 4(2) and 14 of Directive the Court has consistently held, the 85/384. Nor is it disputed that the Italian Member States are obliged to ensure that Republic did indeed expressly list all the the provisions of a directive are applied exactly and in full. 8 9 — The Commission refers to the judgments in Case 102/79 Commission v Belgium [1980] ECU 1473, paragraph 12, and in Case C-96/95 Cummission v Germany [1997] HCR 8 — The Commission refers ro the judgment in Case C-287/91 I-1653, paragraph 37. Commission v Italy [1992] LCR I-3515, paragraph 7. 10 — Judgment in Case C-287/91 (cued in footnote 8).

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21. This case-law is based on the fact that only transposition in full results in legal clarity and legal certainty for the citizen. So long as the directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of 23. Therefore, the potential direct effect of their rights. Even if the Court were to hold the provisions of a directive cannot serve as that one or other provision of a directive is a justification for incomplete transposition. sufficiently precise and unconditional to be relied upon before national courts, there does not follow from that, at least for the legal layman, a sure knowledge of his rights. 12 24. As regards the corrigendum of the list of evidence of formal qualifications for Portuguese evidence of formal qualifi- cation, the Italian provision is indeed peculiarly suited to leave those entitled to 22. In contrast to this, the Italian Republic recognition in uncertainty as to their rights, cannot excuse itself either by the fact that, as the possibility of an error in trans- position appears unlikely, given that the list

11 —Judgments in Cases C-96/95 and 102/79 (cited in footnote 9). 13 _ Judgments in Case 116/86 Commission v Italy [1988] ECR 12 — See the judgment in Case C-208/90 Emmott [1991] ECR 1323, paragraph 15, and in Case C-358/98 Commission v 1-4269, paragraphs 20 f. Italy [2000] ECR I-125J, paragraph 17.

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is otherwise complete. The Italian Republic Each Member State shall likewise com- could and should have given effect to the municate any amendments made as regards corrigendum when transposing the direc- the diplomas, certificates and other evi- tive, as such transposition occurred only dence of formal qualifications which are several years after the corrigendum. awarded within its territory, in particular those which no longer meet the require- ments of Articles 3 and 4.

Opinion

30. The Commission points out that the Member States cannot plead difficulties in their internal legal systems in order to justify the failure to comply with obli- 33. In so far as can be seen, the Commis- gations under Community law. 14 It is sion's objection in the present case is that clearly to be required of the Italian Repub- Italian law neither contains a list of the lic that such a list be maintained up to date evidence of formal qualifications that must by ministerial decrees. be recognised nor refers expressly to the corresponding lists which the Commission publishes in the Official Journal.

31. Nor does the reference to the appli- cation of the Commissions' communi- cations excuse the Italian Republic. The 34. In the first place, it must be pointed out failure to comply with an obligation under that Article 7 of the directive does not a provision of Community law is itself expressly lay down an obligation auto- sufficient to constitute a breach of the matically to list the diplomas specified in Treaty. The consideration that the failure each of the Commission's communications had no adverse effects is irrelevant. 15 and lists in a national register of the diplomas that are to be recognised or to refer to these communications. Nor do the recitals refer to such an obligation.

32. In the opinion of the Italian Republic, there is no need for national law to contain an express list of the evidence of formal qualifications to be automatically recog- 35. However, such an obligation might nised. It is sufficient in practice to refer to arise out of the legislative context of Article 7 with the other provisions of Directive 85/384. Article 2 provides that 14 — It cites the judgment in Case C-150/97 Commission v Member States shall recognise the evidence Portugal [1999] ECR I-259, paragraph 21. of formal qualifications acquired as a result 15 — The Commission refers to the judgment in Case C-209/88 Commission v Italy [1990] ECR I-4313, paragraph 14. of training fulfilling the requirements of

Article 3. It is only Article 7 that states above). Article 2 of Decree No 129/92 who decides what training fulfils those appears to provide that evidence of formal requirements. According to it, it is in qualifications is recognised if it fulfils the principle the Member State within whose requirements of Article 3 of Directive territory the evidence of formal qualifi- 85/384. Article 5(l)(a) of Decree cation is awarded that decides. That No 129/92 authorises a person to set up Member State then communicates the cor- an establishment where he is the holder of responding evidence of formal qualifi- recognised evidence of formal qualifi- cations to the Commission, which normally cations, and Article 9(1 )(a) contains a cor- publishes it in the Official Journal. Finally, responding provision relating to the exer- Articles 8 and 9 regulate the procedure for cise of the freedom to provide services. resolving differences of opinion as to the However, the central provision, regarding quality of the evidence of formal qualifi- what evidence of formal qualifications is cations. automatically recognised, does not exist in Italian law. It may well be that the Com- mission's communications are relied on in practice, but the holder of such evidence of 36. Therefore, the communications to be formal qualifications cannot, either directly published by the Commission in the Offi- or indirectly, deduce from Italian law his cial Journal are of central importance for right to automatic recognition. It is in any the practical effectiveness of the mutual case not sufficient that one can find out recognition of evidence of formal qualifi- from the publications in the Official Jour- cations in the field of architecture. Evidence nal of the Community what evidence of of formal qualifications which is listed in formal qualifications is to be recognised. these communications leads to automatic This publication does not, in the absence of recognition. Exact and full transposition of a corresponding obligation in Italian law, the recognition procedure under Directive guarantee to the individual that Italian 85/384, as provided for in Articles 2, 3, 7, authorities also apply it. 8 and 9, therefore requires either the reproduction of the list of all evidence of formal qualifications that must be recog- nised or at least an express reference to the 38. It follows that the Italian Republic has Commission's communications. The hig- not transposed exactly and in full the hest practical effectiveness would be procedure for mutual recognition of evi- achieved if national law were to refer dence of formal qualifications as provided expressly to the Commission's communi- for in Articles 2, 3, 7, 8 and 9 of Directive cations, while at the same time publishing a 85/384. Thus, this objection of the Com- non-binding list of all evidence of formal mission is also established. qualifications required to be recognised.

40. The Commission submits that the requirements of Article 4(2)(a) of Decree 44. Article 27 of the directive cannot jus- No 129/92 are only authorised where tify this requirement, and indeed prohibits doubt exists as to the authenticity of the it. This provision is to be interpreted evidence of formal qualifications. The narrowly and provides for proof of the provision breaches Article 27 of Directive authenticity of evidence of formal qualifi- 85/384, as it imposes an additional general cations only where there is a suspicion of condition which, as regards the exercise of fraudulent conduct. From that it is to be the right of establishment, is neither appro- concluded a contrario that in the absence of priate nor justified. a legitimate doubt the authenticity of evidence of formal qualification need not be proved. 41. The assumption made by the Italian provision of an abuse of rights creates an obstacle to the exercise of the freedom to provide services and of the freedom of establishment, which contradicts the phil- 45. The Italian Republic submits that there osophy of the directive. It follows from the is no obstacle to the exercise of the judgment in Centros 16 that in considering fundamental freedoms. The Italian rule is the question whether there is any fraudu- not a symptom of general mistrust but a lent conduct, the assessment must be made guarantee of legal certainty and of the on a case-by-case basis. correct application of the Community provisions.

42. Also, additional costs are created by the obligation to provide the original diploma or a certified true copy. Account must be 46. Article 27 of Directive 85/384 does not taken of the risk that the diploma goes deal with this question, but refers only to confirmation of authenticity by requiring confirmation from the architect's home 16 —Judgment in Case C-212/97 [1999] ECR I-1459. State.

51. The systematic position of Article 27 Opinion within the final provisions of Directive 85/384 does not provide any indication as to whether it is a general prohibition against requiring, other than in the case of legitimate doubt, the original diploma or a 48. The directive does not contain any certified true copy from potential appli- express provision as to the question cants. Accordingly, it appears to be a whether the Member States may, in the provision that applies — in a certain sense procedure for recognition of evidence of generally — to all the other chapters. formal qualifications, require its produc- However, one cannot, on that basis, extend tion in the original or by means of a its scope of application beyond its wording. certified true copy. However, if Article 27 of Directive 85/384 were to be understood as meaning that it provided for the only procedure in which the authenticity of evidence of formal qualifications required 52. Neither the legislative history nor the to be proved, then it could preclude this purpose of the provision gives any indi- requirement. cation that it precludes unilateral measures on the part of the Member States for ensuring the authenticity of the evidence of formal qualifications that is to be recognised. 49. According to its wording, Article 27 of Directive 85/384 provides only for the particular case in which the host State, because of a legitimate doubt, requires from the competent authorities of the home State confirmation of the authenticity of 53. If one were to add to this the purpose the evidence of formal qualifications. In of Directive 85/384, to facilitate the exer- this case, the authorities of the home State cise of the freedom of establishment and must cooperate with those of the host State the freedom to provide services, it appears and, if need be, issue confirmation of obvious that other means of proving auth- authenticity. enticity are in principle not intended to be excluded. If an applicant should produce merely a copy and if the Italian authorities had legitimate doubts that the applicant actually had the original evidence of formal 50. The case provided for in Article 4(2)(a) qualification, it would clearly not be of Decree No 129/92, where the applicant necessary to contact the authorities of the must include the original diploma or a home State and thereby waste time. Rather, certified true copy of it with his appli- the applicant would first have to be cation, by contrast, is not, according to its requested to produce the original.

59. Finally, this requirement appears also to be appropriate. The costs and circum- stances of the production of the original or 56. In this connection, the general interest of a certified true copy are of comparatively consists in receiving proof of the actual minor significance. Moreover, it is current existence of the evidence of the formal practice for authorities of the Member qualifications relied on. Specifically, it is States, and also offices of the Community, the interest, recognised also by Directive to require evidence in the original or by 85/384, that the activity of architect is means of a certified true copy. carried out only by those who can prove by means of recognised evidence of formal qualifications that they have acquired spec- ified qualifications. The recognition of forged evidence would thwart this general interest. 60. It follows that Article 4(2)(a) of Decree No 129/92 does not infringe the funda- mental freedoms either.

57. Copies are suitable only to a limited extent for proving the existence of an original certificate, as the act of copying 61. Therefore, this one of the Commis- allows significant opportunity for manipu- sion's objections is not established.

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D — The requirements to produce Italian architects. The certificate of nationality can translations of all documents and a certifi- be provided easily and quickly in the cate of nationality Member States. There is no restriction of the rights provided by the directive.

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(2) Translation of documents gation to include an official translation issued by diplomatic or consular authorities or an official translator constitutes an additional obligation.

68. In the first place, the Italian Republic is of the view that it has not been proved that the obligation to provide the documents constitutes an obstacle and makes the 72. The risk of delaying proceedings does recognition of diplomas more difficult in not replace the necessity for there to be a the Italian Republic. legitimate doubt.

69. The obligation to provide an officially 73. One could by means of an unofficial certified translation is suited for the pur- translation achieve the objective of check- pose given the technical content of the ing that the conditions for recognition had documents and the difficulties in the way of been satisfied. The only exception is where correctly understanding the texts. It is not a there is a suspicion of fraudulent conduct. question of suspecting fraudulent conduct This possibility is already provided for and but rather of taking account of objective is guaranteed by Articles 17(4) and 18(2) of linguistic difficulties. The obligation to Directive 85/384. produce translations immediately is intended to avoid delays that might arise due to requests for more exact information.

76. Even if one were to accept that the least of an indirectly discriminatory nature, infringement is only of a limited nature, as it is predominantly non-Italians who will this does not excuse the Italian Republic seek recognition. Admittedly, both a check from transposing the directive exactly and of the applicant's nationality and knowl- in full, as there is no de minimis rule for edge of the content of the documents infringements. appear to be legitimate general interests. However, the production of neither a particular certificate nor official trans- lations is, according to Italy's own sub- missions, necessary in order to satisfy these Opinion interests. According to them, even the Italian authorities regularly satisfy them- selves with copies of valid identity papers and dispense with translations where they are familiar with the evidence of formal 77. The Commission restricts these pleas in qualifications. law expressly to the declaration that the Italian Republic has infringed Articles 12, 20, 22, 27 and 31 of Directive 85/384. It relies neither on a fundamental freedom nor on the Treaty generally. However, in its 80. As regards the production of trans- justification it assumes an infringement of lations, it must be accepted that Commu- the freedom of establishment. For that nity law permits national authorities in reason, these pleas in law are to be under- principle to work exclusively in their offi- stood as being directed, contrary to their cial languages, and likewise to communi- wording, to a declaration of an infringe- cate with citizens of the Union. For that ment of the specified provisions of the reason, national administrations cannot be directive and of the freedom of establish- required to accept documents in all the ment. languages of other Member States without translation. However, the objective of Directive 85/384 is to facilitate the exercise of the profession of architect for architects trained in other Member States. This 78. It is not obvious that the requirement to objective requires that national authorities produce a certificate of nationality and must also apply existing knowledge of documents with officially certified trans- other languages instead of inflexibly insist- lations would infringe a provision of Direc- ing on official translations. The freedom of tive 85/384. establishment, which is to be interpreted in the light of Directive 85/384, therefore authorises a requirement to produce official translations only if the authority concerned could not understand the document other- 79. However, there might be an infringe- wise. If the case officers, or other ment of the freedom of establishment. The employees of the particular authority who Italian requirements make more difficult at can be used without disproportionate least the recognition of evidence of formal expense, have the knowledge necessary to qualifications of architects who wish to be able to read the document in the original establish themselves in Italy. They are at or with the help of an unofficial trans-

82. It follows that Article 4(2)(c) of Decree No 129/92 and Article 4(1)(c) of Decree Submissions of the parties No 776/94 as well as Article 4(3) of Decree No 129/92 and Article 10 of Decree No 776/94 are not compatible with Article 52 of the EC Treaty. 85. The Commission submits that the latest time of the validity of certificates that could be issued in the context of Article 12 of Directive 85/384 coincided with the obli- gation to transpose the directive, that is to say, 5 August 1987. This was the last point E — The complaint of too extensive rec- in time at which the persons concerned ognition of established rights could have received authorisation to bear the professional title of architect and to satisfy the conditions as regards pursuing the activity. 83. Article 12 of Directive 85/384 provides for an exception from the minimum requirements for the training of an architect 18 — So far as can be seen, the reference in the German version to the entry into force of the directive is a mistranslation which does not appear in the other language versions — for example, 'applicazione della presente direttiva' in 17 — See the Opinion of Advocate General Colomer in Case Italian, 'mise en application' in French and 'implementa- C-45/95 Commission v Italy [1997] ECR I-3605, point 31. tion' in English.

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91. There is a distinction from the judg- ment the Commission cited concerning dentists. In the field of medicine, there are absolute requirements for protection that 88. Finally, the Commission is of the view render the general extension of the category that the 'generosity' of the Italian Republic of those pursuing the profession unaccept- creates an additional injustice to those who able. Where the Commission refers to the hold titles that are recognised by the general necessity for applicants to satisfy directive, as they are treated in the same minimum requirements of training and way as architects who do not fulfil the experience in order to guarantee a certain requirements of the directive. level of performance of the services, then this consideration must be applied to all established rights. However, Community 19 — The Commission cites the judgment in Case C-40/93 Commission v Italy [1995] ECR I-1319, paragraph 23. law would, by virtue of rules such as

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Article 12 of Directive 85/384, authorise a dispute there, Article 19 of Directive large number of people to pursue an 78/686/EEC, 21 the period for recognition activity though in the Commission's of established rights was linked to the time opinion they were not properly qualified. of notification of the directive, and not to the time of its transposition.

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under it do not necessarily satisfy the 85/384. It follows that the reference to requirements of Chapter II of Directive transposition in Article 12 of Directive 85/384. However, where the persons con- 85/384 is to be understood to mean the cerned can tell in advance of acquiring the expiry of the transposition period under legal status concerned that such status will Article 31(1) of Directive 85/384. be invalidated by forthcoming amendments to the law, reliance on existing rights need no longer be protected. For that reason, it would in fact have been logical if Article 12, like Article 10 of Directive 97. By contrast, the question whether 85/384 and Article 19 of Directive 78/686, Directive 85/384 makes exclusive provision had referred to the time of the notification for the recognition of evidence of formal of the directive. In case of doubt, the qualifications for the profession of architect further extension of the protection of or whether it is, according to the case-law legitimate expectations to the time of trans- of the Court on the fundamental freedoms, position cannot be understood as unduly also possible, or even required, that there is extending this exception to the general parallel to that also an individual examin- rules for the recognition of evidence of ation of qualifications, is of merely second- formal qualifications. ary importance. 22 As the Italian legislation in dispute does not provide for such an examination, it is not to be regarded as the transposition of such an obligation of primary law.

103. The Italian Republic considers that Decree No 129/92 does not preclude the use of a fixed base ('appoggio stabile') in 100. The Commission takes the view that performing services. Article 9(1) of Decree No 129/92 prohibits an architect who provides services in Italy from establishing a permanent infrastruc- ture there. Such a general and indiscrimi- nate prohibition cannot be justified by any provision of the directive relating to the 104. It is not possible to condemn the free movement of services. Italian Republic on account of a provision which characterises the temporary char- acter of the service by the absence of a principal place of business, or a branch, of an architect's office. The difference lies in the constant and temporary nature of the activity which an architect from another 101. In addition, it infringes Article 59 of Member State wants to pursue in Italy. the EC Treaty. The activity of an architect will require a longer or shorter stay. For that reason, an establishment in the host State is absolutely necessary. In the judg- ment in Gebhard, the Court stated that, 105. If the architect wishes to establish 'that the provision of services is temporary himself for a specific period of time on does not mean that the provider of services Italian territory, then the provisions relat- within the meaning of the Treaty may not ing to the freedom of establishment are equip himself with some form of infra- applicable. structure in the host Member State... in so far as such infrastructure is necessary for the purposes of performing the services in question'. 23 106. If the architect wants to exercise his activity only temporarily, the more flexible 23 —Judgment in Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 27. provisions on the freedom to provide ser-

109. However, Article 9(1) of Decree No 129/92 provides only that the architect may have neither his principal place of business nor a branch in Italy if he wishes 107. In making this objection, the Com- to take advantage of the legislative frame- mission relies not on the provisions of work for services. The term used there, Directive 85/384 but on the freedom to 'stabilimento', indicates in the Italian ver- provide services. Admittedly, under sion of the Treaty an establishment within Article 60 of the EC Treaty (now the meaning of Article 52 of the EC Treaty. Article 50 EC) this is subsidiary to the This suggests the answer that Article 9(1) freedom of establishment, 'first, as the of Decree No 129/92 merely gives effect to wording of the first paragraph of Article 59 the distinction between establishment and assumes that the provider and the recipient services within the meaning of the Treaty. of the service concerned are "established" in two different Member States and, sec- ond, as the first paragraph of Article 60 specifies that the provisions relating to services apply only if those relating to the right of establishment do not apply'. 24 110. It cannot be excluded that the inter- Therefore, the application to architects of pretation and application of this provision other Member States who work in Italy of in Italy complicates or obstructs the activity the freedom to provide services is excluded of architects within the framework of the if they are already established in Italy. The freedom to provide services, if the use of Italian Republic is therefore not obliged to even an authorised infrastructure leads to allow services to be provided in the less the application of the legislative framework stringent framework of the freedom to for architects having an establishment. provide services if there is an establishment. However, the Commission would have had to plead and, if so, also to prove such an application, contrary to the Treaty, of 24 — Judgment in Gebhard feited in footnote 23), patagtaph 21. provisions of Italian law that appear to

25 — On the burden of proof on the Commission, see the judgments in Case C-160/94 Commission v Spain [1997] ECR I-5851, paragraph 17, in Case C-119/92 Commission v Italy [1994] ECR I-393, paragraph 37 and in Case C-249/88 Commission v Belgium [1991] ECR I-1275, 3. Pursuant to paragraphs 1 and 2, the host paragraph 6. Member State may require the person

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concerned to supply one or more docu- 113. Article 9(3) of Decree No 129/92 pro- ments containing the following particulars: vides that even if they are providing services architects must be entered in the registers established and maintained by the regional and the national councils for architects. This is done at the professional — the declaration referred to in para- body's expense. graph 2,

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sion of services or impose any additional provisions in the home State. 26The Italian costs on the person providing the services. provision fails to take account of cor- responding conditions already imposed by the home State. It does not take account of the possibility that, like Italy, other Member States could have adopted similar provisions. Thus, there could be a double obligation in the home State and in Italy. 116. Article 9(3) of Decree No 129/92, which requires the person who provides the services to register himself in a cor- responding register of the regional profes- sional body of architects which is main- tained by the regional councils and the national councils of architects, exceeds the 119. Moreover, the provisions are not restrictions that are compatible with Direc- proportionate. A less restrictive measure tive 85/384. might be to require the person providing the services to produce certificates of regis- tration in the professional register of his home State. A less restrictive measure is provided in Article 22(1) of the directive too — an automatic temporary regis- tration or pro forma registration with a 117. The Commission points out that professional organisation or body or in a Decree No 776/94 did not bring the register. infringement to an end, as Articles 7 and 8 show. Article 7 of Decree No 776/94 provides that the first time a service is provided registration must be effected with the professional body of architects for the district in which the service is intended to be provided. The pre-condition is an appli- 120. Finally, the mandatory nature of the cation drawn up in Italian. requirement, which provides an actual duty to register and is not met by a declaration of activity, is not negated by the fact that the costs are imposed on the professional organisation.

123. Registration in an ad hoc register by professional organisations does not consti- tute an obstacle. Such registration is in the 126. It appears from Article 22 of Directive nature of ancillary act which is undertaken 85/384 that the provision of architects' as a consequence of holding a recognised services is merely notified to the host State. title or, as the case may be, of satisfying the On such notification, the host State may other conditions in Article 9(1)(a) and (b) require specified evidence and register the of Decree No 129/92. The provision architect in a register or provide for a imposes the costs which arise as a result temporary pro forma registration with a of registration in the register on the body or professional organisation. These measures organisation. must neither delay nor complicate the service. These provisions are to be under- stood to mean that architects from other Member States are permitted to provide their services immediately after recognition of their evidence of formal qualifications in 124. Italy is of the view that what is the host State and must at the most declare involved is not a real duty to register but them in advance. From this it follows a only a prior declaration to the architects' contrario that the provision of services professional body. A consequence of this is cannot be made subject to prior authori- automatic registration in the prescribed sation. Even authorisations which are given register. Article 9(3) of Decree No 129/92 automatically and within short periods of corresponds to Article 22(1)(3) of the time are accordingly unlawful. directive. What is involved is a temporary registration, as the provision of services is in its own nature only temporary. It is also automatic, as registration is effected, with- out further investigation, simply on the 127. The Italian Republic itself accepts that basis of the application for registration. at least the first provision of a service is

131. Article 4(6) of Decree No 129/92 pro- 129. Thus, the procedure for registration in vides that before recognition, reports are to the register of professional bodies under be obtained from the national university council and from the council of the archi- tects' professional body, which must be 27 — At the oral hearing, the Commission submitted, without provided within 30 days. Under Article 4(7) contradiction, that there are around 100 architects' pro- of Decree No 129/92, the procedure must fessional bodies in Italy. 28 — Furthermore, it is assumed here that declaration of a be completed, either by recognition or its service in accordance with Article 22(2) of Directive refusal, within three months in aggregate 85/384 is only required in cases which also result in a project on Italian soil. This does not unambiguously from the presentation of the application appear from the Italian provisions: Article 9(2) of Decree with all the documents. Inquiries to auth- No 129/92 requires notification in this case, and 9(3) requires registration for all services, which registration, orities of the home State interrupt the however, then presupposes the service's being declared, in accordance with Article 7 of decree No 776/94. period for up to four months. The decision

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completing the procedure is made in the directive. What might be overruns of accordance with Article 4(8) of Decree the time-limit are due not to the Italian No 129/92 by the Minister for Universities State but rather to the negligence of the and Scientific and Technological Research individuals applying for recognition. This in consultation with the Foreign Minister applies in particular in the individual case and the Justice Minister. referred to by the Commission.

136. In so far as the Commission objects to 133. The Italian Republic points out that in an infringement of Directive 85/384 in academic writing the opinion is stated that individual cases, it need not be discussed an isolated, brief infringement of the provi- whether such individual cases would be a sions of Community law does not justify suitable basis for a declaration of a failure condemnation in proceedings for failure to to fulfil obligations. In the present case, the fulfil an obligation. Commission has restricted itself to specify- ing the name and home State of one applicant, as well as the date on which the application was presented. The Italian Republic countered this submission with 134. It maintains that the majority of cases the assertion, which was not contradicted, are dealt with within the period. Over- that the particular applicant had not pres- running the time-limit in other cases is ented all of the necessary documents. justified by the exceptions provided for in However, under Article 20( 1 ) of Directive

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— by failing to take all the measures necessary to implement Articles 4(1), second subparagraph, 4(2), 11 and 14 of Directive 85/384,

— by failing to take all the measures necessary to provide for the automatic recognition of diplomas, certificates and other evidence of formal qualifications under Articles 2, 3, 7, 8 and 9 of Directive 85/384,

— by adopting Article ll(l)(c) and (d) of Decree No 129/92, which, contrary to Article 12 of Directive 85/384, provides for the validity of specified evidence of formal qualifications obtained after 5 August 1987, and

— by requiring architects from other Member States who desire to provide services to register with the regional professional body for architects (Article 9(3) of Decree No 129/92 and Articles 7 and 8 of Decree No 776/94), in respect that this requirement delays, contrary to Article 22 of Directive 85/384, the provision of an architect's first service in a particular professional body's geographical area beyond the time of its declaration;

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