C-31/00

A — Community law

3. Article 1 of the Directive provides that: For diplomas obtained after the Directive entered into force, Chapter II sets out a definitive regime under which the Member ' 1. This Directive shall apply to activities in States are required to recognise diplomas the field of architecture. awarded by other Member States fulfilling the requirements as to content and duration

1 — Original language: French. 2 — OJ 1985 L 223, p. 15, hereinafter 'the Directive'. 3 — Emphasis added.

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of education and training, as set out in B — Belgian law Articles 3 and 4. 4Each Member State must communicate and keep up to date the list of diplomas meeting these criteria, together with the establishments and authorities 8. Article 1 of the Law of 20 February awarding them. 1939, 5on the protection of the qualifi- cation and profession of architect, pro- vides:

7. Article 13 of the Directive states that the 3. Belgian citizens and nationals of other test of formal qualifications referred to in Member States of the European Commu- Article 11(a), fourth indent '... shall com- nity, or of a State which is a party to the prise an appraisal of plans drawn up and Agreement on the European Economic carried out by the person concerned while Area, who meet the requirements set out actually pursuing the activities referred to in the Annex to this Law shall be entitled to in Article 1 for not less than six years'. use the lawful professional qualification awarded to them by their State of origin or the State from which they come and, as the 4 — Articles 3 and 4 set out the requirements for professional training leading to diplomas and other architectural qualifi- cations. Article 4 sets out a number of specific requirements concerning, for example, the minimum length of training. 5 — Moniteur belge of 25 March 1939.

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case may be, the abbreviation of that many on 16 February 1966. He worked for qualification in the language of that State. 25 years as 'an employee in various firms of architects' 7 in Liège (Belgium). In 1991, following the liquidation of the company for which he worked, Mr Dreessen applied to be enrolled in the register of the Ordre des Architectes de la Province de Liège (Architects' Association of the Province of Liège) with a view to setting up in practice on his own. 9. In the annex, that law lists the provisions relating to the diplomas, certificates and other qualifications awarded in Germany allowing the holding of the qualification and practice of the profession of architect in Belgium.

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13. An appeal against that decision was equated with the certificates listed in the brought before the Conseil d'Appel d'Ex- fourth indent of Article 11(a) of Directive pression Française de l'Ordre des Archi- 85/384. tectes (French Language Appeals Commit- tee of the Architects' Association) ('the Appeals Committee') which has asked this Court for a preliminary ruling on the question whether the diploma awarded to the applicant was to be treated as equival- 15. On the basis of the Court's decision in ent to the diplomas, certificates and other Dreessen I, the Appeals Committee dis- qualifications referred to by the national missed the applicant's appeal in a decision law. 9 dated 15 February 1995.

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Article 52 of the EC Treaty (now, after of a Member State before which a Com- amendment, Article 43 EC) had already munity national who holds a diploma been made and rejected. obtained in another Member State makes an application for authorisation to practise a profession access to which, under national legislation, depends on the pos- session of a diploma or a professional 18. On 16 June 1999 the Appeals Com- qualification, is required to take into con- mittee reversed that decision, and ruled in sideration the diploma relied upon by the favour of Mr Dreessen, finding that he applicant and to make a comparison possessed the knowledge and qualifications between, on the one hand, the specialised required by Belgian law. knowledge and ability and the qualifi- cations evidenced by that diploma and, on the other hand, those required under the national rules, even where there exists, with regard to the profession in question, a 19. The Conseil National de l'Ordre des directive adopted by the Council on the Architectes (National Council of Archi- basis of Article 57(1) and (2) of the Treaty, tects' Association) ('the National Council') and that directive provides, so far as applied to the Cour de Cassation for review concerns courses of study taken up or of that decision on the ground that it was pursued during a transitional period, an not open to the competent authorities, by exhaustive list of the diplomas or certifi- including a comparative examination, to cates, awarded in the various Member add to the exhaustive list of qualifications States, which are to enable the profession set out in Article 11 of Directive 85/384. concerned to be practised in the other Member States, where the applicant falls within the scope of that transitional scheme and the diploma on which he relies is not included in that exhaustive list?'

22. It is appropriate, first of all, to dispose of an argument put forward by the National Council. In that judgment, the Court held that a Member State which receives a request for authorisation to practise a profession, access to which, under national legislation, depends upon the possession of a diploma or a professional qualification, must take It takes the view that the Court has already into consideration the diplomas, certificates dealt with the point of law in Dreessen I. and other evidence of formal qualifications However, in that case, and contrary to which the person concerned has acquired in what is contended, the Court ruled only on order to practise the same profession in the question whether the diploma in engin- another Member State by making a eering formally came within the exhaustive comparison between the specialised knowl- list set out Article 11 of the Directive. In the edge and abilities certified by those diplo- present case the applicant in the main mas and the knowledge and qualifications proceedings puts forward different argu- required by the national rules. 15 ments. He asks the Court to rule on the material content of the diploma in point. The question is whether the national auth- orities are required to examine the special- ised knowledge and abilities and the 25. The comparative examination pro- qualifications evidenced, for the purpose cedure is designed to enable the authorities of determining whether they are such as to of the host Member State to satisfy them- enable the holder to practise as an archi- selves, on an objective basis, that the tect. Mr Dreessen claims the benefit of the foreign diploma evidences the possession application of the principle established in by its holder of knowledge and qualifi- Vlassopoulou, cited above, notwithstand- cations which are, if not identical, at least ing that his diploma does not satisfy the equivalent to those certified by the national conditions specified in the Directive. The diploma. That assessment of the equival- question raised in Dreessen I differs from ence of the foreign diploma must be carried the one currently before the Court. I there- fore propose that the argument of the defendant in the main proceedings be 14 — Case C-238/98 [2000] ECR I-6623. rejected. 15 — Paragraph 16.

out solely in the light of the level of national authorities to work as an knowledge and qualifications which its employed specialist in various public hos- holder can be assumed to possess on the pitals. The Court remedied this 'contra- evidence of that diploma, 16 having regard diction' 19 by holding that 'it is settled that to the nature and duration of the studies the authorities of a Member State to whom and practical training to which the diploma an application has been made by a Com- relates. munity national for authorisation to prac- tise a profession access to which depends, under national law, on the possession of a diploma or professional qualification, or on 26. Finally, the Court pointed out that the periods of practical experience, must take examination to determine correspondence into consideration all the diplomas, certifi- between the knowledge and qualifications cates and other evidence of formal qualifi- certified by the foreign diploma and those cations of the person concerned and his required by the legislation of the host relevant experience, by comparing the Member State must be carried out by the specialised knowledge and abilities so cer- national authorities in accordance with the tified and that experience with the knowl- procedural requirements of Community edge and qualifications required by the law for the effective protection of funda- national rules'. 20 mental rights conferred by the Treaty on Community subjects. It follows that any decision taken must be capable of judicial review as to its legality under Community law, and the person concerned must be able 28. The Court held in that regard that '... to ascertain the reasons for the decision those judgments are merely the expression taken in his case. 17 in individual cases of a principle which is inherent in the fundamental freedoms of the Treaty'. 21 27. The decision in Vlassopoulou has given rise to various subsequent developments, 18 including the recent decision in Hocsman, cited above. 29. The new Dreessen case, now before the Court, is set in a particular factual and legal context. In that case, the Court applied the above- mentioned principle for the benefit of a Community national who held a diploma in medicine acquired in a non-member As regards, more specifically, the question country, but who was denied the right to of territorial scope, I would observe that set up in independent practice on the the applicant in the main proceedings territory of a Member State, even though acquired all of his professional experience he had been allowed by the competent in the Member State of which he is a national. 16 — Paragraph 17. 17 — Paragraph 22. 19 — Hocsman, cited above, paragraph 20. 18 — Sec, for example. Case C-319/92 Haini: [1994] ECR I-425, paragraph 26, and Case C-234/97 Fernández de Bobadilla 20 — Paragraph 23. [1999] ECR I-4773, paragraph 29. 21 — Paragraph 24.

31. First, the diploma in engineering is not one of those that the Directive specifies as 23 — Paragraph 14. attracting the benefit of the principle of 24 — Paragraph 14. It should be noted that the current proposed amendments to Directive 85/384 do not mention diplomas automatic mutual recognition under the delivered prior to 1973 by the Fachhochschulen, All- gemeiner Nochbau department. See the Proposal for a transitional scheme. The situation of the European Parliament and Council Directive 98/C 28/01 applicant in the main proceedings is not the amending Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifi- same as that prevailing in Vlassopoulou cations and supplementing Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, and Hocsman. In the first of these cases, the 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, situation of the applicant in the main 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental proceedings did not come within any practitioner, veterinary surgeon, midwife, architect, phar- macist and doctor (OJ 1998 C 28, p. 1) and the Common mutual recognition directive, the activity Position (EC) No 20/2000 of 20 March 2000 adopted by the Council, acting in accordance with the procedure in question not then having been regulated. referred to in Article 251 of the Treaty establishing the In Hocsman the applicant's diploma did European Community, with a view to adopting a Directive of the European Parliament and of the Council amending not fall within the scope of the directive in Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifi- question as it had been awarded by the cations and Council Directives 77/452/EEC, 77/453/EEC, competent authorities of a non-member 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (OJ 2000 C 119, p. 1). 22 — Case C-19/92 Kraus [1993] ECR 1-1663, paragraph 15.

37. None of those arguments appears to me 34. According to that argument, where, as to be well founded in the present case. here, a directive is adopted on the basis of Article 57 of the EC Treaty (now, after amendment, Article 47 EC) to regulate access to a profession, the national auth- orities must adhere to the wording of the 38. The object of Article 52 of the Treaty is relevant provisions, and are not to under- to abolish restrictions on the freedom of take a comparative examination of the establishment of nationals of one Member specialised knowledge and abilities and State on the territory of another Member the qualifications evidenced as compared State. In this respect, freedom of establish- with the national requirements. On this ment is a fundamental freedom in the view, the Directive exhaustively lists the Community system. 25 recognised diplomas. To take into account professional experience required would be tantamount to altering the scope of the Directive.

39. The purpose of the Directive is clear. The Member States wished to set, for education and training and qualifications, a certain number of minimum requirements compliance with which gives rise to an obligation of mutual recognition on the part of the Member States. In no way is it 35. Similarly, the Italian and French gov- permissible for that objective to be attained ernments contend that the Directive leaves at the expense of restricting the exercise of no discretion to the Member States. They the right to establishment. As the Court maintain that the national authorities are obliged to adhere strictly to the qualifi- cations expressly set out in Article 11 of the 25 — Kniiis, already cited, paragraph 16.

40. Consequently, in the light of the Court's recent case-law, 28 and in contrast to my Opinion in Erpelding, 29 I propose 43. In that regard, a further point should be that the principle laid down by the Court in made by way of clarification. As the Vlassopoulou be applied. Commission pointed out at the hearing, there can be no question of imposing on the national authorities an obligation to recog- nise the equivalence of a diploma in engin- eering. The obligation does not relate to the outcome of the comparative assessment test, but is located at an earlier stage of 41. The case of Mr Dreessen lends itself to the procedure. The competent authorities a fresh application of the criteria laid down must carry out the comparative examin- by the Court's case-law. His diploma in ation. The findings at which they arrive are engineering does not benefit from the a matter for them alone. In this way the mechanism of automatic recognition pro- letter and the spirit of the Directive will be vided for by the Directive. Even so, the fully observed. The application of the facts of this case show up the paradoxical decision in Vlassopoulou does not in the nature of his professional situation. The least alter the mechanism of automatic competent national authorities admit that recognition established by the Directive. It he has worked as an architect for 25 years, concerns only the obligation to carry out an but today they refuse him the right to carry objective assessment of the material con- out the same activity as an independent tent of the diploma under consideration. practitioner. Although outside the scope of the Directive, Mr Dreessen's situation is directly governed by Article 52 of the Treaty.

49. The comparative examination must also take into account the professional experience of the person concerned. The 46. The Belgian authorities are required to assessment of Mr Dreessen's specialised verify the material content of Mr knowledge and abilities will not be con- Dreessen's diploma. They must consider fined to the qualification but will extend to the content of the education and training the references provided by his various received and the specialised knowledge and employers. abilities required as a result. It is for them to determine whether that diploma, for- mally a 'diploma in engineering', provides all necessary guarantees that the holder has been trained to practise as an architect. 50. Furthermore, a decision refusing auth- orisation must clearly state the grounds for the refusal. That legal act must be chal- lengeable before the national court in order that its legality from the point of view of Community law may be reviewed.

47. The competent authorities are required to apply national criteria. They must adhere strictly to the conditions set by national law for Belgian nationals, so as 51. In conclusion, it is for the national not to discriminate against nationals of court to take into consideration the appli- other Member States. cant's diploma in engineering, together with his relevant experience, by comparing

30 — The competent national authorities must assess whether the knowledge acquired by the applicant either during a 31 — I note that the Appeals Committee of the Architects' course of study or by way of practical experience is Association decided, on 16 June 1999, that Mr Dreessen sufficient in order to prove possession of the knowledge demonstrated the required qualifications and specialised which is lacking (see Vlassopouloit, paragraph 20, and knowledge and abilities (see Decision No 389 of 16 June Fernandez de Bobadila , paragraph 33). 1999 or the French Language Appeals Committee).

If the diploma and relevant experience do not satisfy the national requirements, the national authorities must allow the applicant the opportunity to prove that he does in fact possess the knowledge and qualifications that are lacking, in accordance with the principles of equality of treatment and of proportionality.

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