C-142/01
ECLI:EU:C:2002:189
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COMMISSION v ITALY
OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 19 March 2002 *
1. The European Commission seeks a 3. That requirement does not appear in declaration that the Italian Republic has Directive 92/51, which in Article 3(a) limits failed to fulfil its obligations under Council itself to requiring possession of a diploma Directive 92/51/EEC of 18 June 1992 on a required and awarded in another Member 5 second general system for the recognition State for the pursuit of that profession. As of professional education and training to the Commission pointed out, for the Euro 2 supplement Directive 89/48/EEC, by hav pean legislature, if a Community citizen is ing maintained in force the first paragraph fully qualified in his country of origin to of Article 12 of Law No 81 of 8 March carry out a professional activity he will also 1991, which regulates the professions of ski be qualified to carry it out in another 3 monitor and mountain guide. Member State.
4. Moreover, the fulfilment of obligations that the Treaty or secondary legislation impose on the Member States of the Community may not be made subject to a 2. Under that provision, the pursuit in Italy condition of reciprocity. 6
of the profession of ski monitor by nationals of other Member States of the European Union is subject to the principle 5 — Article 3(a) of the Directive provides: 'Without prejudice to 4 of reciprocity. Directive 89/48/EEC, where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, as defined in this Directive or in Directive 89/48/EEC, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise 1 — Original language: Spanish. a national of a Member State to take up or pursue that profession on the same conditions as those which apply to 2 — OJ 1992 L 209, p. 25. its own nationals: (a) if the applicant holds the diploma, as 3 — GURI No 64 of 16 March 1991, p. 3. defined in this Directive or in Directive 89/48/EEC, required 4 — The rule states: 'The regions shall regulate the exercise in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having within their territory of the activity of foreign ski monitors been awarded in a Member State'. not registered in regional professional registers. The auth orisation for pursuit of this profession is subordinated to the 6 — See, inter alia, the judgments in Case C-38/89 Blanguemon recognition... of the equivalence of diplomas and of [1990] ECR I-83, paragraph 7 and Case C-163/99 Portugal ' reciprocity (emphasis added). v Commission [2001] ECR I-2613, paragraph 22.
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OPINION OF MR RUIZ-JARABO — CASE C-142/01
5. The incompatibility of the Italian legal Law No 81, since the incompatibility of system with Community law on that point national legislation with Community law is thus clear. can be finally remedied only by adopting and bringing into force national provisions of a binding nature which have the same legal force as those which must be amended. 9
6. The Italian Government admits that the situation did not change by the end of the 7 period laid down in the reasoned opinion or as a result of anything stated in the defence to the action, except as regards the 8 region of Venice. It states, however, that it is preparing a draft law, Article 15 of which amends Article 12 of Law No 81 8. From the foregoing, it can be concluded and removes the requirement of reciprocity. that the Italian Republic has failed to fulfil That is irrelevant for the purposes of this its obligations as alleged and that the hearing. application should be upheld.
7. Nor is it relevant that the Italian auth orities have never applied Article 12 of
9. In accordance with Article 69(2) of the 7 — By reference to which, according to the case-law of the Rules of Procedure, the defendant Member Court of Justice, the question whether a Member State has 10 failed to fulfil its obligations must be decided (see the State should be ordered to pay the costs. judgments in Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 19 and Case C-435/99 Commission v Portugal [20001 ECR I-11179, paragraph 16. 8 — Where, in January 2000, through the amendment of a regional law, the requirement of reciprocity was abolished 9 — See, for example, the judgment in Case C-358/98 Commis- for the pursuit in its territory of the profession of ski sion v Italy [2000] ECR I-1255, paragraph 17. monitor. 10 — Codified version published in OJ 2001 C 34, p. 1.
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COMMISSION v ITALY
Conclusion
10. I propose that the Court of Justice should uphold the application and:
(1) declare that by having maintained in force the first paragraph of Article 12 of Law No 81 of 8 March 1991, the framework law for the profession of ski monitor and complementery provisions relating to the organisation of the profession of mountain guide, the Italian Republic has failed to fulfil its obligations under Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC;
(2) order the Italian Republic to pay the costs.
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