C-285/01

BURBAUD

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 12 September 2002 1

I — Introductory remarks the public service, the rules contained in the aforementioned directive are also relevant to these proceedings.

1. The present case concerns admission to the profession of hospital administrator in France, and in particular the compatibility of French admission requirements with 3. Article 1 of Directive 89/48/EEC pro- C o u n c i l D i r e c t i v e 8 9 / 4 8 / E E C of vides inter alia that: 'For the purposes of 21 December 1988 on a general system this Directive the following definitions shall for the recognition of higher-education apply: diplomas awarded on completion of pro- fessional education and training of at least three years' duration (hereinafter: the 'Di- rective'). 2

(a) diploma: any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence:

II — Legal framework

provided that the education and train- ing attested by the diploma, certificate (d) regulated professional activity: a pro- or other evidence of formal qualifi- fessional activity, in so far as the taking cations were received mainly in the up or pursuit of such activity or one of Community, or the holder thereof has its modes of pursuit in a Member State three years' professional experience is subject, directly or indirectly by certified by the Member State which virtue of laws, regulations or adminis- recognised a third-country diploma, trative provisions, to the possession of certificate or other evidence of formal a diploma. The following in particular qualifications. shall constitute a mode of pursuit of a regulated professional activity:

The following shall be treated in the same way as a diploma, within the meaning of the first subparagraph: any — pursuit of an activity under a diploma, certificate or other evidence professional title, in so far as the of formal qualifications or any set of use of such a title is reserved to the such diplomas, certificates or other holders of a diploma governed by evidence awarded by a competent laws, regulations or administrative authority in a Member State if it is provisions;

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— pursuit of a professional activity the taking up or pursuit of the pro- relating to health, in so far as fession in question in its territory, such remuneration and/or reimburse- diploma having been awarded in a ment for such an activity is subject Member State; or...'. by virtue of national social security arrangements to the possession of a diploma....'

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servants are to be established ('titulari- I I I— Facts and main proceedings sation') after successful completion of a 'stage'.

12. It is clear from the documents before the Court that Ms Burbaud, a former Portuguese national who was later granted 9. It follows from Article 5 of Decree French nationality, obtained a degree in No 88-163 that, in principle, recruitment law from the University of Lisbon in 1981. to the hospital managers' corps of the Her assertion that in 1983 she obtained the French public service is by way of a hospital administrator's diploma from the 'concours', that is to say a selection pro- National School of Public Health, Lisbon, cedure in the form of a competition. That and worked as a hospital administrator in competition is the requirement for admis- the Portuguese public service from sion to a course of training organised by the 1 September 1983 to 20 November 1989 National School of Public Health, Rennes has not been disputed. She was then (École Nationale de la Santé Publique de granted leave for the purposes of further Rennes, hereinafter: the 'ENSP'). The train- training in order to pursue doctoral studies ing course consists of theoretical and prac- in France. On 2 July 1993 Ms Burbaud tical elements and lasts 24 to 27 months. applied to the French Minister responsible Individual subjects are graded for assess- for Health for admission to the hospital ment purposes, with an assessment com- managers' corps of the French public ser- mittee grading the candidates ('classement') vice. By letter of 20 August 1993 the at the end of the training. Candidates who Minister rejected her application, essen- have successfully completed the training tially on the ground that admission to the course are established in the public service. French public service was subject to the candidate passing a competition.

V — The first question IV — Questions referred for a preliminary ruling

15. The Cour Administrative d'Appel de A — Submissions of the parties Douai has stayed proceedings and has referred the following questions to the Court: 16. Ms Burbaud pointed out at the hearing that the French system infringes Article 39 EC and the general requirement of equal 1. Is a training course in a practical treatment in that it gives rise to — not training school for public servants, only indirect — discrimination. In that such as the ENSP (École Nationale de regard, she focused on the rules contained la Santé Publique; National School of in Article 5 of Decree No 88-163 under Public Health), leading to establish- which successful completion of the course ment in the public service, to be treated at the ENSP was a requirement for admis- in the same way as a diploma within sion to the profession and the selection the meaning of Council Directive system did not permit knowledge acquired 89/48/EEC of 21 December 1988 and, in another Member State to be taken into if so, how was the equivalence of the consideration, which deterred precisely diplomas from the National School of those candidates who were more highly Public Health, Lisbon, and the qualified. She added that France does not National School of Public Health, provide any justification for that system. Rennes, to be assessed?

2. If the answer to the first question is in 17. Moreover, Ms Burbaud expressed the the affirmative, may the competent view that the training at issue was covered

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18. The French Government disputes that the training at the ENSP which, upon successful completion, leads to establish- ment in the public service in hospital administration, falls within the scope of 21. It also submits that the statute for the Directive. Moreover, it maintains that public servants and in particular the over- the employment which is the subject-matter riding interest of the public service would of these proceedings is part of the national not permit employment under that statute public service, even if, on the basis of the to be regarded as a regulated profession Court's case-law, the exception contained within the meaning of the Directive. The in Article 48(4) of the EC Treaty (now Directive was created for professions which Article 39(4) EC) is not applicable to the may be pursued independently of a par- main proceedings. Owing to the peculiar- ticular field of activity and therefore not for ities of the French public service, the those in the field of activity of the public Directive did not apply to such employ- service. ment or to the statute which governs employees in the public service.

22. Finally, the French Government sub- 19. It points out that a student at the ENSP mits that a decree from the year 2000 serves a probationary period in the public provides for the possibility of exempting service as a paid 'agent stagiaire' immedi- from the training at the ENSP, in full or in ately after passing the entrance examin- part, those candidates who have been ation and that successful completion of the admitted to the 'concours' and have training at the ENSP coincides with estab- received equivalent training in a Member lishment in the public service, which is, in State other than France or in one of the fact, the main objective of the training. States parties to the EEA. However, that

24. The Swedish Government assumes that the profession of hospital administrator is to be classified as a regulated professional activity within the meaning of Article 1(d) of the Directive because admission to that profession presupposes successful comple- tion of an examination for entry to the ENSP, training, and success in the final examination there. It considers that, pro- 27. Pursuant to Article 3 of the Directive, vided that the other criteria laid down by the French authorities in the main proceed- the Directive are also met, the diploma is ings w e r e o b l i g e d to r e c o g n i s e thus a diploma within the meaning of the Ms Burbaud's diploma because it permitted Directive. It made no difference that a post admission to the same profession in the in the public service was connected with it. Member State where it was obtained. If Whether the diploma awarded to there were differences between the two Ms Burbaud was equivalent to that types of training, France could require that awarded by the ENSP was for the national compensatory measures be implemented as court to examine. provided for in Article 4(1) of the Directive.

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B — Assessment (a) Application of the Directive to profes- sions in the public service

1. Classification of training courses at schools such as the ENSP 30. First of all, an examination should be made of the French Government's sub- missions, according to which the Directive does not apply to professions in the public sector. 28. To answer the first question referred, it must first of all be determined whether employment in the public health sector, that is to say, in the public service, is covered by the Directive at all. Then, it must be examined whether the hospital administrator's diploma can be classified as 31. In that regard, reference is made to a a diploma within the meaning of the judgment of the Court 7 in which the Directive, and in particular whether the Directive was applied to a profession in profession of hospital administrator in the public service. France constitutes a regulated profession within the meaning of the Directive.

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33. However, the Directive does not pro- 36. Rather, to determine the extent of such vide for an express exception for profes- an exception under primary legislation, sions in the public service. Nevertheless, the reference should be made to the (narrow) 12th recital contains the following refer- interpretation of Article 48(4) of the EC ence to the exceptions laid down in primary Treaty (now Article 39(4) EC), the provi- legislation for employment in the public sion at issue in this case. service and for activities involving the exercise of public authority in a Member State:

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39. As far as professions in the health 42. It can therefore be concluded that, in sector are concerned, it can of course be principle, the Directive is also applicable to said that in principle they do not satisfy the employment in the public service. 11 condition developed in case-law and there- fore they do not fall within the scope of the exception provided for by Article 48(4) of the EC Treaty (now Article 39(4) EC). That is because that condition presupposes posts 'which actually involve direct or indirect participation in the exercise of powers (b) Is a hospital administrator's diploma a conferred by public law and duties designed diploma within the meaning of the Direc- to safeguard the general interest of the State tive? or of other public authorities'. 9

43. In order for the hospital adminis- trator's diploma to be regarded as a 40. Finally, an examination must also be diploma within the meaning of Article 1(a) made of the arguments advanced by the of the Directive, it must meet the require- French Government concerning the pecu- ments laid down in that provision, in liarities of the 'écoles d'administration' in particular that it has been awarded by a France, one of which is the ENSP. competent authority in a Member State, designated in accordance with its own laws, regulations or administrative provi- sions and that it qualifies the holder to take up a regulated profession.

41. The Court has held that for the excep- tion provided for by Article 48(4) of the EC Treaty (now Article 39(4) EC) to apply, it makes no difference whether a person is a public servant ('Beamter') or a salaried 44. There is no doubt that the ENSP employee ('Angestellter'). 10 Thus, the fact diploma meets the requirement of being that participants on the ENSP training awarded by a competent authority in a course are subject to special regulations, Member State, designated in accordance that is to say they are regarded as 'agents with its own laws, regulations or adminis- stagiaires', and that they are appointed trative provisions. With regard to the other public servants upon successful completion requirements, the only serious question is of the training, is also irrelevant. whether the profession at issue, for the

45. According to the legal definition in 48. Those conditions are fulfilled in the Article 1(c) of the Directive, a regulated present case. That is apparent from the profession is a profession which consists of provisions contained in Law No 86-33, in one or more regulated professional activ- Decree No 88-163 and in the statute ities. governing hospital administrators. It fol- lows from Article 5 of Decree No 88-163 that, in principle, recruitment to posts in the hospital public service is by way of a competition, which is a requirement for access to a course of training organised by the ENSP. Successful graduates are estab- lished in the public service. 46. From Article 1(d) of the Directive, it also follows that a regulated professional activity is a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by 49. It follows from the above that in order virtue of laws, regulations or administrative to pursue the profession of hospital admin- provisions, to the possession of a diploma. istrator, it is necessary to complete the training course successfully. Thus, a 'pro- fessional monopoly' exists.

47. The following interpretation of that provision was given by the Court in 50. The fact that the ENSP diploma is also Aranitis: the document which records appointment as a public servant is as irrelevant as the fact that candidates have already been admitted to the public service during their training course. Those two aspects merely demonstrate the different functions of the diploma and testify to its dual nature as 'Access to, or pursuit of, a profession must evidence of the successful completion of the be regarded as directly governed by legal course and as an instrument of appoint- provisions where the laws, regulations or ment. administrative provisions of the host Member State create a system under which that professional activity is expressly 12 — Case C-164/94 Aranitis [1996] ECR I-135, paragraph 19.

52. The second part of the first question referred concerns the equivalence of the 55. However, as the Swedish Government certificate from the National School of correctly observes, such an examination is a Public Health, Lisbon, and the diploma matter for the competent national auth- from the ENSP. orities. Whilst it is for the Court of Justice to give the national court guidance as to the interpretation required to decide the case, it is for the national court to assess the facts at issue in the light of the criteria adopted by the Court of Justice. That applies in 53. Proceeding from Article 3 of the Direc- particular in view of the nature of the tive, which is the central provision in that analysis to be carried out. 14 That is regard, it should be examined whether the because the application of Community applicant, Ms Burbaud, possesses a legislation and its implementing provisions diploma which is required in another to a particular case is a matter for the Member State, in this case Portugal, for national court. the taking up and pursuit of the profession of hospital administrator in Portugal. It should therefore be examined whether the 13 — With regard to this danger of nominalism, see Scordam- certificate from the National School of aglia (cited in footnote 11), p. 276. 14 —Case C-446/98 Fazenda Pública [2000] ECR I-11435, Public Health, Lisbon, is required for the paragraph 23.

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VI — The second question the most objective way of implementing the principle of equal access to the public service.

56. The second question referred concerns whether specific conditions for admission to the public service are permissible, in particular a specific form of entrance 59. It therefore followed that a competition examination. Moreover, that question could not in any way be regarded as a relates only to the situation where the diploma within the meaning of Article 1 of persons concerned have already sat a the Directive and thus Member States were competition in their country of origin and not obliged to recognise any equivalence rely on an equivalent diploma. between competitions organised by them and those organised in another Member State.

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62. However, such subject-matter fell of freedom of movement for workers within the competence of the Member State (which, clearly, is directly applicable) even concerned, which should be free to choose if it was applied without discrimination to the recruitment procedure which best nationals of the host State and nationals of suited its own system and its own require- other Member States. ments. Nevertheless, such freedom was not unlimited since there were restrictions derived from any applicable Community legislation and the prohibition of discrimi- nation against workers.

65. However, the Swedish Government considers that the existing system could be compatible with Community law if it pursued an objective which was in the general interest and it did not go beyond what was necessary to achieve that objec- tive. However, that was a matter for the 63. Proceeding from its observations on the national court. The fact that Ms Burbaud first question, the Swedish Government had already sat a competition in Portugal submits that Ms Burbaud satisfies the was irrelevant in view of the objective of training requirements laid down for hospi- the French competition. tal administrators in France. Thus, she should not be required to sit the entrance examination for the ENSP.

placed the highest qualified workers at a B — Assessment disadvantage because their qualifications could not be taken into account. Con- sequently, the existing system acted as a deterrent. It was even discriminatory because there was a majority of foreign workers among the group of those placed at a disadvantage, since candidates from France had not yet had the opportunity to 70. The second question concerns the pecu- gather comparable professional experience. liarities of the French system of recruitment to hospital public administration. The present case relates to a system which provides for an assessment both before and after a training course, that is to say a selection competition and an assessment as to whether the course has been completed successfully. 68. The Commission submits that the competition is part of the recruitment system and must be regarded separately from the recognition of diplomas. The recognition of diplomas did not confer any right to employment. Instead, the recruitment systems in existence on the relevant labour market applied. Thus, the French authorities were able to stipulate 71. It must be noted first of all that the that a competition should be sat even by question referred concerns not only the those persons who had already sat a com- entrance examination ('concours d'entrée') parable competition in their country of but also the assessment as to whether the origin. However, this had to ensure access course has been completed successfully, to the profession and not only access to a because admission to the ENSP is presented training course. only as one of the conditions for entry to the public service.

75. As the Commission correctly points out, a selection mechanism for admission to the public service is permissible in principle. As already stated when address- ing the first question, the system chosen by France combines training and admission as well as quantitative and qualitative elements in its selection procedure. That applies both to the entrance examination 77. As the Swedish Government and the and to the assessment at the end of the Commission correctly point out, not only course; the participants on the training newcomers to the profession but also qualified applicants are subject to the French system. In particular, that applies 15 — This essentially concerns the principles contained in Case to the requirement to pass an entrance C-340/89 Vlassopoulou [1991] ECR I-2357. Cf. Case C-238/98 Hocsman [2000] ECR I-6623, paragraphs 23 et examination for a place on the training seq. and 31 et seq., and Case C-31/00 Dreessen [2002] ECR I-663, paragraph 24 et seq. course.

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78. In accordance with the requirements of munity law in that it does not permit the Directive, Member States must provide previously obtained qualifications to be for a test of the equivalence of diplomas. If taken into account. However, the obli- such a test shows that a diploma obtained gation to recognise 'end products', 17 that is in another Member State is 'equivalen[t]' to to say to recognise an equivalent diploma that from the ENSP (and the second ques- obtained in another Member State, con- tion is raised only where this is the case), stitutes one of the basic principles of the applicants should not even be required to Directive. attend the training course.

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qualitative admission restrictions, 19 that is is to say tests which do not permit previous to say the recognition of diplomas. qualifications to be taken into account at all.

84. Thus, an obligation (possibly) to adapt recruitment systems can at least be derived from the Directive. This means that, within the context of competition procedures, provision must be made for the possibility 87. The necessary adaptations of national of taking into account qualifications law may in themselves require legal acquired in another Member State. 20 Thus, changes to be made to existing recruitment in certain circumstances, the Directive also systems, for example to the special provi- requires a closed monopoly to be trans- sions for the hospital public service in the formed into an open monopoly. 21 general statute or to the respective decrees concerning 'agents stagiaires' or the 'ENSP'. 23 This could be achieved, for instance, by extending exceptions that already exist to cases concerning the rec- ognition of diplomas. In that connection 85. It is true that, as already stated above, reference need only be made to the existing Article 4 of the Directive permits Member exceptions for cases of ' m u t a t i o n ' States to require compensatory measures to (transfer) 24 or 'tour extérieur' (fast stream be implemented and such measures may career progression). also be incorporated into a (modified) selection procedure. 22

(2) The competent authority may not make admission to the public service of the host State of public servants from another Member State who rely on an equivalent diploma within the meaning of the Directive subject to conditions, and in particular subject to passing an examination such as that in the main proceedings.

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