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5. However, Ms Beuttenmüller is graded at 1 — Original language: Spanish. 2 — Council Directive 89/48/EEC of 21 December 1988 on a a lower professional level than teachers general system for the recognition of higher-education who hold the qualification required in diplomas awarded on completion of professional education and training of at least three years' duration (01 1989 L 19, Baden-Württemberg, and she receives lower p. 16). 3 — 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 (01 1992 L 209, p. 25). 4 — At the Archdiocese of Vienna College of Education.

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remuneration than that awarded to such general principles of teaching subjects teachers.5 For that reason, by letter dated included in the syllabus to pupils with 16 March 1998, Ms Beuttenmiiller applied, special needs. In any event, both types of on the basis of Directives 89/48 and 92/51, training and education are the same for the to the Oberschulamt (Department of Edu- purposes of obtaining employment. cation), Stuttgart, for her Austrian qualifi- cation to be treated in the same way as the diplomas awarded in the Land where she works and for her salary scale to be increased. 6

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I I — The questions referred for a pre- on those provisions of the directive as liminary ruling against all national provisions that are not in conformity with the directive?

9. In view of the fact that the claims put forward by the claimant are based on the direct applicability of Directives 89/48 and If the answer to the first and/or second 92/51, and in the light of the arguments question is in the affirmative: submitted in the proceedings, the Verwal- tungsgericht Stuttgart decided to refer the following questions to the Court of Justice for a preliminary ruling:

If the answer to the first question is in the scribed higher education and training affirmative: (higher-education studies) or as mean- ing that the probationary period of teaching practice (probationary ser- vice) counts towards the "post-second- ary course of more than four years' 4. Is the second subparagraph of Article duration"? 1(a) of Directive 89/48/EEC to be interpreted as meaning that the quali- fication for the profession of primary- school teacher awarded on the basis of 6. If Article 3, first subparagraph, of the former two-year system of educa- Directive 92/51/EEC applies to profes- tion and training in Austria is to be sional teaching qualifications awarded treated in the same way as a diploma after only two years' (higher) educa- within the meaning of the first sub- tion and training in Austria: paragraph of Article 1(a) of Directive 89/48/EEC where the competent authority in Austria confirms that the examination certificate awarded fol- lowing education and training of two In the event of failure to transpose years' duration is recognised, for the Directive 92/51/EEC within the period purposes of the application of the prescribed in Article 17 thereof, does second subparagraph of Article 1(a) Article 3(a) of that directive give rise to of Directive 89/48/EEC, as being of a an entitlement to have a teaching level equivalent to the diploma (exam- qualification awarded in a Member ination certificate) currently awarded State treated in the same way as the after three years' study and confers the corresponding qualification for a same rights in Austria in respect of the teaching career in the host Member taking up or pursuit of the profession State without the host Member State of primary-school teacher? being permitted — where the particu- lar conditions are fulfilled — first of all to require compensatory measures to be applied under Article 4 of the directive?' If the answer to the second question is in the affirmative:

14. Some of the barriers which Article 3 EC seeks to abolish are actually caused by the laws, or simply the administrative practices, of the Member States, which 12. Article 3(1)(c) EC stipulates that one require people to hold a specific qualifica- method of achieving the aims of the tion, awarded by the authorities of the Community, set out in Article 2 EC, is the Member State concerned, in order to pursue establishment of 'an internal market char- a particular profession. Thus, indirectly, acterised by the abolition, as between many European Union citizens are liable to Member States, of obstacles to the free find their freedom of movement unjustifi- movement of goods, persons, services and ably impeded through discrimination on the capital'. 10 grounds of nationality, as a result of the diplomas required by a particular Member State being those awarded under its own education system. 10 — Freedom of movement and its corollary, the right to choose freely where to reside within the territory of the Member States, were established later, under the Treaty of Maastricht, as an integral part of the legal status of citizenship of the Union (Articles 8a(1) and 8(1) of the Treaty on European Union and Articles 18(1) EC and 17 11 — Article 39(2) EC and the first paragraph of Article 49 EC (1) EC). They are now included in the Charter of lay down the same principle in relation to freedom of Fundamental Rights of the European Union (Article 45 movement for workers and freedom to provide services (1); OJ 2000 C 364, p. 1) and are set out in the Draft respectively. Treaty establishing a Constitution for Europe (Article 8(2), 12 — See the judgment in Case 2/74 Reyners [1974] ECR 631, first indent; CONV 820/03, 797/1/03 REV 1). paragraph 17.

16. However, the principle of freedom of establishment without discrimination on grounds of nationality is directly applicable even if the relevant directives have not been 17. That assertion is based on the duty of adopted. That was the view the Court took the Member States, under Article 10 EC (ex in Rey ners. 14 In such circumstances, the Article 5 of the EC Treaty), to adopt all Member States remain, as a matter of appropriate measures, whether general or principle, competent to regulate the use of particular, to ensure fulfilment of the professional qualifications on their terri- obligations arising out of the Treaty and tory. Those powers are not without limits, to abstain from any measure which could however, in that their application may not jeopardise the attainment of the objectives constitute an obstacle to the effective provided for therein. 17 It also has the effect exercise of freedom of establishment. 15 of ensuring that a Member State which That freedom is unjustifiably restricted receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification 13—The principle of equivalent treatment of professional must take into consideration the certifi- qualifications is supplemented by Article 149(2) EC, second indent, (ex Article 126(2), second indent, of the cates, diplomas and other evidence of EC Treaty), which refers to the principle of 'academic recognition'. On the distinction between the two types of qualifications which the person concerned recognition and how they relate to one another, see Pertek, has acquired in order to exercise the same J., 'Une dynamique de la reconnaissance des diplômes à des fins professionnelles et à des fins académiques: réalisations profession in another Member State by et nouvelles réflexions', La reconnaissance des qualifica- making a comparison between the specia- tions dans un espace européen des formations et des professions, Bruylant, Brussels, 1998, pp. 119 to 204. See lised knowledge and abilities certified by also by the same author, 'La reconnaissance mutuelle des diplômes d'enseignement supérieur (Commentaire de la those diplomas and the knowledge and directive du Conseil du 21 décembre 1988)', Revue qualifications required by the national trimestrielle de droit européen, 1989, no 4, pp. 623 to 646, in particular p. 624. Crayencour, J.-P. also referred to rules. 18 the distinction some time ago in a paper entitled 'La reconnaissance mutuelle des diplômes dans le Traité de Rome', Revue du Marché Commun, 1970, no 137, pp. 447 to 461, in particular p. 452. 14 — Paragraph 1 of the operative part of the judgment. The Court also ruled to that effect in Case 11/77 Patrick [1977] 16 — Case 71/76 Thieffry [1977] ECR 765, paragraph 19. ECR 1199, paragraph 17, and Case 222/86 Heyiens 17 — Heyiens, paragraph 12. [1987] ECR 4097, paragraph 11. 18 —Case C-340/89 Vlassopoulou [19911 ECR I-2357, para- 15 —Case C-19/92 Kraus [1993] ECR I-1663, paragraphs 27 graph 16. See also Case C-104/91 Aguirre Borrelt and and 28. Others [1992] ECR I-3003, paragraph 11.

1. The sectoral directives 20. The system was applied to the regula- tion of the professional activities of doc- tors, 21 nurses, 22 dentists, 23 veterinary sur- 19. With a view to overcoming those difficulties and facilitating the effective exercise of the right of freedom of establish- 21 — Council Directive 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other ment, special directives regulating particu- evidence of formal qualifications in medicine, including lar professions were enacted during the measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1975 L period from 1975 to 1985. That system, 167, p. 1), and Council Directive 75/363/EEC or 16 June 1975 concerning the coordination of provisions laid down which is described as 'sectoral and verti- by law, regulation or administrative action in respect of cal', 20 required the adoption of two provi- activities of doctors (OJ 1975 L 167, p. 14). Both directives were repealed by Council Directive 93A6/EEC of 5'April sions for each profession: one aimed at 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other coordinating and harmonising training and evidence of formal qualifications (OJ 1993 L 165, p. 1). education in the Member States, and the 22 — Council Directive 77/452/EEC of 27 June 1977 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of nurses responsible for general care, including measures to facilitate the effective exercise of this right of establishment and freedom to provide services (OJ 1977 L 176, p. 1), and Council 19 — See Pertek, J., 'La reconnaissance des diplômes, un acquis Directive 77/453/EEC of 27 June 1977 concerning the original à développer', Journal des tribunaux. Droit coordination of provisions laid down by Law, Regulation européen, No 62 (1999), pp. 177 to 183, in particular or Administrative Action in respect of the activities of pp. 178 and 179. nurses responsible for general care (OJ 1977 L 176, p. 8). 20 — See Alvargonzález Figaredo, M., Έl sistema general de 23 — Council Directive 78/686/EEC of 25 July 1978 concerning reconocimiento de los diplomas de enseñanza superior. La the mutual recognition of diplomas, certificates and other libre circulación de personas y servicios y el ejercicio de las evidence of the formal qualifications of practitioners of profesiones liberales', Noticias C.E.E., year VIÍI/1992, No dentistry, including measures to facilitate the effective 90, pp. 35 to 45, particularly p. 39; and Favret, J.-M., 'Le exercise of the right of establishment and freedom to système general de reconnaissance des diplômes et des provide services (OJ 1978 L 233, p. 1), and Council formations professionnelles en droit communautaire; Directive 78/687/EEC of 25 July 1978 concerning the l'esprit et la méthode (Règles actuelles et développements coordination of provisions laid down by Law, Regulation futurs)', Revue trimestrielle de droit européen, No 2 (1990), or Administrative Action in respect of the activities of pp. 259 to 280, particularly pp. 259 and 260. dental practitioners (OJ 1978 L 233, p. 10).

24 —Council Directive 78/1026/EEC of 18 December 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary 23. The aim of Directive 89/48 is, there- medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to fore, to facilitate the free movement of provide services [OJ 1978 L 362, p. 1], and Council persons and services, by enabling Commu- Directive 78/1027/EUC of 18 December 1978 concerning the coordination of provisions laid down by Law, nity citizens who have obtained a qualifica- Regulation or Administrative Action in respect of the activities of veterinary surgeons (OJ 1978 L 362, p. 7). tion in one Member State to use that 25 — C o u n c i l Directive 80/154/EEC of 21 January 1980 qualification in another Member State. concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in midwifery and including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1980 L 33, p. 1), and Council Directive 80/155/EEC of 21 January 1980 concerning the coordination of provi- sions laid down by Law, Regulation or Administrative Action relating to the taking up and pursuit of the activities of midwives (OJ 1980 L 33, p. 8). 26 —Council Directive 85/384/EEC of 10 June 1985 on the 24. Accordingly, Directive 89/48 applies to mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including any national of a Member State who holds measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1985 L a diploma and wishes to pursue a regulated 223, p. 15). There was no harmonisation directive to cover profession in another Member State, either architects. in a self-employed capacity or as an 27 —Council Directive 85/432/EEC of 16 September 1985 concerning the coordination of provisions laid down by employed person. The directive does not Law, Regulation or Administrative Action m respect of certain activities in the field of pharmacy (OJ 1985 L 253, apply to activities which are the subject of a p. 34), and Council Directive 85/433/EEC of 16 September separate directive governing the mutual 1985 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in recognition of diplomas. In such cases, the pharmacy, including measures to facilitate the effective exercise of the right of establishment relating to certain special rules concerned will apply (Article activities in the field of pharmacy (OJ 1985 L 253, p. 37). 2). 28 — Point I(i) of the Report to the European Parliament and the Council of 15 February 1996 on the state of application of the general system for the recognition of higher education diplomas (COM(46) final). The differences between the two systems ('sectoral directives' and 'general directives') were pointed out recently bv the Court in Case C-110/01 29 — See Favret, J.-M., op. cit. Tennah-Durez [2003] ECRI-6239, paragraphs 30 to 34 30 — See the introduction to the Commission report, cited and 65. above.

28. Article 3, which sets out the principle 26. The second subparagraph of Article 1 of mutual good faith referred to above, (a) of Directive 89/48 provides that any establishes the presumption that education diploma, certificate or other evidence of and training completed in different Member formal qualifications, awarded on the States, and leading to the award of a successful completion of education and diploma authorising the holder to pursue training received in the Community, recog- a particular profession, must be treated in nised by a competent authority in the the same way, by providing that: Member State which awarded them as being of an equivalent level and conferring the same rights in respect of the taking up and pursuit of a regulated profession in that Member State, shall be treated in the same way as a diploma as defined in the first subparagraph. 32 'Where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, the competent authority may not, on the 27. A profession is regulated in a Member grounds of inadequate qualifications, refuse State if it constitutes a professional activity, to authorise a national of a Member State in so far as the taking up or pursuit of such to take up or pursue that profession on the activity or one of its modes of pursuit in a same conditions as apply to its own nationals:

31 — The directive uses the terms 'diploma, certificate or other evidence of formal qualifications or any set of such 33 — See Case C-164/94 Aranitis [1996] ECR I-135, paragraph diplomas, certificates or other evidence'. 19, and Case C-234/97 Fernández de Boadilla [1999] ECR 32 — The Spanish versions of the directives do not distinguish I-4773, paragraph 17. between the terms diploma and título, and it is therefore 34 — See Case C-294/00 Gräbner [2002] ECR I-6515, para- necessary to use them synonymously. graph 32 in fine.

29. That presumption is not absolute and evidence may be submitted to challenge it. — which have been awarded by a The duration of the education and training competent authority in a Member completed by the applicant in the Member State, designated in accordance State of origin, leading to the award of the with the laws, regulations or diploma, may be shorter than that required administrative provisions of such in the host Member State, or there may be State, substantial differences between the courses undertaken or between the sphere of activity of the profession in the two Member States. In those circumstances, Article 4 of Directive 89/48 authorises the host Member State to impose, as appro- — which show that the holder has priate, three compensatory measures. ' successfully completed a post-sec- ondary course of at least three years' duration, or of an equivalent duration part-time, at a university or establishment of higher educa- tion or another establishment of 30. The first compensatory measure con- similar level of a Member State sists of requiring the applicant to provide and, where appropriate, that he evidence of additional professional experi- has successfully completed the pro- fessional training required in addi- tion to the post-secondary course 35 — On the subject of the compensatory measures, see the and papers referred to above by Pertek, J. and Favret, J.-M.

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enee to make up for a shortfall of at least precise knowledge of national law or entail one year in the duration of the education a decision by the host Member State in and training concerned. The period of accordance with Article 10 of the Directive, professional experience required is depen- in which case it is the host Member State dant on a number of parameters, but under which chooses (final subparagraph of Arti- no circumstances may it exceed four years. cle 4(1)). Professional experience is defined as 'the actual and lawful pursuit of the profession concerned in a Member State'.

36 — Article 1(e) of Directive 89/48. 35. The void was filled by Directive 92/51, 37 — Article 1(f) of Directive 89/48. which is also aimed at enabling Community 38 — Article 1(g) of the Directive. citizens to pursue one of the professions I-5418

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concerned in a Member State other than entry to university or higher education that in which they were awarded their (Article 1(a) of Directive 92/51, in conjunc- professional qualifications, 39 meaning that tion with Article 1(a), second indent, of such State is required to take account of Directive 89/48). qualifications acquired in the other Mem- ber State and to determine whether those qualifications correspond to the qualifica- tions which are required under its own national law. 40 38. Directive 92/51 also provides that a qualification is to be treated in the same way as a diploma if it is awarded by the authorities in a Member State on successful completion of 'education and training received in the Community and recognised 36. With that aim in mind, Directive 92/51 by a competent authority in that Member creates a general system for the recognition State as being of an equivalent level and if it of qualifications, which is based on the confers the same rights in respect of the same principles and contains the same rules taking up and pursuit of a regulated as the system established in Directive 89/48, profession in that Member State' (final which it complements. 41 subparagraph of Article 1(a)).

89/48/EEC, required in another Mem- Article 1(a) of Directive 89/48/ ber State for the taking up or pursuit of EEC, of at least one year's dura- the profession in question in its terri- tion, or of equivalent duration on a tory, such diploma having been part-time basis, one of the condi- awarded in a Member State; or tions of entry of which is, as a general rule, the successful comple- tion of the secondary course required to obtain entry to univer- sity or higher education, as well as any professional training which is an integral part of that post- secondary course, (b) if the applicant has pursued the profes- sion in question full-time for two years, or for an equivalent period on a part- time basis, during the previous 10 years in another Member State which does not regulate that profession within the meaning of either Article 1 (e) and the first subparagraph of Article 1(f) of this Directive or Article — or attests to regulated education 1(c) and the first subparagraph of and training referred to in Annex Article 1(d) of Directive 89/48/EEC, D, and and possesses evidence of education and training which:

— has prepared the holder for the — has been awarded by a competent pursuit of his profession. authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that State, and

However, the two years' professional experience referred to above may not be required where the evidence of education — either shows that the holder has and training held by the applicant and successfully completed a post-sec- referred to in this point is awarded on ondary course, other than that completion of regulated education and referred to in the second indent of training.

By way of derogation from the first subparagraph of this Article, the host Member State is not required to apply this Article where the taking up or pursuit of a regulated profession is subject in its country to possession of a diploma as defined in Directive 89/48/EEC, one of the conditions for the issue of which shall be the comple- 42. The second matter on which the two tion of a post-secondary course of more articles differ relates to the choice of than four years duration.' compensatory measure. In general, it is for the person applying for recognition to choose between an adaptation period and an aptitude test (second subparagraph of Article 4(1)(b)). However, it is for the host Member State to choose in the cases set out in Directive 89/48 and also where the following two conditions are met: (1) the taking up or pursuit of the profession 40. Article 4 of Directive 92/51 provides concerned is subject, in the host Member for the same set of compensatory measures State, to possession of a diploma as defined as Article 4 of Directive 89/48, in the event in Directive 89/48, one of the conditions for of differences in duration of the courses the award of which is the completion of a concerned, and of substantial differences post-secondary course of at least three between the education and training, or the years' duration; and (2) the applicant holds sphere of professional activity, in the two either a diploma or evidence of education Member States. The rules are identical in and training as defined in Directive 92/51 both cases, except in relation to two (third subparagraph, second indent, of matters. Article 4(1)(b)).

45. In Badem-Württemberg, Paragraph 28 (a) of the Landesbeamtengesetz (Law on Land Officials), in the version dated 19 March 1996, 43 which governs 'Career qualifications under provisions of European law', provides that a career qualification may be acquired under Directives 89/48 and 92/51. It is for the respective ministries ( 1 ) the applicant is a national of a Member to adopt the implementing regulations State of the European Union or of under the powers vested in them. another Contracting State to the Agreement on the European Economic Area, 42 — Directives 89/48 and 92/51 were amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p. 1), which extends to the first general system of recognition the 44 — Verordnung des Baden-Württembergischen Kultusminis- concept of 'regulated education and training', introduced teriums zur Umsetzung der Richtlinie 89/48/EWG des by Directive 92/51, so that experience gained after the Rates vom 21 Dezember 1988 über eine allgemeine award of a diploma may also be taken into account for the Regelung zur Anerkennung der Hochschuldiplome, die purposes of recognition of that diploma. eine mindestens dreijährige Berufsausbildung abschließen, 43 — BGBl., p. 286. für Lehrerberufe vom 15.08.1996 (BGBl., p. 564).

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(2) the qualification comprises at least two 3. If the duration of the education and of the subjects stipulated for the teach- training does not meet the requirements in ing profession in question in Baden- subparagraph 1(5), the applicant may be Württemberg, required to adduce evidence of professional experience.

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recognition of a teaching qualification 52. The other issue to be resolved is conditional on that qualification having whether the 'post-secondary course of more been awarded on completion of higher than four years' duration', referred to in the education and training of at least three second subparagraph of Article 3 of Direc- years' duration and preparing the holder to tive 92/51, which releases the host Member teach two subjects (third question). State from the duty of recognition, includes probationary periods of teaching practice (fifth question).

49. In order to answer that question in regard to Directive 89/48, it is necessary to consider, first of all, whether a teaching 53. However, before analysing the ques- diploma awarded in Austria on completion tions referred for a preliminary ruling, it is of two years' education and training is a important to describe the operation of the diploma within the meaning of Directive general systems of recognition created by 89/48, in accordance with the second the two directives. subparagraph of Article 1(a) thereof (fourth question).

50. Having resolved those uncertainties, it is then necessary to ascertain whether B — The operation of the general systems of Articles 3 and 4 of Directives 89/48 and recognition laid down in Directives 89/48 92/51 are directly applicable, so that they and 92/51 may be relied upon by citizens of the Member States in so far as they have not been transposed into national law or to the extent that they have been transposed inadequately (first and second questions). 54. For the purposes of these proceedings, it is necessary to differentiate between two types of professional education and train- ing, one of which is referred to in Directive 89/48 and the other in Directive 92/51:

55. A person who is qualified to pursue a profession in his Member State of origin is entitled to have his diploma recognised so that he may carry on the same profession in (2) If the host Member State makes pursuit the host Member State. 49 That principle is of the profession conditional upon founded on the similarities which exist holding a diploma as defined in Direc- between the education and training tive 92/51 but the Member State of origin requires a diploma awarded on completion of education and training of at least three years' duration, 45 — First subparagraph of Article 1(a) of Directive 89/48. recognition is automatic. 46 — Second subparagraph of Article 1(a) of Directive 89/48. That provision was included to take account of persons who have not completed a higher-education course of more than three years' duration but who hold qualifications which grant them the same rights in respect of a particular profession. That situation arises, inter aha, in the United Kingdom, Ireland and Belgium (see Point III, Article 1(a)(v) and (vi) of the Commission Report). 47 — First subparagraph of Article 1(a) of Directive 92/51. 48 — Second subparagraph of Article 1(a) of Directive 92/51. (3) If both Member States require a 49 — First subparagraph, point (a), of Article 3 of both directives. diploma as defined in Directive 92/51,

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recognition is also automatic, subject, within the meaning of Directive 89/48 or where appropriate, to application of one within the meaning of Directive 92/51, the relevant compensatory measures. the system of recognition applies, without prejudice to the application of the compen- satory measures or the exceptions laid down in the two directives.

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qualifications obtained via an alternative they give rise to an entitlement to automatic educational path, which are referred to in recognition. 53 the second subparagraph of Article 1(a), are treated in the same way as the diplomas referred to in the first subparagraph thereof.

awarded on completion of a course which is not referred to in the first subparagraph of Article 1(a) of Directive 89/48 is replaced by another type of qualification which is 53 — In its written observations, the Commission considers that recognition must be granted under the second subpara- referred to in that provision, holders of the graph of Article 3, rather than the first. I believe that the old qualification will be covered by the Commission is mistaken and that its error may have arisen as a result of the confused use of terminology in some second subparagraph of Article 1(a), pro- versions of Directive 89/48. For example, in the Spanish version, the terms 'título" and 'títulos de formación' are vided that national law expressly recognises used in points (a) and (b) of the first subparagraph of the course as being of an equivalent level to Article 3, while 'título' also appears in the second subparagraph. Therefore, where the second subparagraph the new diploma and grants the holders of states that 'se equiparán al título contemplado en el párrafo primero' ('shall be treated in the same way as the evidence the qualification the same entitlement to of formal qualifications referred to in the first subpara- take up the profession. 52 Any other inter- graph'), it is unclear whether it is referring to point (a) or point (b). However, in other versions of the directive, pretation would make it impossible for different terms are used in points (a) and (b), and the second subparagraph uses the same term as point (b), national education systems to change, making it clear that it is referring solely to the diplomas mentioned in that point.

The same occurs in the German version, which uses 'Diplom' (point (a) of the first subparagraph of Article 3) and 'Ausbildungsnachweis' (point (b) of the first subparagraph and the second subparagraph of Article 3). 63. In other words, the alternative paths However, in its written reply to the questions formulated by the Court, the Commission agrees that the interpreta- referred to in the second subparagraph of tion I propose is valid. Article 1(a) are treated in the same way as 54 — In its reply to the questions formulated by the Court, the the diplomas defined in the first subpara- defendant in the main proceedings errs in its assertion that, because the profession is regulated in Austria and the graph and, in accordance with Article 3(a), claimant has not completed a course of at least three years' duration, under no circumstances may the claimant's teaching diploma be regarded as a diploma within the meaning of Directive 89/48. The defendant's error stems from its belief that recognition must be granted under Article 3, first subparagraph, point (b), of Directive 89/48, 51 — See p a r a g r a p h 5 3 of the C o m m i s s i o n R e p o r t whereas, as I have just pointed out, recognition must in fact COM/2000/0017 final. be granted under Article 3, first subparagraph, point (a), 52 — See Point III, Article 1(a)(vi) of the Commission Report thereof, in conjunction with the second subparagraph of COM(46) final. Article 1(a).

65. The Verwaltungsgericht Stuttgart also asks whether Articles 3 and 4 of Directives 89/48 and 92/51 preclude national legisla- tion which makes recognition of a profes- sional qualification conditional upon fulfil- 67. In the light of my analysis of the fourth ment of the following two requirements: (1) question, the same conclusion must be the qualification must be awarded on reached in relation to Directive 89/48. completion of higher education and train- Where education and training is capable ing of at least three years' duration; and (2) of leading to the award of a diploma within it must qualify the holder to teach at least the meaning of Directive 89/48, despite two of the subjects stipulated for pursuit of being of less than three years' duration, it the teaching profession in the host Member seems clear that the directive also precludes State. national legislation which makes recogni- tion of such a diploma conditional upon it being awarded on completion of education and training of three or more years' duration. That conclusion also follows from the linking system laid down in Directive 92/51, which, in principle, imposes on the host Member State an obligation to recognise diplomas awarded 1. Period of education and training of at on completion of education and training of least three years less than three years' duration, even where its national law stipulates that the diploma must be awarded on completion of a course of three or more years' duration. 66. The considerations set out above have demonstrated, without the need for further elaboration, that the first requirement is incompatible with Directive 92/51. The host Member State has a duty to recognise diplomas which attest to higher education and training of at least one but not exceeding three years' duration, even 2. Education and training which comprises where, under its own system, entitlement at least two of the subjects stipulated in the to pursue the profession in question is made host Member State subject to possession of a diploma showing that the holder has completed between three and four years' higher education and training, 55 without prejudice to the right of 68. In order to analyse the second require- ment, it is necessary to consider the specific 55 — See the first subparagraph, point (a), and the second nature of the teaching profession vis-à-vis subparagraph of Article 3 of Directive 92/51. the recognition of qualifications.

70. However, such measures may not constitute a means of avoiding the applica- 72. In the light of the above considerations, tion of directives governing the recognition it is my view that it is not in keeping with of diplomas and evidence of formal quali- the spirit or the letter of Directives 89/48 fications, which are based on the principle and 92/51 to require, indiscriminately and of mutual good faith and the presumption without regard to the individual circum- that courses for the pursuit of a regulated stances of each case, that a teacher from profession undertaken in one Member State are comparable to courses which another Member State stipulates for the pursuit of 58 — The circumstances giving rise to the main proceedings are the same profession, without prejudice to not anecdotal. The requirement, imposed by the German the adoption of additional compensatory Länder, that teachers who wish to settle i n their territory must hold a diploma qualifying them to teach two separate measures in the event of substantial differ- subjects is widespread and has long been a source of concern to the Commission, which considered the in ences in the duration or content of the its report of 15 February 1996 (Point IV, 'teachers', v) and education and training, or in the sphere of has brought a number of proceedings against the Federal Republic of Germany for failure to fulfil its obligations in activity of the profession concerned. this regard (see paragraphs 68 to 70 of the Commission's written observations). The matter was discussed in seminars held in 1990 and 1991, the minutes of which were published under the title Reconnaissance générale des diplômes et libre circulation des professionnels, Maas- tricht, 1992. The contribution by Parking, N., 'La Directive 56 — See the fifth recital in the preamble to Directive 89/48. 89/48/CEE: progrès sur la voie de la mise en oeuvre', refers to the specific characteristics of the German system, p. 50. 57 — See Crayencour, J.-P., op. cit., pp. 448 and 449.

60 — See Case 8/81 Becker [1982] ECR 53, paragraph 25; Case 75. The first and second questions ask 152/84 Marshall [1986] ECR 723, paragraph 46; and Case whether Articles 3 and 4 of Directives 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 29 et seq. For examples of more recent judgments, see Joined Cases C-465/00, C-138/01 and C-139/01 Rechnungshof and Others [2003] ECR I-4989, paragraph 98, and Case C-462/99 Connect Austria [2003] ECR I-5197, paragraph 114. 59 — See paragraph 71 of the Commission's written observa- 61 — See Case C-365/93 Commission v Greece [1995] ECR I- tions. 499, paragraph 9 in fine.

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78. It makes no sense to ask the question in relation to Article 4, in so far as the directives do not accord rights to indivi- Although, as I stated some time ago, 65 the duals but rather empower the Member principle of the vertical direct effect of States, in certain circumstances, to make directives laid down by the Court is based the rights granted in Article 3 of each on unconvincing reasoning, and despite the directive conditional upon fulfilment of fact that there are persuasive arguments in certain additional requirements. In other favour of a different approach, 66 the words, under Article 4 of Directives 89/48 current rate at which case-law is evolving and 92/51, Member States are permitted to makes it impossible to envisage any changes restrict those rights. to the prevailing situation such as to allow a Member State which has failed to imple- ment the provisions of a directive within the time-limit or has done so inadequately to invoke rights pursuant to that directive as against an individual. 79. The starting point for the case-law on the possibility of invoking directives, which is one of the Court's most novel and audacious developments, was the judgment in FranzGrad, 63 in which the Court relied on the direct effect of secondary acts of Community law other than regulations. 80. In short, Article 4 of Directives 89/48 The possibility of invoking measures is and 92/51 cannot be said to have direct

62 — That was the view taken by the Court or First Instance in relation to Directive 89/48 in Case T-16/90 Panagioto- 64 — See paragraph 48 of Marshall. poulou v Parliament [1992[ ECR II-89, paragraph 44. The 65 — Ruiz-Jarabo, D., 'El juez nacional como juez comunitario', Commission expressed the same opinion in its 1996 Report Civitas, Madrid, 1993, pp. 143 and 144. (Paragraph II.iv). 66 — See the Opinion of Advocate General Lenz in Case C-91/92 63 — Case 9/70 [19701 ECR 825. Faccini Dori [1994] ECR I-3325, paragraph 43 et seq.

81. It is important not to overlook the fact that Articles 3 and 4 of Directives 89/48 and 92/51 form an indivisible whole. Each Article 3 confers a right, while each Article F — The sixth question 4 authorises the Member States, in certain circumstances, to make the exercise of that right subject to a condition precedent, in the form of fulfilment of one or more of the compensatory measures. The provisions of each Article 4 respond to the lack of 83. In accordance with the second subpar- harmonisation — in relation to duration agraph of Article 1(a) of Directive 89/48, a or educational content — of the education diploma of the type held by the claimant in and training undertaken in the different the main proceedings is regarded as a national systems, or of the matters covered diploma within the meaning of the direc- by the profession in question, and seek to tive, provided that the Member State which make up for any shortcomings in the awarded the diploma recognises it as being education which the migrant worker of an equivalent level to the diplomas received in the Member State of origin. referred to in the first subparagraph and confers on the holder the same rights as on the holders of those diplomas in respect of the taking up or pursuit of a profession. Needless to say, the claimant's diploma may also be classified as a diploma under Article 1(a) of Directive 92/51. 82. The fact that Article 3 of Directives 89/48 and 92/51 is directly effective and may be invoked before the national courts does not support the argument that, where the host Member State has failed to implement the provisions correctly, any diploma covered by the measures, which 84. Accordingly, the first subparagraph of has been awarded and recognised by the Article 3 of Directive 92/51 applies to the authorities in another Member State, auto- claimant's diploma, which is capable of matically entitles the holder to pursue the being recognised, without prejudice to the profession concerned in the host Member application of the compensatory measures State, irrespective of the other circum- laid down in Article 4.

85. In the event of failure to transpose ments of Directive 92/51 and therefore falls Directive 92/51 within the time-limit pre- within the scope of Article 3 thereof, by scribed in Article 17, 6 7it is necessary to arguing that one or more of the compensa- consider whether recognition may be tory measures laid down in Article 4 must granted automatically, without it being first be applied. possible to apply the compensatory mea- sures. That is the tenor of the sixth question referred by the Verwaltungsgericht Stutt- gart. 89. That conclusion may also be reached by a different route. The rules set out in Article 4 do not apply automatically, and merely empower the Member States, in the event of differences in education and train- 86. The considerations I set out under E in ing, or in the scope of the matters covered section VI of this Opinion provide useful by the profession concerned, to make up for guidance on the reply to be given to this such shortfalls by requiring the applicant to question. take an aptitude test, complete an adapta- tion period, or provide evidence of profes- sional experience. There is nothing to preclude a Member State from recognising a diploma notwithstanding such differ- ences, and to refrain from imposing any 87. A Member State which has failed to measures designed to remedy the short- fulfil its obligation to transpose Directive comings and establish equivalence. It there- 92/51 into national law, properly and fore appears reasonable to presume that a within the prescribed time-limit, may not Member State which has failed to transpose deny Community nationals the opportunity Directive 92/51 into national law within the to exercise the rights granted to them under prescribed period has done so because, in that directive. Moreover, a Member State the view of that Member State, it is does not have the power to impose on such unnecessary to adopt measures aimed at persons any obligations or restrictions ensuring that education and training and arising from that directive which have not professional activities undertaken in other been transposed into national law. The Member States are treated in the same way defaulting Member State must not derive as education and training and professional any advantage from its failure to comply. activities undertaken within its territory.

92. The reply to that question is to be 95. Regulated education and training is found in a systematic interpretation of that which is specifically geared to a given Article 3 itself. profession, and which comprises a course or courses complemented, where appropri- ate, by professional training, probationary or professional practice, the structure and level of which are determined by legislation, or which are subject to monitoring or 93. If the profession concerned is regulated approval. 69 in both Member States, recognition is compulsory, provided that the applicant holds a diploma or qualification as defined in either directive (first subparagraph, point (a)).

96. By way of derogation, recognition is not compulsory if, in the host Member

94. If the Member State of origin does not 68 — Or which is awarded on completion of one of the courses regulate the profession, the host Member having a special structure listed in Annex D to the directive. State still has a duty to recognise the 69 — See Article 1(g) of Directive 92/51.

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State, the taking up or pursuit of a subparagraph of Article 3, the host Mem- regulated profession is subject to possession ber State is relieved of the obligation to of a diploma as defined in Directive 89/48/ recognise diplomas as referred to in Direc- EEC, the issue of which is conditional upon tive 89/48, which, in its territory, are the completion of a post-secondary course awarded on completion of periods of post- of more than four years' duration (final secondary education of more than four subparagraph of Article 3). years' duration, this must be taken to refer to the course itself and to any professional training required, rather than to proba- tionary periods of practice, since otherwise the balance of the provision and the relationship between the various concepts would be upset.

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OPINION OF MR RUIZ-JARABO — CASE C-102/02

VII— Conclusion

101. In the light of the foregoing considerations, I propose that the Court of Justice should reply to the questions referred for a preliminary ruling by the Verwaltungsgericht Stuttgart by declaring that:

(1) A diploma awarded in Austria on completion of the former teacher training course of two years' duration constitutes a 'diploma' for the purposes of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, if it has been recognised as equivalent and gives rise to the same entitlement to take up the profession as the current diploma which is awarded following education and training of three years' duration. It is for the national court to determine in each case, in the light of the matters of fact and law before it, whether both conditions have been met.

(2) Articles 3 and 4 of Directive 89/48/EEC, and of 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, preclude national legislation, such as the Baden-Württemberg Ministry of Education regulation of 15 August 1996, which makes recognition of a professional teaching qualification conditional on fulfilment of the following two requirements: (1) the qualification must be awarded on completion of higher education and training of at least three years' duration; and (2) it must qualify the holder to teach at least two of the subjects stipulated for pursuit of the teaching profession in the host Member State. I - 5436