C-153/02

3. The Nottingham Trent University ('Not- tingham Trent') is a university in Notting- ham, England. It is a 'recognised body' for the purposes of section 216(1) of the Education Reform Act 1988, being auth- 2. In a dispute between an Italian student orised to grant degrees. It offers Bachelor of and the educational organisation, the Giu- Arts (Honours) degrees in, inter alia, dice di Pace (Magistrate's Court), Genoa, politics and economics. wishes to know whether such an appli- cation of the Italian rules conflicts with Community law, in particular with the Treaty provisions concerning freedom of movement for workers, freedom of estab- lishment and freedom to provide services, with Council Directive 89/48 2 and with Council Decision 63/266. 3 4. The European School of Economics ('ESE') is a private limited company incor- 1 — Original language: English porated and established in the United 2 — Council Directive 89/48/EEC of 21 December 1988 on a Kingdom. It also has establishments in a general system for the recognition of higher-education diplomas awarded on completion of professional education number of other countries, in particular and training of at least three years' duration, OJ 1989 L 19, p. 16. Italy, where it apparently offers courses of 3 — Council Decision 63/266/EEC of 2 April 1963 laying down study at 12 locations. It is included in lists general principles for implementing a common vocational training policy, OJ, English Special Edition 1963-1964 (I), compiled by the Secretary of State pursuant p. 25. to section 216(2) of the Education Reform

6. At the hearing, the representative of the Italian Government stated that ESE's rela- tionship with Nottingham Trent had been 9. In order to facilitate the pursuit of terminated in December 2002. self-employed activities, Article 47(1) EC provides for the adoption of Council direc- tives for mutual recognition of professional qualifications as between Member States.

Relevant Community rules

10. Article 49 EC prohibits restrictions on 7. Articles 39 and 40 EC concern freedom the freedom to provide services where the of movement for workers. Article 39 pro- provider of the service is established in a h i b i t s a n y d i s c r i m i n a t i o n b a s e d on Member State other than that of the recipi- nationality as regards work and employ- ent.

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15. A letter from the Ministry for Univer- sities a n d Scientific R e s e a r c h d a t e d 12. Council Directive 89/48, adopted in 3 October 2000 states that 'recognition particular on the basis of what are now Articles 40 and 47(1) EC, establishes a general Community system for mutual 4 — It is confined to diplomas of higher education, that is to say at university level. For other post-secondary diplomas recognition of higher-education diplomas required for access to regulated professions, a complement- ary system is set up by Council Directive 92/51/EEC of awarded on completion of at least three 18 June 1992 on a second general system for the recognition years' professional education and training, of professional education and training to supplement Directive 89/48/EEC, OJ 1992 L 209, p. 25. to enable Community nationals holding a 5 — GURI, 7 December 1933, N o 283. qualification issued in one Member State to 6 — GURI, 18 February 1992, N o 40.

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obtained pursuant to Legislative Decree awarded, proving actual residence in that 115/92 allows only pursuit of the profes- country by the person concerned for the sion already pursued in the country of whole period of the university studies'. origin'. That condition is explicitly stated to apply only to Italian citizens.

17. Both those letters, which have been produced before the Court, refer expressly to qualifications obtained after study at 20. At the hearing the representative of the ESE. Italian Government stated that the legal situation had been changed in particular by Law N o 148/2002 of July 2002 — thus after the date of the order for reference — with the result, essentially, that the recog- nition of foreign degrees was no longer subject to ministerial instructions or prac- tices but was a matter for each university 18. A circular issued by the Ministry of alone. It is not however clear what effect Foreign Affairs and also produced before such amendments may have on problems the Court confirms those indications by such as that which has arisen in the present stating that Italian citizens applying for case. recognition of degrees awarded abroad must have 'an attestation from the Italian diplomatic or consular representation in 7 — Article 8 of Law No 341 of 19 November 1990, GURI the foreign country in which the degree was No 274 of 23 November 1990.

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The main proceedings The order for reference

22. Thus, in order to avoid the extra expense of studying in the United Kingdom, Ms Neri enrolled for the Nottingham Trent course offered through ESE at its Genoa 25. The national court further considers campus. She paid ESE a fee instalment of that the Court's judgment in Kraus, 9con- ITL 4 000 000 (EUR 2 065.83) for the cerning the type of verification permissible academic year 2001/02. when a Member State is requested by one of its own nationals for administrative authorisation to use an academic title awarded in another Member State, is also relevant. In addition, Directive 89/48 could be contravened if the rights which it confers may be relied on during the course of study 23. Some time later, she became aware of prior to the award of a qualification. the Italian rules described above. She there- Finally, the Italian practice might be fore sought reimbursement of the fee contrary to the principles laid down in already paid, but ESE refused on the Decision 63/266. grounds, inter alia, that it was authorised to provide courses of university study lead- ing to the award of a degree by Nottingham 8 — It appears that an appreciable number of cases in which Trent and that the degree awarded would students are similarly seeking reimbursement of fees paid to ESE are pending throughout Italy. Another reference has have full legal status in the United King- been made to the Court in Case C-432/02 Trombin, the procedure in which has been suspended pending the dom. Ms Neri then brought the action in outcome of the present case. the main proceedings. 9 — Case C-19/92 [1993] ECR I-1663.

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— make recognition of university 3. What is the meaning and scope of the degrees obtained on completion of expression "harmful interruption... of training of at least three years' v o c a t i o n a l t r a i n i n g " in C o u n c i l duration subject to the discretion Decision 63/266/EEC and does it cover of the public authorities; the creation at national level by the public authorities of a permanent sys- tem of information which evidences that degrees awarded by a university, even though legally recognised in the United Kingdom, cannot be recognised — g r a n t r e c o g n i t i o n in Italy of under national legislation if they have degrees awarded by universities been obtained on the basis of periods of recognised in the United Kingdom study completed in Italy?' only if completed after regular attendance for the whole course of studies at those universities, to the exclusion therefore of degrees awarded to Italian nationals on the basis of periods of study completed with foreign institutions operating 27. ESE, the Italian Government and the in Italy even though they are Commission have submitted written obser- approved and accredited by the vations and were represented at the hear- competent public authorities in ing. Ms Neri has submitted written obser- the Member State to which they vations. belong;

— require production of an attes- tation from the diplomatic repre- sentation — Italian consulate in the Assessment foreign country in which the degree was awarded — proving actual residence in that country by the person concerned for the whole period of the university studies;

32. ESE submits t h a t the teachers it employs are workers concerned by the article and that their freedom of movement is likely to be curtailed; the Commission 30. There is no suggestion that the Italian takes the view that the dispute in the main authorities systematically refuse to recog- proceedings concerns only the relationship nise all degrees awarded by Nottingham between Ms Neri and ESE. Trent or any other university in the United Kingdom or another Member State. The practices described do however appear to mean that recognition is automatically refused — that is to say without any examination of the nature or content of the course of study to which the degree 33. The Italian measures might, it is true, attests — when three factors are present: (i) have an effect on the employment of the awarding university is outside Italy, (ii) Community workers exercising their free- the course of study was followed in Italy, or dom of movement. If demand for ESE at least not in the country of the awarding courses drops, teaching staff may have to university, and (iii) the student is an Italian be laid off. Some members of that staff may national. well be nationals of another Member State who have taken up work in Italy. However, the relationship between that potential effect and, on the one hand, the application of the Italian practice with regard to recognition of the degrees concerned or, 31. The effect in the circumstances of the on the other hand, the nationality of ESE's present case is such as to discourage Italian employees and their exercise of freedom of students from studying with ESE in Italy movement seems too distant to allow any for a degree awarded by Nottingham Trent. serious scope for examining the practice in Demand for ESE courses of that kind is the light of Article 39 EC.

36. According to settled case-law, Article 43 EC embodies one of the funda- mental principles of the Community. It seeks to ensure that nationals of a Member State who establish themselves in another 39. However, they are triggered by the Member State in order to carry on business conjunction of three factors all dependent there receive the same t r e a t m e n t as either on nationality (Italian, in the case of nationals of the host Member State. 1 0 It students) or place of establishment (outside requires the elimination of restrictions on Italy in the case of Nottingham Trent; in freedom of establishment, and all measures Italy in the case of ESE). Any change in any which prohibit, impede or render less one of those factors is likely, as the Com- attractive the exercise of that freedom are mission's representative pointed out so to be regarded as constituting such restric- colourfully at the hearing, to involve a tions. 1 1In that context, it precludes 'not drastic change in the conditions under only overt discrimination by reason of which the educational courses are pro- nationality or, in the case of a company, vided, despite the fact that there is no its seat, but all covert forms of discrimi- change in any criterion relevant to the way nation which, by the application of other in which they are taught.

10 — See, for example, Case C-101/94 Commission v Italy 12 — See, for example, Case C-330/91 Commerzbank [1993] [1996] ECR I-2691, at paragraph 12 of the judgment. ECR I-4017, paragraph 14 of the judgment; more recently 11 — Case C-439/99 Commission v Italy [2002] ECR I-305, Case C-156/98 Germany v Commission [2000] ECR paragraph 22 of the judgment. I-6854, paragraph 83.

4 1 . Since the disputed administrative prac- tice renders ESE's courses in Italy leading to a Nottingham Trent degree less attractive for Italian students, it inevitably renders establishment in Italy in order to provide those courses less attractive for ESE. 44. As regards the services provided by ESE, ESE's activities in Italy appear to be carried out on a continuous and stable basis at several educational establishments in that country, and to involve no cross- border element. There is no suggestion that 42. I therefore have no difficulty in reach- students from other Member States wishing ing the view that the Italian administrative to follow its courses in Italy may do so practice described entails a restriction on other than by attending them in that the freedom of a company like ESE to country. Any restrictions placed on ESE's establish itself in Italy and carry on there exercise of its activities thus do not fall to the economic activity of providing courses be assessed in the light of the freedom to of study leading to the award of a degree provide services to recipients in another from a university such as Nottingham Member State. Trent.

Article 49 EC — Freedom to provide services

45. The situation is different as regards ESE's receipt of services, although this is not in fact an aspect in issue in the main 43. ESE submits that it is both a recipient proceedings. Nottingham Trent, a univer- and a provider of services. It is a recipient sity established in one Member State, provides inspection and validation services to ESE in another Member State. To the 13 — See Case C-55/98 Vestergaard [1999] ECR I-7641, para- extent that ESE's provision of courses graph 22 of the judgment, and the Opinion of Advocate General Saggio at paragraph 21. leading to Nottingham Trent degrees is

47. The Italian Government puts forward justifications based essentially on the need to ensure high standards in university education and to guarantee the authenticity of qualifications awarded by foreign uni- versities. Italian law views university edu- 49. However, even assuming the existence cation as a matter of public interest, of such a justification, any such verification expressing as it does the cultural and and control must be exercised on a case- historical values of the State which is by-case basis. By contrast, the adminis- trative practice described in the order for reference appears to preclude as a general 14 — See, for example, Commission v Italy, cited above in note 11, at paragraph 23 of the judgment. rule any recognition of degrees awarded in

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the circumstances I have set out in para- it is difficult to see why an organisation like graph 30 above. It leaves, apparently, no ESE should be excluded from such super- scope for verification of the content or vision. quality of the education leading to the award of those degrees.

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to impose restrictions on the recognition of 55. Those provisions make it clear that the foreign degrees. Directive applies only to diplomas which have already been obtained by a Commu- nity national who wishes to pursue a regulated profession in another Member State. Thus, it confers no right which can be relied on before the acquisition of a diploma.

54. In accordance with Article 2, the Direc- tive may be relied on by Community 56. In common with the Italian Govern- nationals wishing to pursue a regulated ment and the Commission, I do not con- profession in a host Member State in a sider that the Directive applies to the self-employed capacity or as an employed present case, since Ms Neri is not yet in person. Under Article 1(d), 1 6 the Directive possession of a diploma of the relevant applies to regulated professions the taking level — indeed, she has specifically up or pursuit of which is 'subject... to the renounced any attempt to obtain such a possession of a diploma'. Article 1(a) diploma via the route with which this case defines such a diploma as one awarded on is concerned. The Directive would come successful completion of a 'post-secondary into play only if she had already been course of at least three years' duration, or awarded a degree by Nottingham Trent of an equivalent duration part-time, at a following her studies at ESE and wished to university or establishment of higher edu- use it to gain access to a regulated pro- cation...' Under Article 3(a), access to a fession in Italy. For similar reasons, the regulated profession may not be refused on Court's case-law in Kraus 1 7 is not relevant the grounds of inadequate qualifications 'if on this point. the applicant holds the diploma required in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State'.

61. I am aware that if ESE is able to rely in the main proceedings on the interpretation of Community law which I have advocated 59. I agree however with the Commission above, Ms Neri is likely to lose her action that the Decision, which establishes the even though she has clearly also suffered principles of a common policy on profes- from the unlawful restrictions for which sional e d u c a t i o n for citizens of one neither party is responsible and which Member State wishing to pursue an edu- neither party wishes to see maintained. cation in another Member State, is of a general and programmatic nature. In Com- mission v Council 18the Court described it as the point of departure for a process of gradual implementation of the common vocational training policy. It must thus be seen as establishing guidelines or general principles for further, more specific meas- 62. It will be for the Italian authorities to ures which will give shape to that policy. bring their rules into line with Community law as promptly as possible — to the extent that this has not already been achieved 2 0 — in order to avoid further harm to schools such as ESE or students wishing to study with them. If harm has already been suffered or continues to be suffered, it is possible that a claim for reparation may lie 60. Consequently, in the absence of any against the Italian State. binding effect of Decision 63/266 and since

19 — In contrast, for example, to the situation in Case C-293/83 18 — Case C-242/87 [1989] ECR 1425, at paragraph 10 of the Gravier [1985] ECR 593. judgment. 20 — See paragraph 20 above.

(3) Council Decision 63/266/EEC of 2 April 1963 laying down general principles for implementing a common vocational training policy does not impose any binding rules on Member States, nor does it apply to situations in which a person does not seek to study outside his or her home Member State.

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