Opinion of Advocate General Léger delivered on 17 May Conseil national de l'ordre des architectes v Nicolas Dreessen

Transcription

1 Opinion of Advocate General Léger delivered on 17 May 2001 Conseil national de l'ordre des architectes v Nicolas Dreessen Reference for a preliminary ruling: Cour de cassation Belgium Reference for a preliminary ruling - Articles 10 EC and 43 EC - National legislation restricting access to the profession of architect to the possession of a diploma or professional qualification - Community national holding a diploma not listed in Directive 85/384/EEC - Obligation on the host Member State when presented with an application to practise the profession of architect on its territory to make a comparison between the specialised knowledge and abilities certified by the diploma and the experience acquired, and the qualifications required by its national legislation Case C-31/00 European Court reports 2002 Page I Opinion of the Advocate-General 1. The present reference for a preliminary ruling concerns the implementation of freedom of establishment for architects. 2. At the heart of the question referred to the Court for interpretation is Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (the Directive). I - Legal background A - Community law 3. Article 1 of the Directive provides that: 1. This Directive shall apply to activities in the field of architecture. 2. For the purposes of this Directive, activities in the field of architecture shall be those activities usually pursued under the professional title of architect. 4. The purpose of the Directive is not to bring about the harmonisation of national laws in the field of architecture. It does not define what an architect is. Nor does it lay down criteria for defining the profession. 5. The Directive sets out two regimes. For diplomas obtained after the Directive entered into force, Chapter II sets out a definitive regime under which the Member States are required to recognise diplomas awarded by other Member States fulfilling the requirements as to content and duration of education and training, as set out in Articles 3 and 4. Each Member State must communicate and keep up to date the list of diplomas meeting these criteria, together with the establishments and authorities awarding them. The Directive also lays down a transitional regime for diplomas obtained before the notification of the Directive, or for students commencing their training during the 1987/1988 academic year at the latest. The Directive sets out a mechanism for the automatic recognition of diplomas, which are specifically listed. 6. Article 11 of the Directive lists the diplomas, certificates and other qualifications awarded in Germany that must be recognised by the other Member States. 7. Article 13 of the Directive states that the test of formal qualifications referred to in Article 11(a), fourth indent... shall comprise an appraisal of plans drawn up and carried out by the person concerned while actually pursuing the activities referred to in Article 1 for not less than six years. B - Belgian law 8. Article 1 of the Law of 20 February 1939, on the protection of the qualification and profession of architect, provides: 1. No-one may use the qualification of architect, or carry on the profession of such architect, unless he holds a diploma demonstrating that he had passed the tests for the award of that diploma. 2. Without prejudice to paragraph 1, and Articles 7 and 12, Belgian citizens and nationals of other Member States of the European Community, or of a State which is a party to the Agreement on the European Economic Area,

2 shall be entitled to use the qualification of architect and carry on the profession of such in Belgium if they hold a diploma, certificate or qualification referred to in the annex to this Law. 3. Belgian citizens and nationals of other Member States of the European Community, or of a State which is a party to the Agreement on the European Economic Area, who meet the requirements set out in the Annex to this Law shall be entitled to use the lawful professional qualification awarded to them by their State of origin or the State from which they come and, as the case may be, the abbreviation of that qualification in the language of that State In the annex, that law lists the provisions relating to the diplomas, certificates and other qualifications awarded in Germany allowing the holding of the qualification and practice of the profession of architect in Belgium. 10. Lastly, Articles 4 and 5 of the Law of 26 June 1963 establishing the Ordre des Architectes (Architects' Association), provide respectively that no-one may be enrolled in the register of the Association, or in a list of trainees, unless he satisfies the requirements laid down by the Law of 20 February 1939 on the protection of the qualification and profession of architect, and that no-one may practise the profession of architect in Belgium in any capacity unless he is enrolled in the register of the Association or in a list of registered trainees... II - Facts and procedure in the main action 11. Mr Dreessen, a Belgian national, holds a diploma in engineering awarded in Germany on 16 February He worked for 25 years as an employee in various firms of architects in Liège (Belgium). In 1991, following the liquidation of the company for which he worked, Mr Dreessen applied to be enrolled in the register of the Ordre des Architectes de la Province de Liège (Architects' Association of the Province of Liège) with a view to setting up in practice on his own. 12. His application was rejected by decision of 29 April 1993, on the basis that his diploma, awarded by an Allgemeiner Hochbau (building construction department), was not expressly covered by Article 11(a) of Directive 85/384, transposed into national law by amending Royal Decree of 6 July This is because the awarding department was not an architectural one. 13. An appeal against that decision was brought before the Conseil d'appel d'expression Française de l'ordre des Architectes (French Language Appeals Committee of the Architects' Association) (the Appeals Committee) which has asked this Court for a preliminary ruling on the question whether the diploma awarded to the applicant was to be treated as equivalent to the diplomas, certificates and other qualifications referred to by the national law. 14. In its judgment of 9 August 1994 (known as Dreessen I), the Court held that the diploma awarded to Mr Dreessen could not be equated with the diplomas, certificates and other qualifications exhaustively set out in the fourth indent of Article 11(a) of the Directive. The Court found that [t]he transitional system, which is applicable to this case, is characterised by an exhaustive list of the diplomas, certificates and other evidence of formal qualifications of each Member State which are eligible for recognition, and that with respect to colleges of engineering in Germany, recognition is limited to the diplomas awarded by departments of architecture. Mr Dreessen's diploma was not awarded by such a department. The Court therefore clearly considered that the diploma awarded in 1966 by the Allgemeiner Hochbau of the Staatliche Ingenieurschule für Bauwesen Aachen (Aachen College of Construction) could not be equated with the certificates listed in the fourth indent of Article 11(a) of Directive 85/ On the basis of the Court's decision in Dreessen I, the Appeals Committee dismissed the applicant's appeal in a decision dated 15 February By letter dated 25 October 1997 Mr Dreessen again applied to the Council of the Ordre des Architectes de la Province de Liège (the Provincial Council) to be enrolled in its register of members. He justified his application on two grounds. Firstly, he submitted that his diploma was not listed in Article 11 of Directive 85/384 because of an error on the part of the German federal authorities. Second, he said the Provincial Council should carry out a comparison of the education and training received, in accordance with the Court's decision in Vlassopoulou. 17. By decision of 5 February 1998, Mr Dreessen's application was rejected on the ground that the Provincial Council was not required to take into account his knowledge and qualifications, or to assess them. It had to limit itself to verifying the equivalence of his diploma, and found no such equivalence. The Provincial Council added that the application based on Article 52 of the EC Treaty (now, after amendment, Article 43 EC) had already been made and rejected. 18. On 16 June 1999 the Appeals Committee reversed that decision, and ruled in favour of Mr Dreessen, finding that he possessed the knowledge and qualifications required by Belgian law. 19. The Conseil National de l'ordre des Architectes (National Council of Architects' Association) (the National Council) applied to the Cour de Cassation for review of that decision on the ground that it was not open to the competent authorities, by including a comparative examination, to add to the exhaustive list of qualifications set out in Article 11 of Directive 85/384.

3 III - Question referred for a preliminary ruling 20. The Cour de Cassation (Court of Cassation) (Belgium) took the view that the answer to the main action depended on the interpretation of various provisions of Community law. It therefore stayed proceedings, and referred the following question to the Court for a preliminary ruling: Do Articles 5 and 52 of the Treaty of Rome mean that the competent authority of a Member State before which a Community national who holds a diploma obtained in another Member State makes an application for authorisation to practise a profession access to which, under national legislation, depends on the possession of a diploma or a professional qualification, is required to take into consideration the diploma relied upon by the applicant and to make a comparison between, on the one hand, the specialised knowledge and ability and the qualifications evidenced by that diploma and, on the other hand, those required under the national rules, even where there exists, with regard to the profession in question, a directive adopted by the Council on the basis of Article 57(1) and (2) of the Treaty, and that directive provides, so far as concerns courses of study taken up or pursued during a transitional period, an exhaustive list of the diplomas or certificates, awarded in the various Member States, which are to enable the profession concerned to be practised in the other Member States, where the applicant falls within the scope of that transitional scheme and the diploma on which he relies is not included in that exhaustive list? IV - Legal analysis 21. By this question, the national court is essentially asking whether Article 52 of the Treaty is to be interpreted as meaning that the competent authorities of a Member State, to which a request is made for authorisation to carry on the profession of architect, access to which is, under national legislation, dependent on the possession of a diploma or professional qualification, are required to take into consideration the specialised knowledge and abilities and the qualifications evidenced by a diploma in engineering, awarded by another Member State, even if that diploma does not rank among the qualifications specified in Article 11 of the Directive. 22. It is appropriate, first of all, to dispose of an argument put forward by the National Council. It takes the view that the Court has already dealt with the point of law in Dreessen I. However, in that case, and contrary to what is contended, the Court ruled only on the question whether the diploma in engineering formally came within the exhaustive list set out Article 11 of the Directive. In the present case the applicant in the main proceedings puts forward different arguments. He asks the Court to rule on the material content of the diploma in point. The question is whether the national authorities are required to examine the specialised knowledge and abilities and the qualifications evidenced, for the purpose of determining whether they are such as to enable the holder to practise as an architect. Mr Dreessen claims the benefit of the application of the principle established in Vlassopoulou, cited above, notwithstanding that his diploma does not satisfy the conditions specified in the Directive. The question raised in Dreessen I differs from the one currently before the Court. I therefore propose that the argument of the defendant in the main proceedings be rejected. 23. To begin with, it is appropriate to recall the principles established by the judgments in Vlassopoulou, cited above, and Hocsman. 24. The principle laid down in Vlassopoulou is central to the question referred for a preliminary ruling in this case. In that judgment, the Court held that a Member State which receives a request for authorisation to practise a profession, access to which, under national legislation, depends upon the possession of a diploma or a professional qualification, must take into consideration the diplomas, certificates and other evidence of formal qualifications which the person concerned has acquired in order to practise the same profession in another Member State by making a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules. 25. The comparative examination procedure is designed to enable the authorities of the host Member State to satisfy themselves, on an objective basis, that the foreign diploma evidences the possession by its holder of knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma. That assessment of the equivalence of the foreign diploma must be carried out solely in the light of the level of knowledge and qualifications which its holder can be assumed to possess on the evidence of that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates. 26. Finally, the Court pointed out that the examination to determine correspondence between the knowledge and qualifications certified by the foreign diploma and those required by the legislation of the host Member State must be carried out by the national authorities in accordance with the procedural requirements of Community law for the effective protection of fundamental rights conferred by the Treaty on Community subjects. It follows that any decision taken must be capable of judicial review as to its legality under Community law, and the person concerned must be able to ascertain the reasons for the decision taken in his case. 27. The decision in Vlassopoulou has given rise to various subsequent developments, including the recent decision in Hocsman, cited above. In that case, the Court applied the abovementioned principle for the benefit of a Community national who held a diploma in medicine acquired in a non-member country, but who was denied the right to set up in independent

4 practice on the territory of a Member State, even though he had been allowed by the competent national authorities to work as an employed specialist in various public hospitals. The Court remedied this contradiction by holding that it is settled that the authorities of a Member State to whom an application has been made by a Community national for authorisation to practise a profession access to which depends, under national law, on the possession of a diploma or professional qualification, or on periods of practical experience, must take into consideration all the diplomas, certificates and other evidence of formal qualifications of the person concerned and his relevant experience, by comparing the specialised knowledge and abilities so certified and that experience with the knowledge and qualifications required by the national rules. 28. The Court held in that regard that... those judgments are merely the expression in individual cases of a principle which is inherent in the fundamental freedoms of the Treaty. 29. The new Dreessen case, now before the Court, is set in a particular factual and legal context. As regards, more specifically, the question of territorial scope, I would observe that the applicant in the main proceedings acquired all of his professional experience in the Member State of which he is a national. However it should be borne in mind that the diploma in question was obtained in Germany. The applicant in the main proceedings exercised his right of free movement to acquire his diploma in engineering in another Member State, and then returned to his State of origin, to obtain professional experience. The question referred to the Court specifically concerns the content of that diploma for the purposes of practising as an architect. I would add that this cannot be divorced from the fact that Mr Dreessen has practised for many years. The facts of the case do not, therefore, amount to a purely internal situation. 30. The legal context of the case likewise calls for observations in two respects. 31. First, the diploma in engineering is not one of those that the Directive specifies as attracting the benefit of the principle of automatic mutual recognition under the transitional scheme. The situation of the applicant in the main proceedings is not the same as that prevailing in Vlassopoulou and Hocsman. In the first of these cases, the situation of the applicant in the main proceedings did not come within any mutual recognition directive, the activity in question not then having been regulated. In Hocsman the applicant's diploma did not fall within the scope of the directive in question as it had been awarded by the competent authorities of a non-member country. In the present case, the applicant's diploma was acquired in a Member State, but it is not a diploma in architecture. 32. Second, I would recall the reasons for which the diploma does not appear in the exhaustive list laid down in Article 11 of the Directive. As the Court pointed out in Dreessen I, the fact that the former colleges of engineering (Ingenieurschulen), which did not have departments of architecture, were incorporated as from 1971 into Fachhochschulen whose diplomas form part of the system of recognition introduced by the directive does not militate against that conclusion. However, if that designation was incorrect or incomplete, it was up to the Member State in question, that is, the Federal Republic of Germany, to seek and obtain an amendment to the directive in order to correct that error or omission. 33. According to observations submitted by the National Council, it is simply the case that the Directive never intended to include the diploma of engineering within its scope. Mr Dreessen is not entitled to authorisation to set up in independent practice because he does not hold a qualification in architecture. By virtue of the principle laid down in Vlassopoulou, he cannot demand that his professional experience be taken into consideration. 34. According to that argument, where, as here, a directive is adopted on the basis of Article 57 of the EC Treaty (now, after amendment, Article 47 EC) to regulate access to a profession, the national authorities must adhere to the wording of the relevant provisions, and are not to undertake a comparative examination of the specialised knowledge and abilities and the qualifications evidenced as compared with the national requirements. On this view, the Directive exhaustively lists the recognised diplomas. To take into account professional experience required would be tantamount to altering the scope of the Directive. 35. Similarly, the Italian and French governments contend that the Directive leaves no discretion to the Member States. They maintain that the national authorities are obliged to adhere strictly to the qualifications expressly set out in Article 11 of the Directive. The mechanism for the automatic recognition of qualifications listed in that article excludes recourse to any comparative examination. 36. Those arguments amount to claiming that the effect of the rule laid down in Vlassopoulou is to rewrite the Directive, which the Member States alone are entitled to do. 37. None of those arguments appears to me to be well founded in the present case. 38. The object of Article 52 of the Treaty is to abolish restrictions on the freedom of establishment of nationals of one Member State on the territory of another Member State. In this respect, freedom of establishment is a fundamental freedom in the Community system. 39. The purpose of the Directive is clear. The Member States wished to set, for education and training and qualifications, a certain number of minimum requirements compliance with which gives rise to an obligation of mutual recognition on the part of the Member States. In no way is it permissible for that objective to be attained at the expense of restricting the exercise of the right to establishment. As the Court held in Vlassopoulou, Article 52 of the Treaty imposes an obligation to achieve a precise result, the fulfilment of which is to be facilitated by, but not made dependent on, the implementation of Community measures. The adoption of a directive on mutual recognition cannot reduce the legal ambit of a fundamental principle contained in the Treaty. 40. Consequently, in the light of the Court's recent case-law, and in contrast to my Opinion in Erpelding, I propose that the principle laid down by the Court in Vlassopoulou be applied. 41. The case of Mr Dreessen lends itself to a fresh application of the criteria laid down by the Court's case-law. His diploma in engineering does not benefit from the mechanism of automatic recognition provided for by the

5 Directive. Even so, the facts of this case show up the paradoxical nature of his professional situation. The competent national authorities admit that he has worked as an architect for 25 years, but today they refuse him the right to carry out the same activity as an independent practitioner. Although outside the scope of the Directive, Mr Dreessen's situation is directly governed by Article 52 of the Treaty. 42. I am of the view that the national authorities are required to examine Mr Dreessen's diploma in engineering, together with his relevant experience acquired in the territory of the Member State of which he is a national, by comparing the special knowledge and abilities evidenced by this qualification, and his relevant experience, with the knowledge and qualifications required by Belgian legislation. 43. In that regard, a further point should be made by way of clarification. As the Commission pointed out at the hearing, there can be no question of imposing on the national authorities an obligation to recognise the equivalence of a diploma in engineering. The obligation does not relate to the outcome of the comparative assessment test, but is located at an earlier stage of the procedure. The competent authorities must carry out the comparative examination. The findings at which they arrive are a matter for them alone. In this way the letter and the spirit of the Directive will be fully observed. The application of the decision in Vlassopoulou does not in the least alter the mechanism of automatic recognition established by the Directive. It concerns only the obligation to carry out an objective assessment of the material content of the diploma under consideration. 44. However, that comparative examination is hedged round by criteria laid down by case-law in regard to recognition. 45. With a view to bringing that comparative exercise to a proper conclusion, the national authorities must, first of all, take account of the extent of the knowledge and qualifications of the person concerned as evidenced by the diploma in question. It is open to the Member States to take into consideration objective differences relating both to the legal framework of the profession in question in the Member State of origin and to its scope. 46. The Belgian authorities are required to verify the material content of Mr Dreessen's diploma. They must consider the content of the education and training received and the specialised knowledge and abilities required as a result. It is for them to determine whether that diploma, formally a diploma in engineering, provides all necessary guarantees that the holder has been trained to practise as an architect. 47. The competent authorities are required to apply national criteria. They must adhere strictly to the conditions set by national law for Belgian nationals, so as not to discriminate against nationals of other Member States. 48. If after carrying out the necessary comparative examination, the Belgian authorities were to come to the conclusion that Mr Dreessen's qualification does not fully correspond to that required for the exercise of the profession of architect in Belgium, they should, as was envisaged in paragraph 19 of Vlassopoulou, give him the opportunity to demonstrate that he has acquired the knowledge and qualifications which are lacking. 49. The comparative examination must also take into account the professional experience of the person concerned. The assessment of Mr Dreessen's specialised knowledge and abilities will not be confined to the qualification but will extend to the references provided by his various employers. 50. Furthermore, a decision refusing authorisation must clearly state the grounds for the refusal. That legal act must be challengeable before the national court in order that its legality from the point of view of Community law may be reviewed. 51. In conclusion, it is for the national court to take into consideration the applicant's diploma in engineering, together with his relevant experience, by comparing the specialised knowledge and abilities evidenced by that diploma, and that experience, with the knowledge and qualifications required by Belgian legislation. 52. In making that comparison, the national court must have regard to the national requirements that are applied in conformity with the principles of non-discrimination and proportionality. Conclusion 53. On the basis of the foregoing considerations, I propose that the Court should rule as follows: Article 52 of the EC Treaty (now, after amendment, Article 43 EC) must be interpreted as meaning that, where a Community national, who holds a diploma that is not expressly covered by a directive on the mutual recognition of diplomas, makes an application for authorisation to practise a profession, access to which, under national legislation, depends on the possession of a diploma or professional qualification, the competent authorities of the Member State concerned are required to take into consideration the diploma, and the relevant experience of the applicant, by comparing the specialised knowledge and abilities evidenced by that qualification and that experience with the knowledge and qualifications required by national legislation. If the diploma and relevant experience do not satisfy the national requirements, the national authorities must allow the applicant the opportunity to prove that he does in fact possess the knowledge and qualifications that are lacking, in accordance with the principles of equality of treatment and of proportionality.