Opinion of the Advocate-General
++++
1 The Oberverwaltungsgericht (Higher Administrative Court) Berlin has referred two questions to the Court on the interpretation 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 (hereinafter `the directive'). (1)
2 Those questions were raised in proceedings brought by Georgios Aranitis against the Land Berlin. In essence, the Court is asked to give a ruling on the definition of `regulated professional activity' which appears in Article 1(c) and (d) of the directive.
3 Mr Aranitis, who has a Greek diploma `Ptichiouchos Geologikos', (2) worked in Greece as a geologist from 1977 to 1990, except for a break of two years' military service. In May 1990, he moved to Berlin in order to carry on the same profession. The Arbeitsamt (Employment Office) classified his application as one made by an `unskilled assistant' even though Mr Aranitis had produced the Greek diploma awarded at the end of his studies.
4 In order to challenge that classification, the applicant brought an action before the Senatsverwaltung fuer Wissenschaft und Forchung (which is the competent municipal authority with responsibility for scientific and technical matters) seeking a declaration that his diploma was equivalent to the comparable German qualification, relying on Article 7(1) of the directive. (3) The Senatsverwaltung refused to recognize that the Greek diploma awarded on the completion of a higher-education geology course was equivalent to the German diploma awarded on completion of education and training and also refused to allow him to use the title corresponding to the diploma in its German form `Diplom-Geologe'. However, it authorized him to use the title corresponding to his diploma in its Greek form and to add, in brackets, in the certificate of authorization the literal translation `Geologist with a Diploma'.
5 According to the Senatsverwaltung, the directive is not applicable to the facts as set out. It takes the view that the scope of the directive is limited to regulated professions. The profession of geologist is not regulated in Germany. The Senatsverwaltung therefore based its refusal on the provisions of German municipal law.
Under that national legislation, the award of a national diploma in geology is dependent on the submission of a thesis. Since that is not the case as regards the equivalent Greek diploma, the Senatsverwaltung asked Mr Aranitis to submit a thesis to a German institution of higher education in order to obtain satisfaction.
6 Following the rejection of his appeal as unfounded by the Verwaltungsgericht, Mr Aranitis appealed against that decision to the Oberverwaltungsgericht, Berlin.
7 That court confirmed the legal analysis of the Verwaltungsgericht, considering the directive to be inapplicable to the circumstances of the case before it. However, uncertain about the proper interpretation of Article 1 of the directive, it referred the following questions to this Court for a preliminary ruling:
`1. Is Article 1(c) in conjunction with Article 1(d) 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 to be interpreted as meaning that there is a regulated profession even where, whilst there are no provisions governing the taking up and pursuit of the profession, the only education and training for the profession are a course of university studies of at least four and a half years leading to a diploma and accordingly it is ultimately only holders of that university diploma who appear as applicants for that profession on the employment market and who pursue the profession?
2. If so, is the academic title "Diplom-" ("Qualified") ... (in the present case, geologist), in the circumstances specified in the second half of Question 1, simultaneously a professional title within the meaning of Article 7(1) of the directive, where there is no other professional title prescribed or protected by a law or regulation?'
8 The second question on interpretation clarifies the first. It calls for an answer as a secondary point. The first question asked by the national court is whether the directive is applicable to a profession such as that of geologist in Germany. While access to and pursuit of that profession are not regulated by public authorities, examination of the German employment market reveals that only persons who have a German diploma in geology gain access to the profession. Does the directive apply in such a case? In other words, does the way in which the employment market operates correspond to the concept of a `regulated profession'? The answer given to that question will in effect determine the definition of `regulated profession' for the purposes of the directive and whether or not, in circumstances such as those of this case, the directive is applicable.
I would point out that this is the first time that the Court has been asked to rule on the definition to be given to this term.
9 The national court assumes that the profession of geologist is not regulated in Germany. This is apparent from the order for reference:
`There are no rules in the Federal Republic of Germany prohibiting the pursuit of the profession of geologist by a self-employed or employed person if the person concerned is not in possession of a diploma, as might be the case where someone has begun to study geology but has not (successfully) completed his studies.' (4)
Nevertheless, it wonders whether the scope of the directive might not cover other situations. I shall go on to define the term `regulated profession' after giving a brief exposition of the general system as I see it.
The general system
Its origin
10 The discussions of the European Council at its meeting in Fontainebleau in June 1985 brought forth the directive establishing a general system for the recognition of university diplomas with a view to making it easier to exercise freedom of establishment. In adopting a fresh approach to the recognition of diplomas, no longer on a vertical basis, that is to say by reference to distinct occupations or professions, (5) but on a horizontal basis, that is to say by reference to levels of education and training, the Community legislature is pursuing the objective of abolishing the obstacle of national diplomas for regulated professions within a fairly short period of time. (6)
11 Because it is general in nature, the directive is capable of applying to any profession, including that of geologist, thus saving the trouble of drawing up an exhaustive list of the professions concerned.
12 The reply given by Mr Bangemann on behalf of the Commission to Question No 1062/90, asked by Mrs Mayer, as to whether the directive applied to the profession of geologist, (7) must be interpreted in the light of those considerations:
`The directive which, being general rather than sectoral in nature, marks a new approach by the Commission to the recognition of diplomas and covers a wide variety of occupations and professions, can be applied to geologists provided that they qualified by being awarded a higher-education diploma on completion of education and training of at least three years' duration.'
The basis for recognition of higher-education diplomas
13 The basis for recognition resides in the fact that the profession or occupation for which the migrant worker has trained in his Member State of origin is the same as that which he wishes to pursue in the host Member State. (8) However, what is original about the general system is that in principle this equivalence of education and training is not demonstrated by comparing the education and training and noting their similarity but by comparing the fields of professional activity and assuming that, if the main activities are the same, the education and training leading to them must be sufficiently similar to justify recognition. (9)
14 The basis for recognition of diplomas also explains the limits of recognition. The objective pursued by the Community legislature is accordingly clearly set forth in the third recital in the preamble to the directive. The directive is intended to be a means of overcoming the obstacle to free movement caused by diplomas in the case of the pursuit of `(...) professional activities which in a host Member State are dependent on the completion of post-secondary education and training, provided [that nationals of Community countries] hold such a diploma preparing them for those activities (...)'. (10)
The directive, however, is not a means of overcoming obstacles formed by differences in the way in which professions are structured in the Member States:
`Whereas, moreover, the general system for the recognition of higher-education diplomas is intended neither to amend the rules, including those relating to professional ethics, applicable to any person pursuing a profession in the territory of a Member State nor to exclude migrants from the application of those rules; whereas that system is confined to laying down appropriate arrangements to ensure that migrants comply with the professional rules of the host Member State.' (11)
So it cannot be maintained that the system enables Community nationals to pursue their professions throughout the European Community. It is still necessary for the profession to exist in the Member State in which they wish to pursue it.
15 However, while the existence of the profession is a necessary condition for implementation of the general system, it is not sufficient. The profession in question must also be regulated. (12)
Regulated profession: `key concept' in the general system
16 The applicability of the general system established by the directive depends on the existence of rules governing access to, or pursuit of, the profession. This characteristic has two fundamental consequences.
17 First, the application of the general system of recognition is triggered by the regulation of a professional activity in a host Member State:
`This Directive shall apply to any national of a Member State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person.' (13)
18 Secondly, it is, again, the fact that a professional activity is regulated which obliges the host Member State to take the necessary steps to recognize proof of qualifications obtained on completion of education and training undertaken in preparation for the pursuit of the same profession in the other Member States:
`Where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma (...)'. (14)
19 The concept of a `regulated profession' is thus the key concept both for determining the scope of the general system (15) and for the adoption of national measures implementing the system. (16) Consequently, it is of fundamental importance to define that term in order to determine the scope of the general system.
Definition of `regulated profession'
20 The national court asks whether a broad definition of the term `regulated profession' may be accepted.
21 Since it appears from sociological and statistical evidence concerning the workings of the employment market that persons with diplomas awarded by national universities are recruited in preference to Community nationals with diplomas awarded in another Member State, it could be said that the profession in question is indirectly regulated. The directive would therefore be applicable.
Consequently, the host Member State would have to take measures enabling a diploma awarded in one Member State to be recognized as being essentially equivalent to a university diploma awarded in the host Member State. (17)
22 Another definition of the concept of regulated profession is possible: a `teleological definition', (18) that is to say, one reflecting the aim pursued by the directive.
23 On this view, a regulated profession is characterized by the fact that access to and pursuit of the profession are regulated by national rules.
24 In my view, the definition adopted by the Community legislature in the directive is a purposive one. I shall demonstrate this by first analysing Article 1(c) and (d) and then pointing out the major drawbacks which a broad definition of `regulated profession' would inevitably have.
Analysis of Article 1(c) and (d)
25 The wording of Article 1(c) and (d) expressly refers to a purposive definition of the term `regulated profession':
`(c) (...) the regulated professional activity or range of activities which constitute this profession in a Member State;
(d) (...) a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of a diploma.' (19)
26 So, the Community legislature has two kinds of situation in mind. In the first situation, laws, regulations or administrative provisions subject the taking up of a profession to possession of a diploma. In the second, those provisions subject the pursuit of the profession to possession of a diploma.
27 With regard to the first situation, possession of a given document evidencing qualification is the necessary condition for the person concerned to be able to begin to pursue that activity. It is not hard to identify those cases.
It may be said that the activity is regulated `(...) where that requirement appears in provisions laid down by the State. Those provisions either set out themselves the qualification requirements or else give a professional body the power to set them. It is those provisions, or the measures adopted on the basis of the powers they grant, which must be adapted in order to implement the directive(s)'.
28 It is more difficult to identify the cases covered by the second situation. That is why Article 1(d) of the directive specifically distinguishes three ways in which a professional activity may be pursued.
29 (a) Pursuit of an activity subject to the use of a professional title (20)
That is the case in all the Member States for lawyers where part of their activities is regulated (for example, a particular qualification is required in order to be able to represent clients in court...).
30 A professional title will be defined as the name used in an activity which is carried on for remuneration and which demonstrates a particular qualification in this field. A name can become a professional title only if public authorities define the conditions for conferring it, either directly, or by giving a particular body (in particular an examining board or a professional council) the power to do so, and if they protect that name by imposing penal sanctions when it is used improperly.
31 The involvement of the state in the determination of the way in which the title is conferred is decisive. It distinguishes such a name or title from descriptions, the use of which is authorized by a professional association or a learned society (for instance, the description of psychoanalyst in France).
32 (b) The second mode of pursuit of a professional activity is provided for in the second indent of the first paragraph of Article 1(d) of the directive. (21)
33 Here, access to the professional activity is unrestricted but its pursuit is subject to possession of specific evidence of qualifications.
34 That is the case as regards the profession of non-physician psychologist in Germany where practice as a psychologist is not in principle subject to qualification conditions, but in respect of which social security reimburses the cost of only those services which are provided by qualified professionals. The Community legislature draws the following conclusion: pursuit of a professional activity within an institution such as social security makes it a regulated profession.
35 (c) The second and third paragraphs of Article 1(d) provide for the third and last mode of pursuit of a regulated professional activity. (22)
36 The last situation referred to by the Community legislature in the preamble to the directive (23) is that of some professional associations of a slightly special kind which are seldom found on the Continent but often in the United Kingdom and Ireland. Such associations:
- have the object of encouraging a high level of qualification in the profession;
- demand that their members should possess a certain degree of education and training and should observe rules of professional conduct;
- have been recognized in one way or another by the public authorities as being of public utility. For example, in the United Kingdom recognition is granted by royal charter.
37 That is why pursuit of an activity as a member of that type of association, of which the directive gives 38 examples for the United Kingdom (Institute of Chartered Accountants in England and Wales, British Psychological Society ...) is deemed to constitute a regulated professional activity.
Disadvantages of a broad definition
38 Adoption of a broad definition of the term would ineluctably involve at least four major disadvantages.
39 First, accepting a broad definition would amount to saying that the directive is not addressed to the Member States but to economic entities operating on the employment market. Article 14 of the directive provides, however, that:
`This Directive is addressed to the Member States.'
40 Secondly, the Member States would be forced to alter the structure of professions in their national territories.
However, as we have seen, (24) that is not the aim of the Community legislature.
41 Furthermore, adoption of a broad definition is liable to encourage fraudulent practices with regard to diplomas and to mislead the public, the potential clients of professionals who would be permitted to use university titles which their own education, training and university studies would not give them the right to use.
42 Not only has the legislature expressly stated that the directive is not intended to have such consequences, (25) but the Court has already held in Case C-19/92 Kraus (26) that:
`the need to protect not necessarily well-informed members of the public from improper use of university titles which have not been awarded in accordance with the rules laid down for that purpose in the country in which the holder of the diploma seeks to use it constitutes a legitimate interest capable of justifying the restriction by the Member State in question of the fundamental liberties guaranteed by the Treaty.'
43 Finally, the application of the general system would be determined only by the level and duration of the studies required in order to obtain the diploma or certificate of education and training in the host Member State.
As we have seen, however, (27) the general system does not apply unless the profession is regulated in the host Member State.
44 As regards the case before the national court, it must be stated that it does not fall within any of the situations covered by the directive. (28) It may therefore be argued that it is not concerned with a regulated profession since neither access to nor pursuit of the activity of geologist is subject in Germany to binding rules laid down directly or indirectly by the State. It may therefore be stated that access to that profession and its pursuit are unrestricted. (29)
Professionals are subject only to the laws of the employment market and the way in which it works and not to any legal constraints.
45 As I have shown, the aim of the directive is not to require the Member States to alter the structure of professional activities. Still less can its purpose be either to oblige economic agents to take steps to recruit employees not having qualifications specifically sought or to turn truth upside down by allowing persons who do not possess a certain diploma to make use of a diploma which they do not have.
46 In the light of those explanations, I suggest that the Court should give a negative answer to the first question referred by the national court.
47 The second question becomes irrelevant.
48 For all the reasons set out above, I propose that the Court reply as follows to the question referred by the Oberverwaltungsgericht, Berlin:
Article 1(c) in conjunction with Article 1(d) 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 must be interpreted as meaning that a regulated profession exists only where the State has directly or indirectly laid down rules governing the taking up and pursuit of the profession and where penalties are imposed for failure to comply with those rules.
(1) - OJ 1989 L 19, p. 16.
(2) - Diploma awarded by a Greek university after four years' geology study.
(3) - This provides that: `The competent authorities of host Member States shall recognize the right of nationals of Member States who fulfil the conditions for the taking up and pursuit of a regulated profession in their territory to use the professional title of the host Member State corresponding to that profession'.
(4) - P. 8 of the English translation.
(5) - Between 1975 and 1985 seven sector-based systems for the recognition of diplomas were adopted; they apply to various activities in the field of health and architecture: doctors, nurses, dentists, veterinary surgeons, midwives, pharmacists and architects.
(6) - First, second and third recitals in the preamble to the directive.
(7) - OJ 1991 C 35, p. 12.
(8) - Fifth recital in the preamble to the directive.
(9) - To that effect, see Beuve-Méry J.J.: `La reconnaissance des diplômes: le système général adopté le 21. 12. 1989 par le Conseil des Communautés européennes', Revue du marché commun, No 336, April 1990, p. 293.
(10) - Third recital in the preamble to the directive, emphasis added.
(11) - Tenth recital in the preamble to the directive.
(12) - Third, fifth, eighth, ninth and tenth recital in the preamble to the directive.
(13) - First paragraph of Article 2, emphasis added.
(14) - First paragraph of Article 3, emphasis added.
(15) - First paragraph of Article 2.
(16) - Article 3.
(17) - In accordance with Article 7(1) of the directive.
(18) - Pertek J.: `Reconnaissance des diplômes: systèmes sectoriels, systèmes généraux', Juris-classeurs, 1994, volume 720.
(19) - Emphasis added.
(20) - Article 1(d), first paragraph, first indent provides as follows: `pursuit of an activity under a professional title, in so far as the use of such a title is reserved to the holders of a diploma governed by laws, regulations or administrative provisions'.
(21) - `pursuit of a professional activity relating to health, in so far as remuneration and/or reimbursement for such an activity is subject by virtue of national social security arrangements to the possession of a diploma.'
(22) - `Where the first subparagraph does not apply, a professional activity shall be deemed to be a regulated professional activity if it is pursued by the members of an association or organization the purpose of which is, in particular, to promote and maintain a high standard in the professional field concerned and which, to achieve that purpose, is recognized in a special form by a Member State and:- awards a diploma to its members,- ensures that its members respect the rules of professional conduct which it prescribes, and- confers on them the right to use a title or designatory letters, or to benefit from a status corresponding to that diploma.A non-exhaustive list of associations or organizations which, when this Directive is adopted, satisfy the conditions of the second subparagraph is contained in the Annex. Whenever a Member State grants the recognition referred to in the second subparagraph to an association or organization, it shall inform the Commission thereof, which shall publish this information in the Official Journal of the European Communities.'
(23) - Seventh recital in the preamble to the directive.
(24) - Paragraph 14 of this Opinion.
(25) - Tenth recital in the preamble to the directive.
(26) - [1993] ECR I-1663, paragraph 35.
(27) - Paragraphs 15 to 19 of this Opinion.
(28) - Paragraphs 27 to 37 of this Opinion.
(29) - The national court has acknowledged as much, as have all the interveners at the hearing.
Full & Egal Universal Law Academy