Opinion of the Advocate-General
I - Introduction
1. In the present action for failure to fulfil obligations, the Commission applies for a declaration that the Italian Republic has failed to fulfil various of its obligations under the directive on the recognition of architects and also, in respect of a number of national provisions in this area, the freedom of establishment and the freedom to provide services.
II - Legal framework
A - Directive 85/384/EEC
2. Directive 85/384 provides for the mutual recognition of evidence of formal qualifications in architecture within the context of the freedom of establishment and the freedom to provide services. For this purpose, it lays down minimum requirements for the training of architects. Also, it specifies certain further evidence of formal qualifications which Member States are required to recognise. Finally, Directive 85/384 contains provisions intended to facilitate the effective exercise of the freedom of establishment and the freedom to provide services. Under Article 31(1) of Directive 85/384, the Directive was to be transposed within two years of its notification, that is, on 5 August 1987 at the latest. In respect of Article 22, which contains provisions specific to the freedom to provide services, the period for transposition was extended to three years.
3. The relevant provisions are cited individually in the course of the discussions of the individual objections.
B - Italian law
4. Only after it was declared in the judgment in Case C-296/90 to have failed to fulfil its obligations did the Italian Republic transpose partially Directive 85/384, by Presidential Decree No 129 of 27 January 1992 (hereinafter Decree No 129/92). Article 12 of the Decree provided for further transposition measures within a period of six months. These were enacted on 10 June 1994 in Decree No 776 of the Ministry of Universities and Scientific and Technological Research (hereinafter Decree No 776/94).
5. For reasons of clarity, the individual provisions of these decrees are cited in relation to the individual pleas in law, so far as necessary.
III - Procedure and applications
6. On 24 September 1996, the Commission notified the Italian Government by letter of formal notice that it considered Directive 85/384 in part to have been transposed incorrectly or incompletely, and gave it a period of two months to respond. The Italian Government did not reply to this letter of formal notice. In its reasoned opinion of 23 March 1998, the Commission required Italy to bring to an end the failures that the Commission considered to exist within a period of two months. This period expired on 23 May 1998 without any measures having been taken.
7. In this action, which was brought on 9 August 1999, the Commission of the European Communities applies for the Court:
(1) to declare that the Italian Republic has failed to fulfil its obligations under Articles 12, 20, 22, 27 and 31 of 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, as amended and, as regards point ((3)) below, under Article 59 of the EC Treaty (now, after amendment, Article 49 EC)
((1)) by failing to take all the measures necessary to implement Articles 4(1), second subparagraph, 4(2), 7, 11 and 14 of Directive 85/384 (EEC),
((2)) by adopting
- Article 4(2)(a) of Legislative Decree No 129 of 27 January 1992 and Article 4(1)(a) of Decree No 776 of the Ministry of Universities and Scientific and Technological Research of 10 June 1994 which impose a general obligation to produce the original diploma or a certified copy thereof;
- Article 4(2)(c) of Decree No 129/92 and Article 4(1)(c) of Decree No 776/94 which impose a general obligation to produce a certificate of nationality;
- Article 4(3) of Decree No 129/92 and Article 10 of Decree No 776/94 which require as a matter of course an official translation of documents;
- Article 11(1)(c) and (d) of Decree No 129/92, which extends the validity of certificates beyond 5 August 1987;
((3)) by prohibiting architects providing services in Italy from having an infrastructure there (Article 9(1) of Decree No 129/92);
((4)) by requiring architects providing services to register with the regional professional body for architects (Article 9(3)) of Decree No 129/92 and Articles 7 and 8 of Decree No 776/94), contrary to the provisions of Article 22 of the directive; and
((5)) by applying Article 4(6) to (8) of Decree No 129/92 in a manner contrary to Article 20(1) of the directive;
(2) to order the Italian Republic to pay the costs of the proceedings.
8. The Italian Republic applies for the Court to dismiss the action.
IV - Analysis
9. First of all, it must be pointed out that the Italian Republic, in a written response to a request by the Court and in the oral hearing, referred to more recent provisions of Italian law which put architects from other Member States in a better position by comparison with the Italian provisions considered here. Even if this were correct, it would be immaterial for the present dispute. These provisions were adopted only after the action had been brought and only long after the expiry of the period allowed by the reasoned opinion. As it is only the factual and legal position at the time that that period expired which is relevant to the subject of an action for failure to fulfil obligations, these more recent measures do not affect the outcome of the present proceedings.
A - The complaint of failure to transpose Articles 4(1), 4(2), 11 and 14 of Directive 85/384
10. First of all, the Commission objects to a failure to transpose certain provisions.
11. Article 4(1) of Directive 85/384, subparagraph 2 of which is the relevant one for present purposes, provides for the recognition of evidence of formal qualifications acquired at German Fachhochschulen. Article 4(2) of Directive 85/384 states the conditions under which education under a social betterment scheme or on a part-time basis is to be recognised.
12. Article 11 appears in Chapter III of Directive 85/384, which contains transitional provisions for the protection of established rights. This article contains a list of evidence of formal qualifications from various Member States, which under Article 10 lead to automatic recognition independently of the requirements in Article 3, where at the time of the notification of Directive 85/384 the holder already possessed these qualifications or had commenced studies that would lead to the acquisition of such evidence of formal qualifications at the latest during the third academic year following such notification. The original version of Article 11 of Directive 85/384 was supplemented following the accession of Spain and Portugal. As regards newly added evidence of formal qualification, a corrigendum was published on 2 April 1986. The Commission objects that this corrigendum was not given effect in the transposition of Directive 85/384.
13. Article 14 of Directive 85/384 contains provisions relating to the recognition of evidence of formal qualifications which were awarded by the former German Democratic Republic. These provisions were not transposed in Italian law.
Submissions of the parties
14. The Italian Republic relies on the fact that the provisions of the directive are directly applicable, as they are sufficiently clear, precise and unconditional. Direct effect precludes a failure to fulfil obligations. The requisite additions were implemented at the time of subsequent amendments. Direct effect does not create any problem of legal certainty either, as Italian law does not contain any provisions that are incompatible with the directive.
15. Furthermore, the Italian Republic distinguishes between the formal obligation to transpose a directive and the obligation to achieve the purposes of the directive. The former is to be satisfied not by referring to the direct applicability of provisions, but solely by adopting legislation. This occurred with the enactment of Decree No 129/92 and Decree No 776/94. All that remains to be examined is whether Italy achieved the results specified in the directive. In this regard, it is clear that account may be taken of provisions of the directive which are directly applicable. In the present case, the Commission has not shown that in Italy the purposes of the specified provisions of the directive were not achieved.
16. The Commission takes the view that the direct effect of a directive cannot be a substitute for the direct transposition of the directive into the internal legal system. As the Court has consistently held, the Member States are obliged to ensure that the provisions of a directive are applied exactly and in full.
17. Direct effect constitutes only a minimum guarantee for the individual citizen. This minimum guarantee, imposed on Member States under Article 189(3) of the EC Treaty (now Article 249(3) EC), cannot justify a Member State in absolving itself from taking in good time implementing measures sufficient to meet the purposes of each directive.
18. Finally, it is not enough merely to intend to transpose a directive.
Opinion
19. Under Article 5(1) of the EC Treaty (now Article 10(1) EC) in conjunction with Article 189(3) of the EC Treaty, the Member States are obliged to transpose directives exactly and in full. Admittedly, the Italian Republic transposed the directive by means of two decrees, but it did not adopt any provisions relating to Articles 4(1), 4(2) and 14 of Directive 85/384. Nor is it disputed that the Italian Republic did indeed expressly list all the other evidence of formal qualifications under Article 11 of Directive 85/384, in respect of Portugal and Spain too, in a schedule to Decree No 129/92, but did not give effect to the corrigendum referred to above. Thus, the transposition was incomplete.
20. As the Court has consistently held, a Member State cannot rely on the direct effect of directives in defending itself against the allegation that it has not transposed a directive in full.
21. This case-law is based on the fact that only transposition in full results in legal clarity and legal certainty for the citizen. So long as the directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. Even if the Court were to hold that one or other provision of a directive is sufficiently precise and unconditional to be relied upon before national courts, there does not follow from that, at least for the legal layman, a sure knowledge of his rights.
22. In contrast to this, the Italian Republic cannot excuse itself either by the fact that, in practice, the objectives of the disputed provisions were realised. As the Court has consistently held, it is precisely a mere administrative practice which is insufficient to guarantee the transposition of the provisions of a directive. This case-law is based on the precepts of legal certainty and legal clarity. Such a practice benefits only those citizens of the Union who apply in Italy for recognition as architects, despite the insufficient provision made in Italian law for the recognition of the evidence of their formal qualifications. It does not take account of those who, because of the absence of provision, consider recognition to be hopeless or receive on this basis inaccurate information concerning the actual possibilities and who therefore do not seek authorisation at all. It is exactly this category of persons which is intended to be protected by the obligation to transpose the provisions of a directive in full.
23. Therefore, the potential direct effect of the provisions of a directive cannot serve as a justification for incomplete transposition.
24. As regards the corrigendum of the list of evidence of formal qualifications for Portuguese evidence of formal qualification, the Italian provision is indeed peculiarly suited to leave those entitled to recognition in uncertainty as to their rights, as the possibility of an error in transposition appears unlikely, given that the list is otherwise complete. The Italian Republic could and should have given effect to the corrigendum when transposing the directive, as such transposition occurred only several years after the corrigendum.
25. Therefore, these objections are established.
B - The complaint of failure to transpose Article 7 of Directive 85/384
26. Article 7 of Directive 85/384 states the following:
Each Member State shall communicate as soon as possible, simultaneously to the other Member States and to the Commission, the list of diplomas, certificates and other evidence of formal qualifications which are awarded within its territory and which meet the criteria laid down in Articles 3 and 4, together with the establishments and authorities awarding them.
The first list shall be sent within 12 months of notification of this Directive.
Each Member State shall likewise communicate any amendments made as regards the diplomas, certificates and other evidence of formal qualifications which are awarded within its territory, in particular those which no longer meet the requirements of Articles 3 and 4.
2. For information purposes, the lists and the updating thereof shall be published by the Commission in the Official Journal of the European Communities after expiry of a three-month period following their communication. However, in the cases referred to in Article 8, the publication of a diploma, certificate or other evidence of formal qualification shall be deferred. Consolidated lists shall be published periodically by the Commission.
27. Neither in its written observations nor at the oral hearing did the Italian Republic specify provisions which explicitly and unmistakably referred to this provision or to the lists and communications referred to in it.
Submissions of the parties
28. Both parties refer in part to their submissions recited above under A.
29. The Commission alleges in particular that the Italian Republic only partly transposed Article 7 of the directive. Only diplomas referred to in Article 11 of the directive are mentioned in the annex to Decree No 129/92. There is no reference at all to the communications of the Commission stating which evidence of formal qualifications is to be recognised. Moreover, it is not stated that the diplomas specified in these communications are given automatic recognition.
30. The Commission points out that the Member States cannot plead difficulties in their internal legal systems in order to justify the failure to comply with obligations under Community law. It is clearly to be required of the Italian Republic that such a list be maintained up to date by ministerial decrees.
31. Nor does the reference to the application of the Commissions' communications excuse the Italian Republic. The failure to comply with an obligation under a provision of Community law is itself sufficient to constitute a breach of the Treaty. The consideration that the failure had no adverse effects is irrelevant.
32. In the opinion of the Italian Republic, there is no need for national law to contain an express list of the evidence of formal qualifications to be automatically recognised. It is sufficient in practice to refer to the individual communications of the Commission. Because of the large number of communications relating to the recognition of evidence of formal qualifications, it is very difficult to maintain such a list up to date at all times and to prevent misunderstandings that prejudice the persons concerned.
Opinion
33. In so far as can be seen, the Commission's objection in the present case is that Italian law neither contains a list of the evidence of formal qualifications that must be recognised nor refers expressly to the corresponding lists which the Commission publishes in the Official Journal.
34. In the first place, it must be pointed out that Article 7 of the directive does not expressly lay down an obligation automatically to list the diplomas specified in each of the Commission's communications and lists in a national register of the diplomas that are to be recognised or to refer to these communications. Nor do the recitals refer to such an obligation.
35. However, such an obligation might arise out of the legislative context of Article 7 with the other provisions of Directive 85/384. Article 2 provides that Member States shall recognise the evidence of formal qualifications acquired as a result of training fulfilling the requirements of Article 3. It is only Article 7 that states who decides what training fulfils those requirements. According to it, it is in principle the Member State within whose territory the evidence of formal qualification is awarded that decides. That Member State then communicates the corresponding evidence of formal qualifications to the Commission, which normally publishes it in the Official Journal. Finally, Articles 8 and 9 regulate the procedure for resolving differences of opinion as to the quality of the evidence of formal qualifications.
36. Therefore, the communications to be published by the Commission in the Official Journal are of central importance for the practical effectiveness of the mutual recognition of evidence of formal qualifications in the field of architecture. Evidence of formal qualifications which is listed in these communications leads to automatic recognition. Exact and full transposition of the recognition procedure under Directive 85/384, as provided for in Articles 2, 3, 7, 8 and 9, therefore requires either the reproduction of the list of all evidence of formal qualifications that must be recognised or at least an express reference to the Commission's communications. The highest practical effectiveness would be achieved if national law were to refer expressly to the Commission's communications, while at the same time publishing a non-binding list of all evidence of formal qualifications required to be recognised.
37. In contrast to this, Italian law does not contain any adequate provisions regarding what evidence of formal qualifications is to be recognised. The existing lists relate only to the evidence of formal qualifications that were to be recognised on a transitional basis (Article 11 of Directive 85/384: see above). Article 2 of Decree No 129/92 appears to provide that evidence of formal qualifications is recognised if it fulfils the requirements of Article 3 of Directive 85/384. Article 5(1)(a) of Decree No 129/92 authorises a person to set up an establishment where he is the holder of recognised evidence of formal qualifications, and Article 9(1)(a) contains a corresponding provision relating to the exercise of the freedom to provide services. However, the central provision, regarding what evidence of formal qualifications is automatically recognised, does not exist in Italian law. It may well be that the Commission's communications are relied on in practice, but the holder of such evidence of formal qualifications cannot, either directly or indirectly, deduce from Italian law his right to automatic recognition. It is in any case not sufficient that one can find out from the publications in the Official Journal of the Community what evidence of formal qualifications is to be recognised. This publication does not, in the absence of a corresponding obligation in Italian law, guarantee to the individual that Italian authorities also apply it.
38. It follows that the Italian Republic has not transposed exactly and in full the procedure for mutual recognition of evidence of formal qualifications as provided for in Articles 2, 3, 7, 8 and 9 of Directive 85/384. Thus, this objection of the Commission is also established.
C - The requirement to produce the original evidence of formal qualifications or a certified true copy thereof
39. Article 27 of Directive 85/384 provides that where legitimate doubt exists as to the authenticity of evidence of formal qualifications, the host Member State may require the home state to confirm its authenticity. Article 4(2)(a) of Decree No 129/92, by contrast, provides that an application for the recognition of evidence of formal qualifications must include the original of that evidence or a certified true copy thereof.
Submissions of the parties
40. The Commission submits that the requirements of Article 4(2)(a) of Decree No 129/92 are only authorised where doubt exists as to the authenticity of the evidence of formal qualifications. The provision breaches Article 27 of Directive 85/384, as it imposes an additional general condition which, as regards the exercise of the right of establishment, is neither appropriate nor justified.
41. The assumption made by the Italian provision of an abuse of rights creates an obstacle to the exercise of the freedom to provide services and of the freedom of establishment, which contradicts the philosophy of the directive. It follows from the judgment in Centros that in considering the question whether there is any fraudulent conduct, the assessment must be made on a case-by-case basis.
42. Also, additional costs are created by the obligation to provide the original diploma or a certified true copy. Account must be taken of the risk that the diploma goes missing and of the possibility that the procedure is delayed.
43. The purpose of this obligation - to check acquired abilities - can also be achieved by means of a simple certificate or photocopy. Thus, the Italian provision goes beyond what is necessary to achieve what might be the interest of the common good.
44. Article 27 of the directive cannot justify this requirement, and indeed prohibits it. This provision is to be interpreted narrowly and provides for proof of the authenticity of evidence of formal qualifications only where there is a suspicion of fraudulent conduct. From that it is to be concluded a contrario that in the absence of a legitimate doubt the authenticity of evidence of formal qualification need not be proved.
45. The Italian Republic submits that there is no obstacle to the exercise of the fundamental freedoms. The Italian rule is not a symptom of general mistrust but a guarantee of legal certainty and of the correct application of the Community provisions.
46. Article 27 of Directive 85/384 does not deal with this question, but refers only to confirmation of authenticity by requiring confirmation from the architect's home State.
47. The obstacles that the Commission considers to arise are, in the opinion of the Italian Republic, neither inappropriate nor disproportionate.
Opinion
48. The directive does not contain any express provision as to the question whether the Member States may, in the procedure for recognition of evidence of formal qualifications, require its production in the original or by means of a certified true copy. However, if Article 27 of Directive 85/384 were to be understood as meaning that it provided for the only procedure in which the authenticity of evidence of formal qualifications required to be proved, then it could preclude this requirement.
49. According to its wording, Article 27 of Directive 85/384 provides only for the particular case in which the host State, because of a legitimate doubt, requires from the competent authorities of the home State confirmation of the authenticity of the evidence of formal qualifications. In this case, the authorities of the home State must cooperate with those of the host State and, if need be, issue confirmation of authenticity.
50. The case provided for in Article 4(2)(a) of Decree No 129/92, where the applicant must include the original diploma or a certified true copy of it with his application, by contrast, is not, according to its wording, the subject of Article 27 of Directive 85/384.
51. The systematic position of Article 27 within the final provisions of Directive 85/384 does not provide any indication as to whether it is a general prohibition against requiring, other than in the case of legitimate doubt, the original diploma or a certified true copy from potential applicants. Accordingly, it appears to be a provision that applies - in a certain sense generally - to all the other chapters. However, one cannot, on that basis, extend its scope of application beyond its wording.
52. Neither the legislative history nor the purpose of the provision gives any indication that it precludes unilateral measures on the part of the Member States for ensuring the authenticity of the evidence of formal qualifications that is to be recognised.
53. If one were to add to this the purpose of Directive 85/384, to facilitate the exercise of the freedom of establishment and the freedom to provide services, it appears obvious that other means of proving authenticity are in principle not intended to be excluded. If an applicant should produce merely a copy and if the Italian authorities had legitimate doubts that the applicant actually had the original evidence of formal qualification, it would clearly not be necessary to contact the authorities of the home State and thereby waste time. Rather, the applicant would first have to be requested to produce the original.
54. It is to be concluded from that that Article 27 of Directive 85/384 is in any case not the sole means of checking evidence of formal qualifications. For that reason, this provision of the directive cannot preclude Article 4(2)(a) of Decree No 129/92.
55. However, the fundamental freedoms might directly render this provision unlawful. There is in any case indirect discrimination, as it is predominantly non-Italians who seek recognition of evidence of formal qualifications obtained in other Member States. It follows that there is at least a potential infringement of the freedom to provide services and the freedom of establishment. For that reason, whether the requirement to produce originals or certified true copies is justified by overriding reasons in the general interest must be considered.
56. In this connection, the general interest consists in receiving proof of the actual existence of the evidence of the formal qualifications relied on. Specifically, it is the interest, recognised also by Directive 85/384, that the activity of architect is carried out only by those who can prove by means of recognised evidence of formal qualifications that they have acquired specified qualifications. The recognition of forged evidence would thwart this general interest.
57. Copies are suitable only to a limited extent for proving the existence of an original certificate, as the act of copying allows significant opportunity for manipulating the copy. The production of the original or of a certified true copy makes the deception of the authorities concerned significantly more difficult. For that reason, such a requirement is suitable to create a better guarantee of the authenticity of the evidence of formal qualifications relied on than the possibility of producing a copy.
58. Furthermore, it appears also not possible to be able to ensure equally effectively the existence of an original document by means less burdensome than the production of that document or of a certified true copy. It is precisely the latter that is conceivably an alternative where it is feared that the original has been lost.
59. Finally, this requirement appears also to be appropriate. The costs and circumstances of the production of the original or of a certified true copy are of comparatively minor significance. Moreover, it is current practice for authorities of the Member States, and also offices of the Community, to require evidence in the original or by means of a certified true copy.
60. It follows that Article 4(2)(a) of Decree No 129/92 does not infringe the fundamental freedoms either.
61. Therefore, this one of the Commission's objections is not established.
D - The requirements to produce Italian translations of all documents and a certificate of nationality
62. Article 4(2)(c) of Decree No 129/92 and Article 4(1)(c) of Decree No 776/94 each provide that a certificate of nationality must be included in the application for recognition of evidence of formal qualifications. Article 4(3) of Decree No 129/92 and Article 10 of decree No 776/94 provide that an Italian translation must be produced with all documents that are not drawn up in Italian. These translations must be certified by the diplomatic or consular authorities of the country in which the documents were drawn up, or by an official translator, as being true translations of the original.
63. Directive 85/384 does not contain any express provision in this regard.
Submissions of the parties
(1) Certificate of nationality
64. The Italian Republic submits that there is no obstacle to the establishment of architects. The certificate of nationality can be provided easily and quickly in the Member States. There is no restriction of the rights provided by the directive.
65. Moreover, administrative practice is such that copies of valid national papers are sufficient instead of certification of nationality. This reference to administrative practice is not an admission of an infringement. It is merely an adjustment to the facts.
66. The Commission submits that the requirement for a certificate of nationality constitutes a disproportionate and an unjustified breach of the freedom of establishment - Article 52 of the EC Treaty (now, after amendment, Article 43 EC) - as a passport can be regarded as sufficient to confirm being a national of another Member State.
67. The administrative practice evidences simply the recognition by the Italian authorities of the disproportionate character of this obligation. Given the risks of capricious behaviour by public authorities, mandatory requirements of legal certainty demand the total elimination of laws to the contrary by means of national laws of a mandatory nature.
(2) Translation of documents
68. In the first place, the Italian Republic is of the view that it has not been proved that the obligation to provide the documents constitutes an obstacle and makes the recognition of diplomas more difficult in the Italian Republic.
69. The obligation to provide an officially certified translation is suited for the purpose given the technical content of the documents and the difficulties in the way of correctly understanding the texts. It is not a question of suspecting fraudulent conduct but rather of taking account of objective linguistic difficulties. The obligation to produce translations immediately is intended to avoid delays that might arise due to requests for more exact information.
70. Finally, Italian administrative practice is such that the demand for translations has been reduced in so far as the documents produced are already known from previous proceedings. This is not an unlawful administrative practice, but the rational application of the provisions, given the objective pursued and the general objective of efficiency of procedure.
71. The Commission submits that the obligation to provide the documents results in a longer procedure and higher costs. In contrast to a simple translation, the obligation to include an official translation issued by diplomatic or consular authorities or an official translator constitutes an additional obligation.
72. The risk of delaying proceedings does not replace the necessity for there to be a legitimate doubt.
73. One could by means of an unofficial translation achieve the objective of checking that the conditions for recognition had been satisfied. The only exception is where there is a suspicion of fraudulent conduct. This possibility is already provided for and is guaranteed by Articles 17(4) and 18(2) of Directive 85/384.
74. The obligation was imposed indiscriminately and applies to all architects irrespective of whether they hold a diploma already recognised by the Italian authorities.
75. The fact that administrative practice dispenses with the obligation to provide an official translation in so far as it is familiar with various diplomas and is able to understand the documents does not guarantee the transposition of the directive in full. The interested person would find out about the legal position in advance and estimate the economic benefit from pursuing the activities. Such interested persons would rely on the rules and prohibitions actually in force.
76. Even if one were to accept that the infringement is only of a limited nature, this does not excuse the Italian Republic from transposing the directive exactly and in full, as there is no de minimis rule for infringements.
Opinion
77. The Commission restricts these pleas in law expressly to the declaration that the Italian Republic has infringed Articles 12, 20, 22, 27 and 31 of Directive 85/384. It relies neither on a fundamental freedom nor on the Treaty generally. However, in its justification it assumes an infringement of the freedom of establishment. For that reason, these pleas in law are to be understood as being directed, contrary to their wording, to a declaration of an infringement of the specified provisions of the directive and of the freedom of establishment.
78. It is not obvious that the requirement to produce a certificate of nationality and documents with officially certified translations would infringe a provision of Directive 85/384.
79. However, there might be an infringement of the freedom of establishment. The Italian requirements make more difficult at least the recognition of evidence of formal qualifications of architects who wish to establish themselves in Italy. They are at least of an indirectly discriminatory nature, as it is predominantly non-Italians who will seek recognition. Admittedly, both a check of the applicant's nationality and knowledge of the content of the documents appear to be legitimate general interests. However, the production of neither a particular certificate nor official translations is, according to Italy's own submissions, necessary in order to satisfy these interests. According to them, even the Italian authorities regularly satisfy themselves with copies of valid identity papers and dispense with translations where they are familiar with the evidence of formal qualifications.
80. As regards the production of translations, it must be accepted that Community law permits national authorities in principle to work exclusively in their official languages, and likewise to communicate with citizens of the Union. For that reason, national administrations cannot be required to accept documents in all the languages of other Member States without translation. However, the objective of Directive 85/384 is to facilitate the exercise of the profession of architect for architects trained in other Member States. This objective requires that national authorities must also apply existing knowledge of other languages instead of inflexibly insisting on official translations. The freedom of establishment, which is to be interpreted in the light of Directive 85/384, therefore authorises a requirement to produce official translations only if the authority concerned could not understand the document otherwise. If the case officers, or other employees of the particular authority who can be used without disproportionate expense, have the knowledge necessary to be able to read the document in the original or with the help of an unofficial translation, the requirement for an official translation would not be necessary and would for that reason be disproportionate. Therefore, the requirements under Article 4(3) of Decree No 129/92 and Article 10 of Decree No 776/94 that go beyond that are incompatible with the freedom of establishment.
81. Furthermore, it must be pointed out that there is no de minimis rule for infringements. Even if the financial repercussions of a failure to fulfil obligations are considered to be negligible, the de minimis rule does not apply in relation to the failure of a Member State to fulfil its obligations with regard to legislation.
82. It follows that Article 4(2)(c) of Decree No 129/92 and Article 4(1)(c) of Decree No 776/94 as well as Article 4(3) of Decree No 129/92 and Article 10 of Decree No 776/94 are not compatible with Article 52 of the EC Treaty.
E - The complaint of too extensive recognition of established rights
83. Article 12 of Directive 85/384 provides for an exception from the minimum requirements for the training of an architect under Articles 3 and 4 of the directive. Under specified conditions, the Member States give the professional title of architect also to those who were at the time of the implementation of the directive entitled to bear the professional title of architect in another Member State, without fulfilling those requirements.
84. Article 11(1)(c) and (d) of Decree No 129/92 grants the professional title of architect to those who, prior to the entry into force of the decree, that is to say, up to 19 February 1992, were entitled to bear that professional title in another Member State.
Submissions of the parties
85. The Commission submits that the latest time of the validity of certificates that could be issued in the context of Article 12 of Directive 85/384 coincided with the obligation to transpose the directive, that is to say, 5 August 1987. This was the last point in time at which the persons concerned could have received authorisation to bear the professional title of architect and to satisfy the conditions as regards pursuing the activity.
86. Article 11(1)(c) and (d) of Decree No 129/92 postponed this time-limit to the decree's entry into force at the start of 1992, that is to say, by five years after the expiry of the time limit for transposition. However, Article 12 of the directive is merely a transitional provision and for that reason constitutes an exception to the general rules, which must therefore be interpreted restrictively. Likewise, in a similar question relating to the recognition of dentists, the Court required a narrow interpretation. The temporary character of this incorrect transposition does not justify it.
87. The Commission moreover points out that potential clients of architects must be able to rely on such architects fulfilling the requirements of Directive 85/384. In its opinion, the situation of clients of an architect given undue recognition where a house built by him collapses is not significantly different from the situation of patients treated incorrectly.
88. Finally, the Commission is of the view that the generosity of the Italian Republic creates an additional injustice to those who hold titles that are recognised by the directive, as they are treated in the same way as architects who do not fulfil the requirements of the directive.
89. Italy submits that the longer transitional period resulted from the late transposition of the directive. It was desired that the persons concerned should be given a transitional period that corresponded to the period that would have been set if the directive had been transposed within the relevant time-limit. In fixing the time-limit, the Community legislature proceeded on the basis that the time-limit for transposition had to be complied with and did not provide any rules for the case in which transposition did not occur by the specified time.
90. The Italian Republic points out that most holders of established rights were able to benefit from the special recognition provided for in the directive and others were subjected to the stringent check under Articles 3 and 4 of the directive. This is a more serious injustice than the one submitted by the Commission, which was supposed to lie in the equation of holders of titles recognised by the directive with those whose titles were not to be recognised.
91. There is a distinction from the judgment the Commission cited concerning dentists. In the field of medicine, there are absolute requirements for protection that render the general extension of the category of those pursuing the profession unacceptable. Where the Commission refers to the general necessity for applicants to satisfy minimum requirements of training and experience in order to guarantee a certain level of performance of the services, then this consideration must be applied to all established rights. However, Community law would, by virtue of rules such as Article 12 of Directive 85/384, authorise a large number of people to pursue an activity though in the Commission's opinion they were not properly qualified.
Opinion
92. The parties are in dispute as to the period of time which is to be applied for the purposes of recognition as an architect. If one proceeds on the basis that the date fixed for the transposition of the directive - 5 August 1987 - is the latest time at which a title requiring to be recognised could be obtained, the impugned Italian provision leads to a significant extension of the period giving a right to recognition as an architect on less stringent conditions.
93. According to the wording of Article 12 of Directive 85/384, the procedure for easier recognition applies to those who were, before the transposition of the directive, entitled to bear the professional title of architect. To that extent, the present dispute is to be distinguished from the judgment on the dentists' directive. In the case of the provision of the directive in dispute there, Article 19 of Directive 78/686/EEC, the period for recognition of established rights was linked to the time of notification of the directive, and not to the time of its transposition.
94. As Italy intended in the present case to transpose the directive by means of Decree No 129/92, it appears to be logical to fix the end of this transitional period in Italian law at the time at which this decree came into force. However, it must be examined whether the time of transposition specified in Article 12 of Directive 85/384 actually refers to the entry into force of the national act of transposition. Alternatively, Article 31(1) of Directive 85/384 might be considered, according to which the directive was to be transposed within two years.
95. Here, the arguments for the latter solution carry more weight. The recognition of evidence of formal qualifications under Directive 85/384 has the objective, fundamentally for protecting private and public interests, of guaranteeing the minimum requirements listed in Chapter II of the directive for architects. Article 12 of Directive 85/384 is an exception to this general rule. It is part of Chapter III of Directive 85/384 which, to protect legitimate expectations and the status quo, provides for the continuing validity of established rights. In realising the protection of legitimate expectations, it is accepted that the architects recognised under it do not necessarily satisfy the requirements of Chapter II of Directive 85/384. However, where the persons concerned can tell in advance of acquiring the legal status concerned that such status will be invalidated by forthcoming amendments to the law, reliance on existing rights need no longer be protected. For that reason, it would in fact have been logical if Article 12, like Article 10 of Directive 85/384 and Article 19 of Directive 78/686, had referred to the time of the notification of the directive. In case of doubt, the further extension of the protection of legitimate expectations to the time of transposition cannot be understood as unduly extending this exception to the general rules for the recognition of evidence of formal qualifications.
96. Moreover, legal certainty requires that the end of the transitional period be precisely identifiable. This is possible if one uses the end of the transposition period under Article 31(1) of Directive 85/384. By contrast, the time at which a Member State transposes the directive is not predictable. This can be prior to the expiry of the transposition period or - as in the present case - also very much later. More complicated is the situation where the Member State does not transpose the directive in full, or transposes it incorrectly. In substance, transposition is completed only once all the requirements of the directive have been introduced into national law, but whether this has occurred is ultimately something that only the Court can decide. For that reason, it is only the time provided for transposition in the directive that is identified sufficiently precisely to be regarded as the time of transposition for the purposes of Article 12 of Directive 85/384. It follows that the reference to transposition in Article 12 of Directive 85/384 is to be understood to mean the expiry of the transposition period under Article 31(1) of Directive 85/384.
97. By contrast, the question whether Directive 85/384 makes exclusive provision for the recognition of evidence of formal qualifications for the profession of architect or whether it is, according to the case-law of the Court on the fundamental freedoms, also possible, or even required, that there is parallel to that also an individual examination of qualifications, is of merely secondary importance. As the Italian legislation in dispute does not provide for such an examination, it is not to be regarded as the transposition of such an obligation of primary law.
98. Therefore, Article 11(1)(c) and (d) of Decree No 129/92 contravenes Article 12 of Directive 85/384.
F - The prohibition against having a permanent infrastructure
99. Article 9(1) of Decree No 129/92 regulates the supply of architects' services where these are of a merely temporary character and the architects providing the services do not maintain a principal or subsidiary place of business in Italy.
Submissions of the parties
100. The Commission takes the view that Article 9(1) of Decree No 129/92 prohibits an architect who provides services in Italy from establishing a permanent infrastructure there. Such a general and indiscriminate prohibition cannot be justified by any provision of the directive relating to the free movement of services.
101. In addition, it infringes Article 59 of the EC Treaty. The activity of an architect will require a longer or shorter stay. For that reason, an establishment in the host State is absolutely necessary. In the judgment in Gebhard, the Court stated that, that the provision of services is temporary does not mean that the provider of services within the meaning of the Treaty may not equip himself with some form of infrastructure in the host Member State ... in so far as such infrastructure is necessary for the purposes of performing the services in question.
102. The Italian Republic submits that there is no provision in the directive according to which this prohibition infringes the rules on recognition of diplomas. The intention of the Italian legislature was to underline the temporally restricted, that is to say temporary, character of the service. This temporary character manifests itself in the absence of an organised structure.
103. The Italian Republic considers that Decree No 129/92 does not preclude the use of a fixed base (appoggio stabile) in performing services.
104. It is not possible to condemn the Italian Republic on account of a provision which characterises the temporary character of the service by the absence of a principal place of business, or a branch, of an architect's office. The difference lies in the constant and temporary nature of the activity which an architect from another Member State wants to pursue in Italy.
105. If the architect wishes to establish himself for a specific period of time on Italian territory, then the provisions relating to the freedom of establishment are applicable.
106. If the architect wants to exercise his activity only temporarily, the more flexible provisions on the freedom to provide services are applicable. The provisions on the freedom to provide services are to be applied subject to the condition that - where the activity requires a permanent infrastructure - this is possible provided that the infrastructure does not turn into the principal place of business, or a branch, of an architect's office.
Opinion
107. In making this objection, the Commission relies not on the provisions of Directive 85/384 but on the freedom to provide services. Admittedly, under Article 60 of the EC Treaty (now Article 50 EC) this is subsidiary to the freedom of establishment, first, as the wording of the first paragraph of Article 59 assumes that the provider and the recipient of the service concerned are "established" in two different Member States and, second, as the first paragraph of Article 60 specifies that the provisions relating to services apply only if those relating to the right of establishment do not apply. Therefore, the application to architects of other Member States who work in Italy of the freedom to provide services is excluded if they are already established in Italy. The Italian Republic is therefore not obliged to allow services to be provided in the less stringent framework of the freedom to provide services if there is an establishment.
108. The Commission rightly points out that the Court, in its judgment in Gebhard, authorised the person providing the services to equip himself with an infrastructure, including an office, even if he is merely providing services, this being perforce of a temporary nature, where this is necessary for the purpose of performing the services in question. If the Italian provision were to prohibit such an infrastructure in a case of performing of services, then that might be an infringement of the freedom to provide services.
109. However, Article 9(1) of Decree No 129/92 provides only that the architect may have neither his principal place of business nor a branch in Italy if he wishes to take advantage of the legislative framework for services. The term used there, stabilimento, indicates in the Italian version of the Treaty an establishment within the meaning of Article 52 of the EC Treaty. This suggests the answer that Article 9(1) of Decree No 129/92 merely gives effect to the distinction between establishment and services within the meaning of the Treaty.
110. It cannot be excluded that the interpretation and application of this provision in Italy complicates or obstructs the activity of architects within the framework of the freedom to provide services, if the use of even an authorised infrastructure leads to the application of the legislative framework for architects having an establishment. However, the Commission would have had to plead and, if so, also to prove such an application, contrary to the Treaty, of provisions of Italian law that appear to comply with the Treaty. However, the Commission has not submitted any basis for suggesting this to be the case. Given the wording of Article 9(1) of Decree No 129/92, however, this would have been necessary to enable a finding of an infringement of the freedom to provide services.
111. Thus, this objection is not established.
G - The requirement to register with the professional bodies for architects
112. Article 22 of Directive 85/384 contains the following provisions:
1. Where a Member State requires of its own nationals wishing to take up or pursue the activities referred to in Article 1 either an authorisation from or membership of or registration with a professional organisation or body, that Member State shall, in the case of provision of services, exempt nationals of other Member States from that requirement.
The person concerned shall provide services with the same rights and obligations as nationals of the host Member State; in particular he shall be subject to the rules of conduct of a professional or administrative nature which apply in that Member State.
For this purpose and in addition to the declaration referred to in paragraph 2 relating to the provision of services, Member States may, so as to permit the implementation of the provisions relating to professional conduct in force in their territory, require automatic temporary registration or pro forma registration with a professional organisation or body or in a register, provided that this registration does not delay or in any way complicate the provision of services or impose any additional costs on the person providing the services.
...
2. The host Member State may require the person concerned to make a prior declaration to the competent authorities about the services to be provided where they involve the execution of a project in its territory.
3. Pursuant to paragraphs 1 and 2, the host Member State may require the person concerned to supply one or more documents containing the following particulars:
- the declaration referred to in paragraph 2,
- a certificate stating that the person concerned is lawfully pursuing the activities in question in the Member State where he is established,
- a certificate that the person concerned holds the diploma(s), certificate(s) or other evidence of formal qualifications required for the provision of the services in question and that those qualifications comply with the criteria in Chapter II or are as listed in Chapter III of this Directive;
- where appropriate, the certificate referred to in Article 23(2).
4. The document or documents specified in paragraph 3 may not be produced more than 12 months after their date of issue.
5. ... .
113. Article 9(3) of Decree No 129/92 provides that even if they are providing services architects must be entered in the registers established and maintained by the regional and the national councils for architects. This is done at the professional body's expense.
114. The registration procedure is found in Articles 7 and 8 of Decree No 776/94. Following a request, it was explained by the Italian Government. According to it, the first registration occurs within a period of 30 days. Evidence of the formal qualifications for pursuing the profession of architect and of the actual, lawful pursuit thereof in the home State, as well as a declaration of the service to be provided, must be included with the application. Subsequent services must be notified. Authorisation is then granted automatically. However, each registration is valid only for the geographical area of the individual professional body. The service may be provided after the decision of the professional body as regards registration.
Submissions of the parties
115. The Commission submits that Article 22(1)(3) of Directive 85/384 provides that Member States may require only automatic temporary registration or pro forma registration with a professional organisation or body or in a register, provided that this registration does not delay or in any way complicate the provision of services or impose any additional costs on the person providing the services.
116. Article 9(3) of Decree No 129/92, which requires the person who provides the services to register himself in a corresponding register of the regional professional body of architects which is maintained by the regional councils and the national councils of architects, exceeds the restrictions that are compatible with Directive 85/384.
117. The Commission points out that Decree No 776/94 did not bring the infringement to an end, as Articles 7 and 8 show. Article 7 of Decree No 776/94 provides that the first time a service is provided registration must be effected with the professional body of architects for the district in which the service is intended to be provided. The pre-condition is an application drawn up in Italian.
118. The Commission is of the opinion that the requirements imposed by the Italian Republic are not compatible with the case-law of the Court on Article 59 of the EC Treaty and constitute a disproportionate restriction. In the context of the freedom to provide services, it is unlawful for the host State to impose requirements in so far as the public interest they seek to protect is already sufficiently protected by similar provisions in the home State. The Italian provision fails to take account of corresponding conditions already imposed by the home State. It does not take account of the possibility that, like Italy, other Member States could have adopted similar provisions. Thus, there could be a double obligation in the home State and in Italy.
119. Moreover, the provisions are not proportionate. A less restrictive measure might be to require the person providing the services to produce certificates of registration in the professional register of his home State. A less restrictive measure is provided in Article 22(1) of the directive too - an automatic temporary registration or pro forma registration with a professional organisation or body or in a register.
120. Finally, the mandatory nature of the requirement, which provides an actual duty to register and is not met by a declaration of activity, is not negated by the fact that the costs are imposed on the professional organisation.
121. The Italian Republic submits that Article 22 of the directive permits an automatic temporary registration or pro forma registration with a professional organisation or body or in a register.
122. There is no real impediment, but only a measure which provides controls of professional activities necessary even for citizens of Member States who pursue an activity within the territory of a Member State only occasionally or temporarily.
123. Registration in an ad hoc register by professional organisations does not constitute an obstacle. Such registration is in the nature of ancillary act which is undertaken as a consequence of holding a recognised title or, as the case may be, of satisfying the other conditions in Article 9(1)(a) and (b) of Decree No 129/92. The provision imposes the costs which arise as a result of registration in the register on the body or organisation.
124. Italy is of the view that what is involved is not a real duty to register but only a prior declaration to the architects' professional body. A consequence of this is automatic registration in the prescribed register. Article 9(3) of Decree No 129/92 corresponds to Article 22(1)(3) of the directive. What is involved is a temporary registration, as the provision of services is in its own nature only temporary. It is also automatic, as registration is effected, without further investigation, simply on the basis of the application for registration.
125. Finally, the Italian Republic is of the view that the Commission is, by means of some sleight of hand, confusing registration in the relevant register under Article 9 of the Decree with registration in the professional roll which is provided for in Article 5 of Decree No 129/92. In respect of this assessment, there is a mechanism for coordination with the corresponding registrations in the other Member States in Article 7 of Decree No 129/92. The Commission itself suggested such a mechanism.
Opinion
126. It appears from Article 22 of Directive 85/384 that the provision of architects' services is merely notified to the host State. On such notification, the host State may require specified evidence and register the architect in a register or provide for a temporary pro forma registration with a professional organisation. These measures must neither delay nor complicate the service. These provisions are to be understood to mean that architects from other Member States are permitted to provide their services immediately after recognition of their evidence of formal qualifications in the host State and must at the most declare them in advance. From this it follows a contrario that the provision of services cannot be made subject to prior authorisation. Even authorisations which are given automatically and within short periods of time are accordingly unlawful.
127. The Italian Republic itself accepts that at least the first provision of a service is delayed by the registration procedure. Specifically, in accordance with Article 8(4) of Decree No 776/94 the architect concerned must, after declaring the service and making the application, wait until the council of the professional body has decided on the application. This can last up to 30 days. It is only subsequent services that appear to be allowed automatically on the project's being declared. If the architect wishes to pursue his activity within the geographical area of a different professional body, this delay is repeated.
128. Such a delay is particularly serious, as it interferes with the access of architects from other Member States to the Italian market. Usually, it is precisely the acquisition of the first commission, before one can build up a local reputation, that is bound up with difficulties. If administrative difficulties are added to these before the architect is permitted to commence his activity, then precisely this burden can lead a client to prefer a domestic architect who can begin immediately.
129. Thus, the procedure for registration in the register of professional bodies under Article 9(3) of Decree No 129/92 and under Articles 7 and 8 of Decree No 776/94 is incompatible with Article 22 of Directive 85/384 in so far as it delays the provision of the first service of an architect in a particular professional body's geographical area beyond the time of the declaration.
H - The complaint of failure to recognise evidence of formal qualifications within the relevant time limit
130. Under Article 20(1) of Directive 85/384, the procedure for authorising an architect from other Member States must be completed as soon as possible and not later than three months after the presentation of all the documents relating to the person concerned.
131. Article 4(6) of Decree No 129/92 provides that before recognition, reports are to be obtained from the national university council and from the council of the architects' professional body, which must be provided within 30 days. Under Article 4(7) of Decree No 129/92, the procedure must be completed, either by recognition or its refusal, within three months in aggregate from the presentation of the application with all the documents. Inquiries to authorities of the home State interrupt the period for up to four months. The decision completing the procedure is made in accordance with Article 4(8) of Decree No 129/92 by the Minister for Universities and Scientific and Technological Research in consultation with the Foreign Minister and the Justice Minister.
Submissions of the parties
132. The Commission submits that in the procedure as it must be carried out under Article 4(6) to (8) of Decree No 129/92, the period of three months cannot be adhered to. There is an infringement of Article 20(1) of the directive. The Commission gives as an example an Austrian architect who has been waiting since 17 March 1994 for a decision of the Italian authorities in respect of his application. The Commission submits further complaints in this respect. It is irrelevant whether what is concerned is individual cases, as every infringement of Community law may be prosecuted.
133. The Italian Republic points out that in academic writing the opinion is stated that an isolated, brief infringement of the provisions of Community law does not justify condemnation in proceedings for failure to fulfil an obligation.
134. It maintains that the majority of cases are dealt with within the period. Overrunning the time-limit in other cases is justified by the exceptions provided for in the directive. What might be overruns of the time-limit are due not to the Italian State but rather to the negligence of the individuals applying for recognition. This applies in particular in the individual case referred to by the Commission.
Opinion
135. The present objection is not supported by actual provisions of Italian law from which an overrun of the period under Article 20(1) of Directive 85/384, which is expressly restated in Article 4(7) of Decree No 129/92, is supposed to appear. Instead, the Commission refers in the abstract to the inadequacies in the recognition procedure in Italy already objected to and to individual cases of which, however, it specifies only one. However, it does not necessarily follow from the other complaints in these proceedings that the three-month period cannot be adhered to.
136. In so far as the Commission objects to an infringement of Directive 85/384 in individual cases, it need not be discussed whether such individual cases would be a suitable basis for a declaration of a failure to fulfil obligations. In the present case, the Commission has restricted itself to specifying the name and home State of one applicant, as well as the date on which the application was presented. The Italian Republic countered this submission with the assertion, which was not contradicted, that the particular applicant had not presented all of the necessary documents. However, under Article 20(1) of Directive 85/384, the time limit for recognition does not begin to run if an incomplete application is presented. It follows that it cannot be concluded on the basis of the information provided that the Italian authorities have in this case failed to fulfil their obligations under Article 20(1) of Directive 85/384.
137. It follows that this objection must also be rejected.
V - Costs
138. The consequences in costs follow from Article 69(2) of the Rules of Procedure. Admittedly, the Commission has not succeeded with three pleas in law, and with others has succeeded only in part, but the failures that have been established of the Italian Republic to fulfil its obligations under Directive 85/384 and under the freedom of establishment far outweigh those that have not. In practice, it appears that these failures are of such gravity that they put the attainment of the objective of Directive 85/384 in Italy in question. For that reason, the Italian Republic is to be ordered to pay the whole costs of the proceedings.
VI - Conclusion
139. Therefore, it is suggested that the Court should decide as follows:
(1) The Italian Republic has failed to fulfil its obligations under Article 31 of 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, as amended, as well as under Articles 5 and 189 of the EC Treaty (now Articles 10 and 249 EC),
- by failing to take all the measures necessary to implement Articles 4(1), second subparagraph, 4(2), 11 and 14 of Directive 85/384,
- by failing to take all the measures necessary to provide for the automatic recognition of diplomas, certificates and other evidence of formal qualifications under Articles 2, 3, 7, 8 and 9 of Directive 85/384,
- by adopting Article 11(1)(c) and (d) of Decree No 129/92, which, contrary to Article 12 of Directive 85/384, provides for the validity of specified evidence of formal qualifications obtained after 5 August 1987, and
- by requiring architects from other Member States who desire to provide services to register with the regional professional body for architects (Article 9(3) of Decree No 129/92 and Articles 7 and 8 of Decree No 776/94), in respect that this requirement delays, contrary to Article 22 of Directive 85/384, the provision of an architect's first service in a particular professional body's geographical area beyond the time of its declaration;
(2) The Italian Republic has infringed Article 52 of the EC Treaty (now, after amendment, Article 43 EC)
- by adopting Article 4(2)(c) of Decree No 129/92 and Article 4(1)(c) of decree No 776/94, which lay down a general requirement for a certificate of nationality, and
- by adopting Article 4(3) of Decree No 129/92 and Article 10 of decree No 776/94 which routinely require an official translation of documents;
(3) The remainder of the application is dismissed;
(4) The Italian Republic is ordered to pay the costs of the proceedings.
Full & Egal Universal Law Academy