OPINION OF ADVOCATE GENERAL

delivered on 16 September 2003(1)

(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart)

(Freedom of movement for persons and services – Recognition of diplomas – General systems – Directives 89/48/EEC and 92/51/EEC – Primary school teachers – Diploma awarded in Austria on completion of two years’ education and training – Recognition in Baden-Württemberg (Germany) – Recognition conditional on diploma attesting to education and training of at least three years’ duration and qualifying the holder to teach two subjects)

I – The facts and the main proceedings

7. The Oberschulamt Stuttgart dismissed Ms Beuttenmüller’s claim in a decision dated 26 August 1999, and informed her that her education and training could not be regarded as equivalent to that required for teaching in primary and secondary schools in Baden-Württemberg. That decision was confirmed by order of 21 November 2000.

II – The questions referred for a preliminary ruling

If the answer to the first and/or second question is in the affirmative:

(a) makes recognition of a professional teaching qualification, awarded or recognised in another Member State of the European Union, conditional, without exception, on completion of higher education and training of at least three years’ duration; and

(b) requires, for the purpose of such recognition, the qualification to comprise at least two of the subjects stipulated for the teaching profession in question in Baden-Württemberg?

If the answer to the first question is in the affirmative:

If the answer to the second question is in the affirmative:

In the event of failure to transpose Directive 92/51/EEC within the period prescribed in Article 17 thereof, does Article 3(a) of that directive give rise to an entitlement to have a teaching qualification awarded in a Member State treated in the same way as the corresponding qualification for a teaching career in the host Member State without the host Member State being permitted – where the particular conditions are fulfilled – first of all to require compensatory measures to be applied under Article 4 of the directive?

III – The proceedings before the Court of Justice

11. Since none of the parties applied to present oral argument, the Court decided to dispense with a hearing, in accordance with Article 104(4) of the Rules of Procedure.

IV – Recognition under Community law of higher-education diplomas awarded on completion of professional education and training

A – Founding legislation

12. Article 3(1)(c) EC stipulates that one method of achieving the aims of the Community, set out in Article 2 EC, is the establishment of ‘an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital’. (10)

13. That mechanism must be applied without discrimination on grounds of nationality, as stipulated in the first paragraph of Article 12 EC (ex Article 6 of the EC Treaty), and confirmed in the first paragraph of Article 43 EC (ex Article 52 of the EC Treaty) which provides that ‘restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited’. (11) That provision therefore guarantees the implementation of the aforementioned general principle in the sphere of the right of establishment. (12)

14. Some of the barriers which Article 3 EC seeks to abolish are actually caused by the laws, or simply the administrative practices, of the Member States, which require people to hold a specific qualification, awarded by the authorities of the Member State concerned, in order to pursue a particular profession. Thus, indirectly, many European Union citizens are liable to find their freedom of movement unjustifiably impeded through discrimination on the grounds of nationality, as a result of the diplomas required by a particular Member State being those awarded under its own education system.

15. In the light of that situation, and in order to make it easier for persons to take up and pursue activities as self-employed persons, the Treaty entrusted to the Council the task of adopting ‘directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications’ (Article 57(1) of the EC Treaty (now Article 47(1) EC)). (13)

In such circumstances, the Member States remain, as a matter of principle, competent to regulate the use of professional qualifications on their territory. Those powers are not without limits, however, in that their application may not constitute an obstacle to the effective exercise of freedom of establishment. (15) That freedom is unjustifiably restricted where a Member State refuses to allow a European Union citizen, who holds a diploma which has been recognised and who, furthermore, fulfils the specific conditions regarding education and training stipulated by the national law of that Member State, admission to a particular profession for the sole reason that the person concerned does not hold the corresponding national qualification. (16)

That assertion is based on the duty of the Member States, under Article 10 EC (ex Article 5 of the EC Treaty), to adopt all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty and to abstain from any measure which could jeopardise the attainment of the objectives provided for therein. (17) It also has the effect of ensuring that a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification must take into consideration the certificates, diplomas and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules. (18)

In any event, where there are no directives governing recognition of qualifications the situation is far from ideal, because the procedure for comparing individual systems of education and training, which involve different qualifying tests regulated and administered by the various Member States, is highly complex. (19)

B – Secondary legislation

With a view to overcoming those difficulties and facilitating the effective exercise of the right of freedom of establishment, special directives regulating particular professions were enacted during the period from 1975 to 1985. That system, which is described as ‘sectoral and vertical’, (20) required the adoption of two provisions for each profession: one aimed at coordinating and harmonising training and education in the Member States, and the other designed to regulate the automatic recognition of diplomas.

The system was applied to the regulation of the professional activities of doctors, (21) nurses, (22) dentists, (23) veterinary surgeons, (24) midwives, (25) architects, (26) and pharmacists. (27)

Since the adoption of the seven ‘sectoral directives’ was time-consuming and, in practical terms, the effects of those directives were limited, the European Council, meeting in Fontainebleau on 25 and 26 June 1984, proposed the implementation of a ‘general system of equivalence of university diplomas in order to give effect to the right of freedom of establishment within the Community.’ (28)

That was the starting point for Directive 89/48, which establishes a general system that is horizontal in structure (29) and is based on the principle of mutual good faith. (30) In accordance with that principle, there is a presumption that similarities exist in the education and training required by the various Member States for admission to a particular profession.

a) Directive 89/48

The aim of Directive 89/48 is, therefore, to facilitate the free movement of persons and services, by enabling Community citizens who have obtained a qualification in one Member State to use that qualification in another Member State.

Accordingly, Directive 89/48 applies to any national of a Member State who holds a diploma and wishes to pursue a regulated profession in another Member State, either in a self-employed capacity or as an employed person. The directive does not apply to activities which are the subject of a separate directive governing the mutual recognition of diplomas. In such cases, the special rules concerned will apply (Article 2).

For the purposes of Directive 89/48, ‘diploma’ means any document (31) which has been awarded by a competent authority in a Member State, which shows that the holder has successfully completed a post-secondary course of at least three years’ duration at a university or establishment of higher education or another establishment of equivalent level (and, where appropriate, the professional training required), and which shows that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession in that Member State (first subparagraph of Article 1(a)).

The second subparagraph of Article 1(a) of Directive 89/48 provides that any diploma, certificate or other evidence of formal qualifications, awarded on the successful completion of education and training received in the Community, recognised by a competent authority in the Member State which awarded them as being of an equivalent level and conferring the same rights in respect of the taking up and pursuit of a regulated profession in that Member State, shall be treated in the same way as a diploma as defined in the first subparagraph. (32)

A profession is regulated in a Member State if it constitutes 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 (Article 1(c) and (d)). To put it another way, a profession is regulated where the national law creates a system under which that professional activity is restricted to those who fulfil certain conditions and entry to it is denied to those who do not, (33) or where there is indirect legal control of access to or pursuit of that profession. (34)

Article 3, which sets out the principle of mutual good faith referred to above, establishes the presumption that education and training completed in different Member States, and leading to the award of a diploma authorising the holder to pursue a particular profession, must be treated in the same way, by providing that:

Where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue that profession on the same conditions as apply to its own nationals:

if the applicant holds the diploma required in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State; or

if the applicant has pursued the profession in question full-time for two years during the previous ten years in another Member State which does not regulate that profession, within the meaning of Article 1(c) and the first subparagraph of Article 1(d), and possesses evidence of one or more formal qualifications:

which have been awarded by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of such State,

which show that the holder has successfully completed a post-secondary course of at least three years’ duration, or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level of a Member State and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course and

which have prepared the holder for the pursuit of his profession.

The following shall be treated in the same way as the evidence of formal qualifications referred to in the first subparagraph: any formal qualifications or any set of such formal qualifications awarded by a competent authority in a Member State if it is awarded on the successful completion of training received in the Community and is recognised by that Member State as being of an equivalent level, provided that the other Member States and the Commission have been notified of this recognition.’

That presumption is not absolute and evidence may be submitted to challenge it. The duration of the education and training completed by the applicant in the Member State of origin, leading to the award of the diploma, may be shorter than that required in the host Member State, or there may be substantial differences between the courses undertaken or between the sphere of activity of the profession in the two Member States. In those circumstances, Article 4 of Directive 89/48 authorises the host Member State to impose, as appropriate, three compensatory measures. (35)

The first compensatory measure consists of requiring the applicant to provide evidence of additional professional experience to make up for a shortfall of at least one year in the duration of the education and training concerned. The period of professional experience required is dependant on a number of parameters, but under no circumstances may it exceed four years. Professional experience is defined as ‘the actual and lawful pursuit of the profession concerned in a Member State’. (36)

The other two compensatory measures are completion of an adaptation period and taking an aptitude test. Those measures are invoked only where it is necessary to make up for substantial differences in the education and training or in the sphere of professional activity. The adaptation period, which under no circumstances may exceed three years, consists of the pursuit of the profession concerned in the host Member State under the responsibility of a qualified member of that profession. (37) The aptitude test is an examination on subjects, knowledge of which is essential in order to be able to practise the profession in the host Member State and which are not covered by the diploma submitted by the applicant in support of the application for recognition. (38)

It is for the migrant worker to choose between those two compensatory measures, save where the activities concerned require precise knowledge of national law or entail a decision by the host Member State in accordance with Article 10 of the Directive, in which case it is the host Member State which chooses (final subparagraph of Article 4(1)).

‘The certificates and documents issued by the competent authorities in the Member States, which the person concerned shall submit in support of his application …’ are acceptable as proof that the conditions laid down in Articles 3 and 4 of the Directive are satisfied (Article 8(1)).

b) Directive 92/51

As I have pointed out, the general system of recognition put in place by Directive 89/48 applies only to diplomas awarded on completion of post-secondary education of at least three years’ duration. It was necessary to extend the system to professions the pursuit of which is not subject to the completion of higher education and training but is conditional, in the Member States, upon holding a qualification or diploma.

The void was filled by Directive 92/51, which is also aimed at enabling Community citizens to pursue one of the professions concerned in a Member State other than that in which they were awarded their professional qualifications, (39) meaning that such State is required to take account of qualifications acquired in the other Member State and to determine whether those qualifications correspond to the qualifications which are required under its own national law. (40)

41With that aim in mind, Directive 92/51 creates a general system for the recognition of qualifications, which is based on the same principles and contains the same rules as the system established in Directive 89/48, which it complements.

The personal scope of Directive 92/51 is identical to that of Directive 89/48 and, for the purposes of this case, it is concerned with the same type of documents as those covered by Directive 89/48, in so far as such documents certify that the holder has successfully completed a course of post-secondary education, the duration of which is at least one year but does not exceed three years (where applicable, additional professional training), and show that the holder has the qualifications required for admission to a regulated profession in the Member State in which they were awarded. It is an essential requirement that entry to the course takes place upon completion of the secondary education required to obtain entry to university or higher education (Article 1(a) of Directive 92/51, in conjunction with Article 1(a), second indent, of Directive 89/48).

Directive 92/51 also provides that a qualification is to be treated in the same way as a diploma if it is awarded by the authorities in a Member State on successful completion of ‘education and training received in the Community and recognised by a competent authority in that Member State as being of an equivalent level and if it confers the same rights in respect of the taking up and pursuit of a regulated profession in that Member State’ (final subparagraph of Article 1(a)).

Article 3 of Directive 92/51 provides:

‘Without prejudice to Directive 89/48/EEC, where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, as defined in this Directive or in Directive 89/48/EEC, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue that profession on the same conditions as those which apply to its own nationals:

(a)if the applicant holds the diploma, as defined in this Directive or in Directive 89/48/EEC, required in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State; or

(b)if the applicant has pursued the profession in question full-time for two years, or for an equivalent period on a part-time basis, during the previous 10 years in another Member State which does not regulate that profession within the meaning of either Article 1(e) and the first subparagraph of Article 1(f) of this Directive or Article 1(c) and the first subparagraph of Article 1(d) of Directive 89/48/EEC, and possesses evidence of education and training which:

has been awarded by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that State, and

either shows that the holder has successfully completed a post-secondary course, other than that referred to in the second indent of Article 1(a) of Directive 89/48/EEC, of at least one year’s duration, or of equivalent duration on a part-time basis, one of the conditions of entry of which is, as a general rule, the successful completion of the secondary course required to obtain entry to university or higher education, as well as any professional training which is an integral part of that post-secondary course,

or attests to regulated education and training referred to in Annex D, and

has prepared the holder for the pursuit of his profession.

However, the two years’ professional experience referred to above may not be required where the evidence of education and training held by the applicant and referred to in this point is awarded on completion of regulated education and training.

The following shall be treated in the same way as the evidence of education and training referred to in the first subparagraph of this point: any evidence of education and training or any set of such evidence awarded by a competent authority in a Member State if it is awarded on the completion of education and training received in the Community and is recognised by that Member State as being of an equivalent level, provided that the other Member States and the Commission have been notified of this recognition.

By way of derogation from the first subparagraph of this Article, the host Member State is not required to apply this Article where the taking up or pursuit of a regulated profession is subject in its country to possession of a diploma as defined in Directive 89/48/EEC, one of the conditions for the issue of which shall be the completion of a post-secondary course of more than four years duration.’

Article 4 of Directive 92/51 provides for the same set of compensatory measures as Article 4 of Directive 89/48, in the event of differences in duration of the courses concerned, and of substantial differences between the education and training, or the sphere of professional activity, in the two Member States. The rules are identical in both cases, except in relation to two matters.

The first is that the host Member State may not require evidence of additional professional experience from an applicant who holds a diploma attesting to a post-secondary course or a period of training as defined in Article 1(a), second indent, of Directive 92/51, or in Article 1(a) of Directive 89/48, if that Member State requires, for the taking up of the profession in question, a diploma attesting to one of the courses having a special structure referred to in Annexes C and D to Directive 92/51 (final subparagraph of Article 4(1)(a)).

The second matter on which the two articles differ relates to the choice of compensatory measure. In general, it is for the person applying for recognition to choose between an adaptation period and an aptitude test (second subparagraph of Article 4(1)(b)). However, it is for the host Member State to choose in the cases set out in Directive 89/48 and also where the following two conditions are met: (1) the taking up or pursuit of the profession concerned is subject, in the host Member State, to possession of a diploma as defined in Directive 89/48, one of the conditions for the award of which is the completion of a post-secondary course of at least three years’ duration; and (2) the applicant holds either a diploma or evidence of education and training as defined in Directive 92/51 (third subparagraph, second indent, of Article 4(1)(b)).

42Article 12(1) of Directive 92/51 is identical in content to Article 8(1) of Directive 89/48.

V – The applicable German legislation

Regulation of the teaching profession in Germany is the responsibility of the Länder.

In Badem-Württemberg, Paragraph 28(a) of the Landesbeamtengesetz (Law on Land Officials), in the version dated 19 March 1996, provides that a career qualification may be acquired under Directives 89/48 and 92/51. It is for the respective ministries to adopt the implementing regulations under the powers vested in them.

Pursuant to that provision, on 15 August 1996, the Ministry of Education adopted a regulation transposing Directive 89/48 into national law for the teaching profession. Paragraph 1 of the regulation, which is headed ‘Recognition’, provides:

(1)the applicant is a national of a Member State of the European Union or of another Contracting State to the Agreement on the European Economic Area,

(2)the qualification comprises at least two of the subjects stipulated for the teaching profession in question in Baden-Württemberg,

(3)the applicant’s written and spoken knowledge of the German language is of the standard necessary to teach in Baden-Württemberg,

(4)the education and training required for the applicant’s diploma within the meaning of Article 3(a) of Directive 89/48/EEC does not reveal any substantial deficiencies as regards particular specialisation, teaching methodology, education theory or teaching practice as compared to the education and training in Baden-Württemberg, and

(5)the duration of the education and training necessary for the diploma within the meaning of Article 3(a), of Directive 89/48/EEC is not more than one year shorter than the duration of education and training required for the pursuit of the teaching profession in the kind of school in question in Baden-Württemberg.

2.If the content of the education and training do not meet the requirements in subparagraph 1(4), the applicant may be required either to complete an adaptation period or to pass an aptitude test, as the applicant may choose.

3.If the duration of the education and training does not meet the requirements in subparagraph 1(5), the applicant may be required to adduce evidence of professional experience.

4.If there should be a shortfall with regard to both content (subparagraph 1(4)) and duration (subparagraph 1(5)), the applicant may be required to make good only the content shortfall in accordance with subparagraph 2.’

VI – Analysis of the questions referred for a preliminary ruling

A – Introduction

The manner in which the questions referred by the Verwaltungsgericht Stuttgart are drafted is confused and unstructured. As the Commission rightly points out, the questions must therefore be reformulated.

These proceedings turn on the interpretation of Articles 3 and 4 of Directives 89/48 and 92/51, and, specifically, on ascertaining whether those provisions preclude national legislation which makes recognition of a teaching qualification conditional on that qualification having been awarded on completion of higher education and training of at least three years’ duration and preparing the holder to teach two subjects (third question).

In order to answer that question in regard to Directive 89/48, it is necessary to consider, first of all, whether a teaching diploma awarded in Austria on completion of two years’ education and training is a diploma within the meaning of Directive 89/48, in accordance with the second subparagraph of Article 1(a) thereof (fourth question).

Having resolved those uncertainties, it is then necessary to ascertain whether Articles 3 and 4 of Directives 89/48 and 92/51 are directly applicable, so that they may be relied upon by citizens of the Member States in so far as they have not been transposed into national law or to the extent that they have been transposed inadequately (first and second questions).

If the directives may be relied upon directly and the host Member State has failed to adapt its laws to Directive 92/51, it is necessary to establish whether Article 3(a), thereof gives rise to an entitlement to equivalent treatment of the qualification concerned without it being permissible to require application of the compensatory measures referred to in Article 4 (sixth question).

The other issue to be resolved is whether the ‘post-secondary course of more than four years’ duration’, referred to in the second subparagraph of Article 3 of Directive 92/51, which releases the host Member State from the duty of recognition, includes probationary periods of teaching practice (fifth question).

However, before analysing the questions referred for a preliminary ruling, it is important to describe the operation of the general systems of recognition created by the two directives.

B – The operation of the general systems of recognition laid down in Directives 89/48 and 92/51

For the purposes of these proceedings, it is necessary to differentiate between two types of professional education and training, one of which is referred to in Directive 89/48 and the other in Directive 92/51:

(1)Post-secondary courses of at least three years’ duration leading to the award, by the competent authority, of a diploma showing that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession in the Member State in which the diploma was awarded. Qualifications obtained via an alternative educational path are treated in the same way as that type of diploma, provided that the Member State in which such qualifications are awarded recognises them as being of an equivalent level and grants the holders the same rights in respect of the taking up and pursuit of a regulated profession.

(2)Post-secondary courses of at least one but not exceeding three years’ duration, where the same conditions apply to the award of the qualification and to the qualification itself. Qualifications obtained via an alternative educational path are treated in the same way, provided that the requirements set out above are fulfilled.

A person who is qualified to pursue a profession in his Member State of origin is entitled to have his diploma recognised so that he may carry on the same profession in the host Member State. That principle is founded on the similarities which exist between the education and training required in the Member State in which the applicant was awarded the diploma and the education and training which the host Member State stipulates for the pursuit of the same profession.

If we start from the presumption in the main proceedings – that the profession concerned is regulated in both Member States –, a number of possibilities arise:

(1)If both Member States require a diploma within the meaning of Directive 89/48, the host Member State must recognise that diploma, applying, where appropriate, the compensatory measures stipulated in Article 4 of the directive.

(2)If the host Member State makes pursuit of the profession conditional upon holding a diploma as defined in Directive 92/51 but the Member State of origin requires a diploma awarded on completion of education and training of at least three years’ duration, recognition is automatic.

(3)If both Member States require a diploma as defined in Directive 92/51, recognition is also automatic, subject, where appropriate, to application of the relevant compensatory measures.

(4)The final possibility is that the host Member State requires a diploma as defined in Directive 89/48, whereas the applicant holds a diploma as defined in Directive 92/51. In this case, recognition is also compulsory, following application of the compensatory measures, unless the diploma required is awarded on completion of a post-secondary course of more than four years’ duration.

As the Commission points out in its written observations, the second and fourth possibilities enable a link to be established between the two directives: this is known as the ‘linking system’.

Accordingly, although those who have submitted observations in these proceedings have, in the main, concentrated their arguments on the issue, the type of diploma held by Ms Beutenmüller is immaterial, because, irrespective of whether it is a diploma within the meaning of Directive 89/48 or one within the meaning of Directive 92/51, the system of recognition applies, without prejudice to the application of the compensatory measures or the exceptions laid down in the two directives.

Having made those observations, I shall now go on to analyse the questions referred for a preliminary ruling in these proceedings, in the order set out above.

C – The fourth question

The Verwaltungsgericht Stuttgart seeks guidance on whether the ‘old’ teaching diplomas, awarded in Austria upon completion of two years’ education and training, constitute diplomas within the meaning of Directive 89/48.

Under the first subparagraph of Article 1(a) of Directive 89/48, a diploma is a qualification awarded on completion of a post-secondary course of at least three years’ duration, while Article 3(a), of the same directive provides that such diplomas must, in principle, be recognised automatically. It is also important to remember that qualifications obtained via an alternative educational path, which are referred to in the second subparagraph of Article 1(a), are treated in the same way as the diplomas referred to in the first subparagraph thereof.

Those alternative paths may be courses parallel to the main training course or former courses. Where a diploma, certificate or evidence of formal qualifications awarded on completion of a course which is not referred to in the first subparagraph of Article 1(a) of Directive 89/48 is replaced by another type of qualification which is referred to in that provision, holders of the old qualification will be covered by the second subparagraph of Article 1(a), provided that national law expressly recognises the course as being of an equivalent level to the new diploma and grants the holders of the qualification the same entitlement to take up the profession. Any other interpretation would make it impossible for national education systems to change, evolve, or adapt to new circumstances.

In other words, the alternative paths referred to in the second subparagraph of Article 1(a) are treated in the same way as the diplomas defined in the first subparagraph and, in accordance with Article 3(a), they give rise to an entitlement to automatic recognition.

Therefore, such diplomas fall within the scope of Directive 89/48, provided that they have been recognised as equivalent and that they give rise to the same entitlement to pursue the profession concerned. It is for the national court to determine in each case, in the light of the facts and the legal principles before it, whether both conditions have been met.

D – The third question

The Verwaltungsgericht Stuttgart also asks whether Articles 3 and 4 of Directives 89/48 and 92/51 preclude national legislation which makes recognition of a professional qualification conditional upon fulfilment of the following two requirements: (1) the qualification must be awarded on completion of higher education and training of at least three years’ duration; and (2) it must qualify the holder to teach at least two of the subjects stipulated for pursuit of the teaching profession in the host Member State.

The considerations set out above have demonstrated, without the need for further elaboration, that the first requirement is incompatible with Directive 92/51. The host Member State has a duty to recognise diplomas which attest to higher education and training of at least one but not exceeding three years’ duration, even where, under its own system, entitlement to pursue the profession in question is made subject to possession of a diploma showing that the holder has completed between three and four years’ higher education and training, without prejudice to the right of the host Member State to apply the compensatory measures referred to in Article 4.

In the light of my analysis of the fourth question, the same conclusion must be reached in relation to Directive 89/48. Where education and training is capable of leading to the award of a diploma within the meaning of Directive 89/48, despite being of less than three years’ duration, it seems clear that the directive also precludes national legislation which makes recognition of such a diploma conditional upon it being awarded on completion of education and training of three or more years’ duration. That conclusion also follows from the linking system laid down in Directive 92/51, which, in principle, imposes on the host Member State an obligation to recognise diplomas awarded on completion of education and training of less than three years’ duration, even where its national law stipulates that the diploma must be awarded on completion of a course of three or more years’ duration.

In order to analyse the second requirement, it is necessary to consider the specific nature of the teaching profession vis-à-vis the recognition of qualifications.

The training of teachers has not been harmonised under Community law. Accordingly, Member States retain the power to set the minimum level of qualification required for the teaching profession in their territory, without prejudice to their duty to recognise teaching qualifications awarded in other Member States. The teaching profession is highly sensitive because it affects the education and training of those by whom society will be organised in the future, and that is reason enough for the competent authorities to adopt the measures necessary to maintain the standard of qualification of its teachers. The aim, after all, is freedom of movement for qualified professionals.

However, such measures may not constitute a means of avoiding the application of directives governing the recognition of diplomas and evidence of formal qualifications, which are based on the principle of mutual good faith and the presumption that courses for the pursuit of a regulated profession undertaken in one Member State are comparable to courses which another Member State stipulates for the pursuit of the same profession, without prejudice to the adoption of additional compensatory measures in the event of substantial differences in the duration or content of the education and training, or in the sphere of activity of the profession concerned.

Each Member State of the European Union is therefore entitled to regulate admission to the teaching profession as it considers appropriate, and, as in the case of the German Länder, to provide its teachers with the education and training necessary to teach at least two subjects. Where a European Union citizen has been awarded, in another Member State, a teaching diploma to teach only one subject and seeks to pursue the profession in Germany, that person may not be refused recognition of the diploma on the ground that the diplomas awarded in the two Member States relate to different professions (the sole ground for refusing an application). At the most, such an applicant may be required to undergo the relevant compensatory measures in the event of substantial differences in his education and training, or in the sphere of activity of the profession concerned.

In the light of the above considerations, it is my view that it is not in keeping with the spirit or the letter of Directives 89/48 and 92/51 to require, indiscriminately and without regard to the individual circumstances of each case, that a teacher from another Member State must hold a diploma qualifying her to teach two subjects. Furthermore, that requirement is out of all proportion to the need to maintain an adequate standard of training for those who are charged with the task of educating the next generation.

Indeed, I agree with the Commission’s assertion that it is incompatible with the aim pursued by the directives to take a decision whereby, for example, a person who is qualified to teach mathematics in Austria is prevented from doing so in Germany on the ground that the education and training which that person has completed, and which led to the award of his diploma, does not guarantee that he is also qualified to teach music.

To summarise, I propose that the Court should reply in the affirmative to the third question referred for a preliminary ruling by the Verwaltungsgericht Stuttgart.

E – The first and second questions

The first and second questions ask whether Articles 3 and 4 of Directives 89/48 and 92/51 are directly applicable, so that they are capable of being relied on directly by a national of a Member State.

It is settled case-law of the Court that wherever the provisions of a directive which define the rights of individuals vis-à-vis the State are, as far as their subject-matter is concerned, unconditional and sufficiently precise, they may be relied upon, notwithstanding any conflicting rule of national law, if the Member State concerned has failed to implement the directive concerned in national law within the prescribed period, or has done so incorrectly.

77.There can be no doubt whatever that Directives 89/48 and 92/51, in particular Article 3 thereof, accord rights to nationals of the Member States. The Court has expressly ruled as much in relation to Directive 89/48. (61) It also appears to be beyond question that those rights are granted in unconditional and precise terms, since it is clear from the wording of the directives that the holder of a diploma, certificate or other evidence of formal qualifications, awarded in a Member State, may not be refused authorisation in another Member State to take up or pursue the profession for which he is qualified under the diploma concerned, provided that he fulfils the other precisely defined requirements stipulated in the provisions, without prejudice to the compensatory measures referred to in Article 4 of each directive. In short, each Article 3 imposes unconditional obligations on the Member States, and each article is sufficiently precise to enable it to be invoked by individuals and applied by the national courts. (62)

78.It makes no sense to ask the question in relation to Article 4, in so far as the directives do not accord rights to individuals but rather empower the Member States, in certain circumstances, to make the rights granted in Article 3 of each directive conditional upon fulfilment of certain additional requirements. In other words, under Article 4 of Directives 89/48 and 92/51, Member States are permitted to restrict those rights.

79.The starting point for the case-law on the possibility of invoking directives, which is one of the Court’s most novel and audacious developments, was the judgment in Franz Grad, (63) in which the Court relied on the direct effect of secondary acts of Community law other than regulations. The possibility of invoking measures is founded on what is known as the ‘sanction effect’, or estoppel in English legal terminology, the basis for which is the fact that the Member State in question has failed to fulfil its obligation to implement those measures adequately, rather than on the material effect of the subject-matter of the measures. The main consequence of that theory is that a directive may be invoked only as against a Member State which has failed to implement that directive or has failed to do so correctly. (64)

Although, as I stated some time ago, 65 –Ruiz-Jarabo, D., ‘El juez nacional como juez comunitario’, Civitas, Madrid, 1993, pp. 143 and 144. the principle of the vertical direct effect of directives laid down by the Court is based on unconvincing reasoning, and despite the fact that there are persuasive arguments in favour of a different approach, 66 –See the Opinion of Advocate General Lenz in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 43 et seq. the current rate at which case-law is evolving makes it impossible to envisage any changes to the prevailing situation such as to allow a Member State which has failed to implement the provisions of a directive within the time-limit or has done so inadequately to invoke rights pursuant to that directive as against an individual.

80.In short, Article 4 of Directives 89/48 and 92/51 cannot be said to have direct effect, for the simple reason that in neither case does it fulfil the first prerequisite stipulated in the case-law of the Court for that purpose, which is that the provision concerned must confer rights on individuals as against the State.

81.It is important not to overlook the fact that Articles 3 and 4 of Directives 89/48 and 92/51 form an indivisible whole. Each Article 3 confers a right, while each Article 4 authorises the Member States, in certain circumstances, to make the exercise of that right subject to a condition precedent, in the form of fulfilment of one or more of the compensatory measures. The provisions of each Article 4 respond to the lack of harmonisation – in relation to duration or educational content – of the education and training undertaken in the different national systems, or of the matters covered by the profession in question, and seek to make up for any shortcomings in the education which the migrant worker received in the Member State of origin.

82.The fact that Article 3 of Directives 89/48 and 92/51 is directly effective and may be invoked before the national courts does not support the argument that, where the host Member State has failed to implement the provisions correctly, any diploma covered by the measures, which has been awarded and recognised by the authorities in another Member State, automatically entitles the holder to pursue the profession concerned in the host Member State, irrespective of the other circumstances that may obtain. Indeed, it merely implies that, in such cases, a European Union citizen may rely on the provisions before the national authorities, including the courts, in order to obtain a decision which will enable him to pursue his profession.

F – The sixth question

83.In accordance with the second subparagraph of Article 1(a) of Directive 89/48, a diploma of the type held by the claimant in the main proceedings is regarded as a diploma within the meaning of the directive, provided that the Member State which awarded the diploma recognises it as being of an equivalent level to the diplomas referred to in the first subparagraph and confers on the holder the same rights as on the holders of those diplomas in respect of the taking up or pursuit of a profession. Needless to say, the claimant’s diploma may also be classified as a diploma under Article 1(a) of Directive 92/51.

84.Accordingly, the first subparagraph of Article 3 of Directive 92/51 applies to the claimant’s diploma, which is capable of being recognised, without prejudice to the application of the compensatory measures laid down in Article 4.

85.In the event of failure to transpose Directive 92/51 within the time-limit prescribed in Article 17, (67) it is necessary to consider whether recognition may be granted automatically, without it being possible to apply the compensatory measures. That is the tenor of the sixth question referred by the Verwaltungsgericht Stuttgart.

86.The considerations I set out under E in section VI of this Opinion provide useful guidance on the reply to be given to this question.

87.A Member State which has failed to fulfil its obligation to transpose Directive 92/51 into national law, properly and within the prescribed time-limit, may not deny Community nationals the opportunity to exercise the rights granted to them under that directive. Moreover, a Member State does not have the power to impose on such persons any obligations or restrictions arising from that directive which have not been transposed into national law. The defaulting Member State must not derive any advantage from its failure to comply.

88.Therefore, a Member State is not entitled to refuse to recognise a professional qualification, which satisfies all the requirements of Directive 92/51 and therefore falls within the scope of Article 3 thereof, by arguing that one or more of the compensatory measures laid down in Article 4 must first be applied.

89.That conclusion may also be reached by a different route. The rules set out in Article 4 do not apply automatically, and merely empower the Member States, in the event of differences in education and training, or in the scope of the matters covered by the profession concerned, to make up for such shortfalls by requiring the applicant to take an aptitude test, complete an adaptation period, or provide evidence of professional experience. There is nothing to preclude a Member State from recognising a diploma notwithstanding such differences, and to refrain from imposing any measures designed to remedy the shortcomings and establish equivalence. It therefore appears reasonable to presume that a Member State which has failed to transpose Directive 92/51 into national law within the prescribed period has done so because, in the view of that Member State, it is unnecessary to adopt measures aimed at ensuring that education and training and professional activities undertaken in other Member States are treated in the same way as education and training and professional activities undertaken within its territory.

G – The fifth question

90.As I have already pointed out, if the host Member State requires, for the pursuit of a profession, a diploma as defined in Directive 89/48 and the applicant holds a diploma as defined in Directive 92/51, that Member State must recognise the applicant’s diploma, subject to the application of any compensatory measures, save where the award of the diploma as defined in Directive 89/48 is conditional upon completion of a post-secondary course of more than four years’ duration (final subparagraph of Article 3 of Directive 92/51).

91.The referring court asks whether, for the purposes of determining the duration of education and training, only time spent actually studying may be taken into account or whether a probationary period of teaching practice also counts.

92.The reply to that question is to be found in a systematic interpretation of Article 3 itself.

93.If the profession concerned is regulated in both Member States, recognition is compulsory, provided that the applicant holds a diploma or qualification as defined in either directive (first subparagraph, point (a)).

94.If the Member State of origin does not regulate the profession, the host Member State still has a duty to recognise the qualification, provided that the applicant has pursued the profession in the Member State of origin for two out of the previous 10 years and possesses evidence of education and training awarded by the competent authority, which have prepared him for the pursuit of the profession and which show that he has completed a post-secondary course of at least one year’s duration, one of the conditions of entry of which is the successful completion of the period of education required to obtain entry to university or higher education, as well as any professional training which is an integral part of that post-secondary course. (68) The host Member State may not require evidence of experience if the abovementioned evidence of education and training was awarded on completion of regulated education and training (first subparagraph, point (b)).

95.Regulated education and training is that which is specifically geared to a given profession, and which comprises a course or courses complemented, where appropriate, by professional training, probationary or professional practice, the structure and level of which are determined by legislation, or which are subject to monitoring or approval. (69)

96.By way of derogation, recognition is not compulsory if, in the host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma as defined in Directive 89/48/EEC, the issue of which is conditional upon the completion of a post-secondary course of more than four years’ duration (final subparagraph of Article 3).

97.Having regard to the structure of the article, the reply to the question referred by the Verwaltungsgericht Stuttgart must be in the negative: probationary periods of teaching practice do not count towards the post-secondary course of four years’ duration referred to in Article 3.

98.The first subparagraph of Article 3 refers to qualifications which cover the courses of study and professional training required but such qualifications do not attest to probationary periods of practice which, if they come into play, act as a derogation whereby the requirement for professional experience is removed if the profession is not regulated in the Member State of origin. (70) Where, in the final subparagraph of Article 3, the host Member State is relieved of the obligation to recognise diplomas as referred to in Directive 89/48, which, in its territory, are awarded on completion of periods of post-secondary education of more than four years’ duration, this must be taken to refer to the course itself and to any professional training required, rather than to probationary periods of practice, since otherwise the balance of the provision and the relationship between the various concepts would be upset.

99.Probationary periods may be taken into account only by way of derogation in the case of the courses having a specific structure listed in Annex C to Directive 92/51, to which the definition of ‘diploma’ in the first subparagraph, second indent, under (ii), of Article 1(a) refers, since a number of the courses in question include probationary periods of practice. However, none of the courses relate to the teaching profession.

100.I therefore propose that the Court should state in reply to this question that, for the purposes of recognising a teaching diploma, probationary periods of teaching practice do not count as part of a post-secondary course of at least four years’ duration.

VII – Conclusion

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

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

(2) Articles 3 and 4 of Directive 89/48/EEC, and of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC, preclude national legislation, such as the Baden-Württemberg Ministry of Education regulation of 15 August 1996, which makes recognition of a professional teaching qualification conditional on fulfilment of the following two requirements: (1) the qualification must be awarded on completion of higher education and training of at least three years’ duration; and (2) it must qualify the holder to teach at least two of the subjects stipulated for pursuit of the teaching profession in the host Member State.

(3) Article 3 of Directive 89/48 and Article 3 of Directive 92/51 have direct effect and may be invoked by nationals of the Member States, even where the provisions of the directives have not been transposed into national law or have been transposed incorrectly.

(4) A Member State which has failed to fulfil its obligation to transpose Directive 92/51 into national law, properly and within the prescribed time‑limit, may not deny Community nationals the right conferred on them under Article 3 thereof; nor does that Member State have the authority to require Community nationals first of all to comply with one or more of the compensatory measures referred to in Article 4.

(5) For the purposes of recognising a teaching diploma, probationary periods of teaching practice do not count as part of the post-secondary course of at least four year’s duration referred to in the final subparagraph of Article 3 of Directive 92/51.

Original language: Spanish.

(2) 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 (OJ 1989 L 19, p. 16).

(3) Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25).

(4) At the Archdiocese of Vienna College of Education.

(5) In accordance with the Baden-Württemberg Ministry of Finance guidelines on the grading of teaching staff to whom the federal collective agreement for public sector workers – ‘BAT’ – applies (EingrRL/Lehrer), Ms Beuttenmüller was on salary scale V b BAT until 29 July 1996, since when she has been on scale IV b BAT.

(6) Ms Beutenmüller seeks to be graded in scale III BAT. In previous years Ms Beuttenmüller had already applied to the Baden-Württemberg authorities to have her education and training treated in the same way as a qualification to teach in Grundschulen and Hauptschulen (primary schools, and lower-level secondary schools which prepare for entry to vocational training establishments).

(7) L2a1.

(8) L2a2.

(9) See the replies of the Austrian Government to the questions formulated by the Court, particularly points 1.2.1, 1.2.2 and 1.4.

(10) Freedom of movement and its corollary, the right to choose freely where to reside within the territory of the Member States, were established later, under the Treaty of Maastricht, as an integral part of the legal status of citizenship of the Union (Articles 8a(1) and 8(1) of the Treaty on European Union and Articles 18(1) EC and 17(1) EC). They are now included in the Charter of Fundamental Rights of the European Union (Article 45(1); OJ 2000 C 364, p. 1) and are set out in the Draft Treaty establishing a Constitution for Europe (Article 8(2), first indent; CONV 820/03, 797/1/03 REV 1).

(11) Article 39(2) EC and the first paragraph of Article 49 EC lay down the same principle in relation to freedom of movement for workers and freedom to provide services respectively.

(12) See the judgment in Case 2/74 Reyners [1974] ECR 631, paragraph 17.

(13) The principle of equivalent treatment of professional qualifications is supplemented by Article 149(2) EC, second indent, (ex Article 126(2), second indent, of the EC Treaty), which refers to the principle of ‘academic recognition’. On the distinction between the two types of recognition and how they relate to one another, see Pertek, J., ‘Une dynamique de la reconnaissance des diplômes à des fins professionnelles et à des fins académiques: réalisations et nouvelles réflexions’, La reconnaissance des qualifications dans un espace européen des formations et des professions, Bruylant, Brussels, 1998, pp. 119 to 204. See also by the same author, ‘La reconnaissance mutuelle des diplômes d’enseignement supérieur (Commentaire de la directive du Conseil du 21 décembre 1988)’, Revue trimestrielle de droit européen, 1989, no 4, pp. 623 to 646, in particular p. 624. Crayencour, J.-P. also referred to the distinction some time ago in a paper entitled ‘La reconnaissance mutuelle des diplômes dans le Traité de Rome’, Revue du Marché Commun, 1970, no 137, pp. 447 to 461, in particular p. 452.

(14) Paragraph 1 of the operative part of the judgment. The Court also ruled to that effect in Case 11/77 Patrick [1977] ECR 1199, paragraph 17, and Case 222/86 Heylens [1987] ECR 4097, paragraph 11.

(15) Case C-19/92 Kraus [1993] ECR I-1663, paragraphs 27 and 28.

(16) Case 71/76 Thieffry [1977] ECR 765, paragraph 19.

(17) .Heylens, paragraph 12.

(18) Case C-340/89 Vlassopoulou [1991] ECR I-2357, paragraph 16. See also Case C-104/91 Aguirre Borrell and Others [1992] ECR I-3003, paragraph 11.

(19) See Pertek, J., ‘La reconnaissance des diplômes, un acquis original à développer’, Journal des tribunaux. Droit européen, No 62 (1999), pp. 177 to 183, in particular pp. 178 and 179.

(20) See Alvargonzález Figaredo, M., ‘El sistema general de reconocimiento de los diplomas de enseñanza superior. La libre circulación de personas y servicios y el ejercicio de las profesiones liberales’, Noticias C.E.E., year VIII/1992, No 90, pp. 35 to 45, particularly p. 39; and Favret, J.-M., ‘Le système général de reconnaissance des diplômes et des formations professionnelles en droit communautaire; l’esprit et la méthode (Règles actuelles et développements futurs)’, Revue trimestrielle de droit européen, No 2 (1990), pp. 259 to 280, particularly pp. 259 and 260.

(21) Council Directive 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1975 L 167, p. 1), and Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, p. 14). Both directives were repealed by Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1).

(22) Council Directive 77/452/EEC of 27 June 1977 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of nurses responsible for general care, including measures to facilitate the effective exercise of this right of establishment and freedom to provide services (OJ 1977 L 176, p. 1), and Council Directive 77/453/EEC of 27 June 1977 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of nurses responsible for general care (OJ 1977 L 176, p. 8).

(23) Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1978 L 233, p. 1), and Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of dental practitioners (OJ 1978 L 233, p. 10).

(24) Council Directive 78/1026/EEC of 18 December 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1978 L 362, p. 1), and Council Directive 78/1027/EEC of 18 December 1978 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of veterinary surgeons (OJ 1978 L 362, p. 7).

(25) Council Directive 80/154/EEC of 21 January 1980 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in midwifery and including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1980 L 33, p. 1), and Council Directive 80/155/EEC of 21 January 1980 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action relating to the taking up and pursuit of the activities of midwives (OJ 1980 L 33, p. 8).

26Council 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 (OJ 1985 L 223, p. 15). There was no harmonisation directive to cover architects.

27Council Directive 85/432/EEC of 16 September 1985 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of certain activities in the field of pharmacy (OJ 1985 L 253, p. 34), and Council Directive 85/433/EEC of 16 September 1985 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in pharmacy, including measures to facilitate the effective exercise of the right of establishment relating to certain activities in the field of pharmacy (OJ 1985 L 253, p. 37).

28Point I(i) of the Report to the European Parliament and the Council of 15 February 1996 on the state of application of the general system for the recognition of higher education diplomas (COM(46) final). The differences between the two systems (‘sectoral directives’ and ‘general directives’) were pointed out recently by the Court in Case C-110/01 <i>Tennah‑Durez</i> [2003] ECR I-6239, paragraphs 30 to 34 and 65.

29See Favret, J.-M., op. cit.

30Article 1(e) of Directive 89/48.

31Article 1(f) of Directive 89/48.

32Article 1(g) of the Directive.

33First recital, in fine.

34Second recital, in fine.

35See the fourth and fifth recitals in the preamble to Directive 92/51.

36Directives 89/48 and 92/51 were amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p. 1), which extends to the first general system of recognition the concept of ‘regulated education and training’, introduced by Directive 92/51, so that experience gained after the award of a diploma may also be taken into account for the purposes of recognition of that diploma.

37BGBl., p. 286.

38Verordnung des Baden-Württembergischen Kultusministeriums zur Umsetzung der Richtlinie 89/48/EWG des Rates vom 21 Dezember 1988 über eine allgemeine Regelung zur Anerkennung der Hochschuldiplome, die eine mindestens dreijährige Berufsausbildung abschließen, für Lehrerberufe vom 15.08.1996 (BGBl., p. 564).

39First subparagraph of Article 1(a) of Directive 89/48.

40Second subparagraph of Article 1(a) of Directive 89/48. That provision was included to take account of persons who have not completed a higher-education course of more than three years’ duration but who hold qualifications which grant them the same rights in respect of a particular profession. That situation arises, inter alia, in the United Kingdom, Ireland and Belgium (see Point III, Article 1(a)(v) and (vi) of the Commission Report).

41First subparagraph of Article 1(a) of Directive 92/51.

42Second subparagraph of Article 1(a) of Directive 92/51.

43First subparagraph, point (a), of Article 3 of both directives.

44See Favret, J.-M., op. cit., p. 267. See also the Report from the Commission to the Council and the European Parliament on the application of Directive 92/51/EEC in accordance with Article 18 of Directive 92/51/EEC (COM/2000/0017/final), paragraphs 201 and 202.

45See paragraph 53 of the Commission Report COM/2000/0017 final.

46See Point III, Article 1(a)(vi) of the Commission Report COM(46) final.

47In its written observations, the Commission considers that recognition must be granted under the second subparagraph of Article 3, rather than the first. I believe that the Commission is mistaken and that its error may have arisen as a result of the confused use of terminology in some versions of Directive 89/48. For example, in the Spanish version, the terms ‘<i>título</i>” and ‘<i>títulos de formación</i>’ are used in points (a) and (b) of the first subparagraph of Article 3, while ‘<i>título</i>’ also appears in the second subparagraph. Therefore, where the second subparagraph states that ‘<i>se equiparán al título contemplado en el párrafo primero</i>’ (‘shall be treated in the same way as the evidence of formal qualifications referred to in the first subparagraph’), it is unclear whether it is referring to point (a) or (b). However, in other versions of the directive, different terms are used in points (a) and (b), and the second subparagraph uses the same term as point (b), making it clear that it is referring solely to the diplomas mentioned in that point. The French, English and German versions may be cited by way of example. The French version uses the word ‘<i>diplôme</i>’ in point (a) of the first subparagraph of Article 3, and uses ‘<i>titres de formation</i>’ in point (b) and again in the second subparagraph. The English version of the directive does likewise with the words ‘diploma’ (point (a) of the first subparagraph of Article 3) and ‘evidence of formal qualifications’ (point (b) of the first paragraph and the second subparagraph of Article 3). The same occurs in the German version, which uses ‘<i>Diplom</i>’ (point (a) of the first subparagraph of Article 3) and ‘<i>Ausbildungsnachweis</i>’ (point (b) of the first subparagraph and the second subparagraph of Article 3). However, in its written reply to the questions formulated by the Court, the Commission agrees that the interpretation I propose is valid.

48First subparagraph of Article 1(a) of Directive 92/51.

49Second subparagraph of Article 1(a) of Directive 92/51.

50First subparagraph, point (a), of Article 3 of both directives.

51See Favret, J.-M., op. cit., pp. 448 and 449.

52The circumstances giving rise to the main proceedings are not anecdotal. The requirement, imposed by the German <i>Länder</i>