Language of document : ECLI:EU:C:2007:225

OPINION OF ADVOCATE GENERAL

BOT

delivered on 19 April 2007 1(1)

CaseC‑274/05

Commission of the European Communities

v

Hellenic Republic


(Failure of a Member State to fulfil obligations – Recognition of diplomas – Directive 89/48/EEC – Workers – Franchise agreements – Principle of mutual recognition)





1.        By this action, the Commission of the European Communities seeks a declaration that the Hellenic Republic has failed to fulfil its obligations under Articles 1, 3, 4, 7, 8 and 10 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. (2)

I –  Legal background

A –    Community law

2.        Certain national laws may, even though they are not discriminatory, unjustifiably impair freedom of movement for workers. That is the case, in particular, in respect of qualification requirements for the pursuit of a profession which may differ considerably from one Member State to another. In order to eliminate those obstacles to freedom of movement for workers, the Community legislature has established a system for the recognition of qualifications based on the principle of mutual recognition.

3.        In order to implement that system, the European Community has adopted two approaches in the field of recognition of diplomas.

4.        The first approach, the ‘sectoral approach’, establishes a system for the recognition of diplomas for seven regulated professions. (3) Several directives have been adopted under that approach. They set minimum criteria, common to all the Member States, in respect of the conditions for the taking-up and pursuit of those professions. Consequently, diplomas obtained as a result of education and training set out in a list drawn up by the Community legislature are recognised automatically by the Member States.

5.        The second approach developed by the Community legislature is more general. It is that approach which led to the adoption of Directive 89/48. That directive applies to professions which are not covered by a sectoral directive and, according to Article 3 thereof, is based on the principle of mutual recognition of diplomas without prior harmonisation of education or training.

6.        Thus, the host Member State which regulates a profession must, pursuant to Directive 89/48, recognise higher‑level professional diplomas acquired in another Member State as allowing the pursuit of the regulated profession in question, subject to the obvious condition, laid down by that directive, that the diploma confer on its holder all the professional qualifications required to take up the regulated profession concerned in the State in which the diploma was awarded.

7.        Under Article 1(a) of Directive 89/48, a ‘diploma’ should be understood as any diploma awarded by a competent authority in a Member State on completion of a post-secondary course of at least three years’ duration. It is also apparent from that provision that those studies must have been completed at a university or higher-education establishment or another establishment of equivalent level.

8.        That principle is subject, in certain cases, to compensatory measures imposed by the host Member State. Where there are substantial differences between the content of the education and training received in the Member State of origin and that of the education and training provided in the host Member State, the latter is able, under Article 4(1)(b) of Directive 89/48, to require the holder of the diploma to complete an adaptation period or take an aptitude test.

9.        The first sentence of the second subparagraph of Article 4(1)(b) makes clear that the host Member State must, in principle, give the holder of the diploma the right to choose between an adaptation period and an aptitude test.

10.      However, by way of derogation from that principle, the host Member State may stipulate either that period or that test where the profession in question is one whose practice requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity. Where that procedure is implemented, the host Member State must, pursuant to Article 10(1) of Directive 89/48, communicate to the Commission the corresponding draft provision and the reasons making it necessary.

11.      Furthermore, Article 7(3) of Directive 89/48, which lays down a specific provision for professions regulated by an association or an organisation (within the meaning of the second subparagraph of Article 1(d) of that directive), (4) is worded as follows:

‘Where a profession is regulated in the host Member State by an association or organisation referred to in Article 1(d), nationals of Member States shall only be entitled to use the professional title or designatory letters conferred by that organisation or association on proof of membership.

Where the association or organisation makes membership subject to certain qualification requirements, it may apply these to nationals of other Member States who are in possession of a diploma within the meaning of Article 1(a) or a formal qualification within the meaning of Article 3(b) only in accordance with this Directive, in particular Articles 3 and 4.’

12.      The time‑limit laid down in Article 12 of Directive 89/48 for transposing that directive into national law expired on 4 January 1991.

B –    National law

13.      In Greece, Presidential Decree 165/2000 of 28 June 2000, (5) as amended by Presidential Decrees 373/2001 of 22 October 2001 (6) and 385/2002 of 23 December 2002 (7) (‘Decree 165/2000’), is intended to transpose Directive 89/48 into national law.

14.      Where, by its complaints the Commission challenges specific provisions of national law, those provisions will be identified in the assessment of the complaints.

II –  The pre-litigation procedure

15.      Following complaints from 37 individuals, the Commission concluded that the Greek legislation did not comply with Directive 89/48 on several points. It therefore sent the Hellenic Republic a letter of formal notice on 27 July 2001, followed by a supplementary letter of formal notice of 21 December 2001. The Greek Government replied to those communications by letters of 12 October 2001 and 13 March 2002 respectively.

16.      The Commission considered that those replies were inadequate and sent the Hellenic Republic a reasoned opinion on 1 July 2002 and, on 9 July 2004, a supplementary reasoned opinion, calling upon that Member State to adopt the measures necessary to comply with those opinions within two months of their notification. The Hellenic Republic replied to those opinions by communications of 3 September 2002, 26 August 2004 and 7 April 2005.

17.      Although the information provided by the Hellenic Republic answered the Commission’s complaints on certain points, the Commission maintained its stance that the Hellenic Republic had not taken all the measures necessary to transpose Directive 89/48 into its domestic law. It therefore decided to bring this action.

III –  The action

18.      In support of its action, the Commission puts forward seven complaints based on:

–        failure to recognise franchised diplomas awarded by the competent authorities of another Member State;

–        incompatibility of the compensatory measures provided for by Decree 165/2000 with those referred to in Directive 89/48;

–        the maintenance of the powers conferred on the Simvoulio Anagnoriseos Epangelmatikis Isotimias Titlon Tritovathmias Ekpaidefsis (8) in order to assess whether the educational establishment of another Member State belongs to the higher‑education sector and whether the applicant has the necessary professional experience, in a case where the duration of the education and training is one year less than that required in Greece in order to pursue that profession;

–        failure to recognise professional qualifications for the taking‑up of scientific employment in the public sector;

–        the administrative practice of the various public sector services in relation to the conditions of employment of persons already recruited, who hold a diploma, within the meaning of Directive 89/48, and who experience problems connected with the conditions for being graded at a higher level;

–        the requirement for production of a certificate of academic equivalence from the Diapanepistimiako Kentro Anagnoriseos Titlon Spoudon tis Allodapis (9) and success in a competitive examination for the holders of a diploma, within the meaning of Directive 89/48, in order to register with the Techniko Epimelitirio Ellados, (10) and

–        the requirement that holders of diplomas from other Member States produce professional education and training certificates validated by a consular authority.

19.      On the basis of those complaints, the Commission claims that the Court should declare that the Hellenic Republic has failed to fulfil its obligations under Articles 1, 3, 4, 7, 8 and 10 of Directive 89/48 and order the Hellenic Republic to pay the costs.

20.      The fourth and seventh complaints have been withdrawn by the Commission. I shall therefore limit my assessment to the first, second, third, fifth and sixth complaints.

IV –  Assessment

21.      It should first be pointed out that the Hellenic Republic referred, in a letter addressed to the Commission on 29 August 2006, to the publication in the Official Journal of the Hellenic Republic of the ministerial decree transposing correctly Directive 89/48 into its domestic law. That document is irrelevant. According to settled case‑law, the merits of an action for failure to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, since the Court does not take account of any subsequent changes. (11) In the present case, the last deadline was set two months from the notification of the supplementary reasoned opinion, that is to say on 9 September 2004.

A –    The first complaint

1.      Main arguments of the parties

22.      The first complaint relates to the recognition of diplomas awarded as a result of education and training completed in the context of franchise agreements. Such education and training are based on transnational cooperation agreements between a university or a higher‑education establishment of a Member State which awards a diploma and a private establishment of another Member State responsible for providing the education and training leading to that diploma.

23.      In this action, the Commission complains that the Hellenic Republic does not recognise those diplomas awarded following education and training completed in the context of franchise agreements entered into between a university of another Member State and a private establishment set up in Greece.

24.      The Hellenic Republic submits that it is not obliged to recognise a diploma awarded by an authority of another Member State if that diploma is awarded on completion of education and training received, in whole or in part, in the host Member State and which, according to that State, is not recognised as higher education.

25.      It submits in this respect that, so far as concerns the question whether the establishment is a university or a higher-education establishment or another establishment of equivalent level, Article 1(a) of Directive 89/48 refers to the national provisions of the Member State on whose territory the education and training are provided. It is therefore solely by reference to Greek law that the status of the establishments in question and therefore the value of the diplomas must be assessed.

26.      In this regard, the Hellenic Republic observes that Article 16 of the Greek Constitution reserves the provision of higher education to public establishments only. Consequently, an obligation to recognise a diploma resulting from education and training received on its territory as being a university or higher‑education diploma, whilst according to national law it is not such a diploma, is contrary to Articles 149 EC and 150 EC. (12)

27.      Conversely, the Commission submits that diplomas awarded following education and training completed in the context of franchise agreements do fall within the education system of the Member State on whose territory the university awarding those diplomas is established. It takes the view that, according to Article 1(a) of Directive 89/48, it is for the competent authorities of the Member State awarding the diploma to assess the content and the organisation of the education and training provided in another Member State.

2.      Assessment

28.      Under the first complaint, the Hellenic Republic is criticised for not recognising diplomas awarded by universities of other Member States where the education and training leading to those diplomas have been received in a private establishment set up on its territory.

29.      The question which arises is whether a diploma awarded following education and training completed in the context of a franchise agreement is a ‘diploma’ within the meaning of Article 1(a) of Directive 89/48, thus obliging the host Member State to recognise it pursuant to Article 3 of that directive.

30.      The particular character of such a diploma resides in the fact that the education and training were not provided on the territory of the Member State awarding that diploma, but by a private establishment set up on the territory of another Member State.

31.      In the light of the particular character of that diploma, must it be considered that it is for the Member State on whose territory the education and training were provided to assess the quality of that diploma?

32.      I do not think so.

33.      I note, first, that the first indent of the first subparagraph of Article 1(a) states that a ‘diploma’ should be understood as any diploma ‘which has been awarded by a competent authority in a Member State, [(13)] designated in accordance with its own laws, regulations or administrative provisions’. The inevitable conclusion is that the quality of the diploma is to be assessed in accordance with the law of the Member State awarding it.

34.      Next, I note that the second indent of the first subparagraph of Article 1(a) of that directive does not impose a territorial criterion as regards the place of education and training. Consequently, I am of the opinion that it is the awarding Member State which is competent to determine the content and organisation of the education and training provided for the purposes of obtaining that diploma, and therefore the place where that education and training will take place.

35.      I would also add that Article 1(a) of that directive states only that the education and training attested must have been received mainly in the Community. (14) According to that provision, what matters is that the education and training are post‑secondary, of at least three years’ duration, and that they have been provided by a higher-education establishment or another establishment of equivalent level.

36.      That analysis is confirmed by the very objective of Directive 89/48 and the case‑law of the Court.

37.      That directive concerns mutual recognition of diplomas awarded on completion of professional education and training of at least three years’ duration. Unlike the sectoral directives, the system established by Directive 89/48 is not based on harmonisation of the conditions for the taking-up and pursuit of the regulated professions.

38.      That is why the Court held in its recent judgment in Price (15) that the Member States remain competent to regulate those conditions for the taking-up of professions, in other words to determine the content, level or structure of the education and training required for the regulated professions which are not covered by the sectoral directives.

39.      The fact that the training was provided, in whole or in part, by a private establishment set up on the territory of the host Member State cannot relieve the latter of its obligation to recognise the diploma resulting from that education and training. If such an option were available to it, the very principle of mutual recognition would be called into question.

40.      I would add that not recognising a diploma because it has been awarded following education and training completed in the context of a franchise agreement would amount not only to discouraging students from registering for education and training programmes offered by universities of other Member States, but also to impeding freedom of movement for workers who possess the resulting diplomas, which would be contrary to the objective of Directive 89/48.

41.      The 1st and 13th recitals in the preamble to that directive state, in this respect, that the directive seeks to facilitate the pursuit of a profession in a Member State other than that on whose territory the Community national has acquired his professional qualifications and that the latter is entitled ‘to acquire [professional] skills wherever he wishes’.

42.      The franchise agreements enable such mobility and are very much in the spirit of the Erasmus Community Exchange Programme which encourages cooperation between the higher education establishments of the Member States.

43.      I would recall, lastly, that, where the host Member State takes the view that the training and education received by the holder of the diploma relate to areas substantially different from those covered by the diploma required in that State, that State is able, pursuant to the first subparagraph of Article 4(1)(b) of Directive 89/48, to require the applicant to complete an adaptation period or take an aptitude test.

44.      In the light of those considerations, I therefore conclude that the first complaint is well founded.

B –    The second complaint

45.      Article 5(1)(b) of Decree 165/2000 provides for a derogation from the principle laid down in the second subparagraph of Article 4(1)(b) of Directive 89/48. (16) That decree provides not only that the right to choose does not apply in respect of professions which require precise knowledge of national law, but that it does not apply ‘in respect of all the other professions covered by various specific provisions’ either.

46.      As the Commission rightly states, that national provision, which provides in general terms that the host Member is able to choose between the adaptation period and the aptitude test ‘in respect of all the other professions covered by specific provisions’, is contrary to the second sentence of the second subparagraph of Article 4(1)(b) and Article 10 of Directive 89/48. The host Member State may derogate from the principle of the applicant’s right to choose only if the regulated profession concerned requires precise knowledge of national law.

47.      The Hellenic Republic accepts that that complaint is well founded and adds that a presidential decree withdrawing the part of the sentence at issue is in the process of adoption.

48.      It is sufficient to recall that, according to settled case-law, whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion. (17)

49.      It must be stated that, on expiry of that period, the Hellenic Republic had not taken the measures necessary to comply with the second sentence of the second subparagraph of Article 4(1)(b) and Article 10 of Directive 89/48. Accordingly, the second complaint is well founded.

C –    The third complaint

50.      Article 10(1)(b)(aa) and (bb) of Decree 165/2000 confers exclusive powers on the Saeitte to adjudicate on applications for recognition of higher‑education diplomas falling within the scope of Directive 89/48.

51.      According to that provision, the Saeitte has the power to determine whether the educational establishment attended by the applicant belongs to the higher‑education sector and whether the applicant possesses the necessary professional experience in a case where the duration of the education and training is at least one year less than that required in Greece in order to pursue that profession.

52.      I am of the opinion, like the Commission, that the power conferred on the Saeitte to assess whether an educational establishment belongs to the higher‑education sector is contrary to Article 8(1) of Directive 89/48. Pursuant to that article, the certificates and documents issued by the competent authorities of the awarding Member State and produced by the applicant must be sufficient to show that the conditions laid down in Articles 3 and 4 of that directive are satisfied.

53.      On the other hand, contrary to what the Commission submits, I take the view that the Saeitte has the power, pursuant to Article 4(1)(a) of that directive, to verify whether the holder of the diploma possesses the necessary professional experience in a case where the duration of the education and training is at least one year less than that required in Greece in order to pursue that profession.

54.      According to that provision, Article 3 of Directive 89/48 does not preclude the host Member State from also requiring the applicant ‘to provide evidence of professional experience, where the duration of the education and training … is at least one year less than that required in the host Member State’.

55.      The Hellenic Republic is therefore entitled to require the holder of a foreign diploma to provide evidence of professional experience where the duration of the education and training leading to the regulated profession concerned is at least one year less than that required in Greece.

56.      The Hellenic Republic does not contest that complaint and states that a presidential decree repealing the provision at issue is in the process of adoption.

57.      On the basis of the case‑law of the Court (18) and the Hellenic Republic’s reply, I consider that this third complaint is also well founded, but only in so far as it relates to the Saeitte’s power to assess whether the educational establishment set up on the territory of another Member State belongs to the higher-education sector.

D –    The fifth complaint

58.      The Commission complains that the Hellenic Republic refuses to recognise professional equivalence for holders of diplomas, within the meaning of Directive 89/48, working in the public sector, thus preventing them from being promoted to a higher salary step. The Commission considers that practice to be contrary to Article 3 of Directive 89/48.

59.      The Hellenic Republic disputes those claims. In its submission, the Greek Civil Service Code entitles holders of foreign diplomas to be reclassified in posts in higher grades.

60.      In support of its complaint, the Commission merely alleges that ‘the administrative practice of the [Saeitte] and the various public sector services, that is to say the Hellenic Republic’s retention of the former system of career development for civil servants, is contrary to Article 3 of Directive [89/48]’. In addition, the Commission refers only to the complaints submitted to it by holders of those diplomas, and minutes of the Saeitte meeting. (19) The Commission does not include those complaints in the file or adduce any other evidence to corroborate those claims.

61.      It must be borne in mind that, according to the settled case-law of the Court, in an action for failure to fulfil obligations brought under Article 226 EC it is for the Commission to prove that the obligation has not been fulfilled without being able to rely on any presumption. (20)

62.      In the light of the foregoing, it must be stated that the Commission has failed to prove that the Greek system of career development for civil servants prevents holders of diplomas, within the meaning of Directive 89/48, from relying on their professional qualifications in order to be graded at a higher level.

63.      Consequently, I take the view that the fifth complaint is unfounded.

E –    The sixth complaint

1.      Main arguments of the parties

64.      Pursuant to Article 2 of Greek Law 1486/1984, (21) all Greek or Community nationals who hold an engineering diploma from the National Technical University of Athens, engineering faculties in Greece and equivalent faculties abroad must register with the TEE in order to be able to pursue the profession of engineer.

65.      In its written submissions, the Commission refers to the sole article of Greek Ministerial Decision ED 5/1984/B-713 (‘the Ministerial Decision of 1984’) (22) which requires holders of a diploma, within the meaning of Directive 89/48, to produce a certificate of academic equivalence from the Dikatsa and to pass a competitive examination in order to register with the TEE.

66.      The Commission submits that the Ministerial Decision of 1984 is contrary to the second paragraph of Article 7(3) of Directive 89/48. Pursuant to that provision, membership of a professional organisation can be made subject to certain qualification requirements only in accordance with the conditions laid down in particular in Articles 3 and 4 of that directive.

67.      The Hellenic Republic disputes the merits of that complaint. In its submission, since the entry into force of Decree 165/2000, the TEE’s practice has changed and mere recognition of foreign diplomas by the Saeitte is sufficient for registration. Furthermore, the Hellenic Republic submits that participation in the competitive examination concerns other categories of professionals. It adds, in its rejoinder, that the TEE intends to alter competitive examination notices so that there is no longer any doubt.

2.      Assessment

68.      During these proceedings, the parties were requested to specify whether the TEE is an ‘association’ or an ‘organisation’ within the meaning of the second subparagraph of Article 1(d) of Directive 89/48 and thus falls within the second subparagraph of Article 7(3) of that directive.

69.      The Hellenic Republic submits that the TEE is not a professional organisation within the meaning of the second subparagraph of Article 1(d). It therefore submits that Article 7(3) of Directive 89/48 is not applicable.

70.      The Commission claims that the TEE is a professional organisation. It therefore takes the view that Article 1 of the Ministerial Decision of 1984, which requires from the holder of the diploma a certificate of academic equivalence issued by the Dikatsa and success in an oral examination, is contrary to the second subparagraph of Article 7(3) of Directive 89/48.

71.      However, I do not believe that the Ministerial Decision of 1984 emanates from a professional organisation.

72.      The first subparagraph of Article 1(d) of Directive 89/48 states that the concept of regulated ‘professional activity’ is to be understood as ‘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’.

73.      In an effort to cover all the situations with which an economic operator may be confronted, the Community legislature considers that professions which are not regulated by the Member State, but come under corporatist independent organisations offering benefits to their members, must none the less be treated in the same way as regulated professions.

74.      That is why, if the first subparagraph of Article 1(d) of Directive 89/48 does not apply, a professional activity is deemed to be a regulated profession pursuant to the second subparagraph of Article 1(d) of that directive if it is pursued by the members of an association or organisation.

75.      The second subparagraph of Article 1(d) of Directive 89/48 applies if the association or professional organisation awards a diploma to its members, ensures that its members respect the rules of professional conduct which it prescribes, and confers on them the right to use a title or designatory letters, or to benefit from a status corresponding to that diploma.

76.      In that connection, it must be stated that the Ministerial Decision of 1984 is a rule which was prescribed directly by the Hellenic Republic and not by the TEE.

77.      I also note that the taking-up and pursuit of the profession of engineer in Greece are indeed subject to legislative provisions since, pursuant to Article 2 of Law 1486/1984, only persons holding diplomas from Greek or foreign engineering institutions may register with the TEE. (23) It is only once that diploma has been obtained that its holder is able to register with the TEE.

78.      It is therefore clear that the taking-up and pursuit of the profession of engineer in Greece are regulated directly by the State.

79.      Furthermore, it should be recalled that, in its judgment in Peros, (24) the Court held that the TEE could not require from the holder of a foreign diploma the homologation of his qualification by the competent national authorities, because of subparagraph (a) of the first paragraph of Article 3 of Directive 89/48. If the TEE had been considered a professional organisation, those obligations would have flowed from the second subparagraph of Article 7(3) of that directive.

80.      Consequently, I take the view that the complaint is unfounded in so far as it is based on the second subparagraph of Article 7(3) of Directive 89/48 and that subparagraph (a) of the first paragraph of Article 3 of that directive, which relates to activities regulated by the State, is applicable to the situation in question.

81.      The question could therefore be raised whether the application of that subparagraph (a) of the first paragraph of Article 3 to the factual situation described by the Commission in its complaint would alter the subject‑matter of the dispute and prejudice the rights of the defence, thus rendering the complaint inadmissible.

82.      I do not think so for the following reasons.

83.      Although they relate, on the one hand, to professional activities the pursuit of which is regulated by the Member State and, on the other, to professional activities pursued by the members of a professional organisation, Article 3 and the second subparagraph of Article 7(3) of Directive 89/48 impose the same obligations. Article 3 of that directive lays down the principle of mutual recognition of diplomas and the second subparagraph of Article 7(3) of that directive refers inter alia to that Article 3.

84.      In both cases, the objective is the same, namely to prevent the host Member State requiring from the holder whose foreign diploma has been recognised by the competent body any other homologation by a State authority.

85.      Consequently, I think that since the obligations flowing from the two abovementioned provisions are identical the subject‑matter of the dispute does not differ according to whether the second subparagraph of Article 7(3) of Directive 89/48 or subparagraph (a) of the first paragraph of Article 3 of that directive applies.

86.      The Court has held to that effect that, where Community law is amended during the course of the pre-litigation procedure, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a directive and which were maintained in force under the new provisions. The Court therefore considered that the subject‑matter of the dispute had not been altered despite that change, since the essential obligations incumbent on the Member State were identical. (25)

87.      Accordingly, in this particular case, I am of the opinion that the sixth complaint is admissible in so far as it is based on subparagraph (a) of the first paragraph of Article 3 of Directive 89/48.

88.      It is now necessary to examine the merits of that complaint.

89.      According to the documents in the file, Article 11 of Decree 165/2000 provides that, as soon as the Saeitte’s decision is adopted, the competent professional organisation is required to register the holder of the diploma, within the meaning of Directive 89/48, as one of its members. (26) Accordingly, mere recognition by the Saeitte suffices in principle for engineers holding diplomas from establishments of higher education in other Member States to be registered amongst the members of the TEE.

90.      However, as I stated earlier, the Commission refers to a ministerial decision relating to the detailed rules for authorising the pursuit of the profession of engineer. I would recall that it is apparent from that decision that holders of foreign diplomas must sit an oral examination and obtain a certificate of academic equivalence issued by the Dikatsa in order to register with the TEE.

91.      The Court has ruled that when Directive 89/48 is applicable, a public body in a Member State, which is bound to comply with the rules laid down in the relevant directive, can no longer require that a candidate’s qualifications be granted homologation by the competent national authorities. (27)

92.      In this respect, I would recall that, in accordance with Article 9(1) of that directive, the Hellenic Republic designated the Saeitte as the competent authority empowered to receive applications for recognition of professional qualifications.

93.      Consequently, the requirement of a certificate of academic equivalence from the Dikatsa and success in an oral examination for holders whose foreign diplomas have been recognised by the Saeitte is contrary to subparagraph (a) of the first paragraph of Article 3 of Directive 89/48. (28)

94.      In any event the current situation, as regards registration of the person concerned as a member of the TEE, is a source of legal uncertainty, since the coexistence of two contradictory rules creates an ambiguous legal situation and is not therefore such as to implement clearly the obligations flowing from Directive 89/48, and in particular subparagraph (a) of the first paragraph of Article 3 thereof. (29)

95.      Consequently, I take the view that the sixth complaint is well founded in so far as it is based on subparagraph (a) of the first paragraph of Article 3 of Directive 89/48.

96.      Since most of the complaints have been declared well founded, the Hellenic Republic must be ordered to pay the costs, pursuant to the first paragraph of Article 69(2) of the Rules of Procedure.

V –  Conclusion

97.      In the light of the foregoing, I propose that the Court should:

(1)       declare that:

–        by failing to recognise the diplomas awarded by the competent authorities of another Member State in the context of franchise agreements;

–        by depriving applicants of the right to choose between an adaptation period and an aptitude test for professions other than those which require precise knowledge of national law;

–        by conferring on the Simvoulio Anagnoriseos Epangelmatikis Isotimias Titlon Tritovathmias Ekpaidefsis the power to assess whether the educational establishment in which the applicant completed his education and training belongs to the higher education sector, and

–        by requiring the production of a certificate of academic equivalence from the Diapanepistimiako Kentro Anagnoriseos Titlon Spoudon tis Allodapis and success in a competitive examination for the holders of a diploma, within the meaning of Directive 89/48, in order to register with the Techniko Epimelitirio Ellados,

the Hellenic Republic has failed to fulfil its obligations under Articles 1, 3, 4, 8 and 10 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;

(2)               order the Hellenic Republic to pay the costs.


1 – Original language: French.


2 – OJ 1989 L 19, p. 16.


3 – Namely, the following professions: doctor, nurse responsible for general care, dentist, veterinary surgeon, midwife, pharmacist and architect.


4 – According to that provision, an association or an organisation recognised by the Member State which awards diplomas to its members, ensures that its members respect the rules of professional conduct which it has prescribed and confers on them the right to use a title or designatory letters, or to benefit from a status corresponding to that diploma, is regarded as such.


5 – FEK A’ 149.


6 – FEK A’ 251.


7 – FEK A’ 334.


8 – Council responsible for recognising the equivalence of higher‑education diplomas in Greece, ‘the Saeitte’.


9 – Interuniversity Centre for the Recognition of Foreign Diplomas, ‘the Dikatsa’.


10 – Technical Chamber of Greece, ‘the TEE’.


11 – See, in particular, Case C‑200/88 Commission v Greece [1990] ECR I‑4299, paragraph 13; Case C‑354/99 Commission v Ireland [2001] ECR I‑7657, paragraph 45; and Case C‑233/00 Commission v France [2003] ECR I‑6625, paragraph 30.


12 – Pursuant to those articles, the Community may, if necessary, support and supplement the action of the Member States with regard to education systems and vocational training, while respecting the responsibility of the Member States for the content of teaching and the organisation of their education systems and of vocational training. Education and vocational training therefore remain within the competence of the Member States.


13 – Emphasis added.


14 – See the first paragraph of Article 1(a) of Directive 89/48.


15 – Case C‑149/05 [2006] ECR I-7691, paragraph 54.


16 – I would recall that, in accordance with that principle, where the host Member State makes use of its option to impose compensatory measures, it must give the applicant the right to choose between an adaptation period and an aptitude test.


17 – See footnote 11.


18 – Idem.


19 – See paragraphs 66 and 67 of the application.


20 – See, inter alia, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6; Case C‑194/01 Commission v Austria ECR I‑4579, paragraph 34; Case C‑287/03 Commission v Belgium [2005] ECR I‑3761, paragraph 27; and Case C‑6/04 Commission v United Kingdom [2005] ECR I‑9017, paragraph 75. Moreover, as regards a complaint concerning a practice alleged against the national administration for which the Member State is answerable, the Court has held that proof of a Member State’s failure to fulfil its obligations requires production of evidence different from that usually taken into account in an action for failure to fulfil obligations concerning solely the terms of a national provision (see Commission v Belgium, paragraph 28).


21 – FEK A’ 161. Law as amended in Article 2 of Presidential Decree 512/1991 (FEK A’ 190; ‘Law 1486/1984’).


22 – See paragraph 5 of the reply.


23 – See the Hellenic Republic’s reply to the questions put by the Court, p. 5.


24 – Case C‑141/04 [2005] ECR I‑7163, paragraphs 39 and 40.


25 – See Case C‑365/97 Commission v Italy [1999] ECR I‑7773, paragraphs 36 to 40.


26 – See written reply of the Hellenic Republic to the questions put by the Court, p. 6.


27 – Peros (paragraph 35 and the case‑law cited).


28 – Ibidem (paragraph 40).


29 – See Case C‑98/03 Commission v Germany [2006] ECR I‑53, paragraph 78, in which the Court ruled that the coexistence of a rule which complies with Community law and a rule which does not comply with it does not ensure effectively, and in a clear and precise manner, the obligations flowing from Community legislation.