Robert Koller.

• Jurisdiction: European Union
• Celex Number: 62009CC0118
• ECLI: ECLI:EU:C:2010:306
• Date: 02 June 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-118/09

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 2 June 2010 ¹(1)

Case C‑118/09

Mag. Lic. Robert Koller

(Reference for a preliminary ruling from the Oberste Berufungs- und Disziplinarkommission (Austria))

(Concept of national court within the meaning of Article 234 EC – Oberste Berufungs- und Disziplinarkommission – Directive 89/48/EEC – Freedom of movement for persons – Recognition of professional education and training – Article 1(a) – Definition of diploma – Admission to profession of lawyer – Enrolment with a professional body of a Member State other than that whose university degree was recognised as equivalent – Misuse of rights )

I – Introduction

1. With this reference for a preliminary ruling the Court is asked, pursuant to Article 234 EC, (2) to give a ruling on the interpretation of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration. (3) More specifically, the Oberste Berufungs- und Disziplinarkommission (Appeals and Disciplinary Board, ‘OBDK’) asks in essence whether, in the light of the objectives of Directive 89/48, a Community national who has completed all of his academic studies in his country of origin, Austria, and who, by way of recognition of the equivalence of his degree in Spain, has obtained a diploma entitling him to take up the profession of lawyer in that country, can take advantage of the mutual recognition of his Spanish degree in Austria in order to pursue that profession in his country of origin, even though he has not acquired in Spain the degree of professional experience required in Austria.

II – Legal context

A – Community law

2. Directive 89/48, which is applicable to the case with which the main proceedings are concerned, regulated the mutual recognition between the Member States of higher-education diplomas obtained after professional education and training of at least three years’ duration, before it was repealed by Directive 2005/36/EC on the recognition of professional qualifications. (4)

3. The first recital of the preamble to Directive 89/48 is worded as follows:

‘Pursuant to Article 3(c) of the Treaty the abolition, as between Member States, of obstacles to freedom of movement for persons and services constitutes one of the objectives of the Community; … for nationals of the Member States, this means in particular the possibility of pursuing a profession, whether in a self-employed or employed capacity, in a Member State other than that in which they acquired their professional qualifications’.

4. Recital 3 of the preamble to that Directive states:

‘In order to provide a rapid response to the expectations of nationals of Community countries who hold higher-education diplomas awarded on completion of professional education and training issued in a Member State other than that in which they wish to pursue their profession, another method of recognition of such diplomas should also be put in place such as to enable those concerned to pursue all those professional activities which in a host Member State are dependent on the completion of post-secondary education and training, provided they hold such a diploma preparing them for those activities awarded on completion of a course of studies lasting at least three years and issued in another Member State.’

5. Recital 5 of the preamble to Directive 89/48 reads as follows:

‘For those professions for the pursuit of which the Community has not laid down the necessary minimum level of qualification, Member States reserve the option of fixing such a level with a view to guaranteeing the quality of services provided in their territory; … however, they may not, without infringing their obligations laid down in Article 5 of the Treaty, require a national of a Member State to obtain those qualifications which in general they determine only by reference to diplomas issued under their own national education systems, where the person concerned has already acquired all or part of those qualifications in another Member State; … as a result, any host Member State in which a profession is regulated is required to take account of qualifications acquired in another Member State and to determine whether those qualifications correspond to the qualifications which the Member State concerned requires’

6. Article 1(a), (b) and (g) of Directive 89/48 provide:

‘For the purposes of this Directive the following definitions shall apply:

(a) diploma: any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence:

– which has been awarded by a competent authority in a Member State, designated in accordance with its own laws, regulations or administrative provisions;

– which shows 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 and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course, 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, provided that the education and training attested by the diploma, certificate or other evidence of formal qualifications were received mainly in the Community, or the holder thereof has three years’ professional experience certified by the Member State which recognised a third-country diploma, certificate or other evidence of formal qualifications.

The following shall be treated in the same way as a diploma, within the meaning of the first subparagraph: any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence awarded by a competent authority in a Member State if it is awarded on the 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;

(b) host Member State: any Member State in which a national of a Member State applies to pursue a profession subject to regulation in that Member State, other than the State in which he obtained his diploma or first pursued the profession in question;

…

(g) aptitude test: a test limited to the professional knowledge of the applicant, made by the competent authorities of the host Member State with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State.

In order to permit this test to be carried out, the competent authorities shall draw up a list of subjects which, on the basis of a comparison of the education and training required in the Member State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant.

The aptitude test must take account of the fact that the applicant is a qualified professional in the Member State of origin or the Member State from which he comes. It shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to exercise the profession in the host Member State. The test may also include knowledge of the professional rules applicable to the activities in question in the host Member State. The detailed application of the aptitude test shall be determined by the competent authorities of that State with due regard to the rules of Community law.

The status, in the host Member State, of the applicant who wishes to prepare himself for the aptitude test in that State shall be determined by the competent authorities in that State.

7. The first paragraph of Article 2 of Directive 89/48 reads as follows:

‘This Directive shall apply to any national of a Member State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person.’

8. Point (a) of the first paragraph of Article 3 of Directive 89/48 provides as follows:

‘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:

(a) 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; …’

9. Article 4 of Directive 89/48 provides as follows:

‘Notwithstanding Article 3, the host Member State may also require the applicant:

(a) to provide evidence of professional experience, where the duration of the education and training adduced in support of his application, as laid down in Article 3(a) and (b), is at least one year less than that required in the host Member State. In this event, the period of professional experience required:

– may not exceed twice the shortfall in duration of education and training where the shortfall relates to post-secondary studies and/or to a period of probationary practice carried out under the control of a supervising professional person and ending with an examination,

– may not exceed the shortfall where the shortfall relates to professional practice acquired with the assistance of a qualified member of the profession.

In the case of diplomas within the meaning of the last subparagraph of Article 1(a), the duration of education and training recognised as being of an equivalent level shall...