Case C-102/02

Ingeborg Beuttenmüller

v

Land Baden-Württemberg

(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart)

(Freedom of movement for workers – Recognition of diplomas – Directives 89/48/EEC and 92/51/EEC – Primary and secondary school teachers – Holder of a diploma of post-secondary studies of two years’ duration – Conditions for the exercise of the profession)

Summary of the Judgment

1. Freedom of movement for persons – Freedom of establishment – Workers – Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration – Scope of Directive 89/48 – Diploma obtained after two years’ education and training – Included – Conditions

(Council Directive 89/48, Art. 1(a))

2. Freedom of movement for persons – Freedom of establishment – Workers – Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration – Directive 89/48 – The taking up or pursuit of a regulated profession on the same conditions as nationals (Article 3) – Direct effect – Education – Rules of the host State requiring, without exception, a minimum period of training of three years and covering at least two of the subjects stipulated for that profession – Not permissible

(Council Directive 89/48, Art. 3, first para., (a))

3. Acts of the institutions – Directives – Whether a Member State may rely against individuals on limitations and duties laid down by a directive which has not been implemented – Exclusion

4. Freedom of movement for persons – Freedom of establishment – Workers – Recognition of diplomas – Directive 92/51 – The taking up or pursuit of a regulated profession on the same conditions as nationals (Article 3) – Direct effect in favour of the holder of a teaching diploma obtained after two years’ education and training

(Council Directive 92/51, Art. 3, first para., (a))

1. The second subparagraph of Article 1(a) of Directive 89/48 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration must be interpreted as meaning that a qualification for the profession of teacher, formerly awarded in a Member State on the basis of a two-year period of education and training, is the same as a diploma within the meaning of the first subparagraph of that provision, where the competent authority of that State certifies that the diploma awarded following that education and training of two years’ duration is recognised as being of a level equivalent to the diploma currently awarded after three years’ study and confers the same rights in that Member State in respect of the taking up or pursuit of the profession of teacher. It is for the national court to determine, in the light of the evidence submitted by the applicant in accordance with Article 8(1) of that directive and the national provisions applicable to the assessment of such evidence, whether the final condition laid down by the second subparagraph of Article 1(a), namely that the diploma in question confers in the Member State of origin the same rights to take up or pursue the profession, must be regarded as satisfied. That condition concerns the right to pursue a regulated profession and not the remuneration and other employment conditions applicable in the Member State which recognises the equivalence of the old and new education and training.

(see para. 45, operative part 1)

2. Subparagraph (a) of the first paragraph of Article 3 of Directive 89/48 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, which provides that the competent authority of the host Member State may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue a regulated 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, and if that diploma was awarded in a Member State, may be relied upon by a national of a Member State as against national provisions inconsistent with that directive. That directive precludes such provisions where, for the purpose of recognising a professional teaching qualification awarded or recognised in a Member State other than the host Member State, they require, without exception, completion of a period of higher education and training of at least three years’ duration and covering at least two of the subjects stipulated for the teaching profession in the host Member State.

(see para. 57, operative part 2)

3. A Member State which has failed to fulfil its obligation to transpose the provisions of a directive into national law can no more rely, as against Community citizens, upon the limitations laid down by those provisions than it can require that they perform the obligations laid down by that directive.

(see para. 63)

4. In the absence of implementing measures enacted within the period prescribed in the first subparagraph of Article 17(1) of Directive 92/51 on a second general system for the recognition of professional education and training to supplement Directive 89/48, a national of a Member State may rely on subparagraph (a) of the first paragraph of Article 3 of Directive 92/51 in order to obtain in the host Member State recognition of a professional teaching qualification awarded in another Member State following education and training of two-years’ duration.

(see para. 67, operative part 3)

JUDGMENT OF THE COURT (Fifth Chamber) 29 April 2004 (1)

(Freedom of movement for workers – Recognition of diplomas – Directives 89/48 and 92/51 – Primary and secondary school teachers – Holder of a diploma of post-secondary studies of two years' duration – Conditions for the exercise of the profession)

In Case C-102/02,

REFERENCE to the Court under Article 234 EC by the Verwaltungsgericht Stuttgart (Germany) for a preliminary ruling in the proceedings pending before that court between

and

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 (OJ 1989 L 19, p. 16) and 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 (OJ 1992 L 209, p. 25),

THE COURT (Fifth Chamber),,

composed of: P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas (Rapporteur), A. La Pergola and S. von Bahr, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 16 September 2003,

gives the following

Directive 89/48

‘Whereas, 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; whereas, however, they may not, without infringing their obligations laid down in Article 5 of the [EC] 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; whereas, 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.’

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

provided that the education and training attested by the diploma, certificate or other evidence of formal qualifications was 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.’

‘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:

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.’

‘The host Member State shall accept as proof that the conditions laid down in Articles 3 and 4 are satisfied the certificates and documents issued by the competent authorities in the Member States, which the person concerned shall submit in support of his application to pursue the profession concerned.’

Directive 92/51

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

provided that the education and training attested by this evidence was received mainly in the Community, or outside the Community at teaching establishments which provide education and training in accordance with the laws, regulations or administrative provisions of a Member State, or that the holder thereof has three years’ professional experience certified by the Member State which recognised third-country evidence of education and training.

The following shall be treated in the same way as a diploma within the meaning of the first subparagraph: 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 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;

…

…’

‘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:

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.’

‘The host Member State shall accept as means of proof that the conditions laid down in Articles 3 to 9 are satisfied the documents issued by the competent authorities in the Member States, which the person concerned shall submit in support of his application to pursue the profession concerned.’

‘Paragraph 28a – Career qualifications under provisions of European law

(1)

1.

2.The detailed rules governing this matter shall be enacted, by way of a regulation, by the ministries under the powers vested in them, in agreement with the Ministry of Internal Affairs and the Ministry of Finance.’

‘Paragraph 1 – Recognition

1.(1)

(2)

(3)

(4)

(5)

2.

3.

4.‘Paragraph 5 – Decisions

1.

2.(1)

(2)

(3)

‘Paragraph 6 – Recognition

1.

2.‘If a course of education and training is replaced by a course of study at a higher-education establishment of three years’ duration, holders of the “earlier” diploma may, in the Commission’s view, benefit from Directive 89/48/EEC if there are provisions of national law in existence which expressly recognise that their education and training is considered to be of a level equivalent to the education and training for which the “new” diploma is awarded and confers the same rights in respect of the pursuit of the profession’.

‘1.

2.

3.(a)

(b)

4.

5.

6.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?’

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Verwaltungsgericht Stuttgart by order of 5 March 2002, hereby rules:

Jann

Timmermans

Rosas

La Pergola

von Bahr

Delivered in open court in Luxembourg on 29 April 2004.

R. Grass

V. Skouris

Registrar

President