Parties Grounds Operative part

In Case C‑286/06,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 29 June 2006,

Commission of the European Communities, represented by H. Støvlbæk and R. Vidal Puig, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Kingdom of Spain, represented by M. Muñoz Pérez, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of Chamber, J.‑C. Bonichot, K. Schiemann (Rapporteur), J. Makarczyk and L. Bay Larsen, Judges,

Advocate General: Y. Bot,

Registrar: M.M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 13 September 2007,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1. By its application the Commission of the European Communities seeks a declaration from the Court that:

– by refusing to recognise the professional qualifications of engineer obtained in Italy, and

– by making admission to internal exams for promotion in the civil service subject in the case of engineers with professional qualifications obtained in another Member State to academic recognition of those qualifications,

the Kingdom of Spain has failed to fulfil its obligations under 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), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p. 1; ‘Directive 89/48’), and in particular Article 3 thereof.

2. The principal question of law raised in this case is analogous to that in the case which gave rise to today’s judgment in Case C‑274/05 Commission v Greece [2008] ECR I‑0000. These cases both concern the extent to which the provisions of Directive 89/48 may be relied upon in order to oblige a Member State to recognise diplomas awarded following studies in an individual’s own Member State by the authorities of another Member State.

Legal context

Community legislation

3. According to the third and fourth recitals in the preamble to Directive 89/48, the purpose of the directive is to introduce a general system for the recognition of diplomas such as to enable nationals of Community countries to pursue all those professional activities which in a host Member State are dependent on the completion of post-secondary education and training, provided that they hold diplomas preparing them for those activities awarded on completion of a course of studies lasting at least three years and issued in another Member State.

4. The fifth recital in the preamble to Directive 89/48 reads as follows:

‘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 [10 EC], 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’.

5. Article 1(a) of Directive 89/48 provides:

‘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 equivalent 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’.

6. The first paragraph of Article 2 of Directive 89/48 provides:

‘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.’

7. The first paragraph of Article 3 of Directive 89/48 provides that a host Member State which makes the taking up of a profession subject to possession of a diploma may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up that profession if the applicant adduces certain qualifications specified in that provision. That is the case in particular 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.

8. Notwithstanding Article 3 of that directive, Article 4 thereof authorises the host Member State, in certain circumstances which are set out in that article, to require the applicant to provide evidence of professional experience of a specific duration, to complete an adaptation period not exceeding three years or to take an aptitude test (‘the compensatory measures’). Article 4 lays down a number of rules and conditions applicable to the compensatory measures which may be required to make up for the shortfalls in education and training of that applicant.

9. Pursuant to Article 8(1) of Directive 89/48, the host Member State is to accept as proof that the conditions laid down in Articles 3 and 4 of that directive are satisfied the certificates and documents issued by the competent authorities in the Member States, which the person concerned is to submit in support of his application to pursue the profession concerned.

National legislation

10. Spanish legislation on university diplomas draws a distinction between two types of diplomas, namely ‘official diplomas’, the validity of which is recognised in the whole of Spain and which give access to the regulated professions, and ‘own diplomas’ which the various universities have the option of awarding but which, in particular, do not give access to the regulated professions. That area is governed by Basic Law 6/2001 of 21 December 2001 relating to universities (BOE No 307 of 24 December 2001, p. 49400).

11. Article 34 of Basic Law 6/2001 provides:

‘Establishment of university diplomas and general guidelines for the study programmes thereof.

1. University diplomas which are of an official nature and are valid throughout the national territory together with the general guidelines for study programmes which must be followed in order for those diplomas to be awarded and homologated shall be established by the government, either on its own initiative, following prior consultation of the university co-ordination council, or on a proposal by the latter.

2. The diplomas referred to in the previous paragraph, which form part of the list of the official university diplomas approved by the government, shall be issued on behalf of the King by the vice‑chancellor of the university from which they have been obtained.

3. The universities shall be able to determine the courses leading to the award of own diplomas and qualifications as well as continuing education and training courses. Those diplomas and those qualifications shall not have the effects that the legal provisions recognise those referred to in paragraph 1 as having.’

The recognition procedure

12. In Spain, Royal Decree 1665/1991 of 25 October 1991 governing the general system for recognition of higher education diplomas awarded in the Member States of the European Union requiring education and training of at least three years’ duration (BOE No 280 of 22 November 1991, p. 37916; ‘the Royal Recognition Decree’) is designed to transpose Directive 89/48 into the national legal system.

13. Article 2(1) of the Royal Recognition Decree is designed to transpose the first paragraph of Article 2 of Directive 89/48 into Spanish law and provides as follows:

‘The rules set out in this royal decree apply to nationals of a Member State of the European Union who, as holders of a diploma awarded in a State of that Union, wish to pursue in Spain, in a self-employed capacity or as an employed person, a regulated profession the pursuit of which requires higher education and training of at least three years’ duration.’

14. As provided in Article 4(1) of that royal decree:

‘For the purposes of taking up the activities of a regulated profession, diplomas awarded in the Member States which entitle holders to pursue in those states the same profession [as in Spain] shall be recognised in Spain with the same effects as the corresponding Spanish diploma.’

15. Article 1(a) of the Royal Recognition Decree is designed to transpose Article 1(a) of Directive 89/48 into Spanish law and defines the term ‘diploma’ as follows:

‘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 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 equivalent 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 of a regulated profession in that Member State, provided that the education and training attested by the diploma were received mainly in the Community, or the holder thereof has three years’ professional experience certified by the Member State which recognised that diploma. …’

16. Article 1(b) of that royal decree defines the concept of ‘regulated profession’ as follows:

‘[Activity] or [set] of professional activities the taking up or pursuit of which or one of the modes of pursuit thereof is subject, directly or indirectly, to possession of a diploma and which constitute a profession in a Member State’.

17. Article 3 of the Royal Recognition Decree provides that, for the purposes of that decree, the professions listed in Annex I to that decree, amongst which are the professions of ‘road, canal and port engineer’ (‘ingeniero de Caminos, Canales y Puertos’) and ‘technical engineer of public works’ (‘ingeniero technical de obras publicas’) are to be considered ‘regulated professions’. By contrast, that of ‘civil engineer’ (‘ingeniero civil’) is not listed in that annex.

The homologation procedure

18. The procedure for recognising professional qualifications provided for by the Royal Recognition Decree must be distinguished from the procedure known as the homologation procedure of university diplomas. The first of those procedures is designed to carry out a review for the purpose of determining whether the person concerned does or does not possess the qualification required to pursue a given regulated profession. On the other hand, the homologation procedure is designed to monitor the academic content, in terms of knowledge, of the studies pursued for the purpose of obtaining a diploma.

19. The homologation procedure is governed by Royal Decree 285/2004 of 20 February 2004 on the regulation of the conditions for homologation and validation of foreign diplomas and higher education studies (BOE No 55 of 4 March 2004, p. 8996, ‘the Royal Homologation Decree’).

20. The concept of homologation is defined in Article 3(a) and (b) of the Royal Homologation Decree as follows:

For the purpose of this royal decree:

(a) homologation of the equivalence with a diploma from the list of official university diplomas shall mean homologation of the education and training completed for the award of a foreign diploma which is recognised as equivalent to that required for the award of a Spanish diploma referred to in the abovementioned list;

(b) homologation of the equivalence of one of the academic degrees on which Spanish university studies are based shall mean homologation of the education or training completed for the award of the foreign diploma which is recognised as equivalent to that required for the award of an academic degree corresponding to one of the levels on which Spanish university studies are based, and not to a specific diploma.’

21. Article 4(1) of the Royal Homologation Decree specifies the effects of homologation in the following terms:

‘Homologation shall confer on the foreign diploma, from the time at which it is awarded and the corresponding certificate is issued, the same effects throughout the national territory as the Spanish diploma or academic degree in respect of which it has been homologated as equivalent, in accordance with the legislation in force.’

22. Article 22 of the Royal Homologation Decree, entitled ‘Professional recognition of European Union diplomas’, provides:

‘The professional recognition of higher education diplomas awarded by the Member States of the European Union shall be governed by the procedures prov ided for in the Community directives and the Spanish legislation transposing them.’

23. In addition, Supplementary Provision No 1 of the Royal Homologation Decree, entitled ‘Community legislation’, refers to Community legislation in the following terms:

‘The provisions of this royal decree shall apply without prejudice to the relevant provisions contained in the Spanish Treaty of Accession to the European Communities, the Treaty on European Union and secondary Community law.’

The regulation of the profession of engineer in Spain and Italy

24. The profession of engineer constitutes a regulated profession in both Spain and in Italy.

– The education and training systems

25. The Italian and Spanish education and training systems are similar so far as concerns qualifications in the field of engineering. In both those Member States such qualifications can be obtained at the end of a post-secondary course of three or five years’ duration.

26. In Spain, a distinction is drawn between technical engineer (‘ingeniero técnico’) university diplomas, awarded after three years of studies, and those of engineer (‘ingeniero’; ‘fully­‑qualified engineer’), awarded after five years of education and training. Holders of a technical engineer diploma may obtain the diploma of fully‑qualified engineer by successfully completing the two last years of the education and training leading to that diploma.

27. In Italy, a distinction is drawn between university diplomas obtained after three years of studies (‘laurea triennale’), which are awarded on completion of junior engineer (‘ingegnere junior’) education and training, and those which are awarded following two additional years of studies for the purpose of training engineers (‘ingegnere’; fully‑qualified engineers’). The latter diplomas which were previously entitled ‘specialist diplomas’ (‘laurea specialistica’) have been entitled ‘laurea magistrale’ since a reform in 2004.

– The conditions for taking up and pursuing the profession of engineer in Spain and Italy

28. In Spain, the taking up of the professions of technical engineer and fully-qualified engineer is in principle conditional on possession of the official university diploma, within the meaning of Basic Law 6/2001, corresponding to the profession concerned.

29. In Italy, the taking up of the professions of junior engineer and fully-qualified engineer is conditional on possession of the requisite university diploma and success in the State examination (‘esame di Stato’) corresponding to the profession concerned (Article 4 of Royal Decree No 2537 of 23 October 1925 ( Gazzetta ufficiale No 37 of 15 February 1926)). That State examination is to include at least two written tests, an oral test and a practical test according to Articles 47 and 48 of Presidential Decree No 328 of 5 June 2001 (Ordinary Supplement to the GURI No 190 of 17 August 2001). Candidates who have been successful in the State examination are granted the entitlement to pursue the profession of engineer (‘abilitazione all’esercizio della profesione di ingegnere’).

30. In both Spain and Italy, the pursuit of the profession of engineer also requires registration in a professional register. In Spain, according to the specialisation and the regions, different associations of engineers (colegios de ingenieros) are competent. In Italy, a register of engineers is kept in each province by the Council of Engineers (‘Consiglio dell’Ordine degli Ingegneri’). That register is divided into two sections, namely Section A for fully-qualified engineers, and Section B for junior engineers. In both those Member States, registration in a register of engineers constitutes a simple administrative step which does not of itself attest to the professional qualifications of the persons concerned, but is designed to ensure that the pursuit of the profession observes certain standards as regards rules and obligations.

– The professions of road, canal and port engineer and technical engineer of public works in Spain

31. In Spain, as is apparent from Article 4 of the Law of 20 July 1957 laying down provisions regulating technical education (BOE No 187 of 22 July 1957, p. 607), persons wishing to pursue the profession of road, canal and port engineer must normally hold the official university diploma, within the meaning of Basic Law 6/2001, of Road, canal and port engineer, awarded by one of the Spanish training schools for road, canal and port engineers. That fully‑qualified engineer diploma is obtained after five years of study.

32. Access to that profession is also open to holders of a diploma awarded in another Member State which is recognised for professional purposes in accordance with the Royal Recognition Decree, as well to holders of a foreign university diploma which has been homologated as equivalent to the Spanish diploma of road, canal and port engineer, in accordance with the Royal Homologation Decree.

33. Further, in all those cases, the persons concerned must be registered in the professional register of road, canal and port engineers (Colegio de Ingenieros de Caminos, Canales y Puertos) in order to be able to pursue the profession concerned. That registration is not conditional on success in an examination. Any person who possesses the relevant diploma and satisfies the other legal conditions is entitled to be registered in that register.

34. The diplomas of technical engineer in civil construction (‘ingeniero técnico en construcciones civiles’) is an official diploma, within the meaning of Basic Law 6/2001, which validates education and training of three years’ duration. It gives access in Spain to the regulated profession of technical engineer of public works. Holders of that diploma may obtain the diploma of road, canal and port engineer by successfully completing the education and training provided in the fourth and fifth year of studies of one of the Spanish training schools for road, canal and port engineers.

– The profession of civil engineer in Italy

35. Persons who wish to pursue the profession of civil engineer in Italy must normally hold the university diploma of civil engineer (‘laurea in Ingegneria Civile’), ‘laurea magistrale’, awarded on completion of education and training of five years’ duration, as well as the entitlement to pursue the profession of engineer, which is awarded after success in the State examination. In addition, those persons must be registered in the register of engineers of a province, in Section A, which is the relevant section in this case.

The requirement of homologation of professional qualifications obtained in another Member State for admission to internal exams for promotion in the civil service

36. Decree MAM/1266/2003 of the Minister of the Environment of 9 May 2003 (BOE No 123 of 23 May 2003, p. 19820) initiated an internal competition for promotion to the grade of senior technical executive of the autonomous bodies of the Ministry of the Environment (‘técnicos facultativos superiores de organismos autónomos del Ministerio de Medio ambiente’).

37. Article 2 of Decree MAM/1266/2003, entitled ‘Conditions relating to candidates’, provided:

‘2.1 For admission to the selection tests, candidates must satisfy, from the last day of the period for submission of applications and until the time that they take up their duties as career officials, the following conditions of participation:

…

2.1.4 Diplomas: be in possession of or be in a position to obtain the qualification of doctor, bachelor, engineer or architect. If qualifications have been obtained abroad, candidates must be in possession of the certificate attesting to their homologation.

…’

38. That requirement applied generally to the selection procedures organised for the purpose of access to the bodies and grades of the General State Administration.

39. That practice was subsequently codified by Decree APU/423/2005 of the Minister of Public Administration of 22 February 2005 establishing the common principles governing selection procedures for the purpose of entry or access to the bodies or grades of the General State Administration (BOE No 48 of 25 February 2005, p. 6993).

40. Paragraph 7 of Decree APU/423/2005, entitled ‘Conditions relating to candidates’, provides:

‘1. For admission to the selection tests, candidates must satisfy, from the last day of the period for submission of applications and until the time that they take up their duties as career officials, the following conditions of participation, as well as those contained in the relevant specific provisions:

…

1.3. Diplomas: be in possession or in a position to obtain the diploma required for access to each body or grade, in accordance with what is determined on the specific bases of each selection test. If qualifications have been obtained abroad, candidates must be in possession of the certificate attesting to their homologation.

…’

The pre-litigation procedure

The complaints received by the Commission

41. The Commission has received numerous complaints prompted by the refusal of the competent Spanish authorities, in this case the Ministry of Equipment and Transport (‘Ministerio de Fomento’), to allow the applications, lodged pursuant to the Royal Recognition Decree, for recognition of the professional qualifications of engineer obtained in Italy in order to pursue the profession of road, canal and port engineer in Spain.

42. The complainants hold the official diploma, within the meaning of Basic Law 6/2001, of technical engineer in civil construction awarded by the University of Alicante (Spain), and the university diploma of ‘civil engineer’, which constitutes an own diploma, within the meaning of Basic Law 6/2001, awarded by the same university.

43. Pursuant to a framework cooperation agreement between the University of Alicante and the Polytechnic University of the Marches (Italy), the studies of ‘civil engineering’ to which the University of Alicante gives access are coordinated and supervised by the Polytechnic University of the Marches.

44. Pursuant to that framework agreement, the Polytechnic University of the Marches recognised for the benefit of the complainants the equivalence between the two abovementioned Spanish university diplomas and the Italian university diploma of civil engineer (‘laurea in ingegneria civile’) and consequently awarded them a diploma of civil engineer. Once in possession of that diploma, the complainants passed the Italian State exam conferring on them the entitlement to pursue the profession of engineer which authorises them to pursue the profession of civil engineer in that Member State.

45. The complainants subsequently applied to the Ministry of Equipment and Transport for recognition of the professional qualifications obtained in Italy in order to be able to pursue the profession of road, canal and port engineer in Spain. That ministry rejected those applications, relying on the fact that all the university education and training received by the complainants had been provided in Spain and that therefore neither the Royal Recognition Decree nor Directive 89/48 was applicable.

46. Furthermore, one of the complainants in question was refused access to one of the internal exams for promotion organised by the Ministry of the Environment (Ministerio de Medio ambiente) on the ground that persons holding foreign diplomas were required, pursuant to Decree MAM/1266/2003, to obtain prior homologation of those diplomas, in accordance with the Royal Homologation Decree.

The letter of formal notice and the reasoned opinion

47. The Commission took the view that the Spanish legislation did not comply with Directive 89/48 and, on 22 December 2004, it sent the Kingdom of Spain a letter of formal notice to which the Spanish authorities replied on 22 February 2005.

48. The Commission was not satisfied by the explanations provided by the Spanish authorities and, on 5 July 2005, it sent the Kingdom of Spain a reasoned opinion to which that Member State replied by letter of 20 September 2005.

49. The Commission was still not satisfied by those explanations and decided to bring this action.

The action

The first complaint: failure to recognise qualifications acquired in Italy following education and training in Spain

50. By its first complaint, the Commission claims that the complainants satisfy all the conditions of applicability of Directive 89/48 and that, consequently, the Spanish authorities were obliged to authorise the complainants to take up the profession of road, canal and port engineer in Spain. By not allowing them to take up that profession, the Kingdom of Spain failed to fulfil its obligations under Article 3 of that directive.

51. According to the Commission, the fact that the education and training that the complainants possess were provided exclusively in Spain in no way affects that conclusion. Directive 89/48 does not require that the education and training be provided in a Member State other than the host Member State. The Commission submits that it follows from Article 1(a) and (b) read in conjunction with Articles 2 and 3 of Directive 89/48 that that directive is applicable if the Member State in which the applicant wishes to pursue the profession concerned is different from that in which the diploma on which he relies was awarded, and that irrespective of the place where the education and training required to obtain the diploma were pursued.

52. The Kingdom of Spain disputes the merits of that complaint, taking the view that there are two fundamental grounds justifying the absence of any obligation to recognise the diplomas of the complainants in question, namely where the persons seeking recognition of their qualifications have received all their education and training in Spain and where they seek to obtain that recognition in order to pursue, also in Spain, the profession in question. First, the Kingdom of Spain asserts that in the present case the provisions of Directive 89/48 are not applicable since all the relevant facts occurred in one single Member State. Second, it invokes the case-law of the Court, according to which Community law cannot be relied on for abusive or fraudulent ends.

54. Subject to the provisions of Article 4 of Directive 89/48, subparagraph (a) of the first paragraph of Article 3 of that directive entitles any applicant who holds a ‘diploma’, within the meaning of that directive, enabling him to pursue a regulated profession in one Member State to pursue the same profession in any other Member State.

56. Next, as regards the condition laid down in the second indent of Article 1(a) of Directive 89/48, the complainants clearly satisfy the condition that holders must have successfully completed a post-secondary course of at least three years’ duration in a university. It is apparent from the educational qualifications awarded to the complainants by the University of Alicante that they have successfully completed a post-secondary course of five years’ duration.

57. As regards, moreover, the condition referred to in the third indent of Article 1(a) of Directive 89/48, it is apparent from the documents attached to the application that the complainants were awarded a diploma of civil engineer (‘laurea in ingegneria civile’) by the Polytechnic University of the Marches on the basis of the equivalence of their studies at the University of Alicante with those leading to that diploma. It follows from the award of that diploma and those complainants’ success in the Italian State examination, following which they were granted the entitlement to pursue the profession of engineer, that they possess the professional qualifications required to take up a regulated profession in Italy.

58. Finally, it is beyond doubt that each of the qualifications at issue was awarded by a competent authority, designated in accordance with the laws of Spain and Italy respectively and that, consequently, the condition laid down in the first indent of Article 1(a) of Directive 89/48 is satisfied.

59. It is thus established that the complainants hold ‘diplomas’, within the meaning of the first indent of Article 1(a) of Directive 89/48, and that Article 3 of that directive therefore entitles them, subject to any compensatory measures, to pursue in Spain the profession which they are entitled to pursue in Italy by reason of those diplomas.

60. Contrary to what the Kingdom of Spain maintains, no condition can be inferred from Directive 89/48 to the effect that the persons concerned must have pursued all or a part of their education and training in a Member State other than the Kingdom of Spain.

61. It may be observed, in this respect, that Article 8(1) of Directive 89/48 obliges the host Member State to accept, in any event, as proof that the conditions for recognition of a diploma are satisfied, the certificates and documents issued by the competent authorities in the other Member States. Consequently, the host Member State cannot examine the basis on which such documents have been issued, although they do have the possibility of carrying out a review as regards those of the conditions laid down in Article 1(a) of Directive 89/48 which, on the basis of the wording of those documents, do not appear to have been satisfied already.

63. It follows expressly from the first paragraph of Article 1(a) of Directive 89/48 that it is sufficient that the education and training were received ‘mainly in the Community’. It has already been held that that expression covers both education and training received entirely in the Member State which awarded the formal qualification in question and that received partly or wholly in another Member State (Case C‑102/02 Beuttenmüller [2004] ECR I‑5405, paragraph 41).

64. Furthermore, no reason can justify such a limitation, since the main question, for the purposes of adjudicating on the applicability of Directive 89/48, is whether the applicant is or is not entitled to pursue a regulated profession in a Member State. According to the system put in place by that directive, a diploma is recognised not on the basis of the intrinsic value of the education and training to which it attests, but because it gives the right to take up a regulated profession in the Member State where it was awarded or recognised ( Beuttenmüller , paragraph 52, and Case C‑330/03 Colegio [2006] ECR I‑801, paragraph 19).

65. The general system for the recognition of higher education diplomas laid down in Directive 89/48 is based on the mutual trust that Member States have in the professional qualifications that they award. That system essentially establishes a presumption that the qualifications of an applicant entitled to pursue a regulated profession in one Member State are sufficient for the pursuit of that profession in the other Member States.

66. In the present case, it is beyond doubt that the complainants are duly entitled to pursue the regulated profession of engineer in Italy.

67. Since those complainants were entitled to pursue the regulated profession in question in a Member State other than that in which they are applying to pursue that profession, their situation cannot be categorised as purely internal and the line of argument of the Kingdom of Spain based, in this respect, on the judgment in Joined Cases C‑225/95 to C‑227/95 Kapasakalis and Others [1998] ECR I‑4239, paragraphs 18 and 19, must therefore be rejected. As the Commission has observed, the Court held in that judgment that Directive 89/48 was not applicable since the applicants in the main proceedings had not worked, studied or obtained a diploma in another Member State.

68. The Kingdom of Spain submits, moreover, that the application of Directive 89/48 would have the consequence of making it possible to circumvent the distinction drawn by Basic Law 6/2001 between official diplomas and own diplomas by a simple private agreement concluded between two private universities, pursuant to which a university of another Member State automatically recognises own diplomas awarded by a Spanish university. It observes that the diploma of ‘civil engineer’ on which the complainants rely is not an official diploma but merely an own diploma of the University of Alicante which, in accordance with Basic Law 6/2001, does not have the effects that the legal provisions accord to official diplomas and which is therefore invalid for academic or professional purposes in Spain. The educational qualifications obtained by the complainants in Spain do not therefore make it possible to pursue the profession of road, canal and port engineer in that Member State. The reliance, by the complainants who have pursued all their studies in Spain, on the provisions of Directive 89/48 in order none the less to take up that profession should therefore be categorised as fraudulent or improper.

70. However, although the national courts may, case by case, take account – on the basis of objective evidence – of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely, they must nevertheless assess such conduct in the light of the objectives pursued by those provisions ( Centros , paragraph 25).

71. The general system of recognition laid down by Directive 89/48 is designed precisely to enable the nationals of a Member State entitled to pursue a regulated profession in one Member State to take up that profession in other Member States.

73. It is apparent from those considerations that the Kingdom of Spain is required, pursuant to subparagraph (a) of the first paragraph of Article 3 of Directive 89/48, subject to any compensatory measures, to recognise not only Italian engineering diplomas if the education and training pursued in order to obtain those diplomas have taken place wholly or in part in Italy, but also diplomas awarded by the competent Italian authorities following education and training provided entirely in Spain.

74. In any event, as the Kingdom of Spain observes in its defence, contrary to what the form of order sought in this action for failure to fulfil obligations implies, the first complaint put forward by the Commission does not concern, in actual fact, a categorical refusal by the Spanish authorities to recognise all Italian professional engineering qualifications, but solely a refusal to recognise professional engineering qualifications obtained in Italy on the basis of university education and training provided solely in Spain. The operative part of this judgment must therefore be limited in consequence of those considerations.

The second complaint: requirement of homologation of qualifications obtained in another Member State for admission to internal exams for promotion in the Spanish civil service

75. By its second complaint, the Commission challenges the requirement that every foreign diploma must be homologated, laid down in Decrees MAM/1266/2003 and APU/423/2005, for the purposes of obtaining promotions within the General State Administration. That requirement is contrary to Article 3 of Directive 89/48 which applies both to the pursuit and to the taking up of a regulated profession.

76. Consequently, when a national of a Member State pursues the profession of engineer within the General State Administration, the conditions of that pursuit must include promotion possibilities and, consequently, the criteria relating to participation in the internal selection tests. The requirement that the diploma must be approved makes internal promotion and, ultimately, the pursuit of that profession more difficult for the nationals of a Member State who hold the professional diploma required in another Member State than for those who hold the diploma required in Spain.

77. The Kingdom of Spain states that, in so far as, in the General State Administration, any official may in principle be assigned to positions of different types, the posts are filled on the basis not of a given professional qualification, but on the basis of academic degrees, namely the doctorate, the master’s degree or the diplomas of engineer or architect. The recognition decision making it possible to take up a regulated profession gives no information about the level of the academic degree required. In those circumstances, homologation is necessary in order to determine the academic degree of a candidate who has acquired his qualifications in another Member State.

78. The Court has already ruled that, where Directive 89/48 is applicable, a public body in a Member State, which is bound to comply with the rules laid down in that directive, can no longer require that a candidate’s qualifications be homologated by the competent national authorities as a prior condition for taking up the profession in question (see, to that effect, Case C‑234/97 Fernández de Bobadilla [1999] ECR I-4773, paragraph 27, and Case C‑141/04 Peros [2005] ECR I‑7163, paragraph 35).

79. Article 3 of Directive 89/48 requires, as the Commission has observed, that diplomas awarded in a given Member State must enable their holder not only to take up a regulated profession in another Member State but also to pursue that profession there under the same conditions as apply to holders of national diplomas.

80. Consequently, the national authorities must ensure that holders of a professional qualification obtained in another Member State have the same promotion possibilities as holders of the equivalent national professional qualification. Thus, in the present case, where the profession of road, canal and port engineer is normally pursued in Spain by holders of a Spanish diploma obtained following five years of studies, the holder of a diploma awarded in another Member State and entitling the person concerned to pursue, where appropriate after he has been the subject of compensatory measures, the same profession in Spain must be accorded the same promotion possibilities as holders of that Spanish diploma. Those considerations apply irrespective of the number of years required by that holder to obtain the diploma in question.

81. Once a diploma awarded in another Member State has been recognised pursuant to Directive 89/48, where appropriate after compensatory measures have been imposed, it is considered to confer the same professional qualifications as the equivalent Spanish diploma. In those circumstances, depriving the holder of a diploma awarded in another Member State of the benefit of the same promotion possibilities as holders of the equivalent Spanish diploma, on the sole ground that that diploma was obtained after a shorter period of education and training would amount to placing holders of a diploma of another Member State at a disadvantage solely because they acquired equivalent qualifications within a shorter space of time.

82. Consequently, the homologation requirement is incompatible with Article 3 of Directive 89/48, at least in so far as that requirement constitutes a prior condition for admission to internal exams for promotion, even for candidates who rely solely on a diploma awarded in another Member State which is recognised pursuant to Directive 89/48.

83. Having regard to all the above, the Court holds that,

– by refusing to recognise the professional qualifications of engineer obtained in Italy on the basis of university education and training provided solely in Spain, and

– by making admission to internal exams for promotion in the civil service subject in the case of engineers with professional qualifications obtained in another Member State to academic recognition of those qualifications,

the Kingdom of Spain has failed to fulfil its obligations under Directive 89/48, and in particular Article 3 thereof.

Costs

84. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the Kingdom of Spain and the latter has been unsuccessful, it must be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby declares that:

1. The Kingdom of Spain,

– by refusing to recognise the professional qualifications of engineer obtained in Italy on the basis of university education and training provided solely in Spain, and

– by making admission to internal exams for promotion in the civil service subject in the case of engineers with professional qualifications obtained in another Member State to academic recognition of those qualifications,

has failed to fulfil its obligations under 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, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, and in particular Article 3 thereof.

2. The Kingdom of Spain is ordered to pay the costs.