Report for the Hearing delivered in Case 38/87

I — Facts and Procedure

Article 3 (1) of Greek Decree-Law No 3026 of 6/8 October 1954 on the Code of Rules concerning the Legal Profession provides that ‘no person who is not of Greek nationality may be admitted to the legal profession’.

Article 10 of Law No 4663 of 7/9 May 1930 ‘governing the exercise of the professions of civil engineer, architect and surveyor’ provides that ‘persons exercising by virtue of this law the professions of civil engineer, architect or surveyor, except for those referred to in Articles 7 and 8, are members, compulsorily and as of right, of the Technical Chamber of Greece’.

Article 2 (2) of the Presidential Decree of 27 November and 14 December 1926 on the codification of provisions concerning the creation of a Technical Chamber stated that: ‘Conditions of registration as a member of the Technical Chamber are as follows :

a) Greek nationality ... ’.

That provision was amended by Law No 1486 of 17 October 1984 which altered the provisions concerning the Technical Chamber. Under Article 2 of the new law:

‘(1) All graduates of Greek nationality of the Metsovio National Polytechnic, the Regional Polytechnics or equivalent schools abroad who have been admitted to the exercise of their profession shall be compulsorily ordinary members of the Technical Chamber of Greece. The special provisions permitting registration with the Chamber of persons not of Greek nationality shall remain in force. (2) By decision of the representative body of the Technical Chamber of Greece, adopted by an absolute majority of all its members, Greeks and foreigners who have rendered outstanding or special services in promoting the objectives of the Technical Chamber may be appointed honorary members of the Technical Chamber of Greece’.

The special provisions authorizing foreigners to become members of the Chamber, which were maintained in force by Law No 1486, are contained in Decree-Law No 2728 of 12 November 1953, Article 4 (2) of which provides that:

‘Engineers of Greek origin who are graduates of the Metsovio National Polytechnic or equivalent schools abroad, are of foreign nationality and come from Northern Epirus, Cyprus or Constantinople and have established their permanent residence in Greece may be registered as members of the Technical Chamber of Greece and exercise freely the profession of engineer, by decision of the Administrative Council of the Technical Chamber of Greece ...’.

By letters dated 5 September 1985 the Commission advised the Hellenic Republic that the aforementioned legislative provisions gave rise to discrimination against nationals of other Member States in breach of Articles 52 and 59 of the EEC Treaty. The Commission called upon the Hellenic Republic to submit its observations within one month from the date on which the aforementioned letters were received.

The Greek Government did not reply to those letters.

As it had no evidence to indicate that the Hellenic Republic had amended its legislation, the Commission delivered a reasoned opinion on 14 May 1986 calling upon it to adopt the measures required to bring to an end the alleged infringements within a period of two months from the notification of the opinion.

In a letter of 17 July 1986, the Greek Permanent Representative to the European Communities informed the Commission that, ‘as regards the discrimination on the basis of nationality which exists in respect of access to the professions of architect, civil engineer, surveyor and lawyer, the ministries responsible have already initiated the procedure for drafting the relevant legislative provisions which will remove the nationality condition’.

As it received no further evidence or information to indicate that those legislative provisions had come into operation, the Commission concluded that the contested legislation was still in force and continued to be applied. Consequently, on 5 February 1987, the Commission brought these proceedings under the second paragraph of Article 169 of the EEC Treaty.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, the Court asked the parties to furnish further information about the national provisions applicable.

II — Conclusions of the parties

The Commission claims that the Court should:

1) Declare that by requiring Greek nationality as a condition of access to the professions of architect, civil engineer, surveyor and lawyer and for the exercise thereof, and by failing to adapt the relevant legislation to the provisions of Community law, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty;

2) Order the Hellenic Republic to pay the costs.

The Hellenic Republic claims that the Court should:

1) Dismiss the Commission's application;

2) Order the Commission to pay the costs.

III — Submissions and arguments of the parties

The Commission contends that the contested provisions of Greek law prohibit nationals of other Member States from exercising their right of establishment in Greece as architects, civil engineers, surveyors or lawyers or from providing their services as such on Greek territory. That prohibition applies even if those persons, who have a right to freedom of establishment and freedom to provide services, hold the qualifications or diplomas required by Greek law.

As regards the professions of civil engineer, architect and surveyor specifically, the Commission submits that the combined effect of Article 10 of Law No 4663 of 1930, Article 2 (1) of Law No 1486 of 1984 and Article 11 of Law No 4663, which provides for penalties if those professions are exercised in breach of its provisions, is that foreign nationals are not ‘compulsorily and as of right’ members of the Technical Chamber as are Greek nationals and are accordingly not permitted to exercise the said professions.

The Greek legislation, in introducing these prohibitions, gives rise to discrimination against citizens of other Member States, which constitutes an infringement of Articles 52 and 59 of the EEC Treaty.

As far as implementing those articles is concerned, the Act concerning the Conditions of Accession of the Hellenic Republic and the Adjustments to the Treaties does not provide for any transitional period. Consequently Greece was under an obligation to apply Articles 52 and 59 from 1 January 1981.

As is evident from their reply to the reasoned opinion, the Greek authorities do not dispute the existence of an infringement; on the contrary, they intend to adopt the necessary adapting measures, without, however, binding themselves as to time or even fixing a period within which those measures will be adopted.

In accordance with the judgments of the Court of Justice of the European Communities of 21 June 1974 (Case 2/74 Reyners [1974] ECR 631) and 3 December 1974 (Case 33/74 Van Binsbergen [1974] ECR 1299), however, Articles 52 and 59 of the EEC Treaty are directly applicable. Any discrimination on the basis of nationality against the citizens of other Member States and any restriction placed on the exercise of the rights therein guaranteed are thus contrary to those articles. In addition, Article 7 of the EEC Treaty, which expressly prohibits ‘within the scope of application of this Treaty ... any discrimination on grounds of nationality’ also has direct effect.

As the Court declared in its judgment of 20 March 1986 in Case 72/85 (Commission v Netherlands [1986] ECR 1219), the right of individuals to rely upon directly applicable provisions of the Treaty before their national courts represents only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty. It is clear from previous judgments of the Court on the subject that if a provision of national law that is incompatible with a provision of the Treaty, even one directly applicable in the legal order of the Member States, is retained unchanged, this creates an ambiguous state of affairs by keeping the persons concerned in a state of uncertainty as to the possibility of relying on Community law, and that maintaining such a provision in force therefore amounts to a failure by the State in question to comply with its obligations under the Treaty (judgment of 15 October 1986 in Case 168/85 Commission v Italy [1986] ECR 2495, at paragraph 11).

The incompatibility of national legislation with the provisions of the Treaty, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended.

The Greek legislation at issue must therefore be amended so as to remove the condition of Greek nationality for access to the professions of architect, civil engineer, surveyor and lawyer and to guarantee access to and the exercise of those professions to the citizens of other Member States on the same conditions as apply to Greek nationals.

As regards access to the profession of lawyer and its exercise, the Hellenic Republic observes that the process of adopting legislation to remove the condition of Greek nationality from the Code of Rules concerning the legal profession will be somewhat protracted as such a step requires both the standardization of the provisions concerning the equivalence of qualifications and the preparation of a professional code applicable to the other professions directly concerned by the proposed rules.

With regard to the professions of civil engineer, architect and surveyor, the Hellenic Republic maintains that the provisions in question do not contain any infringement of Community law as they relate to qualifications and other conditions stipulated for the exercise of those professions in Greece and thus do not concern the question of nationality.

Although the previous formulation of Article 2 (2) of the Presidential Decree of 27 November and 14 December 1926 showed clearly that Greek nationality was a mandatory condition of registration as a member of the Technical Chamber, those provisions were amended by the Law of 1984, which provides in Article 2 (1) that there is an obligation particular to Greek nationals of compulsory membership of the Technical Chamber.

The practice of the Technical Chamber is to enrol on its registers, at their request, civil engineers, architects and surveyors who are nationals of Member States of the European Economic Community provided, of course, that they fulfil the requirements and conditions laid down in the Greek legislation.

The special provisions which allow for registration with the Technical Chamber even if the person in question is not of Greek nationality concern the rules applicable to engineers of Greek origin who come from the Dodecanese, Northern Epirus, Cyprus and Constantinople and are resident in Greece; these provisions have been maintained in force (Decree-Law No 2728 of 1953).

In its reply, the Commission notes that it is the intention of the Hellenic Republic to prepare a legislative measure ‘which will remove the nationality condition laid down in the Code of Rules concerning the legal profession’. The Commission observes, however, that ‘according to well-established case-law, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations and time-limits resulting from Community law’ (judgment of 3 October 1984 in Case 254/83 Commission v Italy [1984] ECR 3395).

As regards the professions of civil engineer, architect and surveyor, the Commission points out that it is evident from the Greek legislation that the requirement of Greek nationality is a condition of registration of the persons concerned with the Technical Chamber of Greece. That is also the result, albeit indirect, of Article 2 (1) of the Law of 1984, which stipulates that ‘the special provisions which provide for registration with the Technical Chamber for persons who do not have Greek nationality are retained’.

The Hellenic Republic itself admits in its defence that those special provisions relate to the rules adopted for engineers of Greek origin who come from the Dodecanese and Northern Epirus and are resident in Greece. Consequently, the Greek legislation does not allow for the possibility of foreigners being registered with the Technical Chamber, even if they fulfil the other conditions which the legislation lays down for Greeks.

The failure to fulfil its obligations has not yet been remedied, even though, according to the Greek Government, the practice of the Technical Chamber is to enrol on its registers foreigners who fulfil the conditions of the Greek legislation. As the Court has consistently held, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty (judgment of 15 October 1986 in Case 168/85 Commission v Italy [1986] ECR 2945).

In its rejoinder, the Hellenic Republic maintains that no provision of the Law of 1984 includes the requirement of Greek nationality as a condition of registration with the Greek Chamber of Technical Professions.

The legal provision in force (Article 2 (1) of the Law of 1984) lays down only that registration with the Technical Chamber is compulsory for Greek nationals. Under the new provision, the Technical Chamber will enrol nationals of the Member States of the European Economic Community as members.

Consequently, the concept of nationality as it appears in the aforementioned article does not constitute a condition for the exercise of the profession but only concerns the possible participation by members of the Technical Chamber in certain activities relating to the exercise of public powers.

Similarly, the specific provisions maintained in force which provide for registration with the Technical Chamber of Greece even if the person concerned does not have Greek nationality (Article 2 (1) of the Law of 1984) do not give rise to any indirect discrimination on the basis of nationality since those provisions concern exclusively engineers of Greek origin who are nationals of nonmember countries, on whose behalf the governments of the Member States of the European Economic Community meeting within the Council have formulated a statement ensuring that such persons enjoy favourable treatment when exercising their profession in the territories of the Member States of the European Economic Community.

IV — Answers to the questions put by the Court

1. The Court called upon the Commission to reply to the following question: The Commission replies that foreign nationals, as opposed to Greek nationals, are not ‘compulsorily and as of right’ ordinary members of the Technical Chamber of Greece. The registration of foreigners by the Chamber thus does not constitute an obligation for it in its capacity as a legal person, but falls within its discretionary power. Even if the Chamber does enrol nationals of Member States as members, the Greek legislation nevertheless fails to indicate whether they are registered as ordinary members or as honorary members, whether registration is ‘automatic and compulsory’ or on request by the persons concerned and, finally, whether it is subject to additional conditions. The Commission considers that, in the context of the exercise of the right of establishment as provided for in Article 52 of the EEC Treaty, foreign nationals must be able to become members of the Chamber under the same conditions as Greek nationals. The status of ordinary member confers certain rights but also imposes obligations on its holder. The Commission cites the national provisions which set out the various rights and obligations of ordinary members of the Chamber. These show, in the Commission's view, that registration with the Chamber constitutes a determining condition, if not for access to the professions in question, at least for their exercise. In any case, registration with the Chamber also constitutes, in law and in fact, a condition which facilitates access to the professions considered as well as their exercise. In reply to the Greek Government's statement that the nationality condition does not constitute a precondition for the exercise of the profession but rather concerns the possible participation by members of the Chamber in certain activities connected with the exercise of public authority, the Commission points out that if, according to that formulation, a member of the Chamber may participate in the exercise of public authority, probably as a member of one of its disciplinary bodies, only if he has Greek nationality, Law No 1486/84 ought to have had an express provision to that effect. Such a reference might have been contained in Article 16 (3), which sets out the conditions of eligibility for membership of the Chamber's bodies. In the Commission's view, any participation by foreign nationals in a specific activity which is connected per se with the exercise of public authority could thus have been avoided, whilst at the same time the other rights of foreign nationals would have been properly safeguarded. The most likely explanation is that the absence of special rules in Article 16 (3) is due to the fact that the legislature wished to reserve compulsory and automatic registration with the Chamber to Greek nationals only, leaving open the question of the registration of foreign nationals. Because of this lacuna, it may be stated that Law No 1486/1984 contains an exhaustive list of the types of registration with the Chamber: (a) as an ordinary member (for Greek nationals) ; (b) as an ordinary member for certain categories of persons of Greek origin; (c) as an honorary member for Greek nationals and foreigners, from which it can be concluded that, inasmuch as it does not provide expressly for the registration of foreign nationals (except as honorary members), the law does not even leave it open to the Chamber's authorities to decide on their registration. The Commission considers that, irrespective of the interpretations which that lacuna in the law allows, the effort made to remedy the situation by means of an administrative practice followed by the Chamber does not suffice, as such, to put an end to the infringement of Community law. Finally, the Commission points out that under the terms of the first recital in the preamble to Directive 85/384/EEC on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services

‘What, according to the Commission's interpretation, are the rights and obligations which result from the status of member of the Technical Chamber of Greece and, in particular, does registration with the Chamber constitute in the Commission's view a determining condition for, or a condition which facilitates, in law or in fact, access to the professions in question or their exercise, or both?’

‘the resulting principle of nondiscriminatory treatment applies inter alia to the grant of any authorization required to take up activities in the field of architecture and also to the registration with or membership of professional organizations or bodies’.

2. At the Court's request, the Hellenic Republic produced the original complete text of the measures governing the exercise of the professions of civil engineer, architect and surveyor and the rules relating to the Technical Chamber of Greece. In reply to the question put by the Court concerning the rights and obligations which flow from the status of member of that Chamber, the Hellenic Republic states that the Chamber, a professional body to which all Greek engineers belong, is a corporate body governed by public law which enjoys all the rights and privileges accorded to public authorities. In Greece, the profession of engineer is exercised solely and exclusively by members of the Chamber. Holders of recognized qualifications are registered as members of the Chamber when they have been admitted to the exercise of their profession by the Chamber. Nobody may exercise the profession of engineer, even though he holds a recognized diploma and has been admitted, as required, to the exercise of the profession, if he is not a member of the Chamber. (a) As a professional body, the Chamber provides protection for its members in their profession and exercises disciplinary powers over them. The Hellenic Republic has listed the rights and obligations of the members in relation to the Chamber. (b) As a technical adviser to the Government, the Chamber exercises public powers as laid down by law. The Hellenic Republic has listed those powers together with the boards and committees on which the Chamber is represented by its members.

T. F. O'Higgins

Judge-Rapporteur

1 Language of the Case: Greek.

2 Official Journal 1985, C 210, p. 1.

3 Official Journal 1985, L 223, p. 15.