Report for the Hearing in Case C-166/91
I — Legal Background
A — Community Provisions
The relevant provisions of Directive 85/384/EEC are as follows:
‘Article 2 Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifications acquired as a result of education and training fulfilling the requirements of Articles 3 and 4 and awarded to nationals of Member States by other Member States, by giving such diplomas, certificates and other evidence of formal qualifications, as regards the right to take up activities referred to in Article 1 and pursue them under the professional title of architect pursuant to Article 23(1), the same effect in its territory as those awarded by the Member State itself. Article 3 Education and training leading to diplomas, certificates and other evidence of formal qualifications referred to in Article 2 shall be provided through courses of studies at university level concerned principally with architecture. Such studies shall be balanced between the theoretical and practical aspects of architecture training and shall ensure the acquisition of ... Article 4 The education and training referred to in Article 2 must satisfy the requirements defined in Article 3 and also the following conditions : (a) the total length of education and training shall consist of a minimum of either four years of full-time studies at a university or comparable educational establishment, or at least six years of study at a university or comparable educational establishment of which at least three must be full time; (b) such education and training shall be concluded by successful completion of an examination of degree standard. Notwithstanding the first subparagraph, recognition under Article 2 shall also be accorded to the training given over three years in the “Fachhochschulen” in the Federal Republic of Germany in the form in which it exists at the time of notification of this directive and in so far as it satisfies the requirements laid down in Article 3, giving access to the activities referred to in Article 1 in that Member State with the professional title of architect, provided that such training is supplemented by a four-year period of professional experience in the Federal Republic of Germany sanctioned by a certificate issued by the professional body on whose list the architect wishing to benefit from the provisions of this directive is registered. The body shall previously have established that the work carried out by the architect concerned in the field of architecture constitutes conclusive proof of the practical application of all the knowledge referred to in Article 3 ... ’
Articles 7 to 9 of Directive 85/384/EEC lay down a procedure by which a list of diplomas liable to be the object of mutual recognition must be published in the Official Journal of the European Communities for information purposes. Each Member State must communicate to the Commission and the other Member States the list of diplomas, certificates and other evidence of formal qualifications awarded within its territory which, in its opinion, meet the requirements laid down in Articles 3 and 4 of the directive.
If neither the Commission nor any Member State has any doubts in this respect, the list is published. If the Commission or one of the Member States doubts whether a particular diploma meets with the requirements laid down in Articles 3 and 4 of the directive, it may request the Advisory Committee on Education and Training in the Field of Architecture to deliver an opinion. That opinion is not binding, since even in the case of a negative opinion, the diploma must be included in the above mentioned list for as long as the Member State concerned maintains its communication, unless another Member State or the Commission brings the matter before the Court of Justice pursuant to Article 8(2) of the directive.
The list of diplomas drawn up in accordance with this procedure is the subject-matter of Commission Communication 88/C 270/03 published in Official Journal C 270 of 19 October 1988, p. 3. An updated list was published as Commission Communication 89/C 205/06 in Official Journal C 205 of 10 August 1989, p. 5. These communications specify that the diplomas published in this list are to be recognized in respect of those students who commenced their studies in the field of architecture before the 1988/89 academic year.
Article 10 of the directive provides as follows:
‘Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifications set out in Article 11, awarded by other Member States to nationals of the Member States, where such nationals already possess these qualifications at the time of notification of this directive or their studies leading to such diplomas, certificates and other evidence of formal qualifications commences during the third academic year at the latest following such notification, even if those qualifications do not fulfil the minimum requirements laid down in Chapter II, by giving them as regards the taking up and pursuit of the activities referred to in Article 1 and subject to compliance with Article 23, the same effect within its territory as the diplomas, certificates and other evidence of formal qualifications which it awards in architecture.’
According to Article 11 of the directive:
‘The diplomas, certificates and other evidence of formal qualification referred to in Article 10 shall be as follows: (a) in Germany the diplomas awarded by higher institutes of fine arts (Dipl.-Ing, Architekt(HfbK)); the diplomas awarded by the departments of architecture (Architektur/Hochbau) of “Technishce Hochschulen”, of technical universities, of universities and, in so far as these institutions have been merged into “Gesamthochschulen”, of “Gesamthochschulen” (Dipl.-Ing. and any other title which may be laid down later for holders of these diplomas); the diplomas awarded by the departments of architecture (Architektur/Hochbau) of “Fachhochschulen” and, in so far as these institutions have been merged into “Gesamthochschulen”, by the departments of architecture (Architektur/Hochbau) of “Gesamthochschulen”, accompanied, where the period of study is less than four years but at least three years, by a certificate attesting to a four-year period of professional experience in the Federal Republic of Germany issued by the professional body in accordance with the second subparagraph of Article 4(1) (Ingenieur grad. and any other title which may be laid down later for holders of these diplomas); the diplomas (Prüfungszeugnisse) awarded before 1 January 1973 by the departments of architecture of “Ingenieurschulen” and of “Werk-kunstschulen”, accompanied by a certificate form the competent authorities to the effect that the person concerned has passed a test of his formal qualifications in accordance with Article 13 ... ’
Pursuant to Article 31(1) of the directive, the Member States were to take the measures necessary to comply with the directive within 24 months of the date of its notification.
B — Diplomas in architecture awarded in the Federal Republic of Germany
Prior to publication in the Official Journal of the European Communities, pursuant to Article 7 of the directive, the authorities of the Federal Republic of Germany, as well as those of the other Member States, had communicated to the Commission a list of the courses on the basis of which diplomas meeting the requirements laid down in Articles 3 and 4 of the directive are awarded. The list included 42 courses. It was specified, with respect to 18 of them, that the studies lasted four years and included integrated practical semesters (Praxissemester) supervised by the Fach-hochschule.
2. A communication from the German Government, dated 14 October 1987, states that the 18 four-year courses referred to above, including that of the Fachhochschule of Stuttgart, must be recognized by the other Member States and that the diplomas awarded on completion of these courses meet the requirements laid down in Article 4(1 )(a) of the directive. The German Government stated in the reasons for its decision that practical semesters are an integral part of the education and training concerned, that the content of the training is determined by laws and regulations adopted by the authorities, that the examination regulations are approved by the competent minister, that practical semesters are always incorporated in the theoretical studies and are always followed by a semester of theory and then the final examinations and lastly that the final semester cannot be a practical semester. Eventually, the Commission published the list of diplomas communicated by the Federal Republic of Germany with the following footnote: ‘These diplomas are to be recognized under the conditions provided for in Article 4(1) of Directive 85/384/EEC either under the first indent or the second indent depending on the duration of the training to which they relate’ (OJ 1988 C 270, p. 3 and OJ 1989 C 205, p. 5).
C — The Belgian legislation
The Belgian Association of Architects was set up in 1963. No person may exercise the profession of architect or use the title of architect unless his name is entered on the Association's Register or list of trainees.
By virtue of Article 8 of the Law of 26 June 1963, which created the Association of Architects, amended by Royal Decree of 12 September 1990 {Moniteur Belge of 19 October 1990) in order to comply with Directive 85/384, Belgian nationals and the nationals of other Member States of the Community who are entitled to exercise the profession of architect, by virtue of the Law of 20 February 1939 on the protection of the title and profession of architect, and who wish to exercise the profession or to establish a seat of activity in Belgium on an either permanent or temporary basis, must first apply to have their name entered on the appropriate association's council's register or list of trainees, namely that of the council of the association on whose territory they have established the principal seat of their activities. The applicant may only have his name entered on the council's register if he satisfies the requirements laid clown in the Law of 20 February 1939.
Directive 85/384 was transposed into Belgian law by Royal Decree of 6 July 1990 (Moniteur Belge of 28 July 1990). The annex to this Royal Decree lists the diplomas, certificates and other evidence of formal qualifications which entitle a person to exercise the profession of architect in Belgium.
In the case of the Federal Republic of Germany, this list includes, inter alia, the diplomas awarded by the Departments of Architecture of the Fachhochschulen. The list specifies that ‘these diplomas are to be recognized under the conditions provided for in Article 4(1) of Directive 85/384/EEC either under the first indent or the second indent depending on the duration of the training to which they relate’.
Paragraph 2 of the Annex is concerned with diplomas, certificates and other evidence of formal qualifications awarded to the nationals of Member States by other Member States where such nationals already possessed these qualifications at the time of the notification of the directive or where the studies leading to these qualifications commenced during the third academic year following such notification.
As regards the Federal Republic of Germany, the relevant diplomas for the purposes of paragraph 2 of the Annex are those awarded by the Departments of Architecture of the Fachhochschulen ‘accompanied, where the period of study is less than four years but at least three years, by a certificate attesting to a four-year period of professional experience in the Federal Republic of Germany issued by the professional body in accordance with the second subparagraph of Article 4(1) of the directive’.
II — Facts and Procedure
1. The plaintiff in the main proceedings, Mr Gerhard Bauer, of German nationality, applied to be registered on the list of trainee architects of the Association of Architects for the Province of Brabant. Mr Bauer is the holder of a diploma awarded on 9 February 1989 by the Architecture Department of the Fachhochschule of Stuttgart following four years of study (from 9 May 1984 to 16 February 1989) including two integrated practical semesters under the supervision of the Fachhochschule pursuant to the laws governing the Fachhochschulen of the Land Baden-Wurtenberg. These two practical semesters were undertaken by Mr Bauer during the 1986/87 academic year.
2. By a decision dated 20 March 1990, the Council of the Association of Architects for the province of Brabant refused to register Mr Bauer on the list of trainees. By a decision given on 26 June 1990, the Council confirmed its refusal to register Mr Bauer on the list of trainees on the ground that the diploma awarded to Mr Bauer by the Fachhochschule of Stuttgart did not comply with the requirements of Directive 85/384. Mr Bauer appealed against that said decision to the Francophone Appeals Committee of the Association of Architects (hereinafter ‘Appeals Committee’). This appeal was pursued by the National Council of the Association of Architects.
3. Mr Bauer argued before the Appeals Committee that he was entitled to the benefit of the provisions of Chapter III of the directive (Articles 10 and 11) which lays down transitional measures for Community nationals who commenced their studies during the third academic year at the latest following notification of the directive. Mr Bauer also argued that even if the studies which led to his diploma included two Praxissemester, these studies were full-time studies within the meaning of Directive 85/384 and entitled him to recognition of his diploma in Belgium not only on the basis of Article 11 (transitional rules) but also on the basis of Article 4 (definitive rules).
4. According to the Appeals Committee, the point is whether or not the studies leading to Mr Bauer's diploma constitute four years of study within the meaning of Article 11 of the directive, when the study period in question included two Praxissemester which do not constitute a year of theoretical study but are compulsory practical exercises undertaken in the offices of architects approved and recognized as training centres by the Fachhochschule which supervises the manner in which the exercises are performed.
5. The Francophone Appeals Committee therefore requested the Court of Justice, by order of 19 June 1991, to give a ruling on the following question:
‘Must the third subparagraph of Article 11(a) of the directive be interpreted in such a way that education and training which lasts four years and which includes two integrated “Praxissemester”, supervised by the “Fachhochschule” of Stuttgart, must be regarded as four years of studies?’
6. The request for a preliminary ruling was registered at the Court Registry on 26 June 1991.
7. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the plaintiff, represented by Iñigo Igartua Arregui, of the Madrid Bar, member of the Chambers of Gómez-Aceba & Pombo, by the defendant, represented by Yvon Hannequart, of the Liège Bar, by the German Government, represented by E. Röder of the Federal Ministry of Economic Affairs, acting as Agent, by the Italian Government, represented by Oscar Fiumara, Avvocato dello Stato, acting as Agent, and by the Commission of the European Communities, represented by E. Lasnet and P. van Nuffel, acting as Agents.
8. 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 and to refer the case to the Fourth Chamber.
III — Written observations submitted before the Court
1. The plaintiff in the main proceedings points out that Directive 85/384 established two different sets of rules for the recognition of diplomas in architecture, namely the definitive rules laid down in Chapter II (Articles 3 and 4) and those laid down in Chapter III (Articles 10 and 11) which apply to qualified persons who commenced their studies during the third academic year at the latest following notification of the directive. The latter rules are therefore based on established rights and derogate from those laid down in Chapter II. Mr Bauer explains that Article 10 provides that the diplomas obtained by the architects of the Fachhochschulen who commenced their studies prior to 1988 must be recognized by the other Member States even if these qualifications do not fulfil the minimum requirements laid down in Chapter II on the grounds that they arc included in Article 11. The existence of these two different sets of rules was confirmed by the list of diplomas published by the Commission in the Official Journal C 270 of 19 October 1988. In Mr Bauer's submission, it is therefore necessary to set aside the application of Chapter II and to examine the question whether or not the diploma at issue fulfils the conditions laid down for recognition in Article 11. Mr Bauer states that Article 11 lays down three different sets of rules for the diplomas of the Fachhochschulen referred to in Article 10, including the unconditional recognition of those diplomas of the Fach-hochschulen which relate to a four-year study period. Mr Bauer stresses that the rules laid down in Articles 10 and 11 and based on the principle of acquired rights must be less onerous than those laid down in Article 4. Indeed, it would be unfair to impose the definitive rules laid down in Article 4 upon the persons concerned. The fact that the Community legislature used the expression ‘full-time’ in Article 4 but omitted it from Article 11 shows the intention to distinguish the requirements for recognition of the diplomas referred to in Article 4 from the requirements for recognition of the diplomas referred to in Articles 10 and 11. In Mr Bauer's opinion, the reference in the third subparagraph of Article 11(a) to the second subparagraph of Article 4(1) is solely aimed at determining the formal conditions which must be fulfilled by the certificates which attest to a four-year period of professional experience in Germany in the case of training given by a Fachhochschule over a three-year period. On the other hand, it is neither the object nor effect of that reference to extend the substantive requirements laid down in Article 4 to the recognition of the diplomas referred to in Article 10. Mr Bauer argues that the Studies Regulations of the Fachhochschule of Stuttgart prove that the teaching he received consisted of four years of studies, including three years of theoretical teaching and two semesters of practical teaching. These two semesters are an integrated and compulsory part of the Fachhochschule of Stuttgart's study programme and must therefore be taken into account for the calculation of the length of the studies undertaken. Mr Bauer maintains that it is impossible to obtain the Fachhochschule of Stuttgart's diploma without undertaking these practical semesters. The completion of this practical education and training and compliance with the conditions laid down with respect to its content are ensured by means of written reports prepared by both the students and the offices of architects recognized by the Fachhochschule as education and training centres, coupled with the supervision of a teacher of the Fachhochschule. If the work undertaken during a practical semester is not deemed satisfactory by the teacher, the student will not pass the semester and will have to repeat it. Mr Bauer stresses that the architects with whom students undertake their practical semesters are chosen from among those who demonstrate sufficient educational skills. They are, in fact, referred to as ‘education and training centres’ in the contracts entered into for the purposes of undertaking practical semesters. During these semesters, students are not required to pay social security contributions as workers since they receive an education and training allowance. The students remain registered with the Fachhochschule during the practical semesters and do not lose their student status during this period of education and training. Mr Bauer questions whether a Member State has the right to query a diploma which complies with the conditions laid down in Article 11. That provision provides for the unconditional recognition of those diplomas of the Fachhochschulen which relate to four years of study. In Mr Bauer's opinion the Belgian authorities are not entitled to subject recognition of the diploma at issue to a subjective examination of the content of the teaching concerned, since Article 11, unlike Chapter II of the directive, does not provide any substantive requirements with which the content of these studies must comply. Mr Bauer adds that the studies of the Fach-hochschule of Stuttgart not only fulfil the requirements laid down in Article 11, but also fulfil the requirements of the rules laid down in Article 4 by virtue of which the teaching of architecture must maintain a balance between the theoretical and the practical aspects of architectural education and training in architecture. Mr Bauer points out that the Commission and Council expressed the same point of view in a joint declaration on Article 4, in which the two institutions stated that the periods of practical training included in a course followed by an examination do not affect the full-time nature of this training. With regard to the balance of the theoretical and practical aspects of an architect's training, each Member State has the right to decide the most appropriate form of practical instruction. If one took the view that the practical semesters were not part of the course, the teaching offered by the Fachhochschulen would be deprived of its necessary practical aspect. Accordingly, Mr Bauer suggests that the question referred to the Court be answered as follows:
‘The third subparagraph of Article 11(a) of the directive must be interpreted in such a way that education and training which lasts four years and which includes two integrated “Praxissemester”, supervised by the “Fachhochschule” of Stuttgart, must be regarded as four years of studies within the meaning of the said article.’
2. The defendant in the main proceedings takes the view that even if the rules laid clown in Chapter III of the directive are of an exeptional nature in the sense that the diplomas listed in Article 11 must be recognized even if they do not fulfil the minimum requirements laid down in Chapter II, it is not correct to say that Article 11 makes use of a concept of ‘years of study’ distinct from that laid down in Article 4. In reality, while rendering the substantive requirements of Article 3 inapplicable to the transitional measures, Article 11 laid clown, with respect to diplomas awarded by the Fachhochschulen, a set of rules which is based on those of Article 4 and which distinguishes two different situations, namely a training consisting of a minimum of four years full-time studies and a training consisting of a minimum of three years of studies coupled with a four-year period of professional experience. According to the defendant, the words ‘where the period of study is less than four years but at least three years’ were not introduced into Article 11 for the purpose of putting diplomas awarded by a Fachhochschule following a four-year period of study not undertaken on a full-time basis in the same category as those which meet the requirements laid down in Articles 4(1)(a) and 4(1)(b). The defendant observes that the third subparagraph of Article 11(a) expressly refers back to the second subparagraph of Article 4(1). The sole aim of this is not to require the education and training given over a period of three years to include all the requirements listed in Article 3, as is the case in the context of Article 4(1)(a) and (b). In the defendant's opinion, a student who attends a Fachhochschule and who completes a four-year period of study cannot be put in a better position than a student who fulfils all the requirements laid down in Article 4(1)(a). The studies must consist of a minimum of four years full-time studies at a university or comparable educational establishment. The defendant argues that the concept of ‘full-time studies’ includes two elements. On the one hand there is the expression ‘full-time’ as opposed to ‘part-time’ which implies that time is left for other activities such as working or other studies. On the other hand there is the word ‘studies’ which refers to a programme of instruction which maintains a balance between the theoretical and practical aspects of the education and training. In the defendant's opinion, the fact that Article 3 provides that in the study of architecture attention must be given equally to the theoretical and the practical aspects of the education and training and the fact that subparagraph 10 of Article 3 provides that this training must include the acquisition of a technical ability do not mean that the concepts of studies and practical training are to be treated as amounting to the same thing. Indeed, the concept of ‘full-time’ studies not only refers to the time a student must give to academic activities so as to obtain the said diploma but also indicates the means by which the necessary knowledge, comprehension, competence and aptitude are obtained. The defendant points out that the eighth recital in the preamble to the directive distinguishes between the concept of studies and that of a ‘period of practical experience’ and provides that in the absence of any convergence between the Member States on the matter of periods of practical experience and in order to avoid possible difficulties, completion of an equal period of appropriate practical experience in another Member State should be recognized as a sufficient requirement. Article 4(1)(b) and the third subparagraph of Article 11(a) take up this distinction between the concept of studies and that of ‘a period of practical experience’ which extends to the concept of a professional traineeship. The defendant argues that the concept of a period of professional experience must be evaluated in accordance with the student's specific activities and not in accordance with the time at which this purely practical training is undertaken. It matters little whether this traineeship takes place after completion of a primarily theoretical training for the purposes of eventually obtaining a diploma or whether it takes place in between periods of theoretical education and training as on the present facts. In the opinion of the defendant, the Fach-hochschule of Stuttgart's studies and examination rules reveal a series of elements which suggest that these practical semesters amount to a traineeship and that they cannot be treated as ‘years of study’. Indeed, during the practical semesters students acquire, through employment in an appropriate firm, practical experience which supplements the theoretical courses given during the study semesters. To undertake a practical semester a student must first obtain a certificate of aptitude and industriousness which attests to the fact that the student has acquired the required knowledge during the preceding study semester. Besides, in the defendant's opinion, the aim of the practical semesters is to extend, by means of employment in a firm of architects, the knowledge acquired by students during the study semesters. The aims of this training exclude any form of theoretical education and training since the Fachhochschule is not in a position to exercise direct and continuous control over this training. Accordingly, the defendant suggests that the request for a preliminary ruling be answered as follows:
‘The third subparagraph of Article 11(a) of Directive 85/384/EEC must be interpreted in such a way that education and training which lasts four years and which includes two integrated “Praxissemester”, supervised by the “Fachhochschule” of Stuttgart, cannot be regarded as four years of studies and in such a way that the diplomas awarded following this education and training must not be recognized by the other Member States unless accompanied by a certificate attesting to a period of professional experience pursuant to the second subparagraph of Article 4(1) of the directive.’
3. The German Government states that in so far as Mr Bauer maintains that Article 11 does not require ‘full-time studies’, it should be noted that the training and education leading to the diploma awarded to Mi-Bauer by the Fachhochschule of Stuttgart, which is made up of a normal four-year period of study and which includes two semesters of practical experience (praktische Studiensemester), amounts to an education and training of four years full-time studies within the meaning of Article 4(1 )(a). The German Government takes the view that the question whether or not Article 4(1)(a) must be interpreted in such a way that education and training which lasts four years and which includes semesters of practical experience, organized and supervised by the university, must be regarded as four years of full-time study requires an affirmative answer.
4. The Italian Government explains that since the four years covered by the diploma at issue include two practical semesters, the Appeals Committee is justified in questioning whether these semesters can be taken into account for the purposes of calculating the length of the required period of education and training. Indeed, there is a structural and functional difference between the studies and the traineeship, such that there are grounds for believing that the latter, however important, docs not form part of the former. In the opinion of the Italian Government, it does not mean that one cannot reach a different conclusion merely because the traineeship is an integrated part of the course of study, since it is organized by the same Fachhochschule and undertaken prior to the final examination for the purposes of obtaining the diploma. Indeed, even if this particular aspect is taken into account, there are grounds for believing that the characteristic activity of a trainee, even when undertaken with the aim of contributing to his professional education and training, remains nevertheless a practical activity as opposed to an academic one in respect of which it can only play a supplementary role. Besides, in the Italian Government's opinion, the provisions of Article 3 ensure that in any event the traineeship undertaken cannot be treated as a period of study. It follows from this provision that the directive is based on a strict definition of the term ‘studies’. Article 3 prescribes a balanced apportionment of the studies between the theoretical aspects and practical aspects. The reference to practical experience refers to the orientation of the education and training and not the possibility of replacing the latter with a traineeship. Therefore, the Italian Government takes the view that the preliminary reference requires a negative answer.
5. The Commission observes that the preliminary reference raises the issue of the effect of the diplomas awarded by the Fach-hochschulen and their recognition within the terms of the directive, notably in Belgium, with a view to exercise of the right of establishment in that Member State. The Commission observes that the question raised does not concern the definitive rules laid down in Article 4 but the interpretation of Article 11 which, as a provision of a transitory nature, is concerned with the rules concerning ‘established rights’. However, the Commission stresses a fortiori that the interpretation of Article 4 which it advocated in Case C-310/90, namely that the concept of full-time studies included two Praxissemester, cannot be other than applicable to the concept of studies within the meaning of Article 11. Indeed, in the case of established rights for the purposes of Article 10, the qualifications which are listed in this respect in Article 11 and which must be recognized do not necessarily comply with the minimum requirements laid down in Chapter II (definitive rules) of the directive. Consequently, the Commission suggests that the Court should answer the question referred to it as follows:
‘The third subparagraph of Article 11(a) of Directive 85/384/EEC must be interpreted in such a way that education and training which lasts four years and which includes two integrated “Praxissemester”, supervised by the “Fachhochschule”, must be regarded as four years of studies.’
M. Diez de Velasco
Judge-Rapporteur
1 Language of the case: French.