Report for the Hearing in Case C-104/91

I — Facts and written procedure

1. In Spain, the profession of estate agent is regulated by Decree No 3248 dated 4 December 1969, as amended. Access to the profession is dependent upon passing an examination which is held by the Ministry for Public Works and Town Planning and for which an official qualification is given, and on affiliation to the official professional association (Colegio Oficial de Agentes de la Propiedad Inmobiliaria, hereinafter referred to as the Colegio).

2. Article 321 of the Spanish Penal Code, relating to the offence of wrongful exercise of an occupation, provides that anyone carrying on activities specific to a profession without holding the appropriate official qualification or the qualification recognized by law or international agreement shall be liable to a term of imprisonment and that, if such a person publicly holds himself out to be a member of the profession, he shall in addition be liable to a fine.

3. Under Article 572 of the Spanish Penal Code it is an offence punishable by a fine for a qualified or authorized person to practise without being affiliated to the Colegio or to the relevant official body or association where that requirement is laid down by regulation.

4. Article 1 of Council Directive 67/43/EEC of 12 January 1967, concerning freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with: 1. matters of Real Estate ... imposes on Member States the duty to abolish, in respect of natural persons and companies or firms, restrictions resulting from discrimination on grounds of nationality on access to self-employed activities in the sphere of real estate.

5. That directive was implemented by Royal Decree No 1464/88 of 2 December 1988.

6. Stephen Kenneth Newman, a British national, holder of a British diploma in Estate Management and a member of the Royal Institution of Chartered Surveyors set up, with some Spanish nationals, a company called Aguirre Newman SA with the object of carrying on business as an estate agent. On 4 August 1989, Mr Newman applied to the Governing Council of the Madrid Colegio for membership of the Colegio but received no official response.

7. On 2 January 1990, the Colegio instigated criminal proceedings against Aguirre Newman SA, as represented by its officers S. Aguirre and S. K. Newman, for wrongful exercise of the profession within the meaning of Article 321 of the Spanish Penal Code, relying on:

8. As the dispute involves an interpretation of the relevant Community legislation, the Juzgado de Instrucción No 20 of Madrid decided by an order dated 21 February 1991 to seek a preliminary ruling under Article 177 of the EEC Treaty on the following questions:

9. The order of the Juzgado de Instrucción No 20 of Madrid was registered at the Court on 2 April 1991.

10. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 25 July 1991 by the Colegio, represented by Jesus Zarzalejos Nieto, of the Madrid Bar, on 9 July 1991 by the Ministerio Fiscal (Public Prosecutor's Office) attached to the Tribunal Superior de Justicia (Supreme Court) of Madrid, represented by Mr Joaquin Sánchez-Covisa Villa, Public Prosecutor at the Fiscalía del Tribunal Superior de Justicia, on 4 July 1991 by the Spanish Government, represented by Alberto José Navarro Gonzalez, Director-General of Community Legal and Institutional Affairs at the State Secretariat for the European Communities, and Antonio Hierro Hernández-Mora, Abogado del Estado, acting as Agents, on 2 July 1991 by the French Government represented by Philippe Pouzoulet, Assistant Director of Legal Affairs at the Foreign Ministry, acting as Agent, and Hélene Duchène, Secretary for Foreign Affairs in the same Ministry, also acting as Agent, and on 28 June 1991 by the Commission of the European Communities, represented by Étienne Lasnet, Legal Adviser and Daniel Calleja, of its Legal Service, acting as Agents.

11. 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.

12. By decision of 14 November 1991 the Court assigned the case to the Sixth Chamber pursuant to Article 95(1) and (2) of the Rules of Procedure.

II — Written observations submitted to the Court

1. The Madrid Colegio, complainant in the main proceedings, begins by arguing that regulation of the liberal professions, in particular that of estate agent, is exclusively a matter for the Spanish State, which has the right to determine which national diplomas or qualifications are needed to exercise a profession and the conditions for recognition of foreign qualifications. Directive 67/43/EEC only prescribes discrimination on grounds of nationality but is not concerned with the recognition of national professional qualifications relating to real estate. Directive 67/43/EEC was implemented in Spain by Decree No 1464/88.

2. The Ministerio Fiscal, which is joined as a party to the main proceedings, claims that a preliminary ruling on the questions put is not necessary for the national court to make a decision. The observations of the Ministerio Fiscal include, in support of this argument, the proposition that the national proceedings have not established that the offence under Article 321 of the Spanish Penal Code has been committed. As for the alleged contravention of Article 572 of the Spanish Penal Code relating to the exercise of a profession without being affiliated to the official professional body, the Ministerio Fiscal points to the fact that Mr Newman holds the British professional qualification, that he has taken all the correct steps to be affiliated to the Colegio, that the decision to recognize his diploma is a point of administrative law on which there has not yet been a ruling, and that in the circumstances as far as Mr Newman is concerned there is no proven mens rea.

3. With regard to the first question, the Spanish Government points out that the Court has held that, in the absence of harmonization at Community level, Member States retain the right to define the syllabus of study and the qualifications needed in order to pursue an occupation. Recognition of estate agents' qualifications is not within the ambit of Directive 67/43/EEC. 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), which did not have to be implemented until 4 January 1991, does not apply to the present case as the events complained of occurred in 1988 and in 1989. Even if it did apply, it relates to Article 57(1) of the Treaty on the mutual recognition of professional qualifications and not to Article 57(2) on the coordination of the provisions concerning the taking up of a profession.

4. The French Government, whilst recognizing that Directive 67/43/EEC does not provide for recognition of estate agents' diplomas, points out that the Court has consistently held (see the abovementioned judgments in Reyners, Patrick, Thieffry and VUssopoulou) that Article 52 is direcdy applicable and that, even in the absence of directives adopted under Article 57(1), freedom of establishment can be achieved byway of measures adopted by the Member States.

5. The Commission considers the second question first, concerning the compatibility with Community law of the requirement of a national diploma. It observes that the Court has held that, in the absence of Community harmonization of the conditions of access to a profession, Member States have the right to define the skills and qualifications necessary for the exercise of that profession. Directive 67/43/EEC is limited to rendering unlawful any discrimination on grounds of nationality without aiming to achieve mutual recognition of diplomas or coordination of the conditions governing access to a profession. Directive 89/48/EEC was not in force at the time of the events material to this case.

1 Language of the case: Spanish.