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:

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:

According to Article 11 of the directive:

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.

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:

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.

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.

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).

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.

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.

1 Language of the case: French.