Opinion of Advocate General
Mr President,
Members of the Court,
1. This case is concerned with the question of whether Community law precludes a Member State from requiring an authorization issued by a competent authority for the use of an academic title awarded in another Member State.
Facts and legal framework
2. The dispute in the main proceedings is between the German national Dieter Kraus (hereinafter Mr Kraus) and the Land Baden-Württemberg. Mr Kraus studied law in the Federal Republic of Germany and in 1986 passed the first State examination in law. Subsequently, after a year's postgraduate study, he was awarded in 1988 a Masters degree in Law (LL. M) by the University of Edinburgh. After working for a brief period as an assistant at the University of Tübingen, he began the period of practical training for lawyers in Baden-Württemberg with a view to taking the second State examination in law. This final examination marks the end of the professional training for becoming a Einheitsjurist. Since the examination enables a successful candidate to gain access, as a Volljurist, to the judiciary, the bar or the notarial profession, it also gives access to all other legal professions, whether regulated or not.
3. The legislation in force in Baden-Württemberg is still the Gesetz über die Führung akademischer Grade, a law of the Reich enacted in 1939. According to this Law, an authorization is required in order to use a foreign academic tide. Failure to comply with that requirement is punishable by fine or imprisonment. That obligation to obtain authorization applies both to German nationals and, with a few exceptions, non-nationals from within or outside the Community. The authorization is issued by the Ministry on a case-by-case basis. With regard to academic tides awarded by certain foreign educational establishments, it can however be granted by way of measures of general application. At the time of the request for a preliminary ruling a general authorization of this kind did exist with respect to academic titles awarded by French and Netherlands universities, but not for those awarded in the United Kingdom.
4. Before examining the question put by the referring court, the Verwaltungsgericht Stuttgart, I would point out that Directive 89/48/EEC provides no solution for Mr Kraus's case. The directive was to have been implemented by the Member States at the beginning of 1990. It sets up between the Member States a system of mutual recognition of diplomas giving access to or permitting the exercise of a regulated profession. With the exception of one specific provision (see Article 4(1 )(b)), it also applies to the legal professions. Article 7(2) of the directive gives the nationals of Member States the right to make use of their lawful professional tide. The host Member State may only require that the title be followed by the name and location of the establishment where the award was made.
5. In making the request for a preliminary ruling, the Verwaltungsgericht wishes to ascertain whether national rules which make the use of an academic title awarded in another Member State dependent upon an authorization, failure to obtain which entails penalties under the criminal law, is contrary to Article 48 of the EEC Treaty or to any other provisions of Community law, where such rules relate to academic postgraduate titles acquired through studies in another Member State and which do not provide access to a profession but are advantageous for the exercise of that profession.
Compatibility of the national rules with Article 48 of the EEC Treaty
Covert discrimination
6. Article 48(2) prohibits in principle all discrimination on grounds of nationality between workers of the Member States, as regards employment, remuneration and other conditions of work and employment. A national provision laying down a system of authorization, even if purely formal, which is aimed only at non-nationals — which is not so in the present case — is undoubtedly discriminatory in nature. In the present case, however, the system of authorization is not directly aimed at non-nationals, but at foreign diplomas. It is evident, however, from the case-law of the Court that, in matters of discrimination on the grounds of both nationality and sex, not only overt but also covert forms of discrimination are prohibited. With respect to discrimination on grounds of nationality, that principle was formulated for the first time in the Sotgiu judgment of 12 February 1974:
7. That line of authority is applicable in the present case. A national prohibition with regard to the use of academic titles, which, although it applies to nationals and non-nationals without distinction, differentiates between academic titles awarded nationally and those awarded abroad — other Member States included — constitutes a covert form of discrimination on grounds of nationality because, potentially, it affects non-nationals disproportionately, and more specifically those nationals from other Member States who were awarded their tide in their own Member State and wish to use it in Baden-Württemberg. Admittedly, in the main proceedings the prohibition of the use of a foreign academic title does not affect a national of another Member State, but a national of the State concerned. As demonstrated below (see point 14 et seq.), such reverse discrimination also comes within the scope of the prohibition laid down in Article 48(2) of the EEC Treaty. But it is first necessary for me to consider whether Article 48 of the EEC Treaty would be applicable in the case of a national of another Member State in the same position as Mr Kraus, in other words, to see whether all the conditions are fulfilled for the application of Article 48 of the EEC Treaty.
8. The prohibition of discrimination laid down in Article 48(2) applies only to workers and not, according to Article 48(4), to employment in the public service. It is for the national court to decide, with due regard to the case-law of the Court cited below, whether Mr Kraus was a worker not employed in the public service within the meaning of Article 48 at the relevant time, that is in January 1989, when he informed the competent ministry of his intention to use the title LL. M in Baden-Württemberg. During the oral proceedings before the Court Mr Kraus stated that he was, at that time, an assistant at the University of Tübingen.
9. For the concept of worker, reference may be made to the Raulin judgment of 2 February 1992, in which the Court summarizes its consistent case-law:
10. The term employment in public service used in Article 48(4) has also been further defined in the decisions of the Court. In its judgment of 3 July 1986 in Lawrie Blum the Court observed:
11. As mentioned earlier, Mr Kraus told the Court at the hearing that at the relevant time he was an assistant at the University of Tubingen and it is for the national court to decide whether Mr Kraus can, on this basis, be regarded as a worker not employed in the public service. The fact that Mr Kraus subsequently underwent a period of preparatory training prior to the second State examination in law does not seem to me to be relevant to this question. Even if the national court were to decide — with due regard to the passage from the Lawrie-Blum judgment cited above — that lawyers (unlike teachers) undergoing a period of preparatory training are employed in the public service (which seems far from certain), this does not mean that they lose the status of worker, if indeed Mr Kraus had that status at the relevant time.
Discrimination as regards conditions of work and employment
12. The prohibition of discrimination by Article 48(2) of the EEC Treaty only relates to employment, remuneration and other conditions of work and employment. Again, it is for the national court to decide whether a national rule prohibiting the use of an academic tide is per se such as to constitute a hindrance to Mr Kraus with regard to the entry to or practice of and to remuneration and/or chances of promotion in a legal or other profession, whether regulated or not. All I can do is note that the national court does not exclude this possibility since in the question put to the Court it states that the academic title awarded to Mr Kraus is advantageous for the exercise (of a profession). I can well imagine that in a profession such as lecturer in comparative law, for example, the ability to use an academic title such as LL. M could undoubtedly assume some importance.
Grounds of justification
13. The prohibition of discrimination laid down in Article 48(2) of the Treaty does not apply when the national legislation can find a basis in one of the grounds specified in Article 48(3) (public policy, public security and public health). The representative of Baden-Württemberg explained at the hearing that the legislation in question was aimed at protecting public policy. This argument cannot be taken seriously, in view of the limited scope assigned to that concept by the Court.
Reverse discrimination
14. Let us suppose that the national court decides, in the light of the foregoing, that a national provision such as the one we are considering falls within the scope of Article 48 of the EEC Treaty when invoked against the nationals of another Member State finding themselves in a position similar to that of Mr Kraus. The question then arises whether Mr Kraus can also invoke the prohibition against discrimination contained in that article against his own Member State. On this point, I would first observe according to the Court's judgment in the Bouboucha case of 3 October 1990 a situation such as that now before the Court cannot be regarded as a matter purely internal to a Member State, since it concerns, in the present case (as it did in the Bouboucha case), a national of the Member State concerned who holds a professional diploma awarded in another Member State.
15. The Court referred to the principle in the above cited paragraph of the judgment in the Bouboucha case. The case concerned the recognition in France of a diploma in osteopathy awarded to a French national in the United Kingdom, with a view to the practice of that profession in France. In the absence of rules on paramedical occupations and of a Community definition of a doctor's practice — which implies that it is for the Member State concerned to regulate, on its territory, the practice of osteopathy (see paragraph 8 and 12) — the Court added the following in paragraphs 14 and 15:
16. It seems to me that the reservation expressed in the Bouboucha judgment, with respect to the principle in the Knoors case, is not applicable in the present case. It follows from the passage cited in the preceding paragraph that that reservation is founded on the consideration that the Bouboucha case was concerned with a (British) diploma said by its holder to give him access to a regulated profession (in France). This is not the situation in the present case. Mr Kraus does not claim the right to invoke his LL. M degree in order to pursue a regulated profession in Germany; he only wants to be able to use the academic title attached to that degree.
17. I therefore conclude that national legislation, such as that described by the national court, is incompatible with Article 48(2) of the EEC Treaty if, in the light of the case-law of the Court discussed above, that court were to find that Mr Kraus was, at the material time, a worker not employed in the public service within the meaning of the Article 48 and that the prohibition against the use of academic titles without authorization, having regard to the scope to be accorded to it under national law, can have the effect of hindering persons such as Mr Kraus as regards employment, remuneration and other conditions of work and employment.
Applicability of Article 59 of the Treaty
18. The national court also asks the Court to examine the relevant national rules in the light of provisions of Community law other than Article 48 of the EEC Treaty. In that context, I will first examine Article 59 of the EEC Treaty, the possible application of which depends, however, as is apparent from Article 60(1) of that Treaty, upon the non-applicability of provisions relating, inter alia, to freedom of movement for persons, and in particular Article 48.
19. Notwithstanding the wide area of application of Article 59 of the EEC Treaty, it is not established that it can apply to a situation such as that now before the Court. According to the case-law of the Court, courses which form part of a national education system are not to be regarded as services for the purposes of Article 59. According to Article 60(1) of the EEC Treaty, services must normally [be] provided for remuneration. The Court held in its judgment in Humbel and Edel (paragraphs 17 to 19):
20. The above extract from the judgment in Humbel nevertheless suggests that it cannot be automatically excluded that some courses of higher education must however be regarded as services within the meaning of Article 59 of the EEC Treaty. That would be the case if those courses were organized in such a way that they were wholly, or for the greater part, financed, not out of the public purse, but by persons paying for or subsidizing, in whatever way, the participants' studies. Whether that is the case as regards LL. M degree awarded to Mr Kraus by the University of Edinburgh is a matter for the national court to decide in the main proceedings.
21. I therefore conclude, with regard to the applicability of Article 59 of the Treaty, that that provision can apply, in so far as the applicability of Article 48 may not have been demonstrated, if it appears that the LL. M course attended by Mr Kraus is not, or is only to a small extent, financed from public funds, but is entirely or mostly financed, no matter in what way, by persons paying for or subsidizing the participants' studies.
Access to vocational training
22. Finally, I will consider whether a national prohibition against the use of academic tides, as described in the order for reference, is compatible with the provisions of Articles 128 and 7 of the EEC Treaty, taken together. As mentioned above (point 5), it is here in particular that the prohibition creates problems respect to its compatibility with Community law.
23. The idea central to the case-law beginning with the judgment in Gravier is that nationals of the Member States must have, in the same manner, free access throughout the Community to the vocational training which they judge most appropriate to complete their vocational preparation.
24. On the basis of the foregoing, I therefore come to the conclusion that national rules which prevent students from using an academic tide awarded on completion of a period of vocational training in another Member State fall squarely within the scope of Article 128 of the EEC Treaty. This means that those rules can also fall within the scope of the prohibition of discrimination laid down in Article 7 of the EEC Treaty. For that article to be applicable, the rules must entail overt or covert discrimination on the grounds of nationality. It is not, however, of any consequence whether the rules affect the recipient or the provider of the vocational training in question, and whether they are implemented in the Member State in which the title was acquired and by the authorities of that Member State or, as in the present case, in the Member State where the tide is used and by the authorities of that State. As mentioned above, the prohibited discrimination consists, in this case, in the fact that the prohibition on the use of an academic title, which I have examined, hinders access by German nationals to vocational training in other Member States by making such access unattractive or at least less attractive, whilst it has no such effect on the access of German nationals to vocational training in their own Member State, without there being any possible ground of justification for this under Community law (point 13 above).
Conclusion
25. I therefore propose that the question on which the national court seeks a preliminary ruling be answered as follows:
1 Original language: Dutch.
2 This first examination gives access, for example, to occupations such as commercial legal adviser or, as is apparent from the main proceedings, assistant at a university.
3 A detailed description of the German system of professional training for lawyers and of the two State examinations can be found in Lonbay et al, Training lawyers in the European Community, The Law Society, 1990, p. 23 et seq.
4 Since then, a wider general authorization has been declared to be applicable, allowing the use of a number of academic titles, listed in an annex. This does not however appear to include the British LL. M (unlike the Irish LL. M, which is included); see Allgemeine Genehmigung zur Führung von Hochshulgraden, Amtsblatt Wissenschaft und Kunst-Baden-Württemberg, 19 June 1992.
5 Council Directive of 21 December 1988 relating to 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).
6 The general authorization referred to in footnote 3 is intended to implement this directive in Baden-Württemberg.
7 Council Directive of 18 June 1992 on a second general system for the recognition of higher education diplomas to supplement Directive 89/48/EEC (OJ 1989 209, p. 25).
8 Compare with respect to the free movement of goods, the judgment in Joined Cases 51, to 54/71 N V International Fruit Company and Others v Commission [1971] ECR 1107, paragraph 9.
9 See Lenaerts, K (1991) L'égalité de traitement en droit communautaire, Cahiers de Droit Européen, p. 3, 13.
10 Case 153/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11. See also the judgment in Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie, [1986] ECR 1, paragraph 23, and the more recent judgment in Case 33/88 Allué and Coonan v Università degli Studi di Venezia [1989] ECR 1591, paragraphs 10 et seq.
11 The number of Community nationals (compared with the number of Germans) who find themselves in this situation has no bearing, in my view, on the applicability of the principle of abolition of discrimination in Article 48. The issue is whether the national rules are themselves discriminatory. It is sufficient, in this respect, for the rules to be such as to produce discriminatory effects for nationals, however few or many, of other Member States,
12 Judgment in Case 357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027, paragraph 10. In point in that case was a very short period of employment: 60 hours over a period of two weeks, as part of a oproepcontract (occasional work, as requested by the employer). See also the judgment in Case C-3/90 Bernini v Minister van Onderwijs en Wetenschappen [1992] ECR I-1071, paragraph 14.
13 Judgment in Case 66/85 Lawrie-Blum v Land Baden-Württemberg [1987] ECR 2121, paragraph 27.
14 In Case 274/80, which was submitted to the Court and subsequently removed from the register, the Commission made a thorough analysis of this point in its written observations of 13 February 1981; it concluded that, during their professional training, the so-called Rechtsreferendare must be regarded as workers, within the meaning of Article 48 of the EEC Treaty, not employed in the public service.
15 See footnote 11, above, paragraph 21 of the judgment.
16 Compare with the Allué and Coonan judgment case cited in footnote 8, above, paragraph 8.
17 Sec the judgment in Case 30/77 Regina v Bouchereau [1977] ECR 1999, paragraph 35.
18 The Court accepts such reasons in exceptional circumstances, in particular where there is a danger of abuse of the freedoms guaranteed in the Treaty, in order, for example, to evade mandatory professional rules. As regards Arricie 59, see judgment in Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299, paragraph 12 et seq. and as regards (inter alia) Article 48, judgment in Case 115/78 Knoors v Staatssecretaris voor Economische Zaken [1979] ECR 399, paragraph 25.
19 Since the judgment in Case 76/90 Säger v Dennemeyer & Co Ltd [1991] ECR I-4221, paragraph 12 et seq.), it is established that when national provisions are not discriminatory (either covertly or overfly) by nature, but are such as to impede trade between States, they come within the prohibition contained in Article 59. According to the case-law of the Court, what are known as imperative reasons relating to the public interest can only justify provisions which are nondiscriminatory in nature; see judgment in Case 288/89 Stichting Collectieve Antennevoorziening Gouda and Others v Commissariaat voor de Media [1991] ECR I-4007, paragraph 12 et seq.). The present case is concerned with a (covertly) discriminatory provision. It would appear from the judgment in Case 106/91 Ramrath v Ministre de la Justice [1992] ECR I-3351, paragraphs 28 to 31, that those principles also apply with regard to Article 48 of the EEC Treaty.
20 I have in mind Directives 89/48 and 92/51 mentioned above, as well as the European Convention on the Academic Recognition of University Qualifications of 14 December 1959. The convention, prepared in the Council of Europe, was signed by all the Member States of the Community and applies at present in ten of them, the Federal Republic of Germany included.
21 Case 61/89 Bouboucha [1990] ECR I-3551, paragraph 11.
22 Case 115/78, cited in note 17, above.
23 Council Directive 64/427/EEC of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing industries falling within the 151C Major Groups 23-40 (industry and small craft industries) (OJ, English Special Edition 1963-1964, p. 148).
24 See also the Opinion of Advocate General Tesauro in the Singh case (Case C-370/90, not yet published in the ECR, points 5 to 9).
25 The operative part of the judgment is expressly centred on an activity ancillary to medicine, such as osteopathy, reserved, in the Member State concerned, to the holders of a diploma of doctor in medicine. The particularly sensitive nature of this sector is also apparent from Article 57(3) of the EEC Treaty, which provides for a special status for the medical, allied and pharmaceutical professions, as regards harmonization of laws in the field of establishment and the provision of services.
26 See, in particular, the case-law cited in footnote 17.
27 Judgment in Säger cited in note 18, paragraph 12.
28 Judgment in Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 10; see also judgment in Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 20.
29 Judgment in Case 263/86 Belgian State v Humbel [1988] ECR 5365, paragraph 14 et seq.).
30 In this respect, it does not seem necessary to pay particular attention to Article 58 (second paragraph) of the EEC Treaty, which, in the light of Article 66, applies equally to the freedom to provide services. The text cited contains an exception for nonprofit making companies. This expression does not in my view impose a further condition; it merely reflects the concept of services, as found in Article 60. See also the judgment in the case of 4 October 1991, Society for the Protection of Unborn Children Ireland Ltd v Grogan and Others (C-159/90 [1991] I-4685, paragraph 26.
31 Judgment in Case 293/87 Gravier v City of Liège [1985] ECR 593. Since the judgment in the Gravier case, Community policy on vocational training has gready developed.
32 Judgment in Case 24/86 Blaizot v University of Liège and Others [1988] ECR 379; confirmed by the Erasmus judgment: Case 242/87 Commission v Council [1989] ECR 1425, paragraph 25.
33 See judgment in Case 9/74 Casagrande v Landeshauptstadt München [1974] ECR 773, paragraph 6.
34 In other words, Article 7 does not, as Community law now stands, apply to the rules which, while not being discriminatory, restrict the free movement of persons, goods and services in another way.
35 On these two points there is an analogy with what applies in the matter of the free movement of services. Thus, for example, in the judgment in Luisi and Carbone, cited in footnote 27, above, the matter at issue was restriction on payments imposed by the Member State or origin for the recipient of a service who moves abroad.