Colegio de Ingenieros de Caminos, Canales y Puertos v. Administración

del Estado (IMO, intervening) (Case C-330/03)

Before the Court of Justice of the European Communities (First

Chamber)

ECJ (1st Chamber) Presiding, Jann P.C.; Schiemann, Colneric, Juhász and Levits (

Rapporteur) JJ.; Léger A.G.

January 19, 2006

Civil engineers; Freedom of establishment; Mutual recognition principle; Professional qualifications H1 Freedom of movement--establishment-- Arts 39 and 43 EC--mutual recognition of professional qualifications--civil engineer specialising in hydraulics seeking recognition of qualification in another Member State-- differences in education and training--partial and restricted recognition-- interpretation of Directive 89/48--wording, scheme and objectives--not precluding partial recognition--national law regulating professions hindering freedom of establishment--justification--consumer protection--proportionality-- distinction between situations based on degree of similarity between professions in Member State of origin and host Member State--where similarity causing both to be designated as "profession in question" within Art.3(a) of the Directive application of Art.4(1) compensatory measures--where wider difference in education and training possibility of partial recognition if professional activity sought to be pursued objectively separable from other activities of that profession in host State--protection of consumers through less restrictive means than non-recognition--provision of information about academic or professional title in original and host State language. H2 Reference from Spain by the Tribunal Supremo (Supreme Court) under Art.234 EC. H3 I held the diploma of civil engineer specialising in hydraulics, awarded in Italy and conferring the right, in Italy, to pursue the profession of civil engineer specialising in hydraulics. He applied for the recognition of his diploma in Spain, which was granted by the Ministry of Development, enabling him to take up the profession of civil engineer. The applicant organisation brought an action for annulment of that order, emphasising the difference between the profession of civil *710 engineer in Spain and that of civil engineer specialising in hydraulics in Italy, in terms of both the education and training and the scope of activities included in each of those professions. Finding that there were important material differences between the two courses of education and training, the referring court sought a preliminary ruling from the Court of Justice, essentially, as to whether, when the holder of a diploma awarded in one Member State applied for permission to take up a regulated profession in another Member State, the competent

authorities of that Member State were precluded by Directive 89/48 ("the Directive") from partly allowing that application, subject to certain conditions, by limiting the scope of the permission to the activities which that diploma allowed to be taken up in the Member State in which it was obtained, and whether, in the circumstances which gave rise to the main proceedings, Arts 39 and 43 EC prevented the host Member State from excluding the possibility of partial taking-up of a regulated profession, restricted to the pursuit of one or more activities covered by that profession. Held: Interpretation of Directive H4 It was appropriate to examine, first, the wording of the provisions of the Directive, secondly, the system and overall scheme thereof and, thirdly, the objectives pursued by it. [17] Wording of Directive not precluding partial recognition H5 The wording of the Directive did not explicitly authorise or prohibit partial recognition of professional qualifications as referred to in the order for reference. The prohibition laid down in Art.3(a) of the Directive did not preclude such partial recognition, since a decision taken following an application by a party concerned, allowing him to take up only part of the range of activities covered by the regulated profession in the host State, could not be equated with a "refusal to allow the taking-up" of that profession. [18] Scheme of Directive permitting partial recognition H6 (a) Next, regarding the scheme of the Directive, the system of mutual recognition of diplomas established by the Directive did not imply that diplomas awarded by the other Member States certified that the education and training were similar or comparable to that required in the host Member State. According to the system established by the Directive, a diploma was not recognised on the basis of the intrinsic value of the education and training to which it attested, but because it gave the right to take up a regulated profession in the Member State where it was awarded or recognised. Differences in the organisation or content of education and training acquired in the Member State of origin by comparison with that provided in the host Member State were not sufficient to justify a refusal to recognise the professional qualification concerned. At most, where those differences were substantial, they might justify the host Member State's requiring that the applicant *711 satisfy one or other of the compensatory measures set out in Art.4 of that directive. [19] Beuttenmüller (C-424/97): [2000] E.C.R. I-5123; [2002] 1 C.M.L.R. 11, followed. H7 (b) Therefore, the expression "the profession in question", employed in Art.3(a) of the Directive, should be construed as covering professions which, in the Member State of origin and the host Member State, were identical or analogous or, in some cases, simply equivalent in terms of the activities they covered. That interpretation was corroborated by the second indent of Art.4(1)(b) of the Directive. In the cases to which that provision referred, the competent national authorities were required to take account of each of the activities covered by the profession in question in both Member States concerned, in order to determine whether it was "the profession in question" and, if so, whether one of the compensatory measures provided for by that provision should be applied. That meant that, although the Directive treated a regulated profession as a whole, it nevertheless recognised that there were, in reality, separate professional activities and corresponding education and training. It followed that a case-by-case approach, tailored to each of the professional activities covered by a regulated profession, was not contrary to or beyond the scope of the general scheme of the Directive. [20] Objectives of Directive supporting partial recognition H8 That reasoning was fully supported by a teleological interpretation of the Directive. It was apparent from the recitals in the preamble to the Directive that its primary objective

was to make it easier for persons holding diplomas awarded in a Member State to take up corresponding professional activities in the other Member States and to strengthen the right of European nationals to utilise their professional expertise in any Member State. The Directive was adopted on the basis of Art.57(1) (now Art.47(1)) EC, the wording of which indicated that the purpose of directives such as the one at issue was to facilitate the mutual recognition of diplomas, certificates and other evidence of formal qualifications by laying down rules and common criteria which resulted, as far as possible, in automatic recognition of those diplomas, certificates and other evidence of formal qualifications. It was not the purpose of those directives to make recognition of such diplomas, certificates and other evidence of formal qualifications more difficult in situations falling outside their scope, nor might they have such an effect. [23] Dreessen (C-31/00): [2002] E.C.R. I-663; [2002] 2 C.M.L.R. 62, followed. National measures regulating professions hindering exercise of freedom of establishment H9 The second paragraph of Art.43 EC provided that freedom of establishment was to be exercised under the conditions which the legislation of the country of establishment laid down for its own nationals. The conditions for taking up the profession of civil engineer had not yet been the subject of harmonisation at Community level, so the Member States retained the power to define those conditions provided that they exercised their powers in that area in a manner which respected the basic freedoms guaranteed by the EC Treaty. National measures *712 liable to hinder or make less attractive the exercise of those freedoms could be justified only if they fulfilled four conditions. They should (a) be applied in a non-discriminatory manner; (b) justified by overriding reasons based on the general interest; (c) suitable for securing the attainment of the objective which they pursued; and (d) not go beyond what is necessary in order to attain that objective. In cases such as the one at issue, legislation of a host Member State which precluded any possibility for the authorities of that State to allow partial taking-up of a profession was liable to hinder or make less attractive the exercise of both the freedom of movement of persons and the freedom of establishment, even though that legislation was applicable without distinction to the nationals of the host Member State and those of other Member States. [28]-[31] Gebhard (C-55/94): [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603; Mac Quen and Others (C-108/96): [2001] E.C.R. I-837; [2002] 1 C.M.L.R. 29; De Castro Freitas and Escallier (C 193 & 194/97): [1998] E.C.R. I-6747; Corsten (C-58/98): [2000] E.C.R. I-7919; Kraus (C-19/92): [1993] E.C.R. I-1663; Haim (C-424/97): [2000] E.C.R. I-5123; [2002] 1 C.M.L.R. 11, followed. Consumer protection as legitimate objective H10 Regarding the objective of the legislation at issue, partial recognition of professional qualifications could, theoretically, have the effect of fragmenting the professions regulated in a Member State into various activities. That would lead essentially to a risk of confusion in the minds of the recipients of services, who might well be misled as to the scope of those qualifications. The protection of the recipients of services, and consumers in general, was capable of justifying restrictions on the freedom of establishment and the freedom to provide services. [32] Commission v France ( 220/83): [1986] E.C.R. 3663; [1987] 2 C.M.L.R. 113; Läärä and Others ( C-124/97): [1999] E.C.R. I-6067; [2001] 2 C.M.L.R. 14; Anomar and Others ( C-6/01): [2003] E.C.R. I-8621; [2004] 1 C.M.L.R. 43, followed. Proportionality H11 (a) Measures based on such an objective should not go beyond what was necessary in order to attain that objective. It was appropriate to draw a distinction between two different situations which were likely to arise when the authorities of a

Member State were presented with an application for recognition of a professional qualification awarded in another Member State and when the difference in content of the education or training or in the activities covered by the profession in question in the two States prevented full and immediate recognition. [33] H12 (b) In the first situation, the degree of similarity between the two professions in the Member State of origin and the host Member State was such that they both might be regarded as "the profession in question" within the meaning of Art.3(a) of the Directive. In such a case, any shortcomings in the applicant's education or *713 training in relation to that required in the host Member State might be effectively made up for through the application of the compensatory measures provided for in Art.4(1) of the Directive, thereby ensuring full integration of the party concerned into the professional system in the host Member State. [24] & [34] H13 (c) The second scenario concerned cases which were not covered by the Directive because the differences between the fields of activity were so great that in reality the full programme of education and training was required. Viewed objectively, that was a factor which was liable to discourage the party concerned from pursuing, in another Member State, one or more activities for which he was qualified. It was for the authorities and, in particular, the competent courts in the host Member State to determine, in each specific case, to what extent the content of the education and training obtained by the party concerned was different from that required in that State. One of the decisive issues was whether the professional activity which the party concerned wished to pursue in the host Member State might, objectively, be separated from the rest of the activities covered by the corresponding profession in that State. When the activity in question might objectively be separated from the rest of the activities covered by the profession in question in the host Member State, the conclusion was that the dissuasive effect caused by the preclusion of any possibility of partial recognition of the professional qualification in question was too serious to be offset by the fear of potential harm to recipients of services. In such a case, the legitimate objective of protection of consumers and other recipients of services might be achieved through less restrictive means, such as the possibility of requiring the persons concerned to mention the names and locations of the establishments or examining boards which awarded their academic titles. Likewise, the host Member State could require the persons concerned to use, in all of their legal and commercial dealings in its territory, the respective academic title or professional title in the original language and form, as well as the translation into the language of the host Member State, in order to ensure that it was understood and to avoid all risk of confusion. [24]-[25] & [35]-[38] H14 Cases referred to in the judgment: 1. Associação Nacional de Operadores de Máquinas Recreativas (ANOMAR) v Portugal (C-6/01), September 11, 2003: [2003] E.C.R. I-8621; [2004] 1 C.M.L.R. 43 2. Commission of the European Communities v France (220/83), December 4, 1986: [1986] E.C.R. 3663; [1987] 2 C.M.L.R. 113 3. Conseil National de l'Ordre des Architectes v Dreessen (C-31/00), January 22, 2002: [2002] E.C.R. I-663; [2002] 2 C.M.L.R. 62 4. Corsten (C-58/98), October 3, 2000: [2000] E.C.R. I-7919 5. De Castro Freitas and Escallier v Ministre des Classes moyennes et du Tourisme (C 193 & 194/97), October 29, 1998: [1998] E.C.R. I-6747 6. Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano (C-55/94), November 30, 1995: [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603 7. Haim v Kassenzahnarztliche Vereinigung Nordrhein (C-424/97), July 4, 2000: [2000] E.C.R. I-5123; [2002] 1 C.M.L.R. 11 *714

8. Ingeborg Beuttenmüller v Land Baden-Wurttemberg (C-102/02), April 29, 2004: [2004] E.C.R. I-5405 9. Kraus v Land Baden-Wurttemberg (C-19/92), March 31, 1993: [1993] E.C.R. I-1663 10. Läärä v Kihlakunnansyyttaja (Jyvaskyla) (C-124/97), September 21, 1999: [1999] E.C.R. I-6067; [2001] 2 C.M.L.R. 14 11. Mac Quen and Others, Re (C-108/96), February 1, 2001: [2001] E.C.R. I-837; [2002] 1 C.M.L.R. 29 H15 Further cases referred to by the Advocate General: 12. Centros Ltd v Erhvervs-og Selskabsstyrelsen (C-212/97), March 9, 1999: [1999] E.C.R. I-1459; [1999] 2 C.M.L.R. 551 13. Commission of the European Communities v Spain (C-232/99), May 16, 2002: [2002] E.C.R. I-4235 14. Fernandez de Bobadilla v Museo Nacional del Prado and Others (C-234/97), July 8, 1999: [1999] E.C.R. I-4773; [1999] 3 C.M.L.R. 151 15. Gambelli, Re (C-243/01), November 6, 2003: [2003] E.C.R. I-13031; [2006] 1 C.M.L.R. 35 16. Hocsman v Ministre de l'Emploi et de la Solidarité (C-238/98), September 14, 2000: [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025 17. Vlassopoulou v Ministerium fur Justiz, Bundes- und Europaangelegenheiten Baden-Wurttemberg (C-340/89), May 7, 1991: [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221 H16 Representation A. González Salinas, abogado, for the Colegio de Ingenieros de Caminos, Canales y Puertos. N. DÍaz Abad, acting as Agent, for the Spanish Government. I. M. Braguglia, acting as Agent, assisted by A. Cingolo, avvocato dello Stato, for the Italian Government. E. Riedl, acting as Agent, for the Austrian Government. A. Kruse, acting as Agent, for the Swedish Government. H. Stovlbaek and F. Castillo de la Torre, acting as Agents, for the Commission of the European Communities.

OPINION [FN1] AG1 When the competent authorities of a Member State receive an application from the holder of a diploma awarded in another Member State for authorisation to pursue a profession where the taking-up of that profession is subject to possession of a diploma, can those authorities restrict the scope of the authorisation they issue to the professional activities that are covered by the applicant's diploma in accordance with the regulations in force in the Member State of origin, and exclude *715 the other activities comprising the profession in accordance with the regulations applicable in the host Member State? Should the reply to that question be in the affirmative, is the latter state free to preclude such a possibility? FN1 Opinion of A.G. Léger, delivered on June 30, 2005. AG2 Those are essentially the questions raised by the Tribunal Supremo (Supreme

Court, Spain) in the context of a dispute between the competent Spanish authorities and an Italian national holding an Italian diploma in hydraulic engineering, who wishes to pursue the profession of civil engineer in Spain. AG3 The court is asked in this case to define the scope of the principle of the recognition of diplomas, as established in Council Directive 89/48 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 [FN2] (hereinafter "the Directive"). FN2 [1989] O.J. L19/16.

I -- Legal background

A -- Community legislation AG4 The work of the Community legislature on the recognition of diplomas is marked by two different approaches: one is sectoral and the other general. AG5 The sectoral approach, which was initially preferred, seeks, profession by profession, on the one hand to co-ordinate or approximate the conditions governing professional education and training (such as duration and content) and, on the other, to establish between the Member States a principle of automatic recognition of the diplomas contained in a list (set out in the relevant directive or established by the Member States in accordance with a method laid down in the directive in question). A number of directives were adopted to that effect between 1975 and 1985, covering six professions in the health sector and activities relating to architecture. AG6 In view of the inherent length and complexity of this legislative method, a more general and flexible approach was preferred, in order to provide a more rapid response to the expectations of nationals of the Member States who wish to pursue a profession, in a self-employed capacity or as an employed person, in a Member State other than the one in which they were awarded their professional qualification. AG7 This was the approach governing the adoption of Directive 89/48. The Directive applies to professions which are not the subject of a separate directive (establishing arrangements for the mutual recognition of diplomas for a specific profession) [FN3] and which are regulated in the host Member State (that is to say professions, the taking-up or pursuit of which, in a self-employed or employed capacity, is subject in that Member State to possession of a higher-education diploma), [FN4] provided that *716 the diploma awarded in the Member State of origin shows that the holder has completed a course of study of at least three years' duration or other equivalent education and training. [FN5] FN3 See the second paragraph of Art.2 of the Directive. FN4 The first paragraph of Art.2 of the Directive provides that it shall apply to any national of a Member State ("Community national" for short) wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person. Art.1(c) of the Directive states that a regulated profession is to be understood as meaning "the regulated professional activity or range of activities which constitute this profession in a Member State". Article 1(d) defines a regulated professional activity as: "a professional activity, in so far as the taking-up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws regulations or administrative provisions, to the possession of a diploma". It adds that pursuit of an activity under a professional title constitutes a mode

of pursuit of a regulated professional activity, in so far as the use of such a title is reserved to the holders of a certain diploma. A distinction must therefore be drawn between the taking-up of a professional activity and the pursuit of that activity. A professional activity is said to be regulated in respect of taking up where pursuit of the activity in general, irrespective of the mode of pursuit (for example, under a given professional title or formal qualification) is subject to the possession of a diploma. A professional activity is said to be regulated in respect of pursuit where pursuit of the activity in certain particular modes (such as the use of a specific professional title or formal qualification) after taking it up, is subject to possession of a diploma. On the significance of this distinction, see J. Pertek, "Reconnaissance des diplômes organisée par des directives", Éditions du Juris-Classeur (1998), fascicule 720, points 40 to 69 and 144 to 149. FN5 See Art.1(a) of the Directive, in conjunction with the third recital in the preamble. AG8 As the fifth recital in the preamble to the Directive indicates, Member States, in order to guarantee the quality of services provided in their territory, reserve the option of fixing the minimum level of qualifications required to pursue professions for which no such requirement has been laid down in a specific directive. [FN6] However, according to the same recital, those states may not require a national of a Member State to obtain those qualifications, which in general they determine only by reference to diplomas issued under their own national education systems, where the person concerned has already acquired all or part of those qualifications in another Member State and, as a result, any host Member State in which a profession is regulated is required to take account of qualifications acquired in another Member State and to determine whether those qualifications correspond to the qualifications which the Member State concerned requires. FN6 Similarly, the 10th recital in the preamble to the Directive specifies that it: "is intended neither to amend the rules, including those relating to professional ethics, applicable to any person pursuing a profession in the territory of a Member State nor to exclude migrants from the application of those rules; [it] is confined to laying down appropriate arrangements to ensure that migrants comply with the professional rules of the host Member State". AG9 The scope of that obligation is defined in Art.3 of the Directive as follows: "Where, in a host Member State, the taking-up or pursuit of a regulated profession is subject to possession of a diploma, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue that profession on the same conditions as apply to its own nationals: (a) if the applicant holds the diploma required in another Member State for the taking-up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State; or (b) if the applicant has pursued the profession in question full-time for two years during the previous 10 years in another Member State which does not regulate that profession ... and possesses evidence of one or more formal qualifications: -- which have been awarded by a competent authority in a Member State ..., -- which show that the holder has successfully completed a post-secondary course of at least three years' duration, or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level ..., and *717 -- which have prepared the holder for the pursuit of his profession".

AG10 In establishing this principle on the mutual recognition of diplomas, the Directive strengthens the right of a Community national to use his or her professional skills in any Member State and, consequently, supplements and reinforces his or her right to acquire such skills wherever he or she wishes. [FN7] FN7 See 13th recital in the preamble. AG11 That principle being established, Art.4(1) of the Directive specifies that: "[n]otwithstanding Article 3, the host Member State may also require the applicant: (a) to provide evidence of professional experience, where the duration of the education and training adduced in support of his application, as laid down in Article 3(a) and (b), is at least one year less than that required in the host Member State ... ... (b) to complete an adaptation period [FN8] not exceeding three years or take an aptitude test [FN9]: FN8 Article 1(f) of the Directive defines the adaptation period as the pursuit of a regulated profession in the host Member State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. FN9 Article 1(g) of the Directive defines the aptitude test as a test limited to the professional knowledge of the applicant, made by the competent authorities of the host Member State, with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State. In order to permit this test to be carried out, the competent authorities must draw up a list of subjects which, on the basis of a comparison of the education and training required in the Member State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant. The aptitude test shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to exercise the profession in the host Member State. -- where the matters covered by the education and training he has received as laid down in Article 3(a) and (b), differ substantially from those covered by the diploma required in the host Member State, or -- where, in the case referred to in Article 3(a), the profession regulated in the host Member State comprises one or more regulated professional activities which are not in the profession pursued by the applicant in the Member State from which he originates or comes, and that difference corresponds to specific education and training required in the host Member State and covers matters which differ substantially from those covered by the evidence of formal qualifications adduced by the applicant ..." AG12 The second sub-paragraph of Art.4(1)(b) of the Directive lays down the rule that: "[s]hould the host Member State make use of this possibility, it must give the applicant the right to choose between an adaptation period and an aptitude test". The ninth recital in the preamble to the Directive emphasises the value of these measures: *718 "... the effect of both [the adaptation period and the aptitude test] will be to improve the existing situation with regard to the mutual recognition of diplomas between Member States and therefore to facilitate the free movement of persons within the Community; ... their function is to assess the ability of the migrant, who is a person who has already

received his professional training in another Member State, to adapt to this new professional environment". AG13 Article 7 of the Directive defines the scope of the rights conferred on the applicant by the host Member State as a result of the recognition of his or her qualifications. Paragraphs 1 and 2 of that article require the competent authorities of host Member States to recognise the right of nationals of Member States who fulfil the conditions for the taking-up and pursuit of a regulated profession in their territory to use the professional title of the host Member State corresponding to that profession and the right to use their lawful academic title and, where appropriate, the abbreviation thereof deriving from their Member State of origin, in the language of that state. In that case, it is specified that the host Member State may require this title to be followed by the name and location of the establishment or examining board which awarded it. AG14 Similar provisions are laid down in Council Directive 92/51. [FN10] Directive 92/51 applies, subject to the existence of a separate directive, to professions, the taking-up or pursuit of which is subject in the host Member State to possession of a higher-education diploma, provided that the holder of the diploma awarded in the Member State of origin has completed a post-secondary course of study of one to three years' duration or other equivalent education and training. FN10 [1992] O.J. L209/25.

B -- National legislation AG15 The order for reference shows that the Directive was transposed in Spain by Royal Decree 1665/1991 of October 25, 1991. [FN11] FN11 BOE No.280 of November 22, 1991, p.37916. AG16 To be precise, Art.4(1) of that Decree transposes Art.3(a) of the Directive as follows: "For the purpose of taking up the activities of a regulated profession, a diploma obtained in another Member State shall be recognised in Spain, and shall have the same effect as the equivalent Spanish diploma, where such diploma authorises the holder to pursue the same profession in the Member State concerned." AG17 In addition, Art.5(b) of the Decree provides, in accordance with Art.4(1)(b) of the Directive, that the applicant shall have the right to choose either to take an aptitude test or to complete an adaptation period in cases in which the matters covered by the education and training received by him or her differ substantially from those covered by the Spanish diploma required, or where the corresponding profession in Spain comprises one or more professional activities which are not in that profession in the Member State of origin and that difference corresponds to specific education and training required under the applicable Spanish provisions *719 and covers matters which differ substantially from those covered by the qualifications adduced by the applicant. [FN12] FN12 See order for reference (French version, pp.8 and 9, English version, pp.7 and 8) and observations submitted by the Spanish Government, p.3. AG18 It is also apparent from the order for reference that the profession of civil engineer is regulated in Spain inasmuch as the taking-up or pursuit of the profession is subject to possession of a diploma in civil engineering. [FN13] The post-secondary education and

training required for the award of that diploma is of six years' duration. [FN14] FN13 See order for reference (French version, pp.8 and 10, English version, pp.7 and 9). The referring court does not explain exactly how the profession of civil engineer is regulated in Spain. However, as the taking-up of that profession is apparently subject to the possession of a diploma in civil engineering, I assume that the pursuit of that profession under the professional title of civil engineer is likewise subject to possession of such a diploma. Indeed, regulation of the taking-up of a profession is generally associated with regulation of the pursuit of that profession. See Pertek, op. cit., point 53. FN14 See order for reference (French version, p.2, English version, p.2). AG19 In Spain, the profession covers a wide range of activities, including the design and construction of hydraulic installations, land, sea and inland waterway transport infrastructures, conservation of beaches, environmental protection, and town and country planning, including town planning. [FN15] FN15 ibid. (French version, p.8, English version, pp.7 and 8).

II -- Facts and procedure AG20 On June 27, 1996, Mr Guiliano Mauro Imo, an Italian national, applied to the competent Spanish authority (i.e. the Ministry of Development) for recognition of his Italian diploma in hydraulic engineering, in order to take up the profession of civil engineer in Spain. [FN16] FN16 The referring court states that the person concerned applied to "pursue" the profession of civil engineer in Spain. However, it seems that his primary intention was to take up the profession in question in that Member State, within the meaning of the Directive, rather than to pursue it in a specific form after he had taken it up (for example, by using the professional title of civil engineer). For the purposes of examining this case, I therefore assume that the main proceedings are concerned with the taking-up of the profession in question, within the meaning of the Directive, rather than the pursuit of that profession. That is the sense in which I shall understand the factual and procedural data set out in the order for reference and the questions for preliminary ruling appended to that order. AG21 In the course of its examination of this application, the Ministry of Development consulted other ministries (the Ministry of the Environment and the Ministry of Education and Culture) and also the Colegio de Ingenieros de Caminos, Canales y Puertos (Association of Civil Engineers, hereinafter referred to as the " Colegio"). AG22 After comparing the education and training which the applicant received in Italy to obtain his diploma in hydraulic engineering, with the education and training in coastal engineering given in Spain to candidates for the diploma in civil engineering, the Ministry of the Environment (or, to be precise, the Department of Coastlines) found that there were certain differences between the two types of education and training. It therefore concluded that, before his diploma could be recognised in Spain, the applicant would first have to complete an adaptation period or take an aptitude test. AG23 Similarly, the Colegio considered that there were significant gaps in the applicant's academic training (notably in relation to environmental, sanitation and bridge engineering) which, combined with his lack of professional experience, would make it

inappropriate to recognise his diploma. AG24 *720 The Ministry of Education and Culture did not reply to the request for consultation that had been addressed to it. However, according to the order for reference, in other cases similar to the case at issue in the main proceedings, that ministry had taken the view that possession of the Italian diploma in hydraulic engineering was sufficient to entitle the holder to take up the profession of civil engineer in Spain, and that there was no need to require him or her to complete an adaptation period or pass an aptitude test first. [FN17] FN17 See order for reference (French version, p.4, English version, p.4). AG25 Finally, by order of November 4, 1996, the Ministry of Development recognised the applicant's diploma and granted him permission to take up the profession of civil engineer in Spain. AG26 The Colegio brought an action for the annulment of that order before the Audiencia Nacional (National High Court) responsible for contentious administrative proceedings. In support of its application, it claimed, on the one hand, that the education and training which Mr Imo had received in Italy was not equivalent to the education and training required in Spain to take up the profession of civil engineer and, on the other, that the profession of civil engineer in the latter Member State comprises activities which are not included in the profession of hydraulic engineer in the former Member State. AG27 The action was dismissed in a judgment delivered on April 1, 1998, on the ground, first, that the Italian diploma in hydraulic engineering qualifies the holder to take up in Italy the profession which corresponds to that of civil engineer in Spain and, secondly, that the education and training received by the holder of such a diploma includes the core subjects required in the latter Member State in regard to the profession of civil engineer. AG28 The Colegio brought an appeal against that judgment before the Tribunal Supremo (Supreme Court). In support of its appeal, it again maintains, on the one hand, that the profession of civil engineer (in Spain) is different from that of hydraulic engineer (in Italy) and, on the other, that that difference in activities results in a significant difference in education and training. There are, it says, gaps in the education and training which the person concerned received in Italy, even in relation to coastal engineering, the only one of the many core subjects in the Spanish civil engineering course that he had studied. Thus, according to the Colegio, the matters covered in the Spanish course differ substantially from those covered by Mr Imo in the course he followed in Italy. AG29 That being so, while the Colegio objects to the proposal that the person concerned be permitted to take up all the activities relating to the profession of civil engineer, it does not object to his being permitted to take up only that part of those activities, in the field of hydraulic engineering, which corresponds to the activities covered by his diploma.

III -- The questions referred by the national court AG30 In the light of the arguments advanced by the parties in the main proceedings, the Tribunal Supremo decided to stay the proceedings and refer the following questions to the court for a preliminary ruling: *721 "1) Can Article 3(a), in conjunction with Article 4(1), of 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 be construed in such a way as to permit restricted recognition by a host Member State of the professional qualifications of an applicant who possesses the diploma of Ingegnere civile idraulico [civil engineer specialising in hydraulics] (awarded in Italy) and who wishes to pursue that profession in another Member State whose legislation regulates the profession of Ingeniero de Caminos, Canales y Puertos [civil engineer]? The question is based on the assumption that, in the host Member State, the latter profession includes activities that do not always correspond to the applicant's diploma and that the education and training attested by that diploma does not include certain core subjects which are generally required in order to obtain the qualification of Ingeniero de Caminos, Canales y Puertos (civil engineer) in the host Member State. 2) Should the reply to the first question be in the affirmative, is it compatible with Articles 39 and 43 EC to restrict the right of applicants who seek to pursue their professions, in a self-employed or employed capacity, in a Member State other than the one in which they were awarded their professional qualification, in such a way that the host Member State is entitled to exclude, under its national legislation, restricted recognition of professional qualifications where such a decision, which in principle implements Article 4 of Directive 89/48/EEC, entails the imposition of certain additional, disproportionate requirements as regards pursuit of the profession?" AG31 The referring court took care to explain that the expression "restricted recognition of professional qualifications" (employed in both questions) is understood to mean that which authorises an applicant to work as an engineer only in the equivalent sector (hydraulics) of the more general profession of Ingeniero de Caminos, Canales y Puertos (civil engineer) regulated in the host Member State, without requiring him to fulfil the additional requirements laid down in the first sub-paragraph of Art.4(1)(b) of the Directive. [FN18] FN18 See order for reference (French version, p.14, English version, pp.12 and 13). AG32 The Tribunal Supremo also took care to point out that the case in the main proceedings is precisely within the scope of the illustrative case referred to in the second indent of the first sub-paragraph of Art.4(1)(b) of the Directive. [FN19] FN19 ibid. (French version, pp.10 and 11, English version, pp.9 and 10).

IV -- Analysis AG33 I shall examine the first question first and the second question, if necessary, after that.

*722 A -- The first question AG34 By its first question, the referring court seeks, essentially, to ascertain whether the combined provisions of Art.3(a) and the second indent of the first sub-paragraph of Art.4(1)(b) of the Directive preclude the competent authorities of a Member State, when they receive an application from the holder of a diploma awarded in another Member State for permission to take up a profession, the taking-up or pursuit of which is subject in that host Member State to possession of a diploma, from partly admitting such an application, if the person concerned agrees, by waiving the obligation to complete an adaptation period or take an aptitude test and restricting the scope of the permission they grant accordingly to cover only those activities of that profession which the applicant's diploma entitles him to take up in accordance with the regulations in force in

the Member State in which it was awarded, and to exclude the other activities covered by that profession in accordance with the regulations applicable in the said host Member State. AG35 I note, first of all, that it is common ground in the context of the main proceedings that the system for the recognition of diplomas is the system established by the Directive. There is no separate directive on the profession of engineer. [FN20] I also assume that the Directive alone is applicable, not Directive 92/51, inasmuch as the diploma for which recognition is sought is apparently awarded on completion of a course of study exceeding three years. [FN21] FN20 It seems that the idea of adopting a separate directive on the profession of engineer was mooted as early as 1969, but came to nothing. See, in this connection, R. Hamelin, "La proposition de directive relative au titre d'ingénieur", L'enseignement supérieur et la dimension européenne, Économica (1989), pp.31 to 41. FN21 According to the information given by the Colegio before the referring court, the education and training in engineering adduced by the applicant is of five years' duration (see order for reference (French version, p.1, English version, p.2)). See also, to the same effect, Hamelin, op. cit., p.33. AG36 I also assume that, in Italy, the profession of hydraulic engineer is a regulated profession within the meaning of the Directive and that Art.3(a) and the second indent of the first sub-paragraph of Art.4(1)(b) thereof are consequently applicable in the context of the main proceedings. [FN22] FN22 Otherwise, I should point out that Art.3(b) (not Art.3(a)) and Art.4(1)(a) or the first or third indent of the first sub-paragraph of Art.4(1)(b) of the Directive would apply (the third indent essentially reproducing the second). AG37 These points being established, I shall examine the first question, considering the wording of those provisions of the Directive, the general system of the Directive, and the aim pursued by the Directive, in that order.

1. The wording of Art.3(a) and the second indent of the first sub-paragraph of Art.4(1)(b) of the Directive

AG38 I note that Art.3(a) of the Directive provides that: "[w]here, in a host Member State, the taking-up or pursuit of a regulated profession is subject to possession of a diploma, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue that profession on the same conditions as apply to its own nationals ... if the applicant holds the diploma required in another Member State for the taking-up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State ..." *723 [FN23] FN23 My emphasis. AG39 I also note that the second indent of Art.4(1)(b) of the first sub- paragraph of the Directive provides that: "[n]otwithstanding Article 3, the host Member State may also require the applicant ... to complete an adaptation period not exceeding three years or take an aptitude test ...

where, in the case referred to in Article 3(a), the profession regulated in the host Member State comprises one or more regulated professional activities which are not in the profession regulated in the Member State from which the applicant originates or comes and that difference corresponds to specific education and training required in the host Member State and covers matters which differ substantially from those covered by the evidence of formal qualifications adduced by the applicant ..." [FN24] FN24 idem. AG40 It follows from these provisions, taken together, that the illustrative case referred to in Art.3(a) (and mentioned in the second indent of the first sub-paragraph of Art.4(1)(b)) of the Directive is not restricted to cases where the profession regulated in the host Member State and that regulated in the Member State of origin are strictly identical in the sense that their respective ranges of activities coincide completely. Thus the expression "the profession in question", employed in Art.3, covers not only cases where the two professions are identical, but also cases where they are merely similar. [FN25] FN25 See, to this effect, Le Petit Robert--Dictionnaire de la langue française (Dictionnaires Le Robert, Paris, 1999), where the indefinite adjective "meme" ("same", rendered as "in question" in the English version of Art.3(a) of the Directive) is defined as denoting absolute identity or mere similarity. AG41 Thus, in my view, Art.3(a) of the Directive merely precludes the competent authorities of the host Member State from refusing to authorise a Community national to take up or pursue a regulated profession solely on the ground that he or she does not possess the requisite national diploma, when he or she has been awarded in another Member State the diploma which is required there to take up a profession identical or similar to the one he or she intends to take up in the host Member State or to pursue a profession identical or similar to the one he or she wishes to pursue in that state. That prohibition is subject to the condition that the host Member State may in certain circumstances require the person concerned to complete an adaptation period or take an aptitude test in accordance with Art.4(1)(b) of the Directive, to assess the applicant's ability to take up or pursue the profession in question in the host Member State. AG42 Thus, for example, the competent authorities of a host Member State may not refuse to authorise a Community national who holds a diploma in engineering or accountancy to take up the professions of engineer or accountant solely on the ground that the diploma in question was awarded in another Member State, when that diploma entitles him to take up the profession of engineer or accountant in that state, subject to the condition that the said authorities may require the person concerned to complete an adaptation period or take an aptitude test where the profession of engineer or accountant, as regulated in the host Member State, covers *724 a wider range of activities than that covered by the profession in the Member State of origin and that difference in activities results in a substantial difference in education and training. AG43 On the other hand, there is nothing in the wording of Art.3(a) or the second indent of the first sub-paragraph of Art.4(1)(b) of the Directive to prevent the said authorities from refusing, for example, to authorise a Community national who holds a diploma in accountancy awarded in another Member State to take up the profession of engineer, since the two professions are not at all comparable in terms of activities and there is consequently no reason to impose an adaptation period or an aptitude test. In fact, these professions are so different that the transition from one to the other would require the

person concerned to undertake another course of education and training, completely different from the course he or she had taken before. AG44 Nor, in my view, does the wording of the provisions in question preclude the competent authorities of the host Member State from authorising a Community national, if he or she agrees, to take up only part of the range of activities covered by the regulated profession which he or she wishes to take up in that Member State (such as the profession of engineer in Spain), where that part corresponds to the professional activities which the person concerned is entitled to take up in the Member State of origin by virtue of his or her diploma (such as the activities corresponding to the Italian diploma in hydraulic engineering), without being required to complete an adaptation period or take an aptitude test. AG45 Such a decision on authorisation is not tantamount to refusing to authorise a Community national to take up any of the activities covered by a regulated profession in the host Member State (such as the profession of civil engineer in Spain) solely on the ground that the person concerned does not possess the requisite national diploma (such as the Spanish diploma in civil engineering), where he or she has been awarded in another Member State the diploma required in that state to take up a similar profession (such as the profession of hydraulic engineer). It follows that the said decision is not contrary to the wording of Art.3(a) of the Directive. AG46 That conclusion is still correct, even if the decision in question is tantamount to refusing to authorise the person concerned to take up some of the activities covered by the regulated profession in the host Member State, namely the activities which he or she is not entitled to take up in the Member State of origin by virtue of his or her diploma (such as the civil engineering activities, which are not in the special field of hydraulic engineering). AG47 To assume that the prohibition contained in Art.3(a) of the Directive applies equally to any refusal to authorise the taking-up of all or some of the activities covered by a regulated profession in the host Member State would be tantamount to conferring on that article a much wider scope than the Community legislature probably intended. Had that been its intention (an assumption which I do not accept), it would most probably have taken care to say so explicitly (in Art.3 or in one of the recitals in the preamble to the Directive), since that article is the keystone of the general system for the recognition of diplomas established by the Directive. However, there is no such explicit statement on this point. AG48 *725 Admittedly, the prohibition contained in Art.3 of the Directive applies specifically to refusal to authorise the taking-up of a regulated profession in the host Member State "on the same conditions as apply to its own nationals". That expression could be taken to mean that the competent authorities of that state have no alternative but to authorise the taking-up of the profession in question in its entirety, that is to say all the activities covered by that profession in the said state, with the result that there would be no possibility of authorising or refusing to authorise the partial taking-up of such a profession, that is to say restricting such a decision to some of the said activities. AG49 However, in my view, it would be unreasonable to draw such a conclusion. The expression merely makes it clear, with regard to the taking-up of a regulated profession, that the competent authorities of the host Member State may not discriminate in any way against a national of a Member State by refusing to authorise him to take up a certain profession solely on the ground that he does not possess the requisite national diploma, when he has been awarded in another Member State the diploma which is required there to take up an identical or similar profession. AG50 The expression in question merely reflects the principle of mutual confidence between the Member States underlying the system for the recognition of diplomas

established by the Directive, according to which: "a diploma is not recognised on the basis of the intrinsic value of the education and training to which it attests, but because it gives the right to take up a regulated profession in the Member State where it was awarded ..." [FN26] FN26 Beuttenmüller (C-102/02): [2004] E.C.R. I-5405 at [52]. AG51 Thus, the fifth recital in the preamble to the Directive states, to the same effect and in the same terms as Art.3 of the Directive, that Member States: "may not ... require a national of a Member State to obtain those qualifications which in general they determine only by reference to diplomas issued under their own national education systems, where the person concerned has already acquired all or part of those qualifications in another Member State [and], as a result, any host Member State in which a profession is regulated is required to take account of qualifications acquired in another Member State and to determine whether those qualifications correspond to the qualifications which the Member State concerned requires". AG52 In so doing, the Directive is merely drawing the necessary conclusions from the case law of the court on the mutual recognition of professional qualifications, the principles of which were set out in the judgment in Vlassopoulou. [FN27] FN27 Case C-340/89: [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221 at [16]. See also, to the same effect, Fernández de Bobadilla (C-234/97): [1999] E.C.R. I-4773; [1999] 3 C.M.L.R. 151 at [29]-[31]; Hocsman (C-238/98): [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025 at [21]-[24]; Dreesse (C-31/00): [2002] E.C.R. I-663; [2002] 2 C.M.L.R. 62 at [31]; and Commission v Spain (C-232/99): [2002] E.C.R. I-4235 at [21]. According to that case law, it follows from Art.43 EC that the authorities of a Member State, when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a comparison between the qualifications certified by his or her diplomas, certificates and other formal qualifications and by his or her relevant professional experience and the professional qualifications required by the national rules for the exercise of the profession in question. AG53 I therefore conclude that the wording of Art.3(a) does not preclude the competent authorities of the host Member State from delivering a decision *726 granting partial authorisation to take up a regulated profession in its territory, that is to say authorisation restricted to the professional activities which the person concerned is entitled to take up in the Member State in which he or she was awarded his diploma. AG54 In my view, this analysis is not inconsistent with the wording of the second indent of the first sub-paragraph of Art.4(1)(b) of the Directive which, I note, expressly mentions the case referred to in " Article 3(a)", that is to say the case referred to in Art.3(a) of the said Directive. AG55 I note that those provisions of Art.4 merely entitle the host Member State to make the grant of authorisation to take up (or pursue) activities covered by a regulated profession subject to completion by the applicant of an adaptation period or an aptitude test, where the education and training he or she has acquired to obtain the diploma awarded by another Member State differ substantially from the education and training required in the said host Member State and accordingly result in a difference between the range of activities covered by the similar profession which the person concerned is entitled to take up in the Member State where he or she was awarded his or her diploma, on the one hand, and the range of activities covered by the profession which he

or she wishes to take up in the host Member State, on the other. AG56 The imposition of such requirements on the applicant is merely an option, not an obligation which the host Member State is automatically required to impose, and the wording of Art.4 of the Directive therefore does not preclude the competent authorities of that state from waiving such requirements in certain circumstances. AG57 Moreover, the sole aim of these optional requirements is to assess the applicant's ability to adapt to the new professional environment in which he or she wishes to take up his or her profession, where the education and training he or she followed to obtain his or her diploma did not prepare him or her for that environment. [FN28] It follows that those requirements would not be justified in cases where the persons concerned are authorised to take up, in the host Member State, only the activities which are covered by the profession which their diploma entitles them to take up in the Member State of origin, for which, it is to be presumed, the education and training they followed to obtain their diploma have already prepared them. FN28 I note that this function of the adaptation period or aptitude test is defined in the ninth recital in the preamble to the Directive and in Art.1(f) and (g) of the Directive. AG58 Moreover, Directive 98/5 [FN29] establishes the principle that any lawyer is entitled to pursue on a permanent basis, in a host Member State under his or her home-country professional title, the same professional activities as a lawyer practising under the relevant professional title used in that state, unless that state excludes lawyers who have obtained their professional title in another Member State from taking up certain activities which are covered by the profession of lawyer in the territory of the host Member State, but which, in other Member States, are reserved for professions other than that of lawyer. [FN30] FN29 [1998] O.J. L77/36. FN30 See Art.2, in conjunction with Art.5(1) and (2). The activities in question consist of preparing deeds for obtaining title to administer estates of deceased persons and for creating or transferring interests in land. AG59 Thus, under Directive 98/5, a Member State may refuse to authorise Community nationals who have obtained their qualifications in another Member State to take *727 up certain activities covered by the profession of lawyer in the host Member State, where that category of activities is not within the range of activities covered by that profession in another Member State. This situation may be compared to the situation referred to in the second indent of the first sub-paragraph of Art.4(1)(b) of the Directive. AG60 However, Directive 98/5 does not seek to replace the Directive (with regard to the profession of lawyer), but to complement it by recognising the right of lawyers who have obtained their professional qualification in another Member State and who do not wish to take the aptitude test specified in Art.4 of the Directive, to achieve integration into that profession in the host Member State after a certain period of professional practice in that state under their home-country professional titles. [FN31] FN31 This follows from the second, third and fifth recitals in the preamble to Directive 98/5. AG61 This brief survey of Directive 98/5 confirms to me in my view that neither the wording of Art.3(a) nor that of the second indent of the first sub-paragraph of Art.4(1)(b)

of the Directive preclude the competent authorities of the host Member State from authorising Community nationals, if they agree, to take up only part of the range of activities covered by a regulated profession in that Member State, where that part corresponds to the professional activities which the persons concerned are entitled to take up in the Member State of origin by virtue of their diploma, without being required to complete an adaptation period or take an aptitude test. AG62 In my view, that interpretation is not called into question by the general system of the Directive.

2. The general system of the Directive AG63 In my view, no other provision of the Directive precludes the competent authorities of the host Member State, if the applicant agrees, from granting him or her such partial authorisation to take up a regulated profession in its territory and waiving the obligation to complete an adaptation period or take an aptitude test. AG64 Admittedly, as we know, Art.7(1) of the Directive requires the competent authorities of host Member States to recognise the right of nationals of Member States who fulfil the conditions for the taking-up and pursuit of a regulated profession in their territory to use the professional title of the host Member State corresponding to that profession. AG65 Those provisions express the concern of the Community legislature to make it easier, in the host Member State, for nationals of other Member States who obtained their diplomas in those states to be treated in the same way as nationals of the host Member State who acquired their professional qualifications in that state. That concern is bound up with the objective pursued by the Directive which, as we shall see, is to make it easier for European citizens to practise a profession, the taking-up or pursuit of which depends in the host Member State on the acquisition of post-secondary education and training. AG66 That being so, while the competent authorities of the host Member State are required, by virtue of those provisions, to recognise the right of those nationals to *728 use the professional title corresponding to the regulated profession in question in the territory of that state, they are in my view only required to do so if the persons concerned fulfil all the conditions for the taking-up and pursuit of that profession applicable in that state. AG67 I infer from this that Art.7(1) of the Directive does not preclude the competent authorities of the host Member State, in cases where the persons concerned do not fulfil all the conditions for taking up the regulated profession in question in that state (in particular, the requirement to complete an adaptation period or take an aptitude test), from authorising those persons, if they wish, to take up only part of the activities covered by that profession (those which they are entitled to take up in their Member State of origin), not all those activities, or from authorising them accordingly to use the professional title corresponding to that profession in order, in particular, to avoid any confusion in the minds of consumers who might make use of their services in the territory of the said host Member State. AG68 This is particularly so since, even in cases where nationals of Member States fulfil all the conditions for the taking-up and pursuit of a regulated profession in the territory of the host Member State (after completing an adaptation period or taking an aptitude test, for example), the persons concerned are not necessarily required to practise that profession under the corresponding title in the host Member State when they fulfil all the conditions for the taking-up and pursuit of all the activities covered by that profession under that professional title. This follows from Art.7(2) of the Directive.

AG69 The Community legislature took care to require the competent authorities of the host Member State to recognise the right of nationals of Member States who fulfil all the conditions for the taking-up and pursuit of a regulated profession in their territory to use their lawful academic title (as distinct from their professional title) and, where appropriate, the abbreviation thereof deriving from their Member State of origin, in the language of that state. The prospect of these nationals being treated in the same way as nationals of the host Member State is even less automatic, in that Art.7(2) of the Directive also provides that: "the host Member State may require this title to be followed by the name and location of the establishment or examining board which awarded it". AG70 It follows that the general system of the Directive does not preclude the competent authorities of the host Member State from granting an applicant, if he or she agrees, partial authorisation to take up the activities covered by a regulated profession in that state, with the result that the applicant will not be treated in exactly the same way as the holder of a diploma awarded in that state for taking up that profession. AG71 That conclusion applies a fortiori, as we shall now see, to the examination of the objective pursued by the Directive.

3. The purpose of the Directive AG72 As the court has repeatedly emphasised, it is clear from Art.57(1) (now, after amendment, Art.47(1)) EC that the purpose of the directives, such as the Directive, *729 adopted on the basis of that article, is to make it easier for persons to take up and pursue activities as self-employed persons by establishing rules and common criteria leading to the most extensive mutual recognition possible of diplomas, certificates and other evidence of formal qualifications. [FN32] This applies equally to the taking-up and pursuit as an employed person of the activities covered by the Directive. FN32 See, in particular, Hocsman at [32]; Dreessen at [26]; and Commission v Spain at [19]. AG73 I note, in this connection, that the third recital in the preamble to the Directive emphasises that: "in order to provide a rapid response to the expectations of nationals of Community countries who hold higher-education diplomas awarded on completion of professional education and training issued in a Member State other than that in which they wish to pursue their profession, another method of recognition of such diplomas [other than the method of the sectoral directives so far adopted] should also be put in place such as to enable those concerned to pursue all those professional activities which in a host Member State are dependent on the completion of post-secondary education and training, provided they hold such a diploma preparing them for those activities awarded on completion of a course of studies lasting at least three years and issued in another Member State". AG74 In so doing, as the 13th recital in the preamble points out, the system established by the Directive: "by strengthening the right of a Community national to use his professional skills in any Member State, supplements and reinforces his right to acquire such skills wherever he wishes". AG75 It follows that, far from precluding a mechanism such as authorisation to take up some of the activities covered by a regulated profession in the host Member State (without the person concerned being required to complete an adaptation period or take

an aptitude test where that state imposes such a requirement), on the contrary, the aim of making it easier for persons to take up and pursue activities in a self-employed or employed capacity, pursued by the Directive, supports the case for admitting such a mechanism. AG76 An adaptation period may last up to three years, under the terms of the first sub-paragraph of Art.4(1)(b) of the Directive. To dispense with such a period clearly represents a significant, even decisive, saving of time for nationals of a Member State who wish to take up a regulated profession in the host Member State, especially if they only wish to take up the activities of that profession which they are already entitled to take up or which they have already taken up in the Member State in which they obtained their diploma. Such a requirement may seriously discourage the person concerned from opting for an adaptation period or completing it, especially as his or her efforts may come to nothing. AG77 This also applies to the aptitude test since, although it is defined in Art.1(g) of the Directive and constitutes in principle another compensatory measure, which the *730 person concerned has the right to choose, it is generally admitted that this requirement is such as to strongly dissuade him or her from contemplating the step of professional migration to a Member State other than the one in which he or she obtained his or her diploma, especially if it is a matter of pursuing in that other state exactly the same activities as he or she had been pursuing up to that time. [FN33] FN33 See, to that effect, the report of February 15, 1996 by the Commission of the European Communities to the European Parliament and the Council on the state of application of the general system for the recognition of higher education diplomas, made in accordance with Art.13 of Directive 89/48 (COM(1996) 46 final, pp.14, 15 and 21). See also N. Parkins, " Directive 89/48/CEE: progrès sur la voie de la mise en oeuvre", Reconnaissance générale des diplômes et libre circulation des professionnels (Institut Européen d'Administration Publique, 1992), pp.47 and 48. AG78 In the light of all these developments, I consider that the reply to the first question should be that the combined provisions of Art.3(a) and the second indent of the first sub-paragraph of Art.4(1)(b) of the Directive do not preclude the competent authorities of a Member State, when they receive an application from the holder of a diploma awarded in another Member State for permission to take up a profession, the taking-up or pursuit of which is subject in that host Member State to possession of a diploma, from partly admitting such an application, if the person concerned agrees, by waiving the obligation to complete an adaptation period or take an aptitude test and restricting the scope of the permission they grant accordingly to cover only those activities of that profession which the applicant's diploma entitles him or her to take up in accordance with the regulations in force in the Member State in which it was awarded, and to exclude the other activities covered by that profession in accordance with the regulations applicable in the said host Member State.

B -- The second question AG79 By its second question, the referring court seeks, essentially, to ascertain whether Arts 39 and 43 EC are to be interpreted as meaning that a host Member State may not, in those circumstances, preclude its competent authorities from granting permission to take up part of the activities covered by a regulated profession in its territory, such as the profession of civil engineer, on the ground that, according to the definition of that profession adopted by the said host Member State in its national regulations, the

activities covered by that profession are inseparable, with the result that authorisation to take up the profession would necessarily have to extend to all the activities it covers. AG80 In my view, a number of factors suggest that the reply to that question should be in the affirmative. AG81 Admittedly, the second paragraph of Art.43 EC provides that freedom of establishment is to be exercised under the conditions which the legislation of the country of establishment lays down for its own nationals. It follows that, where the taking-up or pursuit of a specific activity is subject to such conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with those conditions. [FN34] FN34 See, in particular, Gebhard (C-55/94): [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603 at [33]-[36]; and Mac Quen (C-108/96): [2001] E.C.R. I-837; [2002] 1 C.M.L.R. 29 at [25]. AG82 That being so, while it is true that, in the absence of harmonisation of the conditions for taking up the activities of engineer at issue in the main proceedings, the Member States alone remain, in principle, competent to define such conditions, *731 in accordance with settled case law they must nonetheless, when exercising their powers in this area, respect the basic freedoms guaranteed by the Treaty, such as those enshrined in Arts 39 and 43 EC. [FN35] FN35 See, in particular, De Castro Freitas and Escallier (C 193 & 194/97): [1998] E.C.R. I-6747 at [23]; Corsten (C-58/98): [2000] E.C.R. I-7919 at [31]; and Mac Quen at [24]. AG83 According to the court's case law, however, national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty, such as those enshrined in Arts 39 and 43 EC, can be justified only if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective. [FN36] FN36 See, in particular, on the free movement of persons, Kraus (C-19/92): [1993] E.C.R. I-1663 at [32]; and, on freedom of establishment, Gebhard at [37]; Centros (C-212/97): [1999] E.C.R. I-1459; [1999] 2 C.M.L.R. 551 at [34]; Mac Quen at [26]; and Gambelli (C-243/01): [2003] E.C.R. I-13031; [2006] 1 C.M.L.R. 35 at [64]. AG84 Where a regulation of a host Member State, in defining the scope of the activities covered by a regulated profession in its territory, has the effect of precluding the competent authorities of that state from granting permission to take up part of the activities covered by that profession, it is clear that that regulation (such as the regulation at issue in the main proceedings) is liable to hinder or make less attractive the exercise of freedom of movement and freedom of establishment. AG85 While it is true that that regulation applies without distinction to nationals of the host Member State and to those of other Member States, I find it difficult to see how it can be justified by overriding reasons based on a general interest, such as the protection of consumers. AG86 I am not convinced that, as the national regulation at issue in the main proceedings provides, all the activities covered by the profession of civil engineer form an inseparable whole, with the result that it is impossible to separate the activity of hydraulic engineer from the other activities covered by the said profession.

AG87 In principle, there is no objective reason, for example, why the design and construction of hydraulic installations should not be separated from the design and construction of inland transport infrastructures. That is clear from the situation in Italy, since the specific activities covered by the profession of hydraulic engineer are separated in that Member State from the other activities which are covered by the profession of civil engineer in Spain. Thus, permission to take up part of the profession of civil engineer, as regulated in Spain, does not appear to diminish in any way the ability of a person who holds a diploma in hydraulic engineering awarded in another Member State to perform in the host Member State the activities which his or her diploma entitles him or her to take up in the Member State of origin. AG88 It is consequently doubtful whether the Spanish regulation at issue meets an objective need to protect consumers. AG89 Moreover, even supposing that this national regulation reflects a concern to protect consumers inasmuch as it precludes the possibility of their being misled as to the extent of the professional qualifications of the persons concerned, any such *732 risk could be reduced by allowing the host Member State to require them, for example, to use their professional title or academic title deriving from their Member State of origin, in the language of that state where appropriate, and not to use the professional title of the host Member State. [FN37] Any such measure would be less restrictive, with regard to the free movement of persons and freedom of establishment, than to preclude any decision granting the right to take up part of the regulated profession concerned. FN37 See points AG66 and AG67 of this opinion. AG90 I therefore take the view that the reply to the second question should be that Arts 39 and 43 EC are to be interpreted as meaning that a host Member State may not, in those circumstances, preclude its competent authorities from granting permission to take up part of the activities covered by a regulated profession in its territory, such as the profession of civil engineer, solely on the ground that, according to the definition of that profession adopted by the said host Member State in its national regulations, the activities covered by that profession are inseparable, with the result that authorisation to take up the profession would necessarily have to extend to all the activities it covers.

V -- Conclusion AG91 In the light of the foregoing considerations, I propose that the court give the following answer to the questions referred by the Tribunal Supremo: 1) The combined provisions of Art.3(a) and the first sub-paragraph of the second indent of Art.4(1)(b) of Council Directive 89/48 do not preclude the competent authorities of a Member State, when they receive an application from the holder of a diploma awarded in another Member State for permission to take up a profession, the taking-up or pursuit of which is subject in that host Member State to possession of a diploma, from partly admitting such an application, if the person concerned agrees, by waiving the obligation to complete an adaptation period or take an aptitude test and restricting the scope of the permission they grant accordingly to cover only those activities of that profession which the applicant's diploma entitles him or her to take up in accordance with the regulations in force in the Member State in which it was awarded, and to exclude the other activities covered by that profession in accordance with the regulations applicable in the said host Member State. 2) Articles 39 and 43 EC are to be interpreted as meaning that a host Member State may not, in those circumstances, preclude its competent authorities from granting permission

to take up part of the activities covered by a regulated profession in its territory, such as the profession of civil engineer, solely on the ground that, according to the definition of that profession adopted by the said state in its national legislation, the activities covered by that profession are inseparable, with the result that authorisation to take up the profession would necessarily have to extend to all the activities it covers. *733 JUDGEMENT 1 This reference for a preliminary ruling relates to the interpretation of Arts 3(a) and 4(1) of Council Directive 89/48 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 ([1989] O.J.L19/16) ("the Directive") and Arts 39 EC and 43 EC. 2 The reference was made in the context of proceedings between the Colegio de Ingenieros de Caminos, Canales y Puertos (Institution of Civil Engineers) ("the Colegio") and the Administración del Estado (State Administration) relating to an application by Mr Imo, an Italian national and holder of a civil engineering diploma, with a specialisation in hydraulic engineering, awarded in Italy, for the purpose of allowing him to carry on the profession of civil engineer in Spain. Legal framework Community legislation 3 The Directive aims to put in place a method of recognition of diplomas so as to enable Community nationals to pursue all those professional activities which in a host Member State are dependent on the completion of post-secondary education and training, provided they hold such a diploma preparing them for those activities awarded on completion of a course of studies lasting at least three years and awarded in another Member State. 4 According to Art.1(c) of the Directive, "regulated profession" means "the regulated professional activity or range of activities which constitute this profession in a Member State". 5 The first paragraph of Art.3 of the Directive provides: "Where, in a host Member State, the taking-up or pursuit of a regulated profession is subject to possession of a diploma, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue that profession on the same conditions as apply to its own nationals: (a) if the applicant holds the diploma required in another Member State for the taking-up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State ..." 6 Article 4(1) of the Directive provides: "Notwithstanding Article 3, the host Member State may also require the applicant: (a) to provide evidence of professional experience, where the duration of the education and training adduced in support of his application, *734 as laid down in Article 3(a) and (b), is at least one year less than that required in the host Member State ... ... (b) to complete an adaptation period not exceeding three years or take an aptitude test: -- where the matters covered by the education and training he has received as laid down in Article 3(a) and (b), differ substantially from those covered by the diploma required in the host Member State, or -- where, in the case referred to in Article 3(a), the profession regulated in the host

Member State comprises one or more regulated professional activities which are not in the profession regulated in the Member State from which the applicant originates or comes and that difference corresponds to specific education and training required in the host Member State and covers matters which differ substantially from those covered by the diploma adduced by the applicant ..." 7 Article 7 of the Directive regulates the right of persons benefiting from the Community system for recognition of diplomas to use their professional titles and academic titles. Article 7(1) and (2) provide as follows: "1. The competent authorities of host Member States shall recognise the right of nationals of Member States who fulfil the conditions for the taking-up and pursuit of a regulated profession in their territory to use the professional title of the host Member State corresponding to that profession. 2. The competent authorities of host Member States shall recognise the right of nationals of Member States who fulfil the conditions for the taking-up and pursuit of a regulated profession in their territory to use their lawful academic title and, where appropriate, the abbreviation thereof deriving from their Member State of origin or the Member State from which they come, in the language of that State. Host Member State[s] may require this title to be followed by the name and location of the establishment or examining board which awarded it." National legislation 8 The Directive was transposed into Spanish law by Royal Decree 1665/1991 of October 25, 1991 governing the general system for recognition of higher education diplomas awarded in Member States of the European Union requiring a course of studies lasting at least three years (BOE No.280 of November 22, 1991, p.37916). Articles 4 and 5 of that decree reproduce essentially the provisions of Arts 3 and 4 of the Directive. 9 Under Spanish legislation, the profession of civil engineer (" ingeniero de caminos, canales y puertos") covers a broad range of activities, such as the design and construction of hydraulic installations, land, sea and inland waterway transport infrastructures, conservation of beaches and town and country planning, including town planning. The order for reference indicates that the profession is a regulated *735 one, with the taking-up and pursuit thereof being subject to the possession of either a Spanish diploma awarded following six years of specific post-secondary education and training or an equivalent background acquired in another Member State and recognised by the Ministry of Development. Anyone wishing to pursue the profession of civil engineer in Spain must first become a member of the Colegio, for which the applicant must have the aforementioned education and training. The main proceedings and the questions referred for a preliminary ruling 10 Mr Imo holds the diploma of laurea in ingegneria civile idraulica (civil engineer specialising in hydraulics), awarded in Italy and conferring the right, in Italy, to pursue the profession of civil engineer specialising in hydraulics. On June 27, 1996, he filed an application with the Spanish Ministry of Development for recognition of his diploma in order to take up the profession of civil engineer in Spain. 11 By order of November 4, 1996, the Ministry of Development recognised Mr Imo's diploma and granted him unconditional permission to take up the profession of civil engineer. 12 The Colegio brought an action for annulment of that order before the Audiencia Nacional (National High Court). During the proceedings, it emphasised the fundamental

difference between the profession of civil engineer in Spain and that of civil engineer specialising in hydraulics in Italy, in terms of both the education and training and the scope of activities included in each of those professions. 13 By judgment of April 1, 1998, the Audiencia Nacional dismissed the action, on the grounds, inter alia, that the diploma of civil engineer specialising in hydraulics conferred, in Italy, the right to take up the same profession as that of civil engineer in Spain. That court also noted that the education and training received by the holder of the diploma in civil engineering included the core subjects required in Spain for the branch of the engineering profession in question. 14 The Colegio brought an appeal against that judgment before the Tribunal Supremo. That court found at the outset that there were important material differences between the two courses of education and training and that the assessment done by the Audiencia Nacional was therefore incorrect. 15 In those circumstances, the Tribunal Supremo decided to stay proceedings and to refer the following questions to the court for a preliminary ruling: "1. Can Article 3(a), [read] in conjunction with Article 4(1), of Directive 89/48 ... be construed in such a way as to permit restricted recognition by a host Member State of the professional qualifications of an applicant who possesses the diploma of Ingegnere civile idraulico (civil engineer specialising in hydraulics) (awarded in Italy) and who wishes to pursue that profession in another Member State whose legislation regulates the profession of Ingeniero de Caminos, Canales y Puertos (civil engineer)? The question is based on the assumption that, in the host Member State, the latter profession includes activities that do not always correspond to the applicant's diploma and that the education and training attested by that diploma does not include certain core subjects which are generally required in order to obtain the *736 qualification of Ingeniero de Caminos, Canales y Puertos (civil engineer) in the host Member State. 2. Should the reply to the first question be in the affirmative, is it compatible with Articles 39 and 43 EC to restrict the right of applicants who seek to pursue their professions, in a self-employed or employed capacity, in a Member State other than the one in which they were awarded their professional qualification, in such a way that the host Member State is entitled to exclude, under its national legislation, restricted recognition of professional qualifications where such a decision, which in principle implements Article 4 of Directive 89/48, entails the imposition of certain additional, disproportionate requirements as regards pursuit of the profession? For these purposes, 'restricted recognition' is understood to mean recognition which authorises an applicant to work as an engineer only in the equivalent sector (hydraulics) of the more general profession of Ingeniero de Caminos, Canales y Puertos (civil engineer) regulated in the host Member State, without requiring him to fulfil the additional requirements laid down in Article 4(1)(b) of Directive 89/48.. ..." The questions referred for a preliminary ruling The first question 16 By its first question, the national court asks essentially whether, when the holder of a diploma awarded in one Member State applies for permission to take up a regulated profession in another Member State, the competent authorities of that Member State are precluded by the Directive from partly allowing that application, subject to certain conditions, by limiting the scope of the permission to the activities which that diploma allows to be taken up in the Member State in which it was obtained. 17 In order to answer that question, it is appropriate to examine, first, the wording of the

provisions of the Directive, secondly, the system and overall scheme thereof and, thirdly, the objectives pursued by it. 18 First of all, it should be borne in mind that the wording of the Directive does not explicitly authorise or prohibit partial recognition of professional qualifications as referred to in the order for reference. The prohibition laid down in Art.3(a) of the Directive does not preclude such partial recognition, since a decision taken following an application by a party concerned, allowing him to take up only part of the range of activities covered by the regulated profession in the host state, cannot be equated with a "refusal to allow the taking-up" of that profession. 19 Next, regarding the scheme of the Directive, the system of mutual recognition of diplomas established by the Directive does not imply that diplomas awarded by the other Member States certify that the education and training are similar or comparable to that required in the host Member State. According to the system established by the Directive, a diploma is not recognised on the basis of the intrinsic value of the education and training to which it attests, but because it gives the right to take up a regulated profession in the Member State where it was awarded or recognised. Differences in the organisation or content of education and training acquired in the Member State of origin by comparison with that provided *737 in the host Member State are not sufficient to justify a refusal to recognise the professional qualification concerned. At most, where those differences are substantial, they may justify the host Member State's requiring that the applicant satisfy one or other of the compensatory measures set out in Art.4 of that directive (see, to that effect, Beuttenmüller (C-102/02): [2004] E.C.R. I-5405 at [52]). 20 It follows that, as rightly pointed out by the Advocate General in points AG40 to AG43 of his opinion, the expression "the profession in question", employed in Art.3(a) of the Directive, must be construed as covering professions which, in the Member State of origin and the host Member State, are identical or analogous or, in some cases, simply equivalent in terms of the activities they cover. This interpretation is corroborated by the second indent of Art.4(1)(b) of the Directive. In the cases to which that provision refers, the competent national authorities are required to take account of each of the activities covered by the profession in question in both Member States concerned, in order to determine whether it is "the profession in question" and, if so, whether one of the compensatory measures provided for by that provision should be applied. That means that, although the Directive treats a regulated profession as a whole, it nevertheless recognises that there are, in reality, separate professional activities and corresponding education and training. It follows that a case-by-case approach, tailored to each of the professional activities covered by a regulated profession, is not contrary to or beyond the scope of the general scheme of the Directive. 21 The opposite position, advocated in this respect by the Spanish and Swedish Governments, cannot be accepted. Although the first paragraph of Art.3 of the Directive lays down the right of a national of a Member State who holds a diploma referred to by the Directive "to take up or pursue [the] profession [covered by that diploma] on the same conditions as apply to its own nationals", that provision cannot be interpreted as leading, in every case and without exception, to an authorisation of unfettered taking-up of all the activities covered by that profession in the host Member State. As stated essentially by the Advocate General in points AG48 to AG53 of his opinion, that expression merely reflects the fundamental principles of non-discrimination and mutual trust, inherent in the Community system for recognising diplomas. 22 Article 7(1) of the Directive provides that the competent authorities of the host Member State are to recognise the right of nationals of other Member States who fulfil the conditions for the taking-up and pursuit of a regulated profession in their territory to use the professional title of the host Member State corresponding to that profession.

That provision, which covers the practical consequences of the application of the rules provided for in Arts 3 and 4 of that same directive, is intended to facilitate the placing of nationals of other Member States who have obtained their diplomas there on an equal footing with nationals of the host Member State who have acquired their professional qualifications in the latter state. However, the recognition of the right to use that professional title provided for in Art.7(1) is possible only when the parties concerned fulfil all of the conditions for the taking-up and pursuit of the profession in question. 23 Lastly, the foregoing reasoning is fully supported by a teleological interpretation of the Directive. It is apparent from the third and 13th recitals in the preamble to the Directive that its primary objective is to make it easier for persons holding *738 diplomas awarded in a Member State to take up corresponding professional activities in the other Member States and to strengthen the right of European nationals to utilise their professional expertise in any Member State. The court also notes that the Directive was adopted on the basis of Art.57(1) of the EC Treaty (now, after amendment, Art.47(1) EC). It is apparent from the wording of the latter provision that the purpose of directives such as the one at issue in the present proceedings is to facilitate the mutual recognition of diplomas, certificates and other evidence of formal qualifications by laying down rules and common criteria which result, as far as possible, in automatic recognition of those diplomas, certificates and other evidence of formal qualifications. However, it is not the purpose of those directives to make recognition of such diplomas, certificates and other evidence of formal qualifications more difficult in situations falling outside their scope, nor may they have such an effect ( Dreessen (C-31/00): [2002] E.C.R. I-663; [2002] 2 C.M.L.R. 62 at [26]). 24 The court notes that the scope of Art.4(1) of the Directive, which expressly authorises compensatory measures, must be restricted to those cases where they are proportionate to the objective pursued. In other words, although those measures are expressly authorised, they may, in certain cases, be a highly dissuasive factor for a national of a Member State exercising his rights under the Directive. An adaptation period and an aptitude test both call for considerable time and effort on the part of the party concerned. A non-application of those measures might be significant, and even decisive, for a national of one Member State wishing to take up a regulated profession in another Member State. In cases such as those at issue in the main proceedings, partial taking-up of the profession in question, granted at the request of the party concerned, dispensing that party from having to comply with the compensatory measures and allowing him or her to take up immediately professional activities for which he or she is already qualified, would be in keeping with the objectives pursued by the Directive. 25 It therefore follows that the wording, scheme and objectives of the Directive do not preclude the possibility of partial taking-up of a regulated profession as described in the order for reference. It could of course be argued, as the Spanish and Swedish Governments have done, that such partial taking-up could entail a risk of multiplication of the professional activities pursued independently by nationals of other Member States, thereby giving rise also to a certain degree of confusion in the minds of consumers. However, that potential risk does not lead to a finding that partial recognition of professional qualifications is incompatible with the Directive. There are sufficient ways of remedying that problem, such as the possibility of requiring the persons concerned to mention the names and locations of the establishments or examining boards which awarded their academic titles. Likewise, the host Member State can always require the persons concerned to use, in all of their legal and commercial dealings in its territory, the respective academic title or professional title in the original language and form, as well as the translation into the language of the host Member State, in order to ensure that it is understood and to avoid all risk of confusion.

26 In the light of all the foregoing, the answer to the first question must be that when the holder of a diploma awarded in one Member State applies for permission to take up a regulated profession in another Member State, the authorities of that *739 Member State are not precluded by the Directive from partly allowing that application, if the holder of the diploma so requests, by limiting the scope of the permission to those activities which that diploma allows to be taken up in the Member State in which it was obtained. The second question 27 By its second question, the national court asks essentially whether, in the circumstances which gave rise to the main proceedings, Arts 39 and 43 EC prevent the host Member State from excluding the possibility of partial taking-up of a regulated profession, restricted to the pursuit of one or more activities covered by that profession. 28 It should be borne in mind that the second paragraph of Art.43 EC provides that freedom of establishment is to be exercised under the conditions which the legislation of the country of establishment lays down for its own nationals. It follows that, where the taking-up or pursuit of a specific activity is regulated in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with those conditions (Gebhard (C-55/94): [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603 at [36]; and Mac Quen (C-108/96): [2001] E.C.R. I-837; [2002] 1 C.M.L.R. 29 at [25]). 29 The conditions for taking up the profession of civil engineer have not thus far been the subject of harmonisation at Community level. That being so, the Member States retain the power to define those conditions, as the Directive does not restrict their powers on this point. They must, however, exercise their powers in this area in a manner which respects the basic freedoms guaranteed by the EC Treaty (see De Castro Freitas and Escallier (C 193 & 194/97): [1998] E.C.R. I-6747 at [23]; Corsten (C-58/98): [2000] E.C.R. I-7919 at [31]; and Mac Quen at [24]). 30 It is settled case law that national measures liable to hinder or make less attractive the exercise of those freedoms can be justified only if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see, inter alia, Kraus (C-19/92): [1993] E.C.R. I-1663 at [32]; Gebhard at [37]; Haim (C-424/97): [2000] E.C.R. I-5123; [2002] 1 C.M.L.R. 11 at [57]; and Mac Quen at [26]). 31 In cases such as the present one, legislation of a host Member State which precludes any possibility for the authorities of that state to allow partial taking-up of a profession is liable to hinder or make less attractive the exercise of both the freedom of movement of persons and the freedom of establishment, even though that legislation is applicable without distinction to the nationals of the host Member State and those of other Member States. 32 Regarding the objective of the legislation at issue in the main proceedings, the court acknowledges that, as pointed out by the Spanish and the Swedish Governments, partial recognition of professional qualifications could, theoretically, have the effect of fragmenting the professions regulated in a Member State into various activities. That would lead essentially to a risk of confusion in the minds of the recipients of services, who might well be misled as to the scope of *740 those qualifications. The protection of the recipients of services, and consumers in general, has already been held by the court to be capable of justifying restrictions on the freedom of establishment and the freedom to provide services (Commission v France (220/83): [1986] E.C.R. 3663; [1987] 2 C.M.L.R. 113 at [20]; Läärä (C-124/97): [1999] E.C.R. I-6067; [2001] 2 C.M.L.R. 14 at

[33]; and Anomar (C-6/01): [2003] E.C.R. I-8621; [2004] 1 C.M.L.R. 43 at [73]). 33 It is also necessary that measures based on such an objective must not go beyond what is necessary in order to attain that objective. As pointed out by the Commission of the European Communities, it is appropriate to draw a distinction between two different situations which are likely to arise when the authorities of a Member State are presented with an application for recognition of a professional qualification awarded in another Member State and when the difference in content of the education or training or in the activities covered by the profession in question in the two states prevents full and immediate recognition. It is appropriate to distinguish between cases which may be resolved using the means provided for by the Directive and those which cannot. 34 The first scenario concerns cases where, in the Member State of origin and the host Member State, the degree of similarity between the two professions is such that they both may be regarded as "the profession in question" within the meaning of Art.3(a) of the Directive. In such a case, any shortcomings in the applicant's education or training in relation to that required in the host Member State may be effectively made up for through the application of the compensatory measures provided for in Art.4(1) of the Directive, thereby ensuring full integration of the party concerned into the professional system in the host Member State. 35 The second scenario, by contrast, concerns cases which, as rightly pointed out by the Commission, are not covered by the Directive because the differences between the fields of activity are so great that in reality the full programme of education and training is required. Viewed objectively, this is a factor which is liable to discourage the party concerned from pursuing, in another Member State, one or more activities for which he or she is qualified. 36 It is for the authorities and, in particular, the competent courts in the host Member State to determine, in each specific case, to what extent the content of the education and training obtained by the party concerned is different from that required in that state. In the present case, the Tribunal Supremo found that the content of the education and training required, respectively, for the profession of civil engineer specialising in hydraulics in Italy and the profession of civil engineer in Spain involves differences which are so great that the application of a compensatory measure or adaptation requirement would in effect amount to requiring the party concerned to complete a fresh, complete programme of education and training. 37 Moreover, in specific cases such as the present, one of the decisive issues is whether the professional activity which the party concerned wishes to pursue in the host Member State may, objectively, be separated from the rest of the activities covered by the corresponding profession in that state. It is first and foremost up to the national authorities to answer that question. However, as noted by the Advocate General in points AG86 and AG87 of his opinion, one of the decisive criteria in this respect is the issue of whether that activity may be pursued, *741 independently or autonomously, in the Member State where the professional qualification in question was obtained. 38 When the activity in question may objectively be separated from the rest of the activities covered by the profession in question in the host Member State, the conclusion is that the dissuasive effect caused by the preclusion of any possibility of partial recognition of the professional qualification in question is too serious to be offset by the fear of potential harm to recipients of services. In such a case, the legitimate objective of protection of consumers and other recipients of services may be achieved through less restrictive means, particularly the obligation to use the professional title of origin or the academic title both in the language in which it was awarded and in its original form, and in the official language of the host Member State. 39 Accordingly, the answer to the second question must be that Arts 39 EC and 43 EC

do not preclude a Member State from not allowing partial taking-up of a profession, where shortcomings in the education or training of the party concerned in relation to that required in the host Member State may be effectively made up for through the application of the compensatory measures provided for in Art.4(1) of the Directive. However, Arts 39 EC and 43 EC do preclude a Member State from not allowing that partial taking-up when the party concerned so requests and the differences between the fields of activity are so great that in reality a full programme of education and training is required, unless the refusal for that partial taking-up is justified by overriding reasons based on the general interest, suitable for securing the attainment of the objective which they pursue and not going beyond what is necessary in order to attain that objective. Costs 40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the court, other than the costs of those parties, are not recoverable. R1 Order On those grounds, the Court ( FIRST CHAMBER) HEREBY RULES: 1. When the holder of a diploma awarded in one Member State applies for permission to take up a regulated profession in another Member State, the competent authorities of that Member State are not precluded by Council Directive 89/48 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 from partly allowing that application, if the holder of the diploma so requests, by limiting the scope of the permission to those activities which that diploma allows to be taken up in the Member State in which it was obtained. 2. Articles 39 EC and 43 EC do not preclude a Member State from not allowing partial taking-up of a profession, where shortcomings in the education or training of the party concerned in relation to that required in *742 the host Member State may be effectively made up for through the application of the compensatory measures provided for in Art.4(1) of Directive 89/48. However, Arts 39 EC and 43 EC do preclude a Member State from not allowing that partial taking-up when the party concerned so requests and the differences between the fields of activity are so great that in reality a full programme of education and training is required, unless the refusal for that partial taking-up is justified by overriding reasons based on the general interest, suitable for securing the attainment of the objective which they pursue and not going beyond what is necessary in order to attain that objective.

(c) Sweet & Maxwell Limited [2006] 2 C.M.L.R. 26