Freedom of movement for workers and recognition of diplomas

This judgment was given as a result of a preliminary ruling made on proceedings between the parties above. Mr Imo is an Italian national who has a civil engineering diploma with a specialisation in hydraulic engineering. The diploma was awarded in Italy. Mr Imo had applied for permission to carry out work as a civil engineer in Spain.

Council Directive 89/48/EEC of 21 December 1988 contains a general system for recognising higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ [1989], L 19/16) (hereinafter the “Directive”). The Directive aims to put in place a method of recognition of diplomas so that Community nationals are able to pursue professional activities which are dependent in a host Member State on the completion of post-secondary education and training, provided they hold the relevant diploma awarded upon completion of a course of studies lasting at least three years and awarded in another Member State.

The Directive sets forth that the competent authorities in the host Member State are to recognise that nationals of other Member States, who fulfil the conditions for pursuing and taking up a regulated profession in their territory, have the right to use the professional title of the host Member State corresponding to that profession. It should be emphasized that the recognition of this right is possible only when the parties concerned fulfil certain compensatory measures conditions for taking-up and pursuing the profession in question.

Any compensatory measures applied by the Member States must be restricted to cases where they are proportionate to the objective pursued. Partial taking-up of the profession in question (granted at the request of the party concerned), relieving that party from the duty to comply with the compensatory measures, and allowing him/her to take up immediately professional activities for which he is already qualified, is in line with the goal of the Directive.

In the light of all the foregoing, it was stated 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 Member State may partly allow that application upon a respective request of the diploma holder. This may be done 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.

Further the European Court of Justice (hereinafter the “ECJ”) examined whether Articles 39 and 43 of the EC Treaty preclude Member States from partial recognition of qualifications. The court emphasized that while imposing any additional conditions regarding such recognition, they must exercise their powers in this area in a manner which respects the basic freedoms guaranteed by the EC Treaty. However, it must be borne in mind that national measures that are liable to hinder or make exercise of those freedoms less attractive can be justified only if they fulfil four conditions: they must be applied non-discriminatorily, justified by overriding reasons based on the general interest, 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.

Therefore, it must be stated that Articles 39 and 43 of the EC Treaty do not prevent a Member State from 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 application of the compensatory measures provided by the Directive. However, the cited Articles do preclude a Member State from allowing such partial take-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 such partial take-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.