Teresa Fernádez de Bobadilla v. Museo Nacional del Prado and Others (Case C-234/97)

Before the Court of Justice of the European

Communities

ECJ

(Presiding, RodrÍguez Iglesias, P.; Puissochet, Hirsch and Jann, PP.C.,

Gulmann, Murray, Edward ( Rapporteur), Ragnemalm and Sevón, JJ.) Mr Nial

Fennelly, Advocate General.

8 July 1999 Reference from Spain by the Juzgado de lo Social No. 4 de Madrid (Social Court

No. 4, Madrid) under Article 177 of the E.C. Treaty (now Article 234 E.C.). Employment--qualifications--collective agreements--Directives 89/48 and 92/51--regulated professions--Article 39 E.C.--restorer of cultural property-- collective agreement requiring specific qualifications for post of restorer-- application to have qualifications obtained in another Member State recognised as being equivalent to a Spanish degree--requirement to demonstrate sufficient knowledge through examinations--whether contrary to Article 39 E.C.--whether profession was a regulated profession. F was a Spanish national resident in Madrid who undertook, with the help of a grant from the Prado, postgraduate studies in fine arts restoration at Newcastle upon Tyne Polytechnic in the United Kingdom, obtaining a Master of Arts degree in 1989. From 1989 to 1992 she worked for the Prado as a restorer of works on paper under a temporary contract. One of the terms of a collective agreement entered into by the Prado and staff representatives provided that the post of restorer was to be reserved for persons who possessed the qualification awarded by the restoration department of the Faculty of Fine Arts or by the School of Arts as applied to the restoration of works of art, or any other foreign qualification officially recognised by the competent body. However, when F applied to have her degree officially recognised as equivalent to the Spanish degree in the conservation and restoration of cultural assets, she was informed that she would have to demonstrate sufficient knowledge of 24 subjects through examinations.

In the meantime, the Prado organised a competition to fill a vacancy for a permanent post as restorer of works of art on paper and F's application was rejected on the grounds that she did not fulfil the requirements laid down in the collective agreement. F *152 brought an action before the national courts for annulment of the provision in the collective agreement, claiming that the requirements contained therein amounted to a barrier to the right to free movement for workers protected by Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.). In those circumstances, the national court stayed proceedings and referred to the Court of Justice for a preliminary ruling the question whether the provision requiring, prior to pursuit of the profession of restorer, prior validation of qualifications obtained in another Member State infringed the right to freedom of movement for workers. Held: (1) Article 39 E.C. and Directives 89/48 and 92/51 (a) Community law did not preclude a public body such as the Prado from making the assignment of a post conditional on a candidate's possessing one or more qualifications to demonstrate suitability to the post provided that the requirement did not constitute an unjustified barrier to the effective exercise of the fundamental freedoms guaranteed by Article 39 E.C. However, where the profession in question was a "regulated profession", public bodies had to comply with Directive 89/48, concerning a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years' duration, and Directive 92/51, which supplemented Directive 89/48. Under the terms of those Directives, an activity constituted a regulated profession where the conditions for taking up or pursuing that activity were directly or indirectly governed by legal provisions, whether laws, regulations or administrative provisions. (b) The terms of collective agreement which governed the right to take up or pursue a profession could constitute "laws, regulations or administrative provisions" for the purposes of Directives 89/48 and 92/51, particularly where they were the result of a single administrative policy laid down at national level. Moreover, a collective agreement entered into by a public body could be deemed to govern the right to take up a profession where its terms were sufficiently general in scope and therefore common to other collective agreements entered into by other public bodies of the same kind. [11]-[23] (2) Whether the profession was a regulated profession for the purposes of Directives 89/48 and 92/51 It was for the national court to determine the scope of the rule governing the professional requirements for the post of restorer of cultural assets, in order to establish whether the right to take up that profession was regulated for the purposes of Directives 89/48 and 92/51. If either of those two Directives applied, it then had to be determined whether F fulfilled the conditions laid down in the

*153 Directive concerned so as to establish whether she could apply for a permanent position as restorer of cultural assets. Moreover, if one of the Directives were applicable, a public body could not require that a candidate's qualifications be granted official recognition by the competent national authorities. [24]-[27] (3) The procedure to be followed where the Directives did not apply (a) If the Directives were not applicable, access to the post could in principle be restricted to candidates holding qualifications awarded by educational establishments in that Member State or any other officially recognised foreign qualification. However, the procedure for granting official recognition to qualifications awarded in other Member States had to comply with the requirements of Community law. Accordingly, the competent authorities had to take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned had acquired by comparing the specialised knowledge and abilities certified by those diplomas with the knowledge and qualifications required by the national rules. If that comparison revealed that the knowledge and qualifications of the diploma awarded in another Member State corresponded, that diploma had to be recognised as fulfilling the requirements laid down by its national provisions. If not, the competent authorities were entitled to require the person concerned to show that he had acquired the knowledge and qualifications which were lacking, by assessing the candidate's knowledge either during a course of study or by way of practical experience. [28]-[33] (b) Where no general procedure for official recognition had been laid down at national level, it was for the public body seeking to fill the post itself to investigate whether the diploma in question together with practical experience, was to be regarded as equivalent to the qualification required. Such an obligation was all the more necessary where, as in the case before the Court, the public body in question had made a grant to the candidate to enable him to pursue his studies in another Member State and had already employed him on a temporary basis. [34]-[35] Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg ( Case C-340/89): [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221 followed. Representation José Maria Villalvilla Muñoz, of the Madrid Bar, for Ms Fernández de Bobadilla. JoaquÍn Sánchez-Covisa Villa, Teniente Fiscal at the High Court of Justice of the Madrid Community, for the Ministerio Fiscal. Santiago Ortiz Vaamonde, Abogado del Estado, acting as Agent, for the Spanish Government. Holger Rotkirch, Ambassador, Head of the Legal Service in the Ministry of Foreign Affairs, acting as Agent, for the Finnish Government. *154

Pieter Jan Kuijper, Legal Adviser, and Isabel MartÍnez del Peral, of its Legal Service, acting as Agents, for the E.C. Commission. Cases referred to in the judgment: 1. Aranitis v. Land Berlin (C-164/94), 1 February 1996: [1996] E.C.R. I-135. 2. E.C. Commission v. Denmark (143/83), 30 January 1985: [1985] E.C.R. 427; [1986] 1 C.M.L.R. 44. 3. Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg (C-340/89), 7 May 1991: [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221. 4. Kraus v. Land Baden-Württemberg (C-19/92), 31 March 1993: [1993] E.C.R. I-1663. Further cases referred to by the Advocate General: 5. Walrave and Koch v. Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie and Federacion Española Ciclismo (36/74), 12 December 1974: [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320. 6. Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others (C-415/93), 15 December 1995: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645; [1996] All E.R. (E.C.) 97. 7. E.C. Commission v. France (C-154/89), 26 February 1991: [1991] E.C.R. I-659. 8. E.C. Commission v. Greece (C-198/89), 26 February 1991: [1991] E.C.R. I-727. 9. Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v. Heylens and Others (222/86), 15 October 1987: [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901. 10. Foster and Others v. British Gas Plc (C-188/89), 12 July 1990: [1990] E.C.R. I-3313; [1990] 2 C.M.L.R. 833. 11. Kalliope Schöning-Kougebetopoulou v. Freie und Hansestadt Hamburg (C-15/96), 15 January 1998: [1998] E.C.R. I-47; [1998] 1 C.M.L.R. 931; [1998] All E.R. (E.C.) 97. 12. E.C. Commission v. Spain (C-375/92), 22 March 1994: [1994] E.C.R. I- 923; [1994] 3 C.M.L.R. 500. 13. Colegio Oficial de Agentes de la Propiedad Immobiliaria v. Borrell and Others (C-104/91), 7 May 1992: [1992] E.C.R. I-3003. 14. Patrick v. Ministre des Affaires Culturelles (11/77), 28 June 1977: [1977] E.C.R. 1199; [1977] 2 C.M.L.R. 523. 15. Thieffry v. Conseil de L'Ordre des Avocats A la Cour de Paris (71/76), 28 April 1977: [1977] E.C.R. 765; [1977] 2 C.M.L.R. 373. 16. Ramrath v. Ministre de la Justice (C-106/91), 20 May 1992: [1992] E.C.R. I-3351; [1992] 3 C.M.L.R. 173 *155 . 17. E.C. Commission v. Italy (C-180/89), 26 February 1991: [1991] E.C.R. I-709. 18. Donà v. Mantero (13/76), 14 July 1976: [1976] E.C.R. 1333; [1976] 2

C.M.L.R. 578.

Opinion of Mr Advocate General Fennelly

Introduction 1. This case concerns the refusal of admission of a Spanish national, enjoying reputable qualifications in fine art restoration from a body in the United Kingdom, to a competition for a permanent post at the Museo Nacional del Prado (hereinafter "the Prado") in Madrid. It raises, in particular, the questions whether the terms of a collective agreement providing for the acceptance only of Spanish qualifications or their recognised equivalents are sufficient to establish the existence of a regulated profession within the meaning of Community secondary legislation on the recognition of professional qualifications, and whether the requirement in question, or the system of recognition of foreign qualifications, contravenes Article 48 of the E.C. Treaty.

Legal and factual context 2. The general Community regime on recognition of professional qualifications, which complements the secondary measures adopted in respect of specific professions, is set out 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 [FN1] and in Council Directive 92/51 on a second general system for the recognition of professional education and training to supplement Directive 89/48 [FN2] (hereinafter sometimes referred to together as "the Directives"). FN1 [1989] O.J. L19/16. FN2 [1992] O.J. L209/25. 3. The seventh recital in the preamble to Directive 89/48 states that "the term 'regulated professional activity' should be defined so as to take account of differing national sociological situations". It should, therefore, also extend the reservation of access to professional activities for the holders of certain qualifications; thus, "the professional associations and organisations which confer such titles on their members and are recognised by the public authorities cannot invoke their private status to avoid application of the system provided for by this Directive". 4. Article 1(e) of Directive 92/51 defines a "regulated profession" as "the regulated professional activity or range of activities which constitute this profession in a Member State". [FN3] Article 1(f) of that Directive defines a "regulated professional activity", in terms almost identical with Article 1(d) of Directive 89/48, in relevant part, as: *156 a professional activity the taking up or pursuit of which, 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 evidence of education and training or an attestation of competence. FN3 The same definition is to be found in Article 1(c) of Directive 89/48. It continues, to provide: The following in particular shall constitute a mode of pursuit of a regulated professional activity: -- pursuit of an activity under a professional title, in so far as the use of such a title is reserved to the holders of evidence of education and training or an attestation of competence governed by laws, regulations or administrative provisions, -- pursuit of a professional activity relating to health, in so far as remuneration and/or reimbursement for such an activity is subject by virtue of national social security arrangements to the possession of evidence of education and training or an attestation of competence. ... [FN4] FN4 Article 1(d) of Directive 89/48 provides a corresponding definition of regulated modes of pursuit of a professional activity, by reference to the need for possession of a diploma. The second sub-paragraph of Article 1(f) of Directive 92/51 provides that, where a professional activity is pursued by members of a private professional association or organisation which confers educational awards and titles and enforces rules of professional conduct, and which is recognised in a special form by a Member State in order to promote and maintain high professional standards, the professional activity in question is deemed to be regulated. [FN5] FN5 The second sub-paragraph of Article 1(d) of Directive 89/48 contains a similar provision, adjusted to the narrower scope of that Directive. 5. Pursuant to Article 3 of Directive 92/51, 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 those which apply to its own nationals, if that national satisfies one of two conditions: (a) if the applicant holds the diploma, as defined in this Directive or in Directive 89/48, 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,

or for an equivalent period on a part-time basis, during the previous 10 years in another Member State which does not regulate that profession within the meaning of either Article 1(e) and the first sub-paragraph of Article 1(f) of this Directive or Article 1(c) and the first sub-paragraph of Article 1(d) of Directive 89/48, and possesses evidence of education and training which [conforms to specified conditions]. The conditions referred to in sub-paragraph (b) are, in summary, that the evidence of education and training of the person concerned have *157 been awarded by a competent authority in a Member State, that it attest to successful completion of a post-secondary course of at least one year's duration, as well as any professional training which is an integral part of that course, and that it have prepared the holder for the pursuit of his profession. [FN6] However, a host Member State may require an applicant to provide evidence of professional experience where the period of education and training mentioned above is at least one year less than that required in the host Member State, [FN7] and to complete either an adaptation period of up to three years or to take an aptitude test where the theoretical and/or practical matters covered by his education and training differ substantially from those covered by the diploma required in the host Member State. [FN8] FN6 Article 3 of Directive 89/48 contains a similar, albeit narrower, provision. FN7 Article 4(1)(a) of Directive 92/51; see also Article 4(1)(a) of Directive 89/48. FN8 Article 4(1)(b) of Directive 92/51; see also Article 4(1)(b) of Directive 89/48. 6. The Prado is an autonomous administrative organ with legal personality attached to the Spanish Ministry of Culture and under the direct authority of the responsible Minister. Article 6 of the collective agreement concluded by the Prado with employee representatives in 1988 in respect of employees subject to labour law [FN9] provided that staff required to have a university-level qualification are to be recruited exclusively on the basis of the results of tests in a public competition. The agreement also provided that restorers must possess a title granted by one of two Spanish schools of restoration, or a foreign title recognised as equivalent by the competent body. [FN10] This condition appears to reflect the content of a series of ministerial decrees, the most recent being a decree of 14 March 1989 of the Minister for Education and Science, [FN11] Article 6 of which provided that the title of restorer of cultural goods be granted to persons who graduated from the Spanish school of conservation and restoration, which title was to be an indispensable condition for participation in competitions for posts as restorers in State centres. However, this decree was repealed by a decree of 28 October 1991 of the Minister for Education and Science, [FN12] and no similar condition now exists in Spanish law. Although the exercise of a profession is, in general terms, subject to regulation only by measures having the rank of laws in the Spanish hierarchy of norms, it appears from the order for reference, nonetheless, that collective agreements such as that in question

constitute one of the formal sources of law and may prescribe a particular qualification or level of studies for access to a specific professional category or post. Such conventions are binding erga omnes, at least in the sense that they *158 affect a person such as the applicant who does not have the prescribed qualification. FN9 Boletin Oficial de la Comunidad de Madrid, 1988, No. 105, Supplement. The agreement has been replaced by a similar agreement concluded in 1996, Boletin Oficial de la Comunidad de Madrid, 1996, No. 57, Supplement. A different legal regime is applicable to State officials, whose terms and conditions of employment are chiefly governed by public law. FN10 Annex I, Definition of professional categories, Group A, Subgroup II. FN11 B.O.E. of 18 March 1989, No. 66. FN12 B.O.E. of 1 November 1991, No. 262. 7. Royal Decree 104/88 of 29 January 1988 regarding recognition of foreign titles and studies provides for an expert committee to compare in every case the studies undertaken abroad and those prescribed in the same field in Spain for the grant of the title in question, and to make appropriate recommendations to the relevant minister. Recognition may be granted subject to conditions, such as the taking of examinations in areas not covered by the foreign course. 8. Mme Fernández de Bobadilla (hereinafter "the applicant") is a Spanish national. She received a BA degree in the History of Art from Boston College in the United States. The applicant subsequently received an award as a result of a public competition organised by the Prado which enabled her to pursue postgraduate studies in fine art restoration, specialising in works of art on paper, at Newcastle Polytechnic (now the University of Northumbria at Newcastle) in the United Kingdom, where, after two years of full-time study, both practical and theoretical, she was granted the degree of MA in Conservation of Fine Art. This is one of only two such advanced courses in the United Kingdom, whose graduates are recognised as being qualified to work in museums and galleries, including national institutions, and fill most senior posts in that field. [FN13] However, the United Kingdom Department of Trade and Industry has informed the Commission that a qualification awarded upon completion of one of these courses is not required by law in order to engage in such work either in the public service or more generally. FN13 Information provided by the Conservation Unit of the United Kingdom Museums and Galleries Commission to the Spanish Ministry of Education. 9. The applicant then spent a number of years working on temporary contracts both with the Prado (from 1989 to 1992, and in 1995) and with other galleries in Spain, specialising in the restoration of works of art on paper. She also worked

for a time in Italy and successfuly followed a number of supplementary professional courses in Spain, the United States and Japan. 10. A vacancy for a permanent post as restorer of works of art on paper was advertised by the Prado on 17 November 1992. [FN14] Article 4(b) of the notice of competition stated that candidates were required to comply with the conditions set out in the collective agreement then applicable. The applicant was informed by a letter of 3 February 1993 that she had not been permitted to compete for the post because she did not have the requisite title of restorer of cultural goods. She had applied to the Ministry of Education and Science on 9 October 1992 for recognition of her MA degree as equivalent to one of the prescribed Spanish titles. On 9 December 1993, the expert committee which compared her studies with those required for the grant of her title *159 recommended that recognition be made conditional on her passing further examinations in 24 theoretical and practical fields. In response to the applicant's written submissions, the Minister confirmed the earlier recommendation by a resolution of 20 April 1995. This process of comparison of studies did not take into account either the applicant's experience subsequent to the award of her MA degree or her other studies. FN14 It appears that this post was subject to ordinary labour law, rather than to the special regime for State officials. 11. On 27 November 1996, the applicant applied to the Juzgado de Lo Social (Social Court) No. 4 de Madrid (hereinafter "the national court") for the annulment of the provisions of the Prado collective agreement concerning the qualifications required of restorers. As regards the application of Community law, the national court took the view, in reliance on the Court's judgment in Case C-19/92, Kraus v. Land Baden-Württemberg, [FN15] that the legal situation was not purely internal to Spain. The national court also considered that Article 48 of the E.C. Treaty could apply to a collectively negotiated agreement between parties whose relationship is subject to private law, [FN16] especially given the status of collective agreements in Spanish law. FN15 [1993] E.C.R. I-1663, hereinafter "kraus". FN16 Case 36/74, Walrave and Koch v. Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie and Federacion Española Ciclismo: [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320 (hereinafter "walrave") and Case C-415/93, Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645; [1996] All E.R. (E.C.) 97 (hereinafter "bosman"). 12. The national court did not deem art conservation and restoration to be a regulated profession in Spain. It suggested that, if a particular qualification could be required of candidates, there was no alternative to the long, complex and rigorous process of validation, because of the very different educational systems of the Member States. However, it thought that the requirement that candidates

for a post have a particular qualification, or equivalent, could constitute disguised discrimination, contrary to Article 48 of the E.C. Treaty, because it forced differently qualified persons to undergo the validation process in order to compete, thus "in practice rendering ineffective the qualification obtained in another Community country". All candidates' qualifications, whatever their origin, could instead be assessed on their merits as part of the competition process. 13. The national court referred the following question to the Court for a preliminary ruling pursuant to Article 177 of the E.C. Treaty: Does the provision contained in the Collective Agreement of an Autonomous Organisation of the Spanish State which requires, for pursuit of the profession of Restorer (a non-regulated profession), prior validation of the academic qualification obtained in another Community country--such validation involving a comparison of the study programmes in Spain and in the other country and the passing of theoretical and practical tests in the subjects in the Spanish programme of studies which do not appear in the programme of studies of the other *160 Community country in question--infringe the right to freedom of movement for workers?

Observations before the Court 14. Written observations have been received from the applicant, the Ministerio Fiscal (the Spanish Public Prosecutor), Spain, Finland and the Commission. Oral observations were also presented by the applicant, Spain and the Commission. 15. Finland suggested that the profession of restorer of fine art might, in fact, be deemed to be regulated within the meaning of Directives 89/48 and 92/51. Account had to be taken of different national sociological realities and, in this case, of the character of collective agreements in Spanish law. Community law accepted that collective agreements could in certain circumstances be used to implement directives, [FN17] and the achievement of the Directives' objectives might be frustrated if they did not apply where conditions were imposed on the exercise of a profession by these means. FN17 Case 143/83, E.C. Commission v. Denmark: [1985] E.C.R. 427; [1986] 1 C.M.L.R. 44, para. [8]; Article 2(4) of the agreement on social policy concluded between the Member States of the European Community with the exception of the United Kingdom of Great Britain and Northern Ireland, annexed to the Protocol to the Treaty on social policy. 16. As a result, the Court posed a question to the parties, the Commission and the Member States, to be addressed at the hearing, regarding whether a profession could be deemed to be regulated where a decree required persons to hold a specified title in order to exercise that profession in the public service, or where a collective agreement entered into by an autonomous State organ required that title, or an equivalent, of persons practising that profession in their employment. Unfortunately, despite reference having been made in the report for the hearing to the Ministerial Decree of 14 March 1989, which was cited by the Ministerio Fiscal in its written observations, the Court was only informed at the

hearing of its repeal by the Decree of 28 October 1991, thus rendering the first part of the question superfluous. Neither the applicant nor Spain considered that a collective agreement could regulate a profession; it simply reflected "the conditions prevailing on the employment market in that Member State". [FN18] Spain argued that a collective agreement involved the State solely in its capacity as employer, and that even regulation by law of the qualifications required for exercise of a profession in the public service would not constitute regulation for the purposes of the Directives if its exercise in other contexts was unaffected. The Commission submitted that State measures prescribing possession of particular qualifications in order to practise a profession in the public service would constitute a regulation of one of the "modes of pursuit" of that profession, as referred to in Article 1(d) of Directive 89/48 and in Article 1(f) of Directive 92/51. *161 However, it argued that the ambit of the collective agreement in question, affecting as it did a single organ of the State, was too limited to be considered to regulate the exercise of the profession of restorer, even in respect of access to the public service. FN18 Case C-164/94, Aranitis v. Land Berlin: [1996] E.C.R. I-135, para. [23] (hereinafter "aranitis"). 17. Concerning the application of Article 48 of the E.C. Treaty, the applicant submitted that the requirement of validation of her United Kingdom qualification was a grave restriction of her freedom of movement, particularly because it failed to take account of her professional experience and further studies after the award of that degree, contrary to the Court's rulings in Vlassopoulou [FN19] and ARANITIS, [FN20] and because she was not entitled to opt for a practical demonstration of her skills. Finland made a similar argument. The applicant also stated that paragraphs 3 and 4 of Article 48 of the E.C. Treaty did not permit Spain to maintain such an obstacle. The Commission submitted that the specification of the qualifications required of employees, including the possibility of recognising equivalent foreign qualifications, was an appropriate subject of autonomous negotiations among the social partners, and did not, in itself, appear to have a discriminatory effect. However, it took the view that the validation process was ill-adapted to the assessment of qualifications and experience for professional purposes, as required by the VLASSOPOULOU and ARANITIS judgments, mentioned above. FN19 Case C-340/89, Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg: [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221, paras [19] & [20]. FN20 Cited above, paras [31] & [32]. 18. The Ministerio Fiscal and Spain argued that the qualification requirement for the post of restorer was indistinctly applicable, and that permitting the holders of foreign qualifications which did not correspond to those granted in Spain to

compete for such posts would constitute reverse discrimination against persons who had pursued comparable studies in Spain. However, the agent for Spain was unable to name any such comparable Spanish courses at the hearing. Spain argued that it was entitled to impose such conditions in the interests of preserving its national heritage (in the case of the Prado, a reservoir of art of world renown), a general interest already recognised by the Court in the "TOUR GUIDES" cases. [FN21] All of the conditions set out in UNECTEF v. Heylens [FN22] for assessment of the equivalence of qualifications were respected by the Commission on validation. Furthermore, comparison of two academic qualifications should not be confused with the logically subsequent task of assessing a person's professional capacity; only at the latter stage should periods of practical experience be taken into account. This was not contradicted *162 by the judgment in VLASSOPOULOU, because the Court stated that Member States could require that an individual prove that he had aptitudes not attested to by his academic qualification, [FN23] as the applicant in this case was required to do. In any event, an employer was entitled to impose whatever conditions he thought necessary for the performance of tasks in his employment, while unions were entitled to press for the fixing by collective agreement of objective employment criteria. FN21 Case C-154/89, E.C. Commission v. France: [1991] E.C.R. I-659, para. [17] and Case C-198/89, E.C. Commission v. Greece: [1991] E.C.R. I-727, para. [21]. FN22 Case 222/86, Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v. Heylens and Others: [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901, para. [13] (hereinafter "heylens"). FN23 Cited above, para. [19].

Analysis 19. I should state at the outset that I agree with the national court's view that the present case falls within the field of application of Community law, because it involves a national of a Member State who, owing to the fact that she has lawfully resided on the territory of another Member State and has there acquired a vocational qualification, is, with regard to her State of origin, in a situation which may be assimilated to that of any other persons enjoying the rights and liberties guaranteed by the Treaty. [FN24] FN24 Kraus, cited above, para. [15]; see also paras [16]-[18]. 20. Although the national court has acted on the basis that the profession of fine art restorer is not a regulated profession in Spain, that assumption has been challenged by Finland. The Court pursued this matter by posing a question, in advance of the hearing, to the parties, the Commission and the Member States. This approach was influenced by the mistaken assumption that Spanish law

continued to reserve the title of restorer of cultural goods and access to State posts to graduates of the Spanish courses mentioned above. Furthermore, it is clear that, were the profession deemed to be regulated within the meaning of Directives 89/48 and 92/51, the detailed provisions of those Directives could, in certain circumstances, provide the applicant with a more satisfactory remedy than that likely to result from the direct application of Article 48 of the E.C. Treaty. It is therefore appropriate, in order to furnish the national court with a useful answer to its question which will assist it in deciding the case before it, to examine first the validity of its assumption. This does not entail any recasting of the national court's question (other than ignoring the reference to "a non-regulated profession"), as the provisions of those Directives are part of the corpus of Community law guaranteeing the right to freedom of movement of workers. I shall then examine, in addition, the distinct issues raised by the application of Article 48 of the E.C. Treaty to the facts of the present case.

The application of Directives 89/48 and 92/51 21. Directive 92/51 is the more immediately relevant of the two Directives. Directive 89/48 is confined to diplomas granted upon *163 completion of courses of at least three years' duration. Although Directive 92/51 appears to be principally concerned with post-secondary courses of shorter duration leading to the grant of vocational qualifications below the level of a third-level degree, its provisions are also applicable, in my view, to postgraduate courses, which rarely last more than three years. The Court has already remarked on the importance of such courses for career development and on the consequent importance of their recognition for the freedom of movement of workers. [FN25] Nonetheless, it is clear that the two Directives perform complementary roles in accordance with a common scheme, and that they should be read together. [FN26] FN25 Kraus, cited above, paras [17]-[23]. FN26 See the fourth and fifth recitals in the preamble to Directive 92/51.

(i) The status of collective agreements 22. I shall first address the question whether a provision of a collective agreement between an organ of the public administration and employee representatives can constitute a "law, regulation or administrative provision" which, directly or indirectly, subjects one of the modes of pursuit of a professional activity to the possession of specified qualifications. In my opinion, it can, depending on the legal and factual context, for reasons close to those put forward by Finland. 23. As a preliminary matter, it is necessary to examine the status of collective agreements in the legal system of the particular Member State. Many Member States' legal systems attribute to the social partners the function of negotiating collective agreements regarding working conditions, including conditions of access to employment, which are not only binding on the parties and their

members but are also binding, or produce effects, on third parties. For example, an employer may be bound, subject to formalities such as registration, upon conclusion of a collective agreement by a body representative of his trade or industry, to extend its benefits and conditions even to persons who are not members of the participant trade unions. In other cases, particularly as regards employment as a State official, such effects are dependent on ratification of the agreement by a competent public body. 24. Where a collective agreement is attended by such consequences, whether by operation of law or through its approval by a public body, it should, in my view, be deemed to be a law, regulation or administrative provision capable of regulating a professional activity. This reasoning applies irrespective of the identity of the parties to the collective agreement, that is, the participating employers or employer-representative bodies may be either public or private. In either case, what is important is that an agreement between actors in the labour market is given more general application, thereby affecting third parties, including workers from other Member States, which effect is *164 supported by public authority. It thus constitutes, for the purposes of the Directives, a form of attribution of regulatory power by the State to economic actors who are invested with its authority. The fact that the State may not control the exact content of such agreements, in the absence of an overriding legislative measure, does not reduce their public and normative character. [FN27] As Finland has pointed out, Community law already recognises the potential normative character of collective agreements in certain circumstances. [FN28] FN27 It is quite another question whether the Directives would be directly effective against private employers, if the national implementing measures could not be interpreted to extend to such situations. As Advocate General van Gerven observed in his Opinion in Case C-188/89, Foster and Others v. British Gas Plc: [1990] E.C.R. I-3313, [1990] 2 C.M.L.R. 833, paras 11 & 16, the definition of the State or of public authority in Community law varies according to the underlying purpose or reasoning of particular rules. FN28 See para. [14] above. The Community legislator also implicitly recognised the potential normative character of collective agreements in Article 7(4) of Council Regulation 1612/68 on freedom of movement of workers within the community ([1968] O.J. Spec. Ed. 475), most recently considered by the Court in Case C-15/96, Kalliope Schöning-Kougebetopoulou v. Freie und Hansestadt Hamburg: [1998] E.C.R. I-47; [1998] 1 C.M.L.R. 931; [1998] All E.R. (E.C.) 97, para. [12]. 25. The order for reference states that collective agreements, including provisions on access to particular professional categories or posts, are one of the formal sources of law in Spain and have the effects just described, at least as regards persons employed under ordinary labour law. By virtue of the legal force given to the collective agreement, it would appear that the Prado was not, in fact, free to admit persons to the competition for the post of fine art restorer who did

not possess the qualifications specified. Thus, the agreement affected persons not party to it either directly or through membership of a representative body. This distinguishes the situation in the case of an enforceable collective agreement producing effects on third parties very markedly from that in ARANITIS. [FN29] In that case, there was no legal regulation of the use for professional purposes of the academic title in question. In practice, only persons holding that title sought such professional employment and, thus, nearly the entire body of practitioners of the profession possessed the title. The applicant had experienced difficulties with his qualification awarded in another Member State and sought to have it declared equivalent to the host-State title, in reliance on Directive 89/48. The Court stated that "[w]hether or not a profession is regulated depends on the legal situation in the host Member State and not on the conditions prevailing on the employment market in that Member State". [FN30] FN29 Cited above. FN30 ibid., para. [23], emphasis added. 26. An approach to identifying regulated professional activity which is adapted to the individual features of the legal situation in a host Member State is in keeping with the admonition in the seventh recital in the preamble to Directive 89/48 that the term "should be defined so as to take account of differing national sociological situations". It *165 should also be noted that the Directives expressly refer to another form of attributed public authority. Where a professional activity is pursued by members of a private professional association or organisation which confers educational awards and titles and enforces rules of professional conduct, and which is recognised in a special form by a Member State in order to promote and maintain high professional standards, the professional activity in question is deemed to be regulated. [FN31] As the recital states, such associations and organisations "cannot invoke their private status to avoid application of the system provided for by this Directive". Because a collective agreement can, in the circumstances outlined above and by virtue of the attribution of public normative authority, have an effect on access to a profession equivalent to that of regulation of a professional activity by a publicly recognised professional association or organisation, I would reject Spain's argument that a collective agreement is invariably purely private in character. I would add, finally, that a flexible approach is envisaged by the language of the Directive where it emphasises even indirect effects of "laws, regulations and administrative provisions" in requiring a prescribed educational qualification. FN31 Second sub-paragraph of Article 1(d) of Directive 89/48; second sub-paragraph of Article 1(f) of Directive 92/51.

(ii) The scope of regulation 27. It is also necessary, however, in the light of the circumstances of the present case and of the question posed by the Court before the hearing, to assess what

kinds of educational requirements can constitute regulation of a professional activity. It is my view that, if direct or indirect (including delegated) State provisions of a legal, regulatory or administrative character require persons to possess evidence of education and training or an attestation of competence in order to take up or pursue a professional activity only in certain limited contexts, rather than for all purposes, the professional activity in question may, nonetheless, constitute, to that extent, a regulated professional activity for the purposes of Article 1(f) of Directive 92/51. I agree with the Commission that this was envisaged by the Community legislator through its reference to a professional activity "or one of its modes of pursuit". [FN32] The specific possibility that the State might subject the exercise of a professional activity in the public service, or with the assistance of public funds, to educational conditions which are not generally applicable was foreseen in Article 1(f), which deems health professions to be regulated in so far as a qualification is required for reimbursement under social security rules. FN32 The same analysis applies, subject to appropriate adjustment with regard to the educational qualification required, to Article 1(d) of Directive 89/48. 28. Nonetheless, as has also been suggested by the Commission, State regulation of a professional activity must apply at some minimum level of generality. This arises from the scheme of the Directives *166 themselves. The definition of a regulated professional activity, and, consequently, of a regulated profession, is not only essential for the purposes of identifying the circumstances in which a host Member State is obliged to comply with the Directives, it is also central, by virtue of Article 3 of both Directives, to the determination of the educational qualifications which the host State is obliged to recognise. The applicant has not, however, established that she meets the requirements of either Article 3(a) or (b) of Directive 92/51. 29. Article 3(a) does not refer expressly to a regulated profession or professional activity, but it speaks, in the case of Directive 92/51, of a "diploma ... required in another Member State for the taking up or pursuit of the profession in question in its territory", which implicitly invokes the test in Article 1(f) of that Directive. 30. It would be possible to argue, as regards the host State, that a professional activity is regulated by the State within the meaning of Article 1(f) of Directive 92/51 where a Community worker who applies for a post encounters a legislative, regulatory or administrative provision requiring a particular qualification, even if that requirement only applies to the post or the employer in question rather than being of more general application. 31. However, such an approach does not enable it to be determined whether a professional activity is regulated in the Member State where a qualification was awarded, for the purposes of Article 3(a) of Directive 92/51, or whether it is not regulated in the Member State where an applicant has acquired professional experience, for the purposes of Article 3(b) of that Directive. In such circumstances, it would be inconsistent with the Directives' underlying motivation of mutual recognition of Member States' requirements for the exercise of

professions if a narrowly applicable regulation, confined, perhaps, to a single aspect of professional activity or to a single institution, in the Member State where the Community worker's qualifications were obtained, were deemed to give rise to an obligation on the part of the host State to permit him to enter any branch of the corresponding profession, no matter how demanding its own regulations might be. 32. How is one to reconcile, on the one hand, the evident wish of the Community legislator, expressed in Article 1(f) of Directive 92/51, to provide for situations where the exercise of a professional activity is regulated only in part (regarding one of its modes of pursuit) in the host State with the need, for the purposes of Article 3, to identify whether the exercise of a professional activity is, in general and abstract terms rather than in a particular concrete case, regulated in the Member State where a Community worker has previously studied or worked? The response to this question must take into account the differing sociological realities in the Member States and, in particular, their different mechanisms of distributing legislative, regulatory and *167 and administrative authority between various levels of government. [FN33] In my view, where an organ of government, whether national or regional, specifies the qualifications required for such aspects of the exercise of a professional activity as fall within its competence, either for the purposes of public sector employment or for the purposes of general economic life, the profession in question should be deemed to be regulated for the purposes of the Directives. If such general regulation, at any level of government, of the qualifications for pursuit of a professional activity in either the public or private sectors (whether, in the latter case, as an employed person or in a self-employed capacity) were to escape the reach of the Directives, the achievement of their objectives would very probably be fatally frustrated. Similarly, for reasons outlined above, the imposition of requirements of similar scope on the basis of legislative, regulatory or administrative authority attributed by such an organ of government to private bodies should be held to constitute regulation within the meaning of the Directives. FN33 See, for example, the discussion of the powers of the autonomous communities in Spain to regulate the exercise of the profession of tour guide in Case C-375/92, E.C. Commission v. Spain: [1994] E.C.R. I-923; [1994] 3 C.M.L.R. 500. 33. The educational requirement at issue in the present case is, however, as far as the Court has been made aware, confined to a single autonomous State institute. For that reason, it does not appear to me to have a sufficiently general scope of application to constitute, on its own, regulation of a professional activity in Spain. It seems to me that the situation would be different if the national court found a similar legacy of the now-repealed ministerial decrees in the provisions of collective agreements entered into individually by other public museums and galleries, especially if this were found to be the consequence of an administrative policy adopted by the Ministry of Education and Culture or by some other competent organ of government, or if these agreements were held to have been

ratified by such a governmental body. However, the Court has not been informed of any such phenomenon. 34. By reason of the limited scope of application of the collective agreement described in the order for reference, and in the absence of evidence of legislative, regulatory or administrative provisions (including, possibly, a collective agreement or a series of such agreements) of more general application, I conclude that the profession of fine art restorer is not a regulated profession in Spain for the purposes of Directives 89/48 and 92/51. It is necessary, therefore, to examine whether the applicant can derive a remedy from the other provisions of Community law regarding the freedom of movement of workers and, in particular, from Article 48 of the E.C. Treaty.

*168 Article 48 of the E.C. Treaty 35. Both before and since the coming into force of the Directives, the Court has consistently stated that Member States are also subject to certain obligations, by virtue of Article 48 of the E.C. Treaty, in respect of the recognition of diplomas awarded elsewhere in the Community. It has always acknowledged that: [i]n the absence of harmonisation of the conditions of access to a particular occupation, the Member States are entitled to lay down the knowledge and qualifications needed in order to pursue it and to require the production of a diploma certifying that the holder has the relevant knowledge and qualifications. [FN34] FN34 Heylens, cited above, para. [10]; see also Vlassopoulou, cited above, para. [9] and Case C-104/91, Colegio Oficial de Agentes de la Propiedad Immobiliaria v. Borrell and Others: [1992] E.C.R. I-3003, para. [7] (hereinafter "borrell"). However, it has also observed that the lawful imposition of such requirements, even if applied without any discrimination on grounds of nationality, constitutes a restriction on the effective exercise of the freedom of establishment or of the freedom of movement of workers guaranteed by the Treaty, and that the Member States are bound, by virtue of Article 5 of the E.C. Treaty, to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. [FN35] Thus, such national rules, even when they pursue a legitimate objective compatible with the Treaty and justified by pressing reasons of public interest, must be appropriate for ensuring the attainment of the objective they pursue and must not go beyond what is necessary for that purpose. [FN36] In determining the level of education and expertise appropriate, the Spanish authorities are entitled to be influenced by the richness of the artistic heritage of which the Prado is custodian. [FN37] On the other hand, a disproportionate obstacle is posed to the exercise of the right to freedom of movement of workers if national rules on access to a profession fail to take due account of the knowledge and qualifications already acquired by the person concerned in another Member State. [FN38] FN35 Case 11/77, Patrick v. Ministre des Affaires Culturelles; [1977] E.C.R.

1199; [1977] 2 C.M.L.R. 523, para. [10]; Case 71/76, Thieffry v. Conseil de L'Ordre des Avocats A la Cour de Paris: [1977] E.C.R. 765; [1977] 2 C.M.L.R. 373 (hereinafter "thieffry"), para. [16]; Heylens, cited above, paras [11] & [12]; Vlassopoulou, cited above, para. [15] and Borrell, cited above, para. [10]; see also Kraus, cited above, paras [28] & [31]. FN36 Thieffry, cited above, paras [12] & [15]; Case C-106/91, Ramrath v. Ministre de la Justice: [1992] E.C.R. I-3351; [1992] 3 C.M.L.R. 173, paras [29] & [30] and Kraus, cited above, para. [32]. FN37 On the general interest in the protection of national treasures possessing artistic, historic or archaeological value, see Article 36 of the E.C. Treaty and Case C-180/89, E.C. Commission v. Italy: [1991] E.C.R. I-709, para. [20]. FN38 Vlassopoulou, cited above, para. [15] and Borrell, cited above, para. [10]. 36. The Court stated, therefore, in VLASSOPOULOU that a Member State which receives a request to admit a person to a profession subject to such rules: *169 must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules. [FN39] FN39 Cited above, para. [16]; see also Borrell, cited above, para. [11]; E.C. Commission v. Spain, cited above, para. [12] and Aranitis, cited above, para. [31]. The Court referred in Heylens, cited above, para. [11], to such an obligation, where the Member State's laws and regulations provided for the possibility of recognition of equivalent foreign diplomas. The Court continued: That examination procedure must enable the authorities of the host Member State to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma. That assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess in the light of that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates. [FN40] FN40 See also Heylens, cited above, para. [13], which was cited by the Court. ... If that comparative examination of diplomas results in the finding that the knowledge and qualifications certified by the foreign diploma correspond to those

required by the national provisions, the Member State must recognise that diploma as fulfilling the requirements laid down by its national provisions. If, on the other hand, the comparison reveals that the knowledge and qualifications certified by the foreign diploma and those required by the national provisions correspond only partially, the host Member State is entitled to require the person concerned to show that he has acquired the knowledge and qualifications which are lacking. In this regard, the competent national authorities must assess whether the knowledge acquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession of the knowledge which is lacking. [FN41] FN41 Cited above, paras [17], [19] & [20]; see also Borrell, cited above, paras [12] & [14] and E.C. Commission v. Spain, cited above, para. [13]. 37. The fact that I have concluded above that the profession of fine art restorer is not regulated in Spain within the meaning of the Directives does not affect the above principles. My earlier conclusion is drawn principally from the scheme and economy of the Directives. There is no corresponding reason to restrict the application of the general principles on recognition derived from Article 48 of the E.C. Treaty to generally applicable State measures setting the conditions of access to a profession. The Court's case law applies equally well where Member States or their subsidiary public bodies restrict professional access in narrowly defined circumstances, in the case of a single State institution. The same is true, of course, of acts by private professional bodies which have similar effects, [FN42] and thus, by logical extension, of *170 the imposition of restrictions through the medium of a collective agreement between a public body and the representatives of its employees. As the Court stated in WALRAVE, "Article 48 ... extends ... to agreements and rules which do not emanate from public authorities". [FN43] In any event, in the present case, the reference in the notice of competition to the conditions set out in the collective agreement permits the restriction to be attributed directly to the Prado. FN42 Walrave, cited above, paras [17]-[19] & [21]; Case 13/76, Dona v. Mantero: [1976] E.C.R. 1333; [1976] 2 C.M.L.R. 578, para. [17] and Bosman, cited above, paras [82]-[84]. FN43 Cited above, para. [21], emphasis added; see also Bosman, cited above, para. [84]; see further Article 7(4) of Regulation 1612/68, cited above. 38. Moreover, the requirements of this case law have also been held to apply to situations where a particular qualification is not, as such, required in order to gain access to a profession. In ARANITIS, the Court was concerned with the classification of a person with a Greek diploma in geology by the employment service of another Member State. In that case, the Arbeitsamt (Labour Office) of Berlin had initially classified the applicant as an "unskilled assistant". He was subsequently authorised to use his Greek title, which was translated into German

in the certificate of authorisation. Having decided that the profession of geologist was not a regulated profession in Germany for the purposes of the Directives, the Court referred [FN44] to the above-quoted paragraph [16] of its judgment in VLASSOPOULOU and continued: The same holds true for professional activities which are not subject by virtue of legal provision to the possession of a diploma, so far as concerns the conditions for taking them up or pursuing them. In such circumstances, the competent authorities of the host Member State responsible for classifying the nationals of other Member States, which will affect their chances of finding work on the territory of the host Member State, are required when carrying out that classification to take into consideration the diplomas, knowledge, qualifications and other evidence of qualifications that the person concerned has obtained in order to pursue a profession in the Member State of origin or from which he comes. [FN45] FN44 Cited above, para. [31]. FN45 ibid., para. [32]. 39. This ruling regarding classification of workers by a State employment service, which affects their chances of employment in that State, must apply a fortiori to the case of an official national validation procedure for foreign qualifications. If there were any doubt about the possibility of the results of such a process affecting a person's chances of employment, it is resolved by the fact that the collective agreement and notice of competition at issue in the present case expressly require fine art restorers and candidates for such posts at the Prado to possess a specified Spanish title or a foreign qualification which has been deemed to be equivalent by virtue of this official procedure. One can speak, thus, of a twin obligation: a validation procedure must be established in Spain which respects the requirements of Article 48 of *171 the E.C. Treaty; and the Prado, when setting its conditions of employment and assessing the eligibility of candidates, must set those conditions and conduct those assessments in compliance with the requirements of Article 48 E.C. Thus, if the official validation procedure does not satisfy those requirements, it is not lawful for the Prado to exclude, without further examination of their qualifications and experience, candidates who have not succeeded in gaining recognition, through that procedure, of the equivalence of their qualifications to those awarded in Spain. 40. In order to identify the requirements of Article 48 of the E.C. Treaty for the purposes of the present case, it is particularly important to note the reference in paragraph [20] of the judgment in VLASSOPOULOU to the obligation of Member States, where there is only partial correspondence between a worker's qualification and that used as a bench-mark in the host State, to assess whether knowledge acquired by the person concerned either during a subsequent course of study or by way of practical experience is sufficient to establish equivalence. The same requirement is reflected, in my view, by the reference in the above-quoted passage from ARANITIS to "the diplomas, knowledge, qualifications and

other evidence of qualifications that the person concerned has obtained" [FN46]; this displays the same concern with establishing the actual knowledge and aptitude of the person at the moment of assessment, as distinct from the purely academic content of the original diploma. FN46 Emphasis added. 41. The purpose of such a validation process is to assess the specialised knowledge and aptitude of a Community worker who possesses a qualification from one of the Member States, relative to the knowledge and aptitude evidenced by the qualification normally granted in the host Member State. For that reason, even periods of study or of practical experience outside the Community should, in my view, be taken into account where they complement the Community worker's basic qualification acquired in a Member State other than the host State; otherwise, a false picture may emerge of the Community worker's actual knowledge and aptitudes. 42. Spain objected that a process of validation of academic degrees could not take into account practical experience or subsequent studies. It is true that the Court has outlined a two-stage process of assessment. Since HEYLENS, it has stated that the assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the knowledge and qualifications of which it is evidence, having regard to the nature and duration of the studies and practical training to which the diploma relates. [FN47] However, in VLASSOPOULOU and subsequent cases, the Court has insisted on a second stage of assessment, of evidence that indicates that the person concerned possesses *172 knowledge and aptitudes not provided for in his original studies. This stage cannot be avoided without posing a disproportionate obstacle to the exercise of the right of freedom of movement. The manner in which the assessment process is organised is not important, provided the ultimate assessment, which affects the Community worker's chances of employment, reflects the real situation. In the circumstances of the present case, mere comparison of the academic composition of the applicant's United Kingdom degree and of the corresponding Spanish curriculum does not reflect her actual position, and does not suffice in order to determine her eligibility to compete for a post in the public service defined by reference to the Spanish title or equivalent foreign qualifications. FN47 Heylens, cited above, para. [13]; Vlassopoulou, cited above, para. [17]; Borrell, cited above, para. [12] and E.C. Commission v. Spain, cited above, para. [13]. 43. In order to complete this account of the requirements of Article 48 of the E.C. Treaty, I wish to make reference to the requirements, first mentioned in HEYLENS, that reasons be given in respect of all such assessment decisions, and that a judicial remedy be available against them. [FN48] In addition, as the Court ruled in KRAUS, the procedure for authorisation to use a foreign academic title "must be easy of access to interested parties, and should not, in particular,

be dependent on the payment of excessive administration fees". [FN49] As a corollary of the requirement of ease of access, and in order that Community workers' right to avail of employment opportunities in other Member States not be frustrated, the assessment procedure should result in a decision within a reasonable time. What is reasonable in any given case will depend, of course, on a number of factors, including the degree of co-operation afforded to the validation body by the interested person. FN48 Cited above, para. [17]; Vlassopoulou, cited above, para. [22] and Borrell, cited above, para. [15]. FN49 Cited above, para. [39].

Conclusion 44. In the light of the foregoing analysis, I recommend that the Court respond as follows to the question referred by the Juzgado de Lo Social No. 4 de Madrid: Where a provision contained in a collective agreement of a public body, or in a notice of competition published by such a body, requires, for the pursuit of a profession in its employment, that applicants for such employment should possess either an educational qualification granted in that Member State or a qualification from another Member State recognised as equivalent by the competent authorities in that Member State, the recognition procedure must satisfy the requirements of Article 48 of the E.C. Treaty. In particular, where there is only a partial correspondence between the knowledge and aptitude certified by the foreign qualification and those certified by the qualification awarded in the host Member State, the competent authorities *173 must assess whether knowledge and aptitude acquired by other means, either during a separate course of study or by way of practical experience, are sufficient in order to prove possession of the necessary knowledge and aptitude to which the foreign qualification does not attest. If the official validation procedure does not comply with this requirement, the employing public body must itself assess the equivalence of the qualifications awarded in another Member State to Community nationals who apply for employment in the light of these criteria. JUDGMENT [1] By order of 30 May 1997, received at the Court on 26 June 1997, the Juzgado de Lo Social No. 4 de Madrid (Social Court No. 4, Madrid) referred to the Court under Article 177 of the E.C. Treaty (now Article 234 E.C.) a question on the interpretation of Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.). [2] That question was raised in proceedings between Ms Fernández de Bobadilla, on the one hand, and the Museo Nacional del Prado (hereinafter "the Prado"), the Comité de Empresa del Museo Nacional del Prado and the Ministerio Fiscal, on the other. [3] Ms Fernández de Bobadilla is a Spanish national resident in Madrid. After

obtaining her Bachelor of Arts degree in History of Art at the University of Boston, USA, she undertook--with the help of a grant from the Prado-- postgraduate studies in fine arts restoration at Newcastle upon Tyne Polytechnic in the United Kingdom, obtaining a Master of Arts degree in 1989. [4] From 1989 to 1992, Ms Fernández de Bobadilla worked for the Prado as a restorer of works of art on paper under a temporary contract. She also worked for various other studios and museums including the Paolo Crisistomi Studio, Rome, the Lázaro Galdiano museum, the Spanish Natural Sciences Museum, the National Institute for Chalcography, the San Fernando Royal Academy of Fine Arts and the Focus Foundation, Seville. [5] By virtue of Article 1(1) of Royal Decree 1432/85 of 1 August 1985, as amended by Royal Decrees 1142/96 and 2461/96, the Prado is an autonomous administrative body attached to the Ministry of Culture for which the Minister is directly responsible. The Prado has legal personality and capacity to act. At the material time it was governed, inter alia, by the law on the legal regime applicable to autonomous official bodies and by the legislation on State museums. [6] One of the terms of the collective agreement entered into in 1988 by the Prado and staff representatives provides that the post of restorer is to be reserved to persons who possess the qualification awarded by the restoration department of the Faculty of Fine Arts or by the School of Arts as applied to the restoration of works of art, or any other foreign qualification officially recognised by the competent body. [7] On 9 October 1992, Ms Fernández de Bobadilla applied to have *174 the degree awarded to her by Newcastle upon Tyne Polytechnic officially recognised as equivalent to the Spanish degree in the conservation and restoration of cultural assets. Having considered her request, the relevant department of the Ministry of Education informed her by notice of 9 December 1993 that, in order to obtain official recognition, she would have to demonstrate, through examinations arranged in two parts, sufficient knowledge of the 24 subjects listed in the notice. Those examinations have not so far taken place. [8] In the meantime, on 17 November 1992, the Prado organised a competition to fill a vacancy for a permanent post as restorer of works of art on paper. Ms Fernández de Bobadilla's application was rejected on the ground that she did not fulfil the requirements laid down in the collective agreement. [9] Ms Fernández de Bobadilla viewed the imposition of such requirements as amounting to a violation of the Spanish Constitution and a barrier to the right to freedom of movement for workers protected by Article 48 of the E.C. Treaty. Accordingly, in 1996, she brought an action before the national court for annulment of the provision in question. [10] Uncertain as to the manner in which Article 48 of the E.C. Treaty was to be interpreted, the Juzgado de Lo Social No. 4 de Madrid decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: Does the provision contained in the Collective Agreement of an Autonomous Organisation of the Spanish State which requires, for pursuit of the profession of restorer (a non-regulated profession), prior validation of the academic

qualification obtained in another Community country--such validation involving a comparison of the study programmes in Spain and in the other country and the passing of theoretical and practical tests in the subjects in the Spanish programme of studies which do not appear in the programme of studies of the other Community country in question--infringe the right to freedom of movement for workers? [11] Community law does not preclude a public body such as the Prado from making the assignment of a post conditional on a candidate's possessing one or more qualifications to demonstrate his suitability for the post, provided, however, that that requirement does not constitute an unjustified barrier to the effective exercise of the fundamental freedoms guaranteed by Article 48 of the E.C. Treaty. [12] Public bodies must also comply with 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 [FN50] and Council Directive 92/51 on a second general system for the recognition of professional education and training to supplement Directive 89/48. [FN51] FN50 [1989] O.J. L19/16. FN51 [1992] O.J. L209/25. *175 [13] According to the national court, the profession of restorer of cultural assets is not regulated in Spain for two reasons. First, it does not appear on the list of professions covered by the Spanish legislation implementing Directives 89/48 and 92/51 and, secondly, there is no directive specifically governing that profession. Furthermore, according to a judgment of the Spanish Constitutional Court of 6 July 1989, [FN52] the fact that entry to a particular profession is subject to certain requirements or conditions is not sufficient to make it a regulated profession. FN52 Case 122/89. [14] It must, however, be borne in mind that the definition of a regulated profession for the purposes of Directives 89/48 and 92/51 is a matter of Community law. [15] It must therefore be determined first of all whether, if a public body in a Member State through a collective agreement restricts the right to practise a given profession within that body to candidates who possess a qualification awarded by an educational establishment situated in that Member State or a foreign qualification recognised as equivalent by the competent national body, that profession must be deemed to be regulated for the purposes of Directives 89/48 and 92/51. [16] The effect of Article 1(d) of Directive 89/48 and Article 1(f) of Directive 92/51 is that, where the conditions for taking up or pursuing a professional activity are directy or indirectly governed by legal provisions, whether laws, regulations or

administrative provisions, that activity constitutes a regulated profession. [FN53] FN53 See Case C-164/94, Aranitis v. Land Berlin: [1996] E.C.R. I-135, para. [18]. [17] The right to take up or pursue a profession must be regarded as directly governed by legal provisions where the laws, regulations or administrative provisions of the Member State concerned create a system under which that professional activity is expressly restricted to those who fulfil certain conditions and entry to it is denied to those who do not. [FN54] FN54 See Aranitis, cited above, para. [19]. [18] As the Advocate General has pointed out at paragraph 23 of his Opinion, in the legal systems of many Member States, social partners conclude collective agreements regarding working conditions, including conditions of access to employment, which are not only binding on the parties and the employers and workers whom they represent, but are also binding, or produce effects, on third parties. [19] The Court has already held that a Member State may leave the implementation of the objectives pursued by Community directives to social partners through collective agreements, but the State is still responsible for fulfilling its obligation to ensure that the directives are fully implemented by adopting such provisions as may be appropriate. [FN55] FN55 Case 143/83, E.C. Commission v. Denmark: [1985] E.C.R. 427; [1986] 1 C.M.L.R. 44 *176 , paras [8] & [9]. [20] Thus, the terms of a collective agreement which, in a general way, governs the right to take up or pursue a profession may constitute "laws, regulations or administrative provisions" for the purposes of Article 1(d) of Directive 89/48 and Article 1(f) of Directive 92/51, particularly where that is the result of a single administrative policy laid down at national level. [21] Furthermore, as the Finnish Government has pointed out, the effectiveness of Directives 89/48 and 92/51 would be impaired if they did not apply to areas governed by collective agreements. [22] Next, consideration must be given to the question whether a collective agreement does, in a general way, govern the right to take up or pursue a profession. If the terms of an agreement entered into by a public body such as the Prado and its staff representatives are common to other collective agreements entered into on an individual basis by other public bodies of the same kind and, furthermore, are the result of a single administrative policy laid down at national level, then those agreements may be sufficiently general in scope for their terms to be classified as rules regulating a professional activity for the purposes of Directives 89/48 and 92/51. [23] In contrast, where the terms of a collective agreement govern relations only between the employer and the employees within a single public body, they will in

most cases not be sufficiently general in scope for the relevant professional activities to be classified as a regulated profession for the purposes of Directives 89/48 and 92/51. [24] It follows from the foregoing that it is for the national court to determine the scope of the rule which requires applicants for a post of restorer of cultural assets to possess Spanish diplomas or foreign qualifications recognised as equivalent by the competent national body in order to establish whether or not in Spain the right to take up or pursue that profession is regulated for the purposes of Directives 89/48 and 92/51. [25] If the national court finds that the profession is regulated in Spain, it will also have to conclude that one or other of Directives 89/48 and 92/51 applies to the proceedings before it. [26] If the national court considers that either of those two Directives applies, it must then go on to examine whether Ms Fernández de Bobadilla fulfils the conditions laid down in the Directive concerned so as to establish whether she may apply for a permanent post as restorer of cultural assets. [27] Finally, where one or other of Directives 89/48 or 92/51 is applicable, a public body in a Member State which is bound to comply with the rules laid down in the relevant Directive can no longer require that a candidate's qualifications be granted official recognition by the competent national authorities. [28] If the profession in question is not regulated for the purposes of Directives 89/48 and 92/51, Community law does not in principle preclude a public body in a Member State from restricting access to a *177 post to candidates holding a qualification awarded by an educational establishment in that Member State or any other foreign qualification officially recognised by the competent authorities of that Member State. However, where the qualification was awarded in another Member State, the procedure for granting it official recognition must comply with the requirements of Community law. [29] The Court has already had occasion to set out, inter alia in Case C-340/89, Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg, [FN56] the conditions with which the competent authorities of a Member State must comply when they receive a request to admit a person to a profession to which entry under national law depends on the possession of a diploma or professional qualification. FN56 [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221. [30] In contrast to VLASSOPOULOU, this case concerns a Spanish national seeking to practise her profession in Spain. However, if a national of a Member State, owing to the fact that he has lawfully resided on the territory of another Member State and has acquired a professional qualification there, finds himself with regard to his State of origin in a situation which may be assimilated to that of a migrant worker, he must also be entitled to enjoy the rights and freedoms guaranteed by the Treaty. [FN57] FN57 See, to that effect, Case C-19/92, Kraus v. Land Baden-Württemberg:

[1993] E.C.R. I-1663, paras [15] & [16]. [31] It is clear from paragraph [16] of the judgment in VLASSOPOULOU that the competent authorities of the host Member State must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to practise that profession in another Member State by comparing the specialised knowledge and abilities certified by those diplomas with the knowledge and qualifications required by the national rules. [32] If that comparative examination of diplomas results in the finding that the knowledge and qualifications certified by the diploma awarded in another Member State correspond to those required by the national provisions, the competent authorities of the host Member State must recognise that diploma as fulfilling the requirements laid down by its national provisions. If, on the other hand, the comparison reveals that the knowledge and qualifications certified by the foreign diploma and those required by the national provisions correspond only partially, the competent authorities are entitled to require the person concerned to show that he has acquired the knowledge and qualifications which are lacking. [FN58] FN58 Vlassopoulou, cited above, para. [19]. [33] In that regard, the competent national authorities must assess whether the knowledge acquired by the candidate, either during a *178 course of study or by way of practical experience, is sufficient to show possession of knowledge which is lacking. [FN59] FN59 See, to that effect, Vlassopoulou, cited above, para. [20]. [34] Where no general procedure for official recognition has been laid down at national level by the host Member State, or where that procedure does not comply with the requirements of Community law as set out in paragraphs [29] to [33] of this judgment, it is for the public body seeking to fill the post itself to investigate whether the diploma obtained by the candidate in another Member State, together, where appropriate, with practical experience, is to be regarded as equivalent to the qualification required. [35] Such an obligation is all the more necessary where, as in this case, the public body in question has made a grant to the candidate to enable him to pursue his studies in another Member State and has already employed him on a temporary basis in the post to be filled. Where that is the case, the public body is in fact ideally placed to assess the candidate's actual knowledge and abilities compared to the knowledge and abilities of holders of the national diploma, as indeed the Prado was to assess Ms Fernández de Bobadilla's suitability for the post of restorer of cultural assets. [36] It follows from all of the foregoing considerations that the answer to the question referred by the national court must be that, on a proper construction, Article 48 of the E.C. Treaty:

-- does not preclude the terms of a collective agreement which applies to a public body in a Member State and restricts the right to practise within that body a particular profession which is not regulated for the purposes of Directives 89/48 and 92/51 solely to those in possession of a qualification awarded by an educational establishment in that Member State or of any other foreign qualification which has been officially recognised by the competent authorities of that Member State, -- nonetheless requires the authorities of the host Member State which are competent to grant official recognition to foreign diplomas or to validate them or, if no such authorities exist, the public body itself, to consider, as regards the diplomas awarded in another Member State, the extent to which the knowledge and qualifications certified by the diploma awarded to the person concerned correspond to the knowledge and qualifications required by the host Member State's own legislation. Where they correspond only in part, it is for the competent national authorities or, where appropriate, the public body itself, to assess whether the knowledge acquired by the person concerned during a course of study or by way of practical experience is sufficient to show possession of knowledge to which the foreign diploma does not attest. *179 Costs [37] The costs incurred by the Finnish and Spanish Governments and by the Commission, which have submitted observations to the Court, are not recoverable. 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. Order On those grounds, THE COURT, in answer to the question referred to it by the Juzgado de Lo Social No. 4 de Madrid by order of 30 May 1997, HEREBY RULES: On a proper construction, Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.): -- does not preclude the terms of a collective agreement which applies to a public body in a Member State and restricts the right to practise within that body a particular profession which is not regulated for the purposes of Council Directives 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 and 92/51 on a second general system for the recognition of professional education and training to supplement Directive 89/48 solely to those in possession of a qualification awarded by an educational establishment in that Member State or of any other foreign qualification which has been officially recognised by the competent authorities of that Member State, -- nonetheless requires the authorities of the host Member State which are competent to grant official recognition to foreign diplomas or to validate them or,

if no such authorities exist, the public body itself, to consider, as regards the diplomas awarded in another Member State, the extent to which the knowledge and qualifications certified by the diploma awarded to the person concerned correspond to the knowledge and qualifications required by the host Member State's own legislation. Where they correspond only in part, it is for the competent national authorities or, where appropriate, the public body itself, to assess whether the knowledge acquired by the person concerned during a course of study or by way of practical experience is sufficient to show possession of knowledge to which the foreign diploma does not attest.

(c) Sweet & Maxwell Limited [1999] 3 C.M.L.R. 151 END OF DOCUMENT