Mutual recognition of qualifications: what is an Architect?
At the end of November last year the European Court gave Judgment in a case concerning the mutual recognition of architects' qualifications. The case focused on Spain and the extent to which architects in other Member States of the EC are able to practice architecture in Spain without restrictions.
The applicable EC Directive, which dates back to 1985, requires Member States to recognise diplomas, certificates and other evidence of formal qualifications in the field of architecture throughout the European Community. In other words, if an architect has the necessary qualification in one Member State he should be entitled to practice architecture in any other Member State.
The Directive was transposed into Spanish law by Royal Decree. However, the Decree, whilst endorsing the general principle of the Directive, stated that where work comprised drawing up construction projects or assuming control over construction works, architects with qualifications outside Spain could only practice in Spain within the expertise covered by their home qualifications unless they collaborated with a qualified member of the architectural profession in Spain.
The European Commission objected to this proviso. Therefore, as long ago as 1990, it put Spain on notice of non-compliance with the Directive. Two and a half years later the Spanish Government confirmed that it intended to repeal the offending part of its Royal Decree. However, when the Royal Decree was eventually amended, in early 1996, the offending provision remained in force. More than four years later the European Commission gave Judgment on the issue.
The arguments
The Commission's position was uncomplicated. It took the view that the EC Directive required automatic and unconditional mutual recognition of architectural qualifications throughout Member States. The Spanish Royal Decree was incompatible with this principle because persons holding architectural qualifications in other Member States may not be able to undertake the same range of activities in Spain as those people holding architectural qualifications awarded in Spain. In other words, the effect of Spanish legislation was to restrict the ability of those holding architectural qualifications awarded outside of Spain to practice in Spain to the same extent as Spanish architects.
Spain's response was quite interesting. Spain did not deny the effect of its legislation but it argued that it is for national legislation to define what is meant by architecture in any particular country and what expertise a professional qualification covers. Spain suggested that the EC Directive did no more than require each Member State to recognise qualifications obtained elsewhere in the Community but that, in giving effect to those qualifications, Member States could have regard to their ambit.
Spain had imposed restrictions on such matters as drawing up construction projects and assuming technical control over works because, whilst within the capabilities of qualified architects in Spain, these activities might not fall within the technical competence of architects qualified in other countries. For example, in many European States, these tasks might be undertaken by qualified civil engineers rather than by architects. So, architects with non-Spanish qualifications may not be competent to advise on structural issues, whereas architects qualifying in Spain are.
The Spanish legislation was, therefore, intended to deal with differences in the scope of activities covered by different architectural qualifications across Member States. The Spanish Government also highlighted the lack of EC harmonization in training; hence, it was important that architects practising in Spain, with non-Spanish qualifications, should not be allowed to participate in activities for which they did not have the necessary expertise.
The Court's decision
The EC architectural Directive did not define which activities fell within the ambit of architecture. The Court accepted that it is for national legislation to define the fields of activities covered by its own architectural profession. However, the Court went on to say that once an activity is considered by a Member State as coming within that field then the requirement of mutual recognition means that architects qualified in other Member States must also be able to pursue that activity in the host State.
Therefore, since the activities which the Spanish Government had tried to exclude (ie, drawing up construction projects and assuming control over works) are pursued by architects holding a qualification awarded in Spain, such activities fell within the scope of the Directive. Hence, an architect with qualifications obtained in another Member State ought not to be restricted from practising these activities in Spain.
Conclusions
This case is a good example of the difficulties in achieving a balance between two conflicting concepts. On the one hand, there is the basic freedom to practice one's chosen profession (in this case, architecture) across Member States and the Commission's reluctance to entertain any form of domestic protectionism. Hence, the fact that, in some instances, a non-Spanish architect had to collaborate with a local architect was an anathema to this freedom.
On the other hand, qualifications obtained in Member States are inevitably the product of different standards, training and expertise. So, why should someone holding an architect's qualification obtained outside Spain be permitted to practice civil engineering in Spain, simply because a Spanish architect is qualified and trained to do so? Obvious issues arise about technical competence.
The dichotomy cannot be resolved until such time as harmonized standards exist across Member States in training and qualifications. For the moment, it would seem that the European Court places greater emphasis on the inherent freedoms of the Single Market than the need to establish uniform standards of competency.
For further information, please contact John Uwins at john.uwins@cms-cmck.com or on +44 (0)20 7367 2502.
This article was first published in March 2001 in Construction Europe.
