Action brought on 16 December 2022 — European Commission v Portuguese Republic

(Case C-768/22)

(2023/C 94/26)

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: L. Armati, P. Caro de Sousa, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court of Justice should:

—

declare that, by maintaining in force Article 2 of Law No 25/2018 of 14 June 2018, which adds a paragraph 7 to Article 25 of Law 31/2009 of 3 July 2009, the wording of which was given by Law No 40/2015, which provides that ‘The holders of civil engineering qualifications, referred to in Annex VI to Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, who began their training in the academic years referred to therein, and can demonstrate, under the provisions of Decree No 73/73 of 28 February, their involvement, between 1 November 2009 and 1 November 2017, in an architectural design project granted municipal approval, shall be able to develop designs specifically provided for in the aforementioned decree, under the conditions laid down therein, and in compliance with the statutory rules in force in respect of that activity, but shall remain, however, subject to the obligations laid down in the present Law and, where applicable, to proof of fulfilment thereof before the competent administrative authorities’, the Portuguese Republic has failed to fulfil its obligations under Article 49(1) of Annex VI to Directive 2005/36/EC and Article 59(3) of that directive, as well as Articles 45, 49 and 56 TFEU.

—	order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Engineers whose qualifications are listed in Annex VI to Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications acquired rights to carry out architectural design projects throughout the European Union (‘acquired rights’). Engineers may only have such acquired rights if they qualified at the latest in the academic year indicated in Annex VI to the directive.

In 2018, the Portuguese Republic passed legislation (Law No 25/2018 of 14 June 2018) which considerably restricted the rights acquired by those engineers, access to the profession of architect and the free movement of persons. In particular, Article 2 of that law:

(a)	Limits those acquired rights to civil engineers who began their training in the academic years referred to in the directive, with the result that all civil engineers who began their training in earlier academic years are deprived of the possibility of exercising their acquired rights; and

(b)

Requires, in a discriminatory manner and without any basis in the directive, that, in order to carry out an architectural design project, a civil engineer must have been involved, between 1 November 2009 and 1 November 2017, in an architectural design project granted municipal approval. That requirement is particularly difficult to satisfy given that, since 2015, local authorities in Portugal have systematically rejected architectural projects submitted by engineers who benefit from acquired rights under Directive 2005/36/EC.

On 24 January 2019, the Commission issued a letter of formal notice to the Portuguese Republic. Subsequently, a reasoned opinion was sent to the Portuguese Republic on 29 February 2020, to which the Portuguese Republic failed to respond.

(1) OJ 2005 L 255, p. 22.