Court of Justice of the European Communities (including Court of First Instance Decisions)

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Freedom of movement for persons ° Freedom of establishment ° Freedom to provide services ° Practitioners of dentistry ° Recognition of diplomas and evidence of qualifications ° Directive 78/686 ° Coordination of national provisions ° Directive 78/687 ° Creation of a category of practitioners not provided for by the directives ° Not permissible
(Council Directives 78/686, Art. 19, and 78/687, Art. 1)

A Member State which, in allowing persons who are not trained in accordance with the criteria laid down in Article 1 of Directive 78/687, concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners, and who did not commence their university medical training before the date laid down by Article 19 of Directive 78/686, concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, to practise as dental practitioners, thereby creating a category of dental practitioners allowed to practise only in Italy not corresponding to any category provided for by those directives, fails to fulfil its obligations under those directives.

In Case C-40/93,
Commission of the European Communities, represented by Enrico Traversa, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, also of its Legal Service, Wagner Centre, Kirchberg,
applicant,
v
Italian Republic, represented by Professor Umberto Leanza, Head of the Contentious Diplomatic Affairs Department of the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 rue Marie-Adelaïde,
defendant,
APPLICATION for a declaration that, by deferring, by Law No 471 of 31 October 1988, until 1984/1985, with regard to diplomas in medicine and surgery, the final date set in Article 19 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1978 L 233, p. 1), the Italian Republic has failed to fulfil its obligations under that article and under Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners (OJ 1978 L 233, p. 10),
THE COURT (Fifth Chamber),
composed of: C. Gulmann, President of the Chamber, P. Jann, J.C. Moitinho de Almeida, D.A.O. Edward (Rapporteur) and J.-P. Puissochet, Judges,
Advocate General: P. Léger,
Registrar: L. Hewlett, Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 9 February 1995,
after hearing the Opinion of the Advocate General at the sitting on 30 March 1995,
gives the following
Judgment

1 By application lodged at the Court Registry on 9 February 1993, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by deferring, by Law No 471 of 31 October 1988, until 1984/1985, with regard to diplomas in medicine and surgery, the final date set in Article 19 of Council Directive 78/686/EEC of 25 July 1978, concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of the establishment and freedom to provide services (OJ 1978 L 233, p. 1, hereinafter "the recognition directive"), the Italian Republic had failed to fulfil its obligations under that article and under Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners (OJ 1978 L 233, p. 10, hereinafter "the coordination directive").
2 Under Article 1(1) of the coordination directive the Member States must require persons wishing to take up and pursue activities as dental practitioners using the titles referred to in Article 1 of the recognition directive to hold a diploma, certificate or other evidence of formal qualifications as referred to in Article 3 of the same directive which guarantees that during his complete training period the person concerned has acquired the appropriate knowledge and experience which the coordination directive defines.
3 Article 2 of the recognition directive provides that: "Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifications in dentistry awarded to nationals of Member States by the other Member States in accordance with Article 1 of [the coordination directive] ... by giving such qualifications, as far as the right to take up and pursue the activities of a dental practitioner is concerned, the same effect in its territory as those which the Member State itself awards".
4 Article 7(1) of the recognition directive provides that:
"In the case of nationals of Member States whose diplomas, certificates and other evidence of formal qualifications do not satisfy all the minimum training requirements laid down in Article 1 of [the coordination directive], each Member State shall recognize as being sufficient proof the diplomas, certificates and other evidence of formal qualifications in dentistry awarded by those Member States before the implementation of [the coordination directive], accompanied by a certificate stating that those nationals have effectively and lawfully being engaged in the activities in question for at least three consecutive years during the five years prior to the date of issue of the certificate".
5 Finally, Article 1(4) of the coordination directive provides that nothing in that directive is to "prejudice any facility which may be granted in accordance with their own rules by Member States in respect of their own territory to authorize holders of diplomas, certificates or other evidence of formal qualifications which have not been obtained in a Member State to take up and pursue the activities of a dental practitioner".
6 Pursuant to Article 24(1) of the recognition directive and Article 8(1) of the coordination directive, the period for the implementation of the two directives expired eighteen months after their notification, that is to say on 28 January 1980. However, in Italy' s case, that period expired only six years after notification of the directives, on 28 July 1984.
7 That delay was justified by the fact that at the time the activities of dental practitioners were pursued in Italy only by doctors. The coordination directive therefore obliged the Italian Republic to create a new category of professionals, which necessitated the introduction of specific training and the setting up of structures appropriate to the new profession.
8 It was in order to take account of that particular situation that Article 19 of the recognition directive provides that:
"From the date on which Italy takes the measures necessary to comply with this directive, Member States shall recognize ... the diplomas, certificates and other evidence of formal qualifications in medicine awarded in Italy to persons who had begun their university medical training not later than 18 months after notification of this Directive (28 January 1980), accompanied by a certificate issued by the competent Italian authorities, certifying that these persons have effectively, lawfully and principally being engaged in Italy in the activities (of prevention, diagnosis and treatment of, in particular, diseases of the teeth) ... for at least three consecutive years during the five years prior to the issue of the certificate and that these persons are authorized to carry out the said activities under the same conditions as holders of the (diploma of dental practitioner issued in Italy) ...".
9 By Law No 409 of 24 July 1985 (ordinary supplement of the Gazzetta Ufficiale de la Repubblica Italiana (GURI) No 190 of 13 August 1985), the Italian Republic created the profession of dental practitioner and restricted the practice thereof to holders of a final degree in odontology and dental prostheses and to graduates in medicine and surgery holding a special diploma in odontology. However, Article 19 of that Law provided for a transitional derogation from the rules on access to the profession of dental practitioner, in accordance with Article 19 of the recognition directive.
10 On 31 October 1988 the Italian Republic adopted Law No 471 (GURI No 262 of 8 November 1988) consisting of a single article worded as follows:
"Graduates in medicine and surgery enrolled on courses in medicine and surgery in the academic years 1980/1981, 1981/1982, 1982/1983, 1983/1984 and 1984/1985 and authorized to practice their profession shall have the right to obtain admission to the National Society of Dental Practitioners for the purpose of pursuing the activity referred to in Article 2 of Law No 409 of 24 July 1985. This right must be exercised by 31 December 1991".
11 By letter of 19 October 1990, commencing the procedure provided for in Article 169 of the Treaty, the Commission notified the Italian Government that, in its view, the situation created by Law No 471 of 31 October 1988 was contrary to Article 19 of the recognition directive and to Article 1 of the coordination directive.
12 Not having received any reply, the Commission, on 28 November 1991 issued a reasoned opinion under Article 169 of the Treaty in which it requested the Italian Republic to take the measures necessary to ensure that the directives concerned were properly transposed within a period of two months.
13 When it received no reply to the reasoned opinion the Commission lodged this application.
14 In support of its application, the Commission maintains that, by allowing graduates in Italy who are not trained in conformity with the criteria laid down in Article 1 of the coordination directive and who have also not commenced their university medical training before the date laid down by Article 19 of the recognition directive to practise as dental practitioners profession, the Italian Republic has failed to fulfil its obligations under those provisions. It claims that the Law in question has thus created a category of dental practitioners ° whose members are authorized to practise only on national territory ° which does not correspond to any of those envisaged by those directives. The Commission considers that the Member States are not authorized to create such a category.
15 At the hearing the Italian Republic raised an objection of inadmissibility. In its view, those arguments were not put forward in either the reasoned opinion or the application.
16 That objection must be dismissed.
17 Both in the reasoned opinion and in the application the Commission objected that the Law in question was contrary to the provisions of the directives in that it has the effect of allowing persons who do not have specific training in conformity with the coordination directive and who have not commenced their university medical training by 28 January 1980 to practise as dental practitioners.
18 On the substantial issue, the Italian Republic accepts that the Law in question has the effect of creating a category of dental practitioners who cannot benefit from mutual recognition rights in other Member States. However, in its view, the Law is not contrary to the coordination and recognition directives since those practitioners may in fact exercise their profession only in Italy and since it does not prevent recognition of diplomas, certificates and other evidence of formal qualifications in dentistry obtained in other Member States. Thus, the purposes of those directives, which are to facilitate exercise of the right of establishment and the free movement of services, are not compromised.
19 The Italian Republic also points out that Article 1(4) of the coordination directive authorizes the Member States to allow access, on their territory, to that profession to holders of diplomas obtained in non-member States. Thus, that directive allows dental practitioners whose training does not meet the coordination system provided for by the directives in question to exercise their profession in a Member State.
20 That argument cannot be accepted.
21 The directives in question provide that, in order to be entitled to exercise his activities, the dental practitioner must possess one of the formal qualifications referred to in Article 2 of the recognition directive. Only three derogations are provided for, in Articles 7 and 19 of the recognition directive and Article 1(4) of the coordination directive.
22 Article 1(4) of the coordination directive applies only to recognition of diplomas, certificates or other evidence of formal qualifications obtained in a non-member State (see the judgment in Case 154/93 Tawil-Albertini [1994] ECR I-451).
23 As regards the other provisions, it must be borne in mind that it is settled in case-law that any derogation from rules intended to guarantee the effectiveness of rights recognized by the Treaty must be interpreted strictly (see the judgments in Case 67/74 Bonsignore [1975] ECR 297, Case 77/82 Peskeloglou [1983] ECR 1085 and Case 3/87 Agegate [1989] ECR 4459). Only derogations expressly provided for in the Treaty or in the relevant directives are allowed.
24 Consequently, Member States may not create a category of dental practitioners which does not correspond to any category provided for by the directives in question.
25 It follows from the foregoing that, by deferring, by Law No 471 of 31 October 1988, until 1984/1985, with regard to diplomas in medicine and surgery, the final date set in Article 19 of the recognition directive, the Italian Republic has failed to fulfil its obligations under that article and under Article 1 of the coordination directive.

Costs
26 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has been unsuccessful it must be ordered to pay the costs.

On those grounds,
THE COURT (Fifth Chamber)
hereby:
1. Declares that, by deferring, by Law No 471 of 31 October 1988, until 1984/1985, with regard to diplomas in medicine and surgery, the final date set in Article 19 of Council Directive 78/686/EEC of 25 July 1978, concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, the Italian Republic has failed to fulfil its obligations under that article and under Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners;
2. Orders the Italian Republic to pay the costs.