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

JUDGMENT OF THE COURT (Fifth Chamber)

29 November 2001 (1)

(Failure by a Member State to fulfil its obligations - Directive 78/687/EEC - Maintenance of a second system of training leading to entry to the profession of dentist - Maintenance of the possibility of dual registration in the register of doctors and in that of dentists for doctors mentioned in Article 19 of Directive 78/686/EEC)

In Case C-202/99,

Commission of the European Communities, represented by E. Traversa and B. Mongin, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by U. Leanza, acting as Agent, assisted by P. G. Ferri, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by maintaining a second system of training for entry into the dental profession, which is contrary to 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), and by maintaining the possibility for doctors who practise as dentists to be doubly registered in the registers of medical and dental practitioners, the Italian Republic has failed to fulfil its obligations under that directive,

THE COURT (Fifth Chamber),

composed of: P. Jann, President of the Chamber, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevón and C.W.A. Timmermans, 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 22 March 2001, at which the Commission was represented by E. Traversa and the Italian Republic by M. Fiorilli, avvocato dello Stato,

after hearing the Opinion of the Advocate General at the sitting on 31 May 2001,

gives the following

Judgment

1. By application lodged on 26 May 1999 at the Registry of the Court of Justice, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by maintaining a second system of training for entry into the dental profession, which is contrary to 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), and by maintaining the possibility for doctors who practise as dentists to be doubly registered in the registers of medical and dental practitioners, the Italian Republic has failed to fulfil its obligations under that directive.

   Community legislation

2. On 25 July 1978, the Council adopted at the same time 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) (hereinafter the recognition directive), and the coordination directive.

3. Article 1(1) of the coordination directive provides that 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 recognition directive which guarantees that during his complete training period the person concerned has acquired the knowledge and experience required by the coordination directive. Article 1(2) of the coordination directive specifies that such dentistry training shall comprise a total of at least five years of full-time theoretical and practical studies.

4. Prior to the adoption of those directives and their implementation in Italian law, the profession of dentist did not exist in Italy and was, in practice, carried on by doctors. To take account of that special situation, Article 19 of the recognition directive, which appears in Chapter VII, which is entitled Transitional provisions covering the special case of Italy, provides that:

   From the date on which Italy takes the measures necessary to comply with this Directive, Member States shall recognise, for the purposes of carrying out the activities referred to in Article 1 of this Directive, 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, accompanied by a certificate issued by the competent Italian authorities, certifying that these persons have effectively, lawfully and principally been engaged in Italy in the activities specified in Article 5 of Directive 78/687/EEC for at least three consecutive years during the five years prior to the issue of the certificate and that these persons are authorised to carry out the said activities under the same conditions as holders of the diploma, certificate or other evidence of formal qualifications referred to in Article 3(f) of this Directive.

   The requirement of three years' experience referred to in the first subparagraph shall be waived in the case of persons who have successfully completed at least three years of study which are certified by the competent authorities as being equivalent to the training referred to in Article 1 of Directive 78/687/EEC.

   National legislation

5. The Italian Republic implemented the recognition and coordination directives in its national law by Legge No 409, Istituzione della professione sanitaria di odontoiatra e disposizioni relative al diritto di stabilimento ed alla libera prestazione di servizi da parte dei dentisti cittadini di Stati membri delle Comunità europee (Law No 409 of 24 July 1985, on the establishment of the profession of dentist and provisions relating to the right of establishment and freedom to provide services of dentists who are nationals of Member States of the European Community (GURI No 190, of 13 August 1985, Supplemento Ordinario No 69).

6. Article 1 of that law established in Italy the profession of dentist and reserved its practice, under the title of odontoiatra, to persons having followed:

   - either the new specialised training for dentists of five years certified by the diploma of laurea in odontoiatria e protese dentaria (Diploma in Dentistry and Dental Prosthetics) and resulting in authorisation to practise the profession;

   - or basic medical training of six years certified by a diploma of laurea in medicina e chirurgia (Diploma in Medicine and Surgery) and resulting in authorisation to practise medicine and surgery, supplemented by a diploma of specialisation in the field of dentistry conferred after three years of specialisation.

7. Article 4 of Law No 409/85 provides that registration as a dentist is incompatible with registration in any other profession. Article 20 of that law, inter alia, required doctors who were not specialists in dentistry and who had started their training before 28 January 1980 and intended to practise dentistry to opt for registration as dentists within a period of five years from the entry into force of the said law, or before 28 August 1990. Article 5, however, permits doctors who have specialised in dentistry to continue to be registered as doctors and dentists at the same time.

   Pre-litigation procedure

8. Since it considered that the Italian legislation mentioned in paragraphs 5 to 7 of this judgment was contrary to the recognition and coordination directives, the Commission commenced the procedure for failure by a Member State to fulfil its obligations. By letter of 9 April 1997, it gave the Italian Republic formal notice to submits its observations on the matter. In reply, the Italian authorities sent the Commission draft Law No 2653 relating to the profession of dentists, which provides a single means of access to the profession (specialised training certified by the diploma of laurea in odontoiatria e protesi dentaria).

9. Noting that that draft law had not yet been adopted, the Commission sent a reasoned opinion to the Italian Republic on 18 May 1999 requesting it to adopt the measures necessary to comply with it within two months of the date of its notification. Since it considered that the explanations provided by the Italian authorities were not satisfactory, the Commission decided to bring this action.

   Admissibility

10. The Italian government raises two objections of inadmissibility.

    The first objection

11. The Italian government submits, first, that the complaint which has been made against it of having maintained the second system of training and the possibility of dual registration in the professions of doctor and dentist does not correspond to reality. The provisions in issue could not, correctly speaking, have been maintained, because they were introduced into national law after the adoption of the coordination directive and with a view to its implementation, and substantially changed the previous system. That mistaken formulation had led the Italian Republic to misunderstand the complaints raised by the Commission and reduced its ability to defend itself.

12. In that regard, it is sufficient to state, first, that whether there is failure to fulfil obligations depends on whether there are measures which do not comply with Community law at the time when the period fixed by the Commission in its reasoned opinion expires, and that fact is independent of the date of the adoption of the national provisions in issue. Secondly, a Member State which introduces national provisions contrary to Community law maintains them from the date of their entry into force until their possible amendment or revocation.

13. The first objection of inadmissibility must therefore be rejected.

    The second objection

14. The Italian government submits, secondly, that the Commission has not stated, in support of its action, which provisions of Community law have been infringed. The obligations which the Italian Republic has failed to fulfil have not been specified. The application should therefore be declared inadmissible.

15. In relation to the first complaint, which concerns the second system of training provided for by Law No 409/85, it is appropriate to point out that the Commission made clear in its application that the obligations which have not been fulfilled are those resulting from Article 1 of the coordination directive.

16. The action of the Commission must therefore be declared admissible so far as the first complaint is concerned.

17. In relation to the second complaint, which dealt with the possibility of dual registration as doctor and dentist, it must be accepted, as the Italian Government submits, that the Commission has not linked that complaint to a particular provision of one of the two recognition and coordination directives.

18. Indeed, both in the course of the pre-litigation procedure and in its application, the Commission first asserted that the recognition directive precludes a practitioner with only one diploma and one professional authorisation being registered at the same time as a doctor and as a dentist. In that regard, it referred more particularly to Article 19 of the recognition directive, without however claiming that the Italian legislation in issue infringed that article. Secondly, it claimed that the current situation in Italy is incompatible with the harmonised system established by the recognition and coordination directives. Finally, in the form of order sought by the application, it claimed that the coordination directive precludes the maintenance of the possibility of dual registration.

19. The Commission considers, however, that it has set out, both in its reasoned opinion and in its application, in a coherent, precise and detailed fashion, the alleged infringements of the Italian Republic. It makes clear, in its reply, that it is Article 1 of the coordination directive which is the key-stone of the entire harmonised system established by the recognition and coordination directives, and that it is to that article, mentioned both in the reasoned opinion and in the application, that reference must be made in the event of serious and fundamental breaches of that harmonised system, which cannot, as in this case, be connected to more specific provisions of the two abovementioned directives.

20. At the outset, it is appropriate to recall that the Court has consistently held that the Commission must indicate, in any application made under Article 226 EC, the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based (see, inter alia, Case C-375/95 Commission v Greece [1997] ECR I-5981, paragraph 35).

21. So far as concerns more particularly the obligation to indicate the legal particulars on which the complaints made by the Commission are based, it is not sufficient for the Commission, in order to claim that the defendant Member State has not complied with a provision of Community law, merely to cite that provision in the section of the reasoned opinion or of the application which covers the legal context and which is purely descriptive and lacking of any explanatory character.

22. It follows that the reference made by the Commission to Article 1 of the coordination directive in the section of the reasoned opinion and of the application covering the legal context cannot establish any connection between the breach of that article and the existence of a possibility of dual professional registration. Further, the citation of that article by the Commission in support of the first complaint does not mean, in the absence of a statement to the contrary, that that article is also relied upon in support of the second complaint.

23. However, if the Commission claims that national legislation is contrary to the system, scheme or spirit of a harmonisation directive, without relating the breach of Community law which results from it to any specific provisions of that directive, its application cannot, on that fact alone, be held to be inadmissible. Nevertheless, in such a situation, the Court may only consider whether the national legislation in issue is, in that sense, contrary to the directive concerned.

24. In this case, the Commission has claimed that the current legal situation in Italy, which allows dual registration as doctor and dentist, is contrary to the harmonised regime established by the recognition and coordination directives and that the latter, in itself, precludes the maintenance of the possibility of dual registration. Thus, the application which it filed enabled the Italian Republic to put forward its defence on that point in order to refute the complaints which the Commission raised in that regard.

25. Consequently, in relation to the second complaint, the action of the Commission must be declared admissible in so far as the Commission alleges that the national legislation in issue is contrary to the harmonised regime established by the recognition and coordination directives.

    Substance

    The first complaint

    Arguments of the parties

26. According to the Commission, the second system of training provided for by Law No 409/85, in which three years are devoted to the field of dentistry, obviously does not satisfy the condition of a specialised training of five years set out in Article 1 of the coordination directive.

27. It claims that that second system of training of dentists corresponds exactly to the diploma of medical specialist in stomatology (odontostomatologia) mentioned in Article 7 of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1).

28. A specialisation in the medical field may not, at the same time, come within the scope of Directive 93/16 on doctors and the recognition directive on dentists. The coordination directive expressly provides for the creation of a new category of professionals authorised to practise dentistry under a qualification different from that of doctors. That is why Article 19 of the recognition directive provides that doctors - whether or not they are specialised in the practice of dentistry - whose qualification as doctor was conferred in Italy do not qualify as of right for recognition under the recognition directive. It is only accorded exceptionally and temporarily to such of those doctors who started their medical training before 28 January 1980.

29. The second system of training for dentists may not therefore be maintained when the coordination directive is implemented.

30. Further, the Commission adopts the conclusions reached in June 1989 by the Advisory Committee on the Training of Dental Practitioners in its Report and Opinion on the compatibility with Article 1 of Directive 78/687/EEC of the training of dentists in Italy consisting of a training in medicine followed by specialisation in dentistry, reference III/D/5045/3/89 of 15 November 1989, annexed to the Commission's reply.

31. That committee, which brought together experts on the subject from all the Member States, concluded at paragraph 4(a) and (b) of the said Report and Opinion:

    (a) A training in dentistry at the end of medical studies does not correspond to the text of Article 1 of Directive 78/687/EEC, which requires a specialised training as dentist in the course of university studies of a period of five years devoted exclusively to dentistry. A training which supplements medical studies and represents only a specialisation in dentistry is clearly distinguishable, both in structure and content, from a course of five years designed according to the requirements of Article 1 of Directive 78/687/EEC, and devoted directly to dentistry and culminating in examinations covering solely that subject.

    (b) The second type of training which exists in Italy corresponds to the training of stomatologist. The diploma of stomatologist and the specialisation in that field come under the directives on doctors. The directives concerning doctors and dentists are based on the principle that there are two different professions. According to that principle, the qualification of specialist in stomatology conferred in Italy is rightly covered in the doctors directives. The dentists directives are not the appropriate place for the mutual recognition of a diploma conferred at the end of a medical specialisation.

32. The Italian Government considers that, to calculate the length of the second system of training, it is appropriate to take into account the time devoted to the study of basic subjects and general medical subjects in the context of the training required to obtain the diploma of doctor, since, in accordance with the annex to the coordination directive, those subjects also form part of the programme of studies for dentists. Further, Article 1 of the coordination directive does not require the training mentioned in the annex to be undertaken within a single cycle of studies exclusively aimed at obtaining a diploma in dentistry.

33. According to that government, the Commission's argument that the coordination directive requires that the specialised dentistry studies should last throughout the length of the five year training is not supported at all by the provisions of the directive. The annex to the directive provides neither for apportionment of the length of the training between general medical and specialised dental-stomatological matters nor for the simultaneous and mixed study of the two groups of subjects.

    Findings of the Court

34. Article 1(2) of the coordination directive provides that the dentistry training prescribed by paragraph 1 of that article shall comprise at least a five-year full time course of theoretical and practical instruction given in a university, in a higher-education institution recognized as having equivalent status or under the supervision of a university.

35. It is true that of the three groups of subjects appearing in the annex only Group (c), entitled Subjects directly related to dentistry, constitutes specialised training in dentistry. Groups (a) and (b), entitled respectively Basic subjects and Medico-biological subjects and general medical subjects, include subjects which must be taken in order to practise medicine just as much as dentistry.

36. Likewise, it is established that Article 1(2) of the coordination directive provides neither for a possible minimum length which must be devoted to purely dental disciplines nor for a division of the time devoted to those subjects in the course of a total length of five years of studies necessary for the acquisition of a training in dentistry.

37. However, the training mentioned in Article 1(2) of the coordination directive is expressly described as dental training, which assumes that there is a course specially prepared for the training of dental practitioners.

38. The diploma to which the second system of training provided for by Law No 409/85 leads is not a diploma in dentistry, but a diploma in basic medicine combined with a diploma certifying specialisation in the field of dentistry. Such a succession of diplomas does not comply with the requirements of the coordination and recognition directives which both concern single diplomas.

39. The second paragraph of Article 19 of the recognition directive, which permits, in the context of the special regime established for Italy, the recognition of a diploma of basic medicine combined with a diploma certifying a specialisation in the field of dentistry, for the purposes of the practice of the activities of a dental practitioner, is not inconsistent with that interpretation. If the Community legislature had wished to allow, in a general way, the possibility of mutual recognition of such a training, it would not have provided, for professionals who had undergone that training, for the mutual recognition of their qualification only exceptionally and temporarily, by conferring it only on those who had started their medical training before 28 January 1980.

40. That interpretation of the coordination directive is supported by the conclusions reached in 1989 by the Advisory Committee on the Training of Dental Practitioners, particularly those reproduced in paragraph 31 of this judgment.

41. The first complaint must therefore be upheld.

    The second complaint

    Arguments of the parties

42. The Commission claims that the recognition directive precludes a practitioner holding a single diploma and a single professional authorisation from being registered at the same time as a doctor and as a dentist.

43. A practitioner who holds a single diploma and a single professional authorisation must come under either the recognition directive, if he is a doctor practising principally as a dentist, under the exceptional and temporary rule set out in Article 19 of that directive, or under Directive 93/16 if he is a doctor who has specialised in stomatology and chosen to continue to practise in that capacity.

44. The Commission adds that it does not question the power of the Member States with regard to the establishment and control of professional bodies, but it contends that, in Italy, the holder of a single diploma of doctor can continue to be registered at the same time as a doctor and as a dentist, and therefore, can practise both professions at once.

45. The Italian Government submits that Article 1 of the coordination directive does not require that entry to the profession of dentist be made subject to registration with a professional body and does not preclude dual registration, unless it is open to persons who do not meet the training requirements laid down by Article 1 of the coordination directive, or if the incompatibility was expressly set out in the coordination directive.

    Findings of the Court

46. As appears from the Court's findings in the context of the first complaint, the coordination directive precludes a Member State providing for a second system of training giving entry to the profession of dental practitioner consisting of a basic training in medicine supplemented by a specialisation in the field of dentistry.

47. The directive requires training expressly described as dental training which leads to the single diploma required by the recognition directive.

48. If, therefore, the coordination directive precludes, apart from the exceptional and temporary regime established by Article 19 of the recognition directive, the possibility of entry to the profession of dental practitioner, for the purposes of the recognition and coordination directives, at the end of a training consisting of six years of basic medical training and three years of specialisation in the field of dentistry, it follows that it also precludes a person with only such a training from being registered both as a doctor and as a dentist.

49. However, in its reply, the Commission made clear that the second complaint concerns doctors whose diploma was conferred in Italy, whether or not they profess a specialisation, who are covered by the exceptional regime set out in Article 19 of the recognition directive and who lawfully practise the profession of dentist. In that case, according to the Commission, the unlawful registration is that of doctor, given that it entails the right to practise, at the same time as the profession of dentist, as a doctor with the same diploma (of doctor) and with the same professional authorisation, although the profession of doctor is regulated by Directive 93/16.

50. In that regard, it is appropriate to note, first, that the temporary regime provided for by Article 19 of the recognition directive is silent as to whether or not the doctors covered by that article may continue to be registered as doctors.

51. Further, whilst the recognition and coordination directives seek to achieve a clear separation of the professions of dental practitioner and doctor, there is no indication that the harmonised regime established by those directives also aims at preventing doctors covered by Article 19 of the recognition directive from being registered as doctors, which would in effect remove their right to practise medicine.

52. Article 19 of the recognition directive established a special regime for a limited category of doctors whose diploma was conferred in Italy, that is, those who, although having a doctor's diploma, practised principally as dentists in Italy, so as to facilitate the transition to the establishment in Italy of the profession of dental practitioner as envisaged by the recognition and coordination directives. To that end, the article requires the other Member States to recognise, under certain conditions, the doctor's diplomas of that category of practitioners for the purposes of the practice of the profession of dental practitioner.

53. The question whether the other Member States are required to recognise the diplomas of those practitioners also for the purposes of the practice of the profession of doctor is one which must be decided in the context of the Community legislation on the recognition of diplomas, certificates and other evidence of formal qualifications of doctor, and not in the context of the recognition and coordination directives relating to dental practitioners.

54. In any event, the possible recognition of those diplomas in the other Member States does not depend on the registration of the practitioners concerned as doctors in Italy. Indeed, the recognition of a professional qualification does not start with the registration of a person as a member of a professional body, but arises in a general way in relation to the characteristics of the relevant diploma and the professional experience acquired by the person who holds it.

55. Finally, that interpretation is not inconsistent with the judgment in Case C-40/93 Commission v Italy [1995] ECR I-1319. At paragraph 24 of that judgment, the Court stated that it is not for the Member States to create a category of dental practitioners which does not come within any category provided for by the relevant directives. In this case, on the other hand, it is not a question of the creation of a new category of doctors whose diplomas may not be recognised in the other Member States, but of the actual consequences of a temporary regime for a limited category of doctors.

56. In those circumstances, the second complaint must be rejected.

    Costs

57. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. However, under the first subparagraph of Article 69(3), the Court may order that the costs be shared or that the parties bear their own costs where each party succeeds on some and fails on other heads. Since the Italian Republic and the Commission have each been partially unsuccessful, the parties must be ordered to bear their own costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Declares that, by providing for a second system of training leading to entry to the profession of dentist, which does not comply with 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, the Italian Republic has failed to fulfil its obligations under that directive.

2. Dismisses the remainder of the action.

3. Orders the Italian Republic and the Commission of the European Communities to pay their own costs.

JannEdward La Pergola SevónTimmermans

Delivered in open court in Luxembourg on 29 November 2001.

R. Grass P. Jann

Registrar President of the Fifth Chamber

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1: Language of the case: Italian.