61985CJ0131_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) GELSENKIRCHEN FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
EMIR GUL
AND
REGIERUNGSPRASIDENT DUSSELDORF
ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ),
Subject of the case
THE COURT ( FOURTH CHAMBER )
Grounds
2 THOSE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BROUGHT BY EMIR GUL, A DOCTOR OF CYPRIOT NATIONALITY, WHOSE SPOUSE IS A BRITISH NATIONAL, AGAINST THE REFUSAL OF THE COMPETENT GERMAN AUTHORITY, THE REGIERUNGSPRASIDENT DUSSELDORF, TO RENEW HIS AUTHORIZATION TO PRACTISE MEDICINE IN GERMANY .
3 AFTER COMPLETING HIS STUDIES IN MEDICINE AT THE UNIVERSITY OF ISTANBUL IN 1976 MR GUL WAS AUTHORIZED BY THE GERMAN AUTHORITIES TO PRACTISE MEDICINE IN GERMANY ON A TEMPORARY BASIS IN ORDER TO ENABLE HIM TO UNDERTAKE FURTHER TRAINING AS A SPECIALIST IN ANAESTHESIA . THAT AUTHORIZATION, WHICH WAS RENEWED ON A NUMBER OF OCCASIONS, WAS GRANTED ON THE EXPRESS CONDITION THAT MR GUL UNDERTOOK TO RETURN TO HIS OWN COUNTRY OR TO ANOTHER DEVELOPING COUNTRY AFTER COMPLETING OR DISCONTINUING HIS TRAINING AS A SPECIALIST IN GERMANY . ON 25 OCTOBER 1982 HE WAS AWARDED A CERTIFICATE OF SPECIALIZATION AS AN ANAESTHESIOLOGIST . ON HIS APPLICATION HIS AUTHORIZATION TO PRACTISE MEDICINE IN AN EMPLOYED CAPACITY WAS RENEWED FOR 1983 ON THE GROUNDS THAT HIS SERVICES WERE STILL REQUIRED BY THE HOSPITAL IN WHICH HE WAS WORKING AS AN ANAESTHETIST AND THAT HIS WIFE WAS UNDERGOING A DIFFICULT PREGNANCY .
4 IN 1983 MR GUL APPLIED FOR PERMANENT AUTHORIZATION TO PRACTISE, RELYING ON THE FACT THAT HIS WIFE AND THE CHILDREN OF THEIR MARRIAGE WERE OF BRITISH NATIONALITY AND THE FACT THAT HIS WIFE WORKED IN GERMANY AS A HAIRDRESSER . AS THE SPOUSE OF ' A NATIONAL OF A MEMBER STATE ( WHO WAS ) PURSUING AN ACTIVITY AS AN EMPLOYED OR SELF-EMPLOYED PERSON IN THE TERRITORY OF ANOTHER MEMBER STATE '
HE WAS THEREFORE ENTITLED UNDER ARTICLE 11 OF REGULATION NO 1612/68 TO TAKE UP ANY ACTIVITY AS AN EMPLOYED PERSON THROUGHOUT THE TERRITORY OF THE HOST MEMBER STATE .
5 THE REGIERUNGSPRASIDENT DUSSELDORF REFUSED TO GRANT HIM PERMANENT AUTHORIZATION ON THE GROUND THAT UNDER GERMAN LAW SUCH AUTHORIZATION COULD BE GRANTED ONLY IN THE FORM OF A LICENCE TO PRACTISE MEDICINE ( ' APPROBATION ' ). HE POINTED OUT THAT UNDER PARAGRAPH 3 OF THE BUNDESARZTEORDNUNG ( FEDERAL REGULATION ON THE PRACTICE OF MEDICINE ) 1977 ONLY GERMAN NATIONALS, NATIONALS OF OTHER MEMBER STATES OF THE COMMUNITY AND STATELESS PERSONS WERE ENTITLED TO A LICENCE, IF THEY FULFILLED THE CONDITIONS PRESCRIBED ; IN CERTAIN SPECIAL CIRCUMSTANCES, WHICH DID NOT EXIST IN THE CASE IN POINT, A LICENCE MIGHT BE ISSUED TO A NATIONAL OF A NON-MEMBER COUNTRY . HOWEVER, A NATIONAL OF A NON-MEMBER COUNTRY MIGHT PRACTISE MEDICINE ON THE BASIS OF AN AUTHORIZATION ( ' ERLAUBNIS ' ) UNDER PARAGRAPH 10 OF THE BUNDESARZTEORDNUNG . SUCH AN AUTHORIZATION, THE ISSUE OF WHICH WAS WITHIN THE DISCRETION OF THE COMPETENT AUTHORITY, COULD BE GRANTED ONLY FOR A LIMITED PERIOD, NORMALLY FOUR YEARS, AND FOR A SPECIFIC POST OR ACTIVITY .
6 MR GUL THEN APPLIED FOR THE RENEWAL OF HIS AUTHORIZATION FOR A PERIOD OF TWO YEARS, BUT THAT APPLICATION WAS REJECTED BY THE REGIERUNGSPRASIDENT, WHO TOOK THE VIEW THAT THERE WAS NO GROUND FOR GRANTING SUCH A RENEWAL TO A FOREIGN DOCTOR MARRIED TO A COMMUNITY NATIONAL ; IT WAS NOT EXCESSIVE TO REQUIRE HIM TO RETURN TO HIS COUNTRY OF ORIGIN, PARTICULARLY SINCE AN INCREASING NUMBER OF DOCTORS IN GERMANY WERE UNEMPLOYED .
7 MR GUL BROUGHT PROCEEDINGS AGAINST THE REJECTION OF HIS APPLICATION BEFORE THE VERWALTUNGSGERICHT GELSENKIRCHEN, RELYING ON THE RIGHT TO TAKE UP EMPLOYMENT PROVIDED FOR BY THE COMMUNITY LEGISLATION ON FREEDOM OF MOVEMENT AND ON THE PRINCIPLE OF NON-DISCRIMINATION . THAT IS TO SAY, THE PRACTICE OF THE GERMAN AUTHORITIES WAS TO GRANT AUTHORIZATION UNDER ARTICLE 10 OF THE BUNDESARTZTEORDNUNG TO DOCTORS WHO WERE NATIONALS OF A NON-MEMBER COUNTRY MARRIED TO GERMAN NATIONALS, BUT TO REFUSE AUTHORIZATION TO DOCTORS FROM NON-MEMBER COUNTRIES MARRIED TO NATIONALS OF OTHER MEMBER STATES . SUCH A PRACTICE MUST, HE ARGUED, BE REGARDED AS DISCRIMINATORY WITH REGARD TO NATIONALS OF OTHER MEMBER STATES .
8 THE VERWALTUNGSGERICHT CONSIDERED THAT AUTHORIZATION UNDER ARTICLE 10 OF THE BUNDESARZTEORDNUNG COULD NOT BE GRANTED TO THE APPLICANT ON THE BASIS OF NATIONAL LEGISLATION ALONE, AND THAT THE RESULT OF THE PROCEEDINGS THEREFORE DEPENDED ON WHETHER THE APPLICANT WAS ENTITLED TO AUTHORIZATION UNDER COMMUNITY LAW .
9 IN ORDER TO RESOLVE THAT PROBLEM THE VERWALTUNGSGERICHT STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
' ( 1 ) CAN THE RIGHT OF A PERSON WHO IS A NATIONAL OF A NON-MEMBER COUNTRY TO TAKE UP ANY ACTIVITY AS AN EMPLOYED PERSON THROUGHOUT THE TERRITORY OF A MEMBER STATE, PURSUANT TO ARTICLE 11 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ), ALSO ENTITLE THAT PERSON TO THE GRANT OF A SPECIAL AUTHORIZATION FOR THE EXERCISE OF A PARTICULAR OCCUPATION ( IN THIS CASE, THE MEDICAL PROFESSION ) WHICH UNDER NATIONAL LAW MAY ONLY BE TAKEN UP AND PURSUED IN ACCORDANCE WITH AN AUTHORIZATION ISSUED BY THE AUTHORITIES PURSUANT TO SPECIAL LEGAL PROVISIONS REGARDING OCCUPATIONS, WHERE THAT PERSON FULFILS THE OTHER APPLICABLE CONDITIONS?
( 2 ) IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE :
CAN THE NATIONAL OF A NON-MEMBER COUNTRY SO ENTITLED UNDER ARTICLE 11 OF THAT REGULATION RELY ON THE FIRST INDENT OF ARTICLE 3 ( 1 ) OF THE REGULATION?
( 3 ) IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE :
DOES THE FIRST PARAGRAPH OF ARTICLE 3 ( 1 ) OF THE REGULATION GIVE THE NATIONAL OF A NON-MEMBER COUNTRY SO ENTITLED UNDER ARTICLE 11 THE RIGHT TO BE TREATED IN THE SAME WAY AS A NATIONAL OF THE MEMBER STATE CONCERNED IN REGARD TO THE TAKING UP AND PURSUIT OF AN OCCUPATION? IF NOT, WHAT IS THE LEGAL SIGNIFICANCE OF THAT PROVISION?
( 4 ) IF QUESTIONS 1 TO 3 ARE ANSWERED IN THE AFFIRMATIVE :
IN DECIDING WHETHER THE PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION OR THE ADMINISTRATIVE PRACTICES REGARDING ADMISSION TO A PARTICULAR OCCUPATION HAVE THE EFFECT OF DISCRIMINATING AGAINST FOREIGNERS, IS IT SUFFICIENT TO EXAMINE IN ISOLATION THE PROVISIONS WHOSE APPLICATION IS IN QUESTION IN THE SPECIFIC CASE ( HERE, PARAGRAPH 10 OF THE BUNDESARZTEORDUNUNG AS LAST AMENDED ON 16 AUGUST 1977, BGBL ( OFFICIAL JOURNAL ) I P . 1581 ), OR IS IT NECESSARY TO ASSESS AS A WHOLE THE CUMULATIVE EFFECT OF ALL THE PROVISIONS GOVERNING ADMISSION TO THAT OCCUPATION ( HERE, IN PARTICULAR PARAGRAPHS 2, 3 AND 10 OF THE BUNDESARZTEORDNUNG IN CONJUNCTION WITH ARTICLE 12 OF THE GRUNDGESETZ ( BASIC LAW ) OF THE FEDERAL REPUBLIC OF GERMANY)?
( 5 ) IF QUESTIONS 1 TO 3 ARE ANSWERED IN THE AFFIRMATIVE :
DOES THE RIGHT TO BE TREATED IN THE SAME WAY AS A NATIONAL OF THE MEMBER STATE CONCERNED, WITH REGARD TO THE TAKING UP AND PURSUIT OF THE ACTIVITIES OF A DOCTOR, APPLY EVEN WHERE THE NATIONAL OF A NON-MEMBER COUNTRY ENTITLED UNDER ARTICLE 11 OF THE REGULATION TO TAKE UP EMPLOYMENT HAS ONLY ' OTHER EVIDENCE OF FORMAL QUALIFICATIONS '
AS REFERRED TO IN ARTICLE 1 ( 5 ) IN CONJUNCTION WITH ARTICLE 6 OF THE COUNCIL DIRECTIVE OF 16 JUNE 1975 CONCERNING THE COORDINATION OF PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN RESPECT OF ACTIVITIES AS DOCTORS ( 75/363/EEC ) ( OFFICIAL JOURNAL, L 167, P . 14 ), ON THE BASIS OF WHICH THE MEMBER STATE, UNDER ITS OWN RULES, AUTHORIZES ITS OWN NATIONALS AND THOSE OF OTHER MEMBER STATES TO TAKE UP AND PURSUE THE ACTIVITIES OF A DOCTOR?
( 6 ) IF QUESTION 5 IS ANSWERED IN THE NEGATIVE :
IN REGARD TO A NATIONAL OF A NON-MEMBER COUNTRY ENTITLED TO TAKE UP EMPLOYMENT UNDER ARTICLE 11 OF REGULATION NO 1612/68 WHO, ON THE BASIS OF A MEDICAL QUALIFICATION FROM A NON-MEMBER COUNTRY, HAS PRACTISED MEDICINE IN A MEMBER STATE WITH AN AUTHORIZATION ISSUED BY THAT STATE FOR MORE THAN SIX YEARS AND HAS OBTAINED A CERTIFICATE IN SPECIALIZED MEDICINE IN THAT STATE CORRE SPONDING TO THE PROVISIONS OF ARTICLE 2 OF DIRECTIVE 75/363/EEC, CAN THAT MEMBER STATE STILL RELY ON THE FACT THAT HE DOES NOT SATISFY THE CONDITIONS FOR TAKING UP AND PURSUING THE ACTIVITIES OF A DOCTOR LAID DOWN IN ARTICLE 1 ( 1 ) OF THAT DIRECTIVE?
10 OBSERVATIONS WERE SUBMITTED BY MR GUL, BY THE REGIERUNGSPRASIDENT DUSSELDORF AND BY THE COMMISSION .
THE FIRST QUESTION
11 UNDER ARTICLE 11 OF REGULATION NO 1612/68, THE INTERPRETATION OF WHICH IS REQUESTED, WHERE A NATIONAL OF A MEMBER STATE IS PURSUING AN ACTIVITY AS AN EMPLOYED OR SELF-EMPLOYED PERSON IN THE TERRITORY OF ANOTHER MEMBER STATE, HIS SPOUSE AND THOSE OF THE CHILDREN WHO ARE UNDER THE AGE OF 21 YEARS OR DEPENDENT ON HIM ARE ENTITLED TO TAKE UP ANY ACTIVITY AS AN EMPLOYED PERSON THROUGHOUT THE TERRITORY OF THAT SAME STATE, EVEN IF THEY ARE NOT NATIONALS OF ANY MEMBER STATE .
12 ACCORDING TO THE REGIERUNGSPRASIDENT, THAT PROVISION MUST BE INTERPRETED AS MEANING THAT THE RIGHT TO TAKE UP EMPLOYMENT GRANTED TO THE SPOUSE OF A MIGRANT WORKER DOES NOT INCLUDE THE RIGHT TO PURSUE A PARTICULAR OCCUPATION, SUCH AS THE MEDICAL PROFESSION, ACCESS TO WHICH IS GOVERNED BY SPECIAL LEGAL PROVISIONS .
13 FOR MR GUL AND THE COMMISSION, ON THE OTHER HAND, IT IS CLEAR FROM THE VERY WORDING OF ARTICLE 11 OF REGULATION NO 1612/68 THAT THE RIGHT OF THE SPOUSE, WHATEVER HIS NATIONALITY, TO TAKE UP EMPLOYMENT COVERS ANY ACTIVITY AS AN EMPLOYED PERSON ; THE SPOUSE MUST THEREFORE BE SUBJECT TO THE SAME RULES REGARDING ACCESS TO AND PURSUIT OF THE OCCUPATION AS NATIONALS OF THE HOST MEMBER STATE .
14 THE LATTER ARGUMENT MUST BE UPHELD . FIRST OF ALL, ARTICLE 11 DOES NOT EXCLUDE ANY TYPE OF EMPLOYMENT FROM ITS AREA OF APPLICATION ; FURTHERMORE, THAT PROVISION MUST BE INTERPRETED IN THE LIGHT OF THE OBJECTIVE OF REGULATION NO 1612/68, WHICH IS TO ENSURE FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY . AS THE PREAMBLE TO THE REGULATION STATES, FREEDOM OF MOVEMENT IS A FUNDAMENTAL RIGHT ' OF WORKERS AND THEIR FAMILIES '
( THIRD RECITAL ) AND IT REQUIRES THAT OBSTACLES TO THE MOBILITY OF WORKERS SHOULD BE ELIMINATED, IN PARTICULAR AS REGARDS ' THE WORKER ' S RIGHT TO BE JOINED BY HIS FAMILY '
AND ' THE CONDITIONS FOR THE INTEGRATION OF THAT FAMILY INTO THE HOST COUNTRY '
( FIFTH RECITAL ).
15 IN ORDER TO PURSUE AN OCCUPATION, SUCH AS THE MEDICAL PROFESSION, THE ACCESS TO AND PURSUIT OF WHICH ARE GOVERNED BY SPECIAL RULES, THE SPOUSE OF A MIGRANT WORKER WHO IS A NATIONAL OF A NON-MEMBER COUNTRY MUST MEET TWO REQUIREMENTS : HE MUST SHOW THAT HE HAS THE QUALIFICATIONS AND DIPLOMAS NECESSARY FOR THE PURSUIT OF THAT OCCUPATION IN ACCORDANCE WITH THE LEGISLATION OF THE HOST MEMBER STATE AND MUST OBSERVE THE SPECIFIC RULES GOVERNING THE PURSUIT OF THAT OCCUPATION ; THOSE REQUIREMENTS MUST BE THE SAME AS THOSE IMPOSED BY THE HOST MEMBER STATE ON ITS OWN NATIONALS . IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT MR GUL MEETS BOTH THESE REQUIREMENTS .
16 IN THAT REGARD THE REGIERUNGSPRASIDENT HAS FURTHER ARGUED THAT FREEDOM OF MOVEMENT FOR WORKERS AND THE RIGHT OF ESTABLISHMENT MAY UNDER ARTICLES 48 AND 56 OF THE EEC TREATY BE MADE SUBJECT TO RESTRICTIONS JUSTIFIED ON GROUNDS OF PUBLIC HEALTH ; THERE IS ALL THE MORE REASON FOR APPLYING SUCH RESTRICTIONS TO SPOUSES OF NATIONALS OF A MEMBER STATE WHO THEMSELVES ARE NATIONALS OF NON-MEMBER COUNTRIES .
17 THAT ARGUMENT CANNOT BE ACCEPTED . THE RIGHT TO RESTRICT FREEDOM OF MOVEMENT ON GROUNDS OF PUBLIC HEALTH IS INTENDED NOT TO EXCLUDE THE PUBLIC HEALTH SECTOR, AS A SECTOR OF ECONOMIC ACTIVITY AND FROM THE POINT OF VIEW OF ACCESS TO EMPLOYMENT, FROM THE APPLICATION OF THE PRINCIPLES OF FREEDOM OF MOVEMENT BUT TO PERMIT MEMBER STATES TO REFUSE ACCESS TO THEIR TERRITORY OR RESIDENCE THERE TO PERSONS WHOSE ACCESS OR RESIDENCE WOULD IN ITSELF CONSTITUTE A DANGER FOR PUBLIC HEALTH .
18 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT ARTICLE 11 OF REGULATION NO 1612/68 MUST BE INTERPRETED AS MEANING THAT THE RIGHT OF THE SPOUSE OF A WORKER ENTITLED TO MOVE FREELY WITHIN THE COMMUNITY TO TAKE UP ANY ACTIVITY AS AN EMPLOYED PERSON CARRIES WITH IT THE RIGHT TO PURSUE OCCUPATIONS SUBJECT TO A SYSTEM OF ADMINISTRATIVE AUTHORIZATION AND TO SPECIAL RULES GOVERNING THEIR EXERCISE, SUCH AS THE MEDICAL PROFESSION, IF THE SPOUSE SHOWS THAT HE HAS THE PROFESSIONAL QUALIFICATIONS AND DIPLOMAS REQUIRED BY THE HOST MEMBER STATE FOR THE EXERCISE OF THE OCCUPATION IN QUESTION .
THE SECOND QUESTION
19 IN ITS SECOND QUESTION THE NATIONAL COURT ASKS WHETHER A NATIONAL OF A NON-MEMBER COUNTRY TO WHOM ARTICLE 11 OF REGULATION NO 1612/68 APPLIES MAY RELY ON THE FIRST INDENT OF ARTICLE 3 ( 1 ) OF THAT REGULATION, WHICH PROVIDES THAT, UNDER THE REGULATION, PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION OR ADMINISTRATIVE PRACTICES OF A MEMBER STATE ARE NOT TO APPLY WHERE THEY LIMIT APPLICATION FOR AND OFFERS OF EMPLOYMENT OR THE RIGHT OF FOREIGN NATIONALS TO TAKE UP AND PURSUE EMPLOYMENT, OR SUBJECT THESE TO CONDITIONS NOT APPLICABLE IN RESPECT OF ITS OWN NATIONALS .
20 AS THE COMMISSION HAS CORRECTLY EMPHASIZED, THE RIGHTS GRANTED TO THE SPOUSE OF A MIGRANT WORKER BY ARTICLES 10 AND 11 OF REGULATION NO 1612/68 ARE LINKED TO THE RIGHTS WHICH THAT WORKER ENJOYS UNDER ARTICLE 48 OF THE EEC TREATY AND ARTICLES 1 ET SEQ . OF THE REGULATION . IN SO FAR AS THE SPOUSE CAN RELY ON SUCH SECONDARY RIGHTS AND THOSE RIGHTS INCLUDE THE RIGHT TO TAKE UP ANY ACTIVITY AS AN EMPLOYED PERSON PURSUANT TO ARTICLE 11, HE MUST BE ABLE TO PURSUE THAT ACTIVITY UNDER THE SAME CONDITIONS AS ARE APPLICABLE TO A WORKER ENTITLED TO FREEDOM OF MOVEMENT . ARTICLE 3 ( 1 ) OF THE REGULATION THUS REQUIRES THE AUTHORITIES OF THE HOST MEMBER STATE TO TREAT THE SPOUSE IN A NON-DISCRIMINATORY FASHION . THE ' NATIONAL TREATMENT '
TO WHICH WORKERS FROM MEMBER STATES ARE ENTITLED IN THAT REGARD IS THUS EXTENDED TO THEIR SPOUSES .
21 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT A PERSON TO WHOM ARTICLE 11 OF REGULATION NO 1612/68 APPLIES MAY RELY ON THE FIRST INDENT OF ARTICLE 3 ( 1 ) OF THAT REGULATION IRRESPECTIVE OF HIS NATIONALITY .
THE THIRD QUESTION
22 THE ANSWER TO THIS QUESTION, CONCERNING THE RIGHT OF NATIONALS OF NON-MEMBER COUNTRIES TO WHOM ARTICLE 11 OF REGULATION NO 1612/68 APPLIES TO BE TREATED IN THE SAME MANNER AS NATIONALS OF THE HOST COUNTRY, MAY BE FOUND IN THE FOREGOING OBSERVATIONS . THERE IS THEREFORE NO NEED TO REPLY SEPARATELY TO THIS QUESTION .
THE FOURTH QUESTION
23 IN ITS FOURTH QUESTION THE NATIONAL COURT SEEKS TO ASCERTAIN THE PRECISE SCOPE OF THE NON-DISCRIMINATORY TREATMENT PROVIDED FOR BY THE FIRST INDENT OF ARTICLE 3 ( 1 ) OF REGULATION NO 1612/68 . IN SO FAR AS IT REFERS TO THE INTERPRETATION TO BE GIVEN TO PROVISIONS OF NATIONAL LAW, SUCH AS PARAGRAPH 10 OF THE BUNDESARZTEORDNUNG, THE COURT IS NOT COMPETENT UNDER ARTICLE 177 OF THE EEC TREATY TO EXAMINE THE MATTER . MORE PARTICULARLY, IT IS NOT FOR THE COURT TO RULE ON THE MANNER IN WHICH NATIONAL AUTHORITIES MUST RECOGNIZE THE RIGHT OF THE SPOUSE OF A MIGRANT WORKER TO TAKE UP EMPLOYMENT FOR WHICH HE HAS THE NECESSARY PROFESSIONAL QUALIFICATIONS .
24 IN SO FAR AS THE FOURTH QUESTION SEEKS TO ASCERTAIN WHETHER, IN ORDER TO DETERMINE WHETHER OR NOT THERE IS DISCRIMINATION, ONLY THE LEGISLATION ITSELF SHOULD BE EXAMINED OR WHETHER REGARD SHOULD BE HAD TO THE APPLICABLE PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION AND ADMINISTRATIVE PRACTICES, THE OBJECTIVES OF THE REGULATION AND THE WORDING OF ARTICLE 3 ITSELF SHOW THAT THE LATTER APPROACH IS THE CORRECT ONE .
25 AS THE PREAMBLE TO REGULATION NO 1612/68 POINTS OUT, IN ORDER THAT THE RIGHT OF FREEDOM OF MOVEMENT MAY BE EXERCISED, BY OBJECTIVE STANDARDS, IN FREEDOM AND DIGNITY, EQUAL TREATMENT MUST BE ENSURED ' IN FACT AND IN LAW '
( FIFTH RECITAL ). IN THAT CONTEXT THE FIRST INDENT OF ARTICLE 3 ( 1 ) OF THE REGULATION PROHIBITS THE APPLICATION OF DISCRIMINATORY LEGAL PROVISIONS AND ' ADMINISTRATIVE PRACTICES '
WHICH MAKE ACCESS TO EMPLOYMENT SUBJECT TO CONDITIONS NOT APPLICABLE TO NATIONALS OF THE HOST STATE . FURTHERMORE, THE VERY CONCEPT OF EQUAL TREATMENT PRESUPPOSES NOT ONLY THAT THE SAME LAWS SHOULD BE APPLIED TO NATIONALS AND TO FOREIGNERS BUT THAT THOSE LAWS SHOULD BE APPLIED TO BOTH CATEGORIES OF PERSONS IN THE SAME MANNER .
26 THE ANSWER TO THE FOURTH QUESTION MUST THEREFORE BE THAT THE NON-DISCRIMINATORY TREATMENT PROVIDED FOR IN THE FIRST INDENT OF ARTICLE 3 ( 1 ) OF REGULATION NO 1612/68 CONSISTS IN THE APPLICATION TO PERSONS COVERED BY THAT PROVISION OF THE SAME PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION AND THE SAME ADMINISTRATIVE PRACTICES AS ARE APPLIED TO NATIONALS OF THE HOST STATE .
THE FIFTH QUESTION
27 THE FIFTH QUESTION CONCERNS THE EFFECT ON THE RIGHTS OF THE SPOUSE OF A MIGRANT WORKER WHO INTENDS TO PRACTISE MEDICINE AS AN EMPLOYED PERSON OF COUNCIL DIRECTIVE 75/363 OF 16 JUNE 1975 CONCERNING THE COORDINATION OF PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN RESPECT OF ACTIVITIES OF DOCTORS ( OFFICIAL JOURNAL 1975, L 167, P . 14 ). THAT DIRECTIVE IS INTENDED NOT TO LAY DOWN RULES FOR THE IMPLEMENTATION OF FREEDOM OF ESTABLISHMENT AND FREEDOM OF MOVEMENT FOR DOCTORS BUT TO FACILITATE THE EXERCISE OF THOSE RIGHTS BY MEANS OF THE RECOGNITION OF TRAINING AND OTHER CONDITIONS NECESSARY FOR THE ISSUE OF A LICENCE OR TEMPORARY AUTHORIZATION TO PRACTISE MEDICINE .
28 IT HAS ALREADY BEEN POINTED OUT ABOVE THAT IN ORDER TO PRACTISE MEDICINE IN ANOTHER MEMBER STATE A WORKER WHO IS A NATIONAL OF A MEMBER STATE OR THE SPOUSE OF SUCH A WORKER MUST POSSESS THE QUALIFICATIONS AND DIPLOMAS REQUIRED FOR THAT PURPOSE BY THE LEGISLATION OF THAT OTHER MEMBER STATE . IN THAT RESPECT IT IS IRRELEVANT WHETHER HIS QUALIFICATIONS AND DIPLOMAS ARE RECOGNIZED UNDER NATIONAL LAW ALONE OR UNDER A COUNCIL DIRECTIVE OR AN AGREEMENT ENTERED INTO BETWEEN THE HOST MEMBER STATE AND A NON-MEMBER COUNTRY .
29 WITH REGARD IN PARTICULAR TO DIRECTIVE 75/363, IT MUST BE HELD THAT A WORKER ' S SPOUSE TO WHOM ARTICLE 11 OF REGULATION NO 1612/68 APPLIES MAY RELY ON HIS ENTITLEMENT TO EQUAL TREATMENT IN ORDER TO OBTAIN RECOGNITION OF HIS QUALIFICATIONS AND DIPLOMAS UNDER THE SAME CONDITIONS AS ARE APPLICABLE TO A WORKER WHO IS A NATIONAL OF A MEMBER STATE .
30 THE ANSWER MUST THEREFORE BE THAT THE SPOUSE OF A WORKER WHO IS A NATIONAL OF A MEMBER STATE TO WHOM ARTICLE 11 OF REGULATION NO 1612/68 APPLIES IS ENTITLED TO BE TREATED IN THE SAME WAY AS A NATIONAL OF THE HOST MEMBER STATE WITH REGARD TO ACCESS, AS AN EMPLOYED PERSON, TO THE MEDICAL PROFESSION AND THE PRACTICE OF THAT PROFESSION WHETHER HIS QUALIFICATIONS ARE RECOGNIZED UNDER THE LEGISLATION OF THE HOST MEMBER STATE ALONE OR PURSUANT TO DIRECTIVE 75/363 .
THE SIXTH QUESTION
31 SINCE THE SIXTH QUESTION WAS REFERRED TO THE COURT ONLY IN THE EVENT THAT A NEGATIVE REPLY SHOULD BE GIVEN TO THE FIFTH QUESTION, THERE IS NO NEED TO REPLY TO IT .
COSTS
Decision on costs
32 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
ON THOSE GROUNDS,
Operative part
THE COURT ( FOURTH CHAMBER )
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE VERWALTUNGSGERICHT GELSENKIRCHEN BY ORDER OF 28 MARCH 1985, HEREBY RULES :
( 1 ) ARTICLE 11 OF REGULATION NO 1612/68 MUST BE INTERPRETED AS MEANING THAT THE RIGHT OF THE SPOUSE OF A WORKER ENTITLED TO MOVE FREELY WITHIN THE COMMUNITY TO TAKE UP ANY ACTIVITY AS AN EMPLOYED PERSON CARRIES WITH IT THE RIGHT TO PURSUE OCCUPATIONS SUBJECT TO A SYSTEM OF ADMINISTRATIVE AUTHORIZATION AND TO SPECIAL LEGAL RULES GOVERNING THEIR EXERCISE, SUCH AS THE MEDICAL PROFESSION, IF THE SPOUSE SHOWS THAT HE HAS THE PROFESSIONAL QUALIFICATIONS AND DIPLOMAS REQUIRED BY THE HOST MEMBER STATE FOR THE EXERCISE OF THE OCCUPATION IN QUESTION .
( 2)A PERSON TO WHOM ARTICLE 11 OF REGULATION NO 1612/68 APPLIES MAY RELY ON THE FIRST INDENT OF ARTICLE 3 ( 1 ) OF THAT REGULATION IRRESPECTIVE OF HIS NATIONALITY .
( 3)THE NON-DISCRIMINATORY TREATMENT PROVIDED FOR IN THE FIRST INDENT OF ARTICLE 3 ( 1 ) OF REGULATION NO 1612/68 CONSISTS IN THE APPLICATION TO PERSONS COVERED BY THAT PROVISION OF THE SAME PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION AND THE SAME ADMINISTRATIVE PRACTICES AS ARE APPLIED TO NATIONALS OF THE HOST STATE .
( 4)A SPOUSE OF A WORKER WHO IS A NATIONAL OF A MEMBER STATE TO WHOM ARTICLE 11 OF REGULATION NO 1612/68 APPLIES IS ENTITLED TO BE TREATED IN THE SAME WAY AS A NATIONAL OF THE HOST STATE WITH REGARD TO ACCESS, AS AN EMPLOYED PERSON, TO THE MEDICAL PROFESSION AND THE PRACTICE OF THAT PROFESSION WHETHER HIS QUALIFICATIONS ARE RECOGNIZED UNDER THE LEGISLATION OF THE HOST MEMBER STATE ALONE OR PURSUANT TO DIRECTIVE 75/363 .
BAHLMANN KOOPMANS BOSCO O ' HIGGINS SCHOCKWEILER DELIVERED IN OPEN COURT IN LUXEMBOURG ON 7 MAY 1986 .