Opinion of Mr Advocate General Darmon delivered on 17 November 1993. - Salomone Haim v Kassenzahnärztliche Vereinigung Nordrhein. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Establishment and provision of services - Dentist - Recognition of qualifications. - Case C-319/92.



European Court reports 1994 Page I-00425

Swedish special edition Page I-00023

Finnish special edition Page I-00023



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. Mr Haim, an Italian national, born in 1922, obtained in 1946 a diploma in dentistry from the University of Istanbul, where he practised until 1980. On 18 September 1981 the Regierungspraesident of Arnsberg recognized Mr Haim' s qualifications, enabling him to practise his profession in the Federal Republic of Germany. He was not, however, authorized to treat patients who were affiliated to social security schemes and could only treat patients under private insurance. He established himself in Belgium where he passed a theoretical and practical examination which entitled him to a "Certificate of equivalence" to the "diplôme légal belge de licencié en science dentaire". Mr Haim was appointed as a dental practitioner of a social security scheme there.

2. From 1988 he decided to work as assistant to his son, who is established in Germany and appointed as a dental practitioner of a social security scheme. In order to be able to treat patients who are covered by a social security scheme, he applied to be enrolled on the Kassenzahnaerztliche Vereinigung Nordrhein (Association of Dental Practitioners of Social Security Schemes, hereinafter referred to as "the KVN").

3. In order to practise as a dental practitioner of a social security scheme in Germany, Paragraph 3(2) of the Zulassungsverordnung fuer Kassenzahnaerzte (Regulation on Eligibility for Appointment as a Dental Practitioner of a Social Security Scheme, hereinafter referred to as "the ZZV") requires enrolment on the register of dental practitioners subject to the following conditions:

- recognition of the status of dental practitioner;

- completion of a preparatory training period of two years.

4. According to Article 20 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services ("the first directive") (1) "Member States which require their own nationals to complete a preparatory training period in order to become eligible for appointment as a dental practitioner of a social security scheme may impose the same requirement on nationals of the other Member States for a period of eight years following notification of this directive. The training period may not, however, exceed six months."

5. The period of eight years expired on 28 July 1986 for the Federal Republic of Germany. (2)

6. Thus, taking into account that article (hereinafter "Article 20"), Paragraph 3(4) of the ZZV exempts from the training period "dental practitioners who have obtained a diploma, recognized in Community law, in another Member State of the European Community and have been authorized to practise their profession". (3)

7. Relying on that provision, Mr Haim applied to be exempted from the requirement to complete a preparatory training period, which was refused by the KVN on the ground that he had not obtained his diploma in a Member State.

8. The appeal against that decision was dismissed first by the Sozialgericht Duesseldorf and subsequently by the Landessozialgericht Nordrhein-Westfalen. The Bundessozialgericht, before which an appeal was brought on a point of law, referred to the Court for a preliminary ruling three questions on the interpretation of Article 20 of the directive and Article 52 of the Treaty.

9. The Court is asked essentially to give a ruling on the following:

(1) whether Article 20 prohibits a Member State, which has authorized a national of another Member State to practise his profession in its territory, from requiring the person concerned to complete a preparatory training period in order to be eligible for appointment if he does not possess any evidence of formal qualifications which under the directives is required to be recognized;

(2) if not, whether Article 20 exempts from the training period any national of a Member State who holds a diploma awarded by a non-member State which is recognized by another Member State as equivalent to a diploma mentioned in the directive;

(3) if not, whether it is permissible under Article 52 of the Treaty to deny an appointment to a practitioner who is a Community national who does not hold a diploma mentioned in the directive but who has been authorized to practise in the State of establishment, on the ground that he has not completed the required preparatory training period, without examining whether that condition may be regarded as having been fulfilled in view of the professional experience acquired.

10. The object of the question before the Court is therefore clearly defined: it is not a question here of determining the conditions for taking up and pursuing the practice of dentistry - which is not at issue in the present case - but rather for appointment as a dental practitioner for a Community national holding a diploma awarded by a non-member State and recognized as equivalent in the Member State where he has established himself and by another State of the Community.

11. The first two questions, both of which concern the interpretation of Article 20, ought in my view to receive a single answer.

12. This provision must be placed in its legislative context.

13. It appears from Articles 2 and 3 that the object of the first directive is the mutual recognition by Member States of diplomas in dentistry which are exhaustively listed and awarded by those States.

14. The coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners is ensured by Council Directive 78/687/EEC of 25 July 1978 ("the second directive") (4) to which the first directive of the same date (5) refers.

15. Diplomas conferred by any Member State are automatically recognized in the other States of the Community because they correspond to the minimum criteria, defined by the second directive, (6) on which the Member States have agreed.

16. There is no such coordination of training and legislation with non-member countries. Article 1(4) of the second directive provides, in that respect, that "nothing in this directive shall 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 and 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". (7)

17. There is therefore no requirement for a Member State to recognize a diploma obtained in a non-member State, even in the case of a Community national.

18. The question of recognition by Member States of diplomas conferred by non-member States is not germane to the specific directives on the mutual recognition of diplomas. Generally they refer to it only in order to explain that it is governed by national law which determines its own criteria for equivalence and which retains an unfettered power of discretion which Community law does not put in question. (8)

19. By means of Directive 89/48/EEC of 21 December 1988, (9) the Council introduced a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration. However, that directive does not apply to professions which are the subject of a separate directive establishing arrangements for the mutual recognition of diplomas by Member States. (10) Thus, although the effect of Article 1(a) is that diplomas obtained in a non-member State may be recognized, the present dispute falls outwith its scope. Moreover, by a recommendation of that date, the Council recommended that the governments of the Member States should allow their nationals who hold diplomas awarded by a non-member State to take up and pursue regulated professions within the Community. (11)

20. Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (12) likewise does not apply to professions which are the subject of a specific directive establishing arrangements for the mutual recognition of diplomas by Member States. (13)

21. It follows that a national of a Member State may not rely on the first directive, and on Article 20 in particular, if he has only a diploma obtained in a non-member country and not one of the diplomas listed in Article 3.

22. Does the fact that that diploma was recognized by the Member State of establishment affect that conclusion? Is it obliged to apply the directive and exempt the holder of such a diploma from the training period?

23. The applicant in the main proceedings puts forward several arguments in support of that view.

24. First, the wording itself of Article 20 enables Member States which require their own nationals to complete a preparatory training period in order to be appointed to impose for a period of eight years the same requirement on nationals of other Member States without any other condition: they would not be required in addition to be holders of a Community diploma. (14)

25. Secondly, the title of the first directive refers not only to recognition of diplomas, it also refers to "measures to facilitate the effective exercise of the right of establishment and freedom to provide services". Article 20, which appears in Chapter VIII, headed "Final Provisions", has no link with the provisions concerning the mutual recognition of diplomas. The directive defines, in a first phase, the conditions for the mutual recognition of diplomas within the Community and, in a second phase, the conditions for taking up the profession of dental practitioner appointed to a social security scheme. (15)

26. Thirdly, only that interpretation would enable discrimination to be avoided between Community nationals authorized to practice in the host Member State. (16)

27. Finally, that interpretation is in accordance with the ratio legis of the provision, the purpose of which is not to require experienced dental practitioners to undertake a period of training but solely to compensate for the lack of practical training of entrants into the profession. (17)

28. I am not convinced by that analysis.

29. To divorce Article 20 from the rest of the directive is to disregard the general scheme of the latter and the interdependency of the two directives of 25 July 1978. As G. Druesne points out: "[with respect to the mutual recognition of diplomas] the technique employed is always the same: two directives are adopted on the same day, one concerning the coordination of national legislation and the other the mutual recognition of diplomas. The first requires certain minimum standards of training, and it is because the system of training is thus equivalent throughout the Community that the second may prescribe that each Member State recognize the diplomas conferred in the others". (18)

30. Likewise, Community nationals are exempt from a training period after a period of eight years precisely because they are holders of diplomas which provide guarantees as to the quality of their training, which must include a period of practical training. (19)

31. Thus, although a Member State is free to continue to make its own nationals who have obtained the national diploma subject to an additional training period in order to become dental practitioners of a social security scheme, I see this only as a classic example of reverse discrimination within that State, which Community law does not penalize.

32. Moreover, recognition by a Member State of a diploma awarded by a non-member State falls solely within the scope of the national law of that State which, for recognition of diplomas obtained in non-member States, is not obliged at all to apply the same criteria and the same requirements as the directive on Community diplomas. (20)

33. Furthermore, a Community national who holds a diploma obtained in a non-member State is treated no differently from nationals of the other Member States if he is required to undergo a training period: recognition of a diploma as a result of a bilateral agreement between a Member State and a non-member State is not to be assimilated to recognition on the basis of the Community directive. (21) The former does not in fact satisfy a condition which the latter do, namely, that of holding a diploma listed in the directive.

34. Finally, the argument based on the sedes materiae may be reversed. All the other articles of the "Final Provisions" refer to other provisions of the legal instrument and in particular to those relating to the mutual recognition of diplomas.

35. How can one ignore, at this juncture, the fact that the aim of the directive is to harmonize laws between Member States, whereas the situation under examination by the national court concerns merely the establishment in Germany of a holder of a diploma obtained in a non-member State without there being any question of coordination or harmonization of diplomas obtained in Member States?

36. However, could a Member State be obliged to recognize as equivalent a diploma awarded by a non-member State on the ground that another Member State considers it equivalent?

37. I consider that such recognition still does not have the effect of bringing the holder within the scope of the directives of 25 July 1978.

38. If the argument maintained by the applicant in the main proceedings were to be accepted, it would lead to a logical impasse: in effect, the facility granted to a Member State pursuant to Article 1(4) of the second directive would become an obligation with regard to all the others. Such a construction cannot be placed on that provision without distorting it. More specifically, the equivalence of diplomas within the Community cannot depend on bilateral agreements concluded between Member States on one side, and non-member States on the other, and which do not observe a minimum Community standard.

39. Commenting on a provision analogous to Article 1(4) of the second directive which appears in Article 1(5) of the Directive 75/363/EEC on doctors, (22) Lord Cockfield, replying on behalf of the Commission to a question from an MEP, (23) stated as follows: "Recognition of diplomas obtained in a non-Community country thus depends solely on the regulations in force in the host Member State; these regulations must, of course, apply equally to nationals of that Member State and the nationals of the other Member States. By virtue of Article 1(5) referred to above, the United Kingdom retains the right not to recognize a basic Israeli diploma, even though it has been recognized by the Federal Republic of Germany".

40. That view was repeated on 13 March 1989 in an answer given by Mr Bangemann, again on behalf of the Commission. Commenting in particular on that occasion on the directives of 25 July 1978, he stated that "the diplomas of non -Community States are not covered by this 'mutual recognition' . The legal instruments in question specifically leave to the Member States the right to grant on their own territory and in line with their own regulations access to the professional activities in question and their exercise by the holders of diplomas acquired in non-Community States. However, recognition of such diplomas by a Member State does not automatically imply an obligation upon the other Member States to recognize them as well". (24)

41. It may be seen that a dental practitioner who holds a diploma obtained in a non-member State is not covered by the aforementioned directives and may not, therefore, enjoy the benefit of the application of Article 20 even if his diploma has been recognized by a Member State. Let me state again that only the obtention of a diploma awarded by a Member State and listed in Article 3 of the directive confers entitlement to exemption from the training period.

42. Accordingly, since he cannot rely on Article 20, a dentist who is a Community national holding a diploma obtained in a non-member State may therefore in principle be required to complete a preparatory training period in order to become eligible for appointment.

43. However, does Article 52 of the Treaty authorize the host Member State to disregard his previous qualifications and training? That is the object of the third question.

44. A situation in which a Community national makes use of the freedom conferred upon him by the Treaty to establish himself in a Member State other than his Member State of origin falls unquestionably within the scope of the Treaty.

45. Certainly, if Article 52 precluded only national measures which, in form or substance, discriminated between nationals of that Member State and nationals of the other Member States, it could not be applied in the present case: the German rules do not in fact make a distinction on grounds of nationality.

46. However, as the most recent decisions of the Court show, "equal treatment on its own is powerless to reflect what is already the current state of the case-law". (25)

47. Thus, in the judgment in the Vlassopoulou case, (26) the applicant in the main proceedings, a lawyer of Greek nationality of the Athens Bar, applied for admission to the Mannheim Bar. Her application was refused on the ground that she did not have the qualifications, laid down by the Federal regulation on the profession of Rechtsanwalt, for the holding of judicial office.

48. Besides her Greek diplomas, Mrs Vlassopoulou had obtained a doctorate in law in Germany and had practised for five years in that country as a legal adviser.

49. During the course of an appeal brought by her against the decision to refuse her application, a question was referred to the Court for the purpose of ascertaining whether Article 52 requires that, in order to enable a Community national to pursue the profession of lawyer, the competent authority of the relevant Member State take into account the diplomas obtained in another Member State and the professional experience of the person concerned.

50. After stating that "in the absence of harmonization of the conditions of access to a particular occupation the Member States are entitled to lay down the knowledge and qualifications needed in order to pursue it and to require the production of a diploma certifying that the holder has the relevant knowledge and qualifications", (27) the Court stated that the right of freedom of establishment could be hindered if the national requirements concerning qualifications took no account of the knowledge and qualifications already acquired by the person concerned in another Member State.

51. The Court concluded that:

"a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialized knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules". (28)

52. The host Member State must therefore consider whether the candidate has established that he already possesses knowledge and qualifications equivalent to those it requires.

53. Where a decision to refuse admission is adopted, it must respect "the requirements of Community law concerning the effective protection of the fundamental rights conferred by the Treaty on Community subjects". (29) The decision must, in particular, be reasoned and be capable of being made the subject of judicial proceedings.

54. That is the approach - as reaffirmed by the Court in Aguirre Borrell (30) - which I propose that the Court take now.

55. The conditions for taking up and pursuing the profession of dental practitioner of a social security scheme where a Community subject holds a diploma from a non-member State are not harmonized at all. (31)

56. Certain Member States make the appointment of dental practitioners to a social security scheme subject to a period of training intended to acquire, as well as experience, knowledge relating to accountancy within the social security scheme and the system of direct billing, together with the principles of cost-effectiveness and control of health expenditure. (32)

57. What of the Community subject who is refused enrolment on the register of dental practitioners because he has not completed the training period?

58. Although the host Member State is entitled to require completion of a preparatory training period, it appears from Article 52 of the Treaty and from the judgment in Vlassopoulou that it must take into account the diplomas, certificates and other evidence of formal qualifications as well as the experience which the person concerned has obtained in another Member State and compare the qualifications submitted with the qualifications required.

59. A self-employed dentist who has already worked as a dental practitioner of a social security scheme in Member State A and who has been authorized to work as a self-employed dentist in Member State B applies for authorization to work as a dental practitioner of a social security scheme in the latter State. This should be compared with the Vlassopoulou case. Mrs Vlassopoulou, who had been authorized to work as a "Rechtsbeistand", applied for authorization to work as a "Rechtsanwalt".

60. A Member State which receives an application for admission to the profession of dental practitioner appointed to a social security scheme made by a Community national who has not completed the mandatory preparatory training period must, accordingly, before requiring completion of that training period, verify on a case-by-case basis whether the experience acquired and the qualifications obtained by the person concerned in another Member State may replace it.

61. It is a matter for the national court to assess whether the experience of the applicant in the main proceedings as well as the authorization granted to him by the Belgian authorities to work as dental practitioner of a social security scheme still make the training period provided for by the German rules necessary and, if so, to what extent.

Accordingly, I suggest that the Court should rule as follows:

(1) A Community national who holds no diploma, certificate or other evidence of formal qualifications within the meaning 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, does not fall within its scope, even if he holds a diploma obtained in a non-member State which has been recognized as equivalent to a national diploma in the Member State of establishment and in another Member State, pursuant to Article 1(4) of 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) Article 52 of the EEC Treaty must be interpreted as meaning that the national authorities of a Member State to which an application for admission to the profession of dental practitioner of a social security scheme without being compelled to complete the preparatory training period has been made by a Community national who has pursued that profession for several years in another Member State, must consider whether and, if so, to what extent, the experience and qualifications already established by the person concerned correspond to those required by the rules of the host State. If those diplomas correspond only partially, the national authorities in question are entitled to require the person concerned to acquire or prove that he has acquired the knowledge and qualifications which are lacking.

(*) Original language: French.

(1) - OJ 1978 L 233, p. 1.

(2) - Commission observations, page 6 of the French translation.

(3) - See Commission observations, page 5 of the French translation.

(4) - Directive 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)

(5) - See Articles 1 and 2.

(6) - See the first two recitals.

(7) - My emphasis.

(8) - See, for example, Article 1(4) of Council Directive 78/1027/EEC of 18 December 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons (OJ 1978 L 362, p. 7).

(9) - OJ 1989 L 19, p. 16.

(10) - Second paragraph of Article 2.

(11) - Council Recommendation 89/49/EEC concerning nationals of Member States who hold a diploma conferred in a non-member State (OJ 1989 L 19, p. 24).

(12) - OJ 1992 L 209, p. 25.

(13) - Article 2.

(14) - Observations of the applicant in the main proceedings, paragraphs 18 and 19.

(15) - Ibid., paragraph 20.

(16) - Ibid., paragraph 25.

(17) - Ibid., paragraphs 21 and 25.

(18) - Druesne, G. Droit matériel et politiques de la Communauté européennes 2nd edition, 1991, p. 92.

(19) - See Article 1(1) to (3) of the second directive.

(20) - Article 1(4) of the second directive reserves the 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 obtained in a non-member State to practise dentistry. That recognition does not necessarily reflect the requirements and the standard set out in Article 1 of the same directive, even if the creation of the single market logically implies the requirement of a minimum level of training for any practitioner pursuing his activities within the Community, irrespective of the origin of his diploma. The host State is free to provide a special system of rules for dental practitioners holding diplomas obtained in a non-member State.

(21) - Let me note at this point that in the main proceedings German recognition is on the basis of the Turkish diploma and not of the recognition accorded by the Belgian authorities.

(22) - Council Directive of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, p. 14).

(23) - Written Question No 2076/87 (OJ 1988 C 283, p. 11).

(24) - Answer to Written Question No 2103/88 (OJ 1989 C 202, p. 19).

(25) - Huglo, J.-G.: Droit d' établissement et libre prestation des services, Chronique, RTDE 1992, p. 696.

(26) - Case C-340/89 Vlassopoulou [1991] ECR I-2357.

(27) - Paragraph 9.

(28) - Paragraph 16, my emphasis.

(29) - Paragraph 22.

(30) - Case C-104/91 Aguirre Borrell [1992] ECR I-3003.

(31) - Directive 89/48/EEC of 21 December 1988, as I have pointed out, is not applicable here.

(32) - See the KVN reply to the questions put by the Court.