2.

Mr Gül is a Cypriot national of Turkish origin; since 1971 he has been married to a British national who has the right of abode in the United Kingdom under the British Nationality Act 1971. The three children of the marriage are also of British nationality. Mr Gill obtained a degree in medicine from the University of Istanbul, and on 1 October 1977 he obtained temporary authorization to practise medicine in the Federal Republic of Germany in order to permit him to specialize in anaesthesiology. Before that authorization was issued, he formally undertook to return to his country of origin or, should that be impossible, to go to another developing country after completing or discontinuing his training as a specialist. The authorization was extended three times (20 June 1979, 8 July 1981 and 6 July 1982) and on each time Mr Gill was informed that he could not rely on further extensions. On 25 October 1982 the Ärztekammer [Medical Society] Nordrhein granted him a certificate of specialization as an anaesthetist. He then applied for permanent authorization to practise, stating that he intended to'remain with his family in Germany and acquire German nationality. The Regierungspräsident Düsseldorf extended his provisional authorization until 31 March 1983. A further request for an extension, in which Mr Gül gave an assurance that he would not seek further extensions, was at first rejected by the authorities on 1 February; he was then granted an extension until 31 December 1983, either because the Marienhospital Altenessen still had need of his services or because Mrs Gül was undergoing a difficult pregnancy. By letters of 5 July and 3 September 1983 Mr Gül again requested permanent authorization; this time he pointed out that since his wife and children were British nationals and his wife was employed he was entitled under Article 11 of Regulation No 1612/68 to take up employment in Germany. In both letters Mr Gül also pointed out that his own residence permit expired on 30 September 1986, that his wife's earnings as a hairdresser were not sufficient to provide a decent living for his family and that if authorization was not granted he would be obliged to return to Turkey or Cyprus. By letter of 19 October 1983 the Regierungspräsident informed Mr Gül that his application was regarded as an application for a licence to practice; since the laws in force did not permit the issue of a licence, it asked whether he intended to maintain that application. On 19 October 1983 Mr Gül replied that his application should be taken as requesting an extension of his authorization for two years. By a decision of 2 November 1983 the application was rejected on the grounds that the requirements laid down in Paragraph 10 (2) and (3) of the Bundesärzteordnung [Federal Regulation on the Practice of Medicine] 1977. The Regierungspräsident stated that the usual practice was to grant authorization under Paragraph 10 (3) of the Bundesärzteordnung to foreign doctors who were married to German nationals and were engaged in employment, since such persons had a right of residence. Such authorization was not however granted to foreign doctors married to nationals of a Member State of the EEC, since it could be expected that such a person would practise in the country of which his spouse was a national and that the spouse would ultimately return to his country of origin in spite of his right of establishment in Germany. Mr Giil's administrative appeal against that decision was rejected, and he brought proceedings before the Verwaltungsgericht Gelsenkirchen for the annulment of the decision of 2 November 1983 and for an order requiring the authorities to grant him an authorization for an unlimited period or for a period of two years. By order of 6 March 1984 that court upheld Mr Gül's application for interim relief, brought at the same time as the main action; holding that Community law was applicable, it ordered the Regierungspräsident to issue a provisional authorization for a period of two years, subject to the condition that Mrs Gül continued to work in Germany as an employed person. On appeal by the authorities the Third Chamber of the Oberverwaltungsgericht Münster took the view that the interim order was based on an erroneous application of Community law and therefore quashed it by a decision of 19 September 1984. In the main action, however, on 28 March 1985 the Seventh Chamber of the Verwaltungsgericht Gelsenkirchen stayed the proceedings and referred the following questions to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty: (1) Does the right of a person who is a national of a nonmember 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 15 October 1968, 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 nonmember 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 nonmember 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 Bundesärzteordnung, as last amended on 16 August 1977, BGBl. 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 Bundesärzteordnung 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 nonmember 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 Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities as doctors (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 the national of a nonmember country entitled to take up employment under Article 11 of Regulation No 1612/68 who, on the basis of a medical qualification from a nonmember 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 corresponding 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?