Keywords

Summary



Keywords

1. Actions for failure to fulfil obligations - Examination by the Court of the merits - Situation to be taken into account - Situation prevailing at the end of the period laid down in the reasoned opinion

(Art. 226 EC)

2. Actions for failure to fulfil obligations - Application initiating proceedings - Statement of complaints and pleas in law

(Art. 226 EC)

3. 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 - Maintenance of a second system of training leading to entry to the profession of dentist - Not permissible

(Council Directives 76/686, Art. 19 and 76/687, Art. 1)

4. 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 - Dual registration in the register of doctors and in that of dentists - Not permissible - Derogation for a Member State - Effect

(Council Directives 78/686, Art. 19 and 78/687)

Summary

$$In the context of an action under Article 226 EC for a declaration that a Member State has maintained legislation contrary to a Community directive, the fact that the provisions in issue could not, correctly speaking, have been maintained, because they were introduced into national law after the adoption of the relevant directive, does not reduce the ability of the Member State concerned to defend itself. First, 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.

( see paras 11-12 )

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. 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.

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.

( see paras 20-21, 23 )

A Member State which provides 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, fails to fulfil its obligations under Directive 78/687 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners.

The training mentioned in Article 1(2) of Directive 78/687 is expressly described as dental training, which assumes that there is a course specially prepared for the training of dental practitioners. The diploma to which the second system of training 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 Directive 78/687 and 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, which both concern single diplomas.

The second paragraph of Article 19 of Directive 76/686, which permits, in the context of the special regime established for a Member State, 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.

( see paras 37-39 and operative part )

If Directive 78/687 precludes, apart from the exceptional and temporary regime established for a Member State by Article 19 of Directive 78/686, the possibility of entry to the profession of dental practitioner, for the purposes of those 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.

Whilst those 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 Directive 78/686 from being registered as doctors.

Article 19 of the Directive 76/686 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 those 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.

The question of the possible recognition by the other Member States of the diplomas of those practitioners also for the purposes of the practice of the profession of doctor, which does not depend on the registration of the practitioners concerned as doctors, 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 Directives 78/686 and 78/687 relating to dental practitioners.

( see paras 48, 50-54 )