CELEX: 62003CC0437
Language: en
Date: 2005-03-17
Title: Opinion of Mr Advocate General Tizzano delivered on 17 March 2005. # Commission of the European Communities v Republic of Austria. # Failure of a Member State to fulfil obligations - Directives 78/686/EEC and 78/687/EEC - Dental practitioners. # Case C-437/03.

OPINION OF ADVOCATE GENERAL
      TIZZANO
      delivered on 17 March 2005 (1)
      
      Case C-437/03
      Commission of the European Communities
      v
      Republic of Austria
      (Directive 78/686 – Directive 78/687 – Article 1 – Pursuit of the activities of dental practitioner – Restricted to professionals with a university training in dentistry – Exception – Conditions)1.     In the present case the Commission of the European Communities alleges that the Republic of Austria has infringed the provisions
         of Directives 78/686/EEC and 78/687/EEC that reserve the pursuit of the activity of dentistry to professionals with specific
         training in dentistry and those laying down when and on what conditions that activity may, as an exception, be pursued by
         professionals with a medical training.
      
       I – Legal background
       Community legislation
      2.     Over the years, in order to facilitate the free movement of professionals, the Council has adopted two parallel directives
         for certain activities: one to coordinate the training required by the various Member States for taking up and pursuing the
         activity in question, and the other to govern the mutual recognition of the diplomas awarded at the conclusion of such training.
      
      3.     Of particular relevance here are the two directives on the activities of dentists, that is to say, 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 (hereinafter the ‘recognition directive’), (2) and 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 (hereinafter the ‘coordination directive’), (3) as amended by the Act of Accession of Austria, Finland and Sweden.
      
       The coordination directive
      4.     According to Article 1 of the coordination directive:
      ‘1. The Member States shall require persons wishing to take up and pursue a dental profession under the titles referred to
         in Article 1 of [the recognition directive] to hold a diploma, certificate or other evidence of formal qualifications referred
         to in Annex A to that Directive which guarantees that during his complete training period the person concerned has acquired
         [adequate knowledge].
      
      …
      This training shall provide him with the skills necessary for carrying out all activities involving the prevention, diagnosis
         and treatment of anomalies and diseases of the teeth, mouth, jaws and associated tissues.
      
      2. A complete period of dental training of this kind shall comprise at least a five-year full time course of theoretical and
         practical instruction given in a university, in a higher-education institution recognised as having equivalent status or under
         the supervision of a university and shall include the subjects listed in the Annex.’
      
      5.     Article 2(1) then confirms that:
      ‘Member States shall ensure that the training leading to a diploma, certificate or other evidence of formal qualifications
         as a practitioner of specialised dentistry meets the following requirements at least:
      
      (a) … the completion and validation of a five-year full-time course of theoretical and practical instruction within the framework
         of the training referred to in Article 1 …’.
      
      6.     Lastly, the first paragraph of Article 6 provides as follows:
      ‘Persons covered by Articles 19, 19a and 19b of [the recognition directive] shall be regarded as fulfilling the requirements
         laid down in Article 2(1)(a).’
      
       The recognition directive
      7.     Article 1 of the recognition directive provides that:
      ‘This Directive shall apply to the activities of dental practitioners as defined in Article 5 of [the coordination directive]
         pursued under the following titles:
      
      …
      –      in Austria: the title which will be notified by Austria to the Member States and to the Commission by 31 December 1998 at
         the latest;
      
      …’.
      8.     In addition, Article 2 provides that:
      ‘Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications in dentistry awarded
         to nationals of Member States by the other Member States in accordance with Article 1 of [the coordination directive] and
         which are listed in Annex A to this Directive, by giving such qualifications, as far as the right to take up and pursue the
         activities of a dental practitioner is concerned, the same effect in its territory as those which the Member State itself
         awards.’
      
      9.     Under Article 19b, which is of more direct relevance here:
      ‘From the date on which the Republic of Austria takes the measures necessary to comply with this Directive, the 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 Austria to persons who had begun their university
         training before 1 January 1994, accompanied by a certificate issued by the competent Austrian authorities, certifying that
         these persons have effectively, lawfully and principally been engaged in Austria in the activities specified in Article 5
         of [the coordination directive] 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 Annex A.
      
      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 [the coordination directive].’
      
      10.   Lastly, Annex A lists the titles of diplomas, certificates and other evidence of formal qualifications in dentistry awarded
         by the Member States.
      
       National legislation
      11.   Before Austria’s accession to the European Union, dentistry could be pursued in that country by two categories of professionals,
         neither of which had a university training in dentistry:
      
      –      ‘Dentisten’ (dentists), who underwent three years of training at a non-university institution (such training has not been
         provided since 31 December 1975);
      
      –      and ‘Fachärzte für Zahn-, Mund- und Kieferheilkunde’ (doctors specialising in dental, oral and maxillo-facial surgery, hereinafter
         ‘Fachärzte’), who have a university training in medicine supplemented by specialisation in dentistry.
      
      12.   After accession, in order to comply with the coordination and recognition directives, Austria adopted three statutory measures
         (the Ärztegesetz 1998, (4) the Novelle zum Dentistengesetz (5) and the EWR-Ärzte-Qualifikations­nachweisverordnung (6)) which completely revised the relevant legislation.
      
      13.   In particular, these provisions introduced the professional archetype of the ‘Zahnarzt’ (dental practitioner), who, as required
         by Article 1 of the coordination directive, takes up and pursues the profession after having completed a university training
         in the specific field of dentistry.
      
      14.   In addition, they laid down the following for the existing archetypes:
      –      ‘Dentisten’ still in practice can obtain from their professional body the certificate provided for in Article 19b of the recognition
         directive and thus continue to practise, but under the title ‘Zahnarzt’ or ‘Zahnarzt (Dentist)’ (Paragraphs 4(3) and 6 of
         the Novelle zum Dentistengesetz);
      
      –      ‘Fachärzte’, on the other hand, continue to practise under that title (Paragraphs 17 and 23 of the Ärztegesetz).
      15.   In accordance with the changed regulatory framework, on 29 July 1999 Austria informed the Commission, under Article 1 of the
         recognition directive, that the titles under which dentistry is pursued in its territory are ‘Zahnarzt’, ‘Zahnarzt (Dentist)’
         and ‘Facharzt’.
      
      16.   Following that notification, Austria again amended the relevant legislation by providing that Fachärzte may choose whether
         to operate under that title or under the title of ‘Zahnarzt’ (Paragraph 43(7) of the Ärztegesetz, as amended by the Ärztegesetz-Novelle (7)).
      
       II – Facts and procedure
      17.   After examining the aforesaid provisions, the Commission expressed doubt as to their compatibility with the recognition and
         coordination directives and as a result sent Austria a letter of formal notice on 24 July 2000.
      
      18.   That letter was followed on 18 July 2001 by a reasoned opinion calling on Austria to fulfil its obligations under the abovementioned
         directives within two months.
      
      19.   As it was not satisfied with the explanations and replies provided, by application lodged on 16 October 2003 the Commission
         asked the Court to declare that:
      
      ‘1.      By granting Austrian dentists (Dentisten) the possibility in Paragraphs 6 and 4(3) of the Dentistengesetz (Law on Dentists)
         of engaging in their occupation under the title “Zahnarzt” (dental practitioner) or “Zahnarzt (Dentist)” (dental practitioner/dentist)
         and of making use of the exception laid down in Article 19b of [the recognition directive], although the dentists do not meet
         the minimum requirements under Article 1 of [the coordination directive] for falling within the provisions of [the recognition
         and coordination directives],
      
      the Republic of Austria has failed to fulfil its obligations under Articles 1, 2 and 19b of [the recognition directive] and
         Article 1 of [the coordination directive];
      
      2.      By allowing, pursuant to Paragraphs 17 and 23 of the Ärztegesetz (Law on Doctors), Austrian “Fachärzte für Zahn-, Mund- und
         Kieferheilkunde” (specialists in dental, oral and maxillo-facial surgery) to continue, in breach of Article 19b of [the recognition
         directive], to engage in their occupation under that title and by those specialists not being placed on the same footing as
         dental practitioners inasmuch as specialists in dental, oral and maxillo-facial surgery are entitled to engage in their activities
         under the same conditions as holders of diplomas, certificates or other evidence of formal qualifications in accordance with
         Annex A (dental practitioners),
      
      the Republic of Austria has failed to fulfil its obligations under Articles 1 and 19b of [the recognition directive].’ (8)
      
       III – Analysis
       Introduction
      20.   Before examining the Commission’s two complaints against Austria, I feel it is necessary to clarify the scope of the obligations
         incumbent on the Member States under the directives in question, in particular with regard to restriction of the occupation
         of dentist to particular professionals.
      
      21.   Under Article 1 of the coordination directive, the Member States are obliged to restrict the occupation in question exclusively
         to persons holding a qualification awarded after university training in dentistry in accordance with the minimum specifications
         laid down in that directive.
      
      22.   Before adoption of the directives (or before accession to the Union), in certain Member States the activities of dentists
         were performed by doctors without that specific training, with the result that the Community legislature introduced exceptions in favour of such doctors in Articles 19, 19a and 19b of the recognition directive (referred to in Article 6(1) of the coordination directive). In
         particular, provision was made for measures of this type for Italy, Spain and Austria. (9)
      
      23.   By virtue of such provisions, doctors who were already practising as dentists were equated to professionals with the new training, with the consequence that, subject
         to the conditions set out in the directive, they can continue to pursue their occupation in their State of origin and to have
         their qualification recognised in the other Member States.
      
      24.   It is thus clear that this is an exception to the general provisions on training requirements laid down in the coordination
         directive. As such, according to established principles in this regard, it must be interpreted restrictively. (10)
      
      25.   As far as is relevant here, this means that professionals other than those indicated in the Community directives, in particular
         in Article 1 of the coordination directive and in the relevant provisions derogating expressly from that article, cannot be
         permitted to practise as dentists.
      
      26.   Moreover, in compliance with that principle, the Court has had occasion to state clearly, in the judgment in Commission v Italy, (11) that the exception in question cannot be extended to other categories of persons in order to authorise them to engage in
         the activity in question, even when such activity is confined to the national territory. In the case of Italy, which claimed that it could extend the exception to cover that situation, (12) the Court in fact replied that Member States may not ‘create a category of dental practitioners which does not correspond
         to any category provided for by the directives in question’ and which can therefore not be brought within the system intended
         by those directives. (13)
      
      27.   Having clarified that point, which might have given rise to doubt, I find that the present case no longer presents any real
         disagreement between the parties, because in fact Austria itself recognises that the Commission’s assertions are well founded,
         as we shall see shortly.
      
      28.   As already stated, the Commission’s allegations hinge on the interpretation of one of the exception clauses of the directive
         I have just mentioned, namely Article 19b, which provides as follows:
      
      ‘From the date on which the Republic of Austria takes the measures necessary to comply with this Directive, the 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 Austria to persons who had begun their university training before 1 January 1994, accompanied by a certificate issued by the competent Austrian authorities, certifying that these persons have effectively, lawfully and principally been
         engaged in Austria in the activities specified in Article 5 of [the coordination directive] 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 Annex A.
      
      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 [the coordination directive].’ (14)
      
       The first complaint, concerning ‘Dentisten’
      29.   In its first complaint, the Commission alleges that Austria unlawfully permitted ‘Dentisten’ to continue to practise as dental
         practitioners under the title ‘Zahnarzt’ or ‘Zahnarzt (Dentist)’.
      
      30.   In that regard, the Commission has rightly observed that ‘Dentisten’ still in practice did not complete university courses
         and thus do not meet the minimum training requirements laid down in Article 1 of the coordination directive; furthermore,
         they do not hold a diploma in medicine and can therefore not rely on the exception provided for in Article 19b of the recognition
         directive.
      
      31.   By allowing ‘Dentisten’ to continue to practise, Austria has therefore retained in its legislation ‘a category of dental practitioners
         which does not correspond to any category provided for by the directives in question’ and which is therefore incompatible
         with them.
      
      32.   Austria has recognised that these arguments are well founded.
      33.   On those grounds, and in view of what I have said in points 25 and 26, in my opinion the Commission’s first complaint should
         be upheld.
      
       The second complaint, concerning ‘Fachärzte’
      34.   In its second complaint, the Commission alleges that Austria unlawfully authorised ‘Fachärzte’ (specialists in dental, oral
         and maxillo-facial surgery), who come under the exception clause of Article 19b, to continue to practise as dental practitioners
         under their title rather than that of ‘Zahnarzt’.
      
      35.   As the Commission has observed and Austria has acknowledged, I too consider that a literal and teleological interpretation
         of Article 19b shows that complaint to be well founded.
      
      36.   As regards the letter of the provision, I would point out that within the meaning of that article, in order to permit ‘Fachärzte’
         to practise as dental practitioners and to have their title recognised in the other Member States, Austria must issue them
         with a certificate certifying, inter alia, that they ‘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 Annex A’, that is to say,
         holders of such diplomas attesting to the completion of the training in dentistry laid down in the coordination directive
         (in other words, ‘Zahnärzte’).
      
      37.   Hence, in order to ensure compliance with that provision and hence to be able to issue a truthful certificate, Austrian legislation
         must make ‘Fachärzte’ and ‘Zahnärzte’ subject to the ‘same conditions’ for carrying out the activities of dental practitioners,
         which undoubtedly include the title under which that activity is performed.
      
      38.   Moreover, as the Commission has observed, not only does the requirement for a single title derive from the wording of Article 19b,
         it is also consistent with the objective of the directives in question of establishing ‘a clear separation of the professions of dental practitioner and doctor’. (15)
      
      39.   In that way, all Austrian professionals practising dentistry will have to use a single title (that of ‘Zahnarzt’ – dental
         practitioner), which, unlike the term ‘Facharzt’ (specialist in dental, oral and maxillo-facial surgery), makes no reference
         to medical practice and thus permits a clearer and more immediate distinction in relation to persons engaging in the latter
         activity.
      
      40.   In the light of the foregoing considerations, I consider that the Commission’s second complaint should also be upheld.
       IV – Costs
      41.   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. Since the Commission has applied for costs and Austria has been unsuccessful,
         the latter must be ordered to pay the costs.
      
       V – Conclusion 
      42.   In the light of the foregoing considerations, I therefore propose that the Court declare that:
      (1)      by granting Austrian dentists (Dentisten) the possibility in Paragraphs 6 and 4(3) of the Dentistengesetz (Law on Dentists)
         of engaging in their occupation under the title ‘Zahnarzt’ (dental practitioner) or ‘Zahnarzt (Dentist)’ (dental practitioner/dentist)
         and of making use of the exception laid down in Article 19b of Council Directive 78/686/EEC, although they do not meet the
         minimum requirements under Article 1 of Council Directive 78/687/EEC for coming within the provisions of Council Directives
         78/686/EEC and 78/687/EEC, the Republic of Austria has failed to fulfil its obligations under Articles 1 and 19b of Council
         Directive 78/686/EEC of 25 July 1978 and Article 1 of Council Directive 78/687/EEC of 25 July 1978;
      
      (2)      by allowing, pursuant to Paragraphs 17 and 23 of the Ärztegesetz (Law on Doctors), Austrian ‘Fachärzte für Zahn-, Mund- und
         Kieferheilkunde’ (specialists in dental, oral and maxillo-facial surgery) to continue to engage in their occupation under
         that title and by failing to place those specialists on the same footing as dentists inasmuch as specialists in dental, oral
         and maxillo-facial surgery are entitled to engage in their activities under the same conditions as holders of diplomas, certificates
         or other evidence of formal qualifications in accordance with Annex A (dentists), the Republic of Austria has failed to fulfil
         its obligations under Article 19b of Council Directive 78/686/EEC of 25 July 1978;
      
      (3)      the Austrian Republic is ordered to pay the costs.
      1 –	Original language: Italian.
      
      2 –	OJ 1978 L 233, p. 1. The recognition directive has been amended by: Council Directive 89/594/EEC of 30 October 1989 amending
         Directives 75/362/EEC, 77/452/EEC, 78/686/EEC, 78/1026/EEC and 80/154/EEC relating to the mutual recognition of diplomas,
         certificates and other evidence of formal qualifications as doctors, nurses responsible for general care, dental practitioners,
         veterinary surgeons and midwives, together with Directives 75/363/EEC, 78/1027/EEC and 80/155/EEC concerning the coordination
         of provisions laid down by law, regulation or administrative action relating to the activities of doctors, veterinary surgeons
         and midwives (OJ 1989 L 341, p. 19); Council Directive 90/658/EEC of 4 December 1990 amending certain Directives on the recognition
         of professional qualifications consequent upon the unification of Germany (OJ 1990 L 353, p. 73); Directive 2001/19/EC of
         the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general
         system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC,
         78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions
         of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor
         (OJ 2001 L 206, p. 1); and by the Acts of Accession of Greece (OJ 1979 L 291, p. 17), Spain and Portugal (OJ 1985 L 302, p. 23)
         and Austria, Finland and Sweden (OJ 1994 C 241, p. 21).
      
      3 –	OJ 1978 L 233, p. 10. The training directive was in turn amended by Directive 2001/19 and by the Act of Accession of Austria, Finland
            and Sweden.
      4 –	BGB1. I No 169/1998.
      
      5 –	BGB1. I No 45/1999.
      
      6 –	BGB1. II No 57/1999.
      
      7 –	BGBl. No 110/2001.
      
      8 –      Unofficial translation.
      
      9 –	Following enlargement, similar measures were also introduced for the Czech Republic and Slovakia (new Articles 19c and
         19d of the recognition directive).
      
      10 –	Judgments in Case 67/74 Bonsignore [1975] ECR 297; Case 77/82 Peskeloglou [1983] ECR 1085 and Case C-3/87 Agegate [1989] ECR 4459.
      
      11 –	Case C‑40/93 [1995] ECR I‑1319.
      
      12 –	See judgment in Commission v Italy, paragraph 18.
      
      13 –	Judgment in Commission v Italy, paragraph 24. See also order in Case C‑204/01 Klett [2002] ECR I‑10007, paragraph 33, and order in Case C‑35/02 Vogel [2003] ECR I‑12229, paragraph 28.
      
      14 –      Emphasis added.
      
      15 –	Judgment in Case C‑202/99 Commission v Italy [2001] ECR I‑9319, paragraph 51. See also the order in Vogel, paragraph 33. Emphasis added.