Commission of the European Communities v Italian Republic.
Date: 2001-01-18
20 In order to rule on the merits of this complaint, it must be pointed out, first, that it is not disputed that where a Member State makes registration with the dental association, and therefore the practice by dentists of their profession, subject to the requirement that the persons concerned reside in the district of the professional association with which they seek registration, that constitutes a restriction on freedom of establishment and freedom of movement for workers in that such a requirement prevents dentists established or resident in another Member State from setting up a second dental surgery in the first State or practising as employees there (see, to that effect, in particular, Case C-106/91 Ramrath v Ministre de la Justice [1992] ECR I-3351, paragraphs 20 to 22 and 28).
22 Second, it must be borne in mind that the need to ensure that Community law is fully applied requires Member States not only to bring their legislation into conformity with Community law but also to do so by adopting rules of law capable of creating a situation which is sufficiently precise, clear and transparent to allow individuals to know the full extent of their rights and rely on them before the national courts (see, to that effect, with regard to directives, Case C-360/87 Commission v Italy [1991] ECR I-791, paragraph 12, and Case C-220/94 Commission v Luxembourg [1995] ECR I-1589, paragraph 10). It is of little consequence in this connection that the provisions of Community law, compliance with which is to be ensured, are directly applicable and that individuals are therefore entitled to rely on them, in judicial proceedings, as against a defaulting Member State (see, to that effect, in particular, Case C-208/90 Emmott v Minister for Social Welfare and the Attorney General [1991] ECR I-4269, paragraphs 20 and 21).
23 In addition, it follows from the case-law of the Court that the requirement of precision, clarity and transparency which national legislation must satisfy is also applicable where general principles of constitutional law, such as the general principle of equal treatment, are involved, and is of particular importance where the provisions of Community law in question are intended to accord rights to nationals of other Member States, inasmuch as those nationals are not normally aware of such principles (Case 29/84 Commission v Germany [1985] ECR 1661, paragraph 23).
25 Moreover, where, in infringement proceedings, the parties are at issue on the exact scope of provisions of national legislation, such as, in this case, the provision resulting from the amendment of Article 9(e) of the Legislative Decree of 1946 by Article 9 of the Law of 1991, particular importance attaches to the way in which the national provisions concerned have been applied in practice (see, to that effect, Case 235/84 Commission v Italy [1986] ECR 2291, paragraph 14).
33 Quite apart from the relationship between the Law of 1985 and the Legislative Decree of 1946, as amended by the Law of 1964, it should be recalled that, according to the established case-law of the Court, the maintenance unchanged, in the legislation of a Member State, of a provision which is incompatible with a provision of the Treaty gives rise to an ambiguous state of affairs by maintaining, as regards those subject to the law who are concerned, a state of uncertainty as to the possibilities for them of relying on Community law and that such maintenance therefore constitutes a failure on the part of that State to fulfil its obligations under the Treaty (see, in particular, Case 168/85 Commission v Italy [1986] ECR 2945, paragraph 11, Case C-58/90 Commission v Italy [1991] ECR I-4193, paragraphs 12 and 13, and Case C-185/96 Commission v Greece [1998] ECR I-6601, paragraph 32).