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 25July 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 25July 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 Article1 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 Article1 of [the recognition directive] to hold a diploma, certificate or other evidence of formal qualifications referred to in AnnexA 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.Article2(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 Article1 …’.

6.Lastly, the first paragraph of Article6 provides as follows:

‘Persons covered by Articles19, 19a and 19b of [the recognition directive] shall be regarded as fulfilling the requirements laid down in Article2(1)(a).’

The recognition directive

7.Article1 of the recognition directive provides that:

‘This Directive shall apply to the activities of dental practitioners as defined in Article5 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, Article2 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 Article1 of [the coordination directive] and which are listed in AnnexA 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 Article19b, 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 Article1 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 1January 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 Article5 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 AnnexA.

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 Article1 of [the coordination directive].’

10.Lastly, AnnexA 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 31December 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 Article1 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 Article19b 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 (Paragraphs17 and 23 of the Ärztegesetz).

15.In accordance with the changed regulatory framework, on 29July 1999 Austria informed the Commission, under Article1 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 24July 2000.

18.That letter was followed on 18July 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 16October 2003 the Commission asked the Court to declare that:

‘1.By granting Austrian dentists (Dentisten) the possibility in Paragraphs6 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 Article19b of [the recognition directive], although the dentists do not meet the minimum requirements under Article1 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 Articles1, 2 and 19b of [the recognition directive] and Article1 of [the coordination directive];

2.By allowing, pursuant to Paragraphs17 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 Article19b 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 AnnexA (dental practitioners),

the Republic of Austria has failed to fulfil its obligations under Articles1 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 Article1 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 Articles19, 19a and 19b of the recognition directive (referred to in Article6(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 Article1 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 Article19b, 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 Article1 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 1January 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 Article5 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 AnnexA.

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 Article1 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 Article1 of the coordination directive; furthermore, they do not hold a diploma in medicine and can therefore not rely on the exception provided for in Article19b 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 points25 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 Article19b, 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 Article19b 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 AnnexA’, 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 Article19b, 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 Article69(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 Paragraphs6 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 Article19b of Council Directive 78/686/EEC, although they do not meet the minimum requirements under Article1 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 Articles1 and 19b of Council Directive 78/686/EEC of 25July 1978 and Article1 of Council Directive 78/687/EEC of 25July 1978;

(2)by allowing, pursuant to Paragraphs17 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 Article19b of Council Directive 78/686/EEC of 25July 1978;

(3)the Austrian Republic is ordered to pay the costs.

1 – Original language: Italian.

2 – OJ 1978 L233, p.1. The recognition directive has been amended by: Council Directive 89/594/EEC of 30October 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 L341, p.19); Council Directive 90/658/EEC of 4December 1990 amending certain Directives on the recognition of professional qualifications consequent upon the unification of Germany (OJ 1990 L353, p.73); Directive 2001/19/EC of the European Parliament and of the Council of 14May 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 L206, p.1); and by the Acts of Accession of Greece (OJ 1979 L291, p.17), Spain and Portugal (OJ 1985 L302, p.23) and Austria, Finland and Sweden (OJ 1994 C241, p.21).

3 – OJ 1978 L233, 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 No169/1998.

5 – BGB1. I No45/1999.

6 – BGB1. II No57/1999.

7 – BGBl. No110/2001.

8 –Unofficial translation.

9 – Following enlargement, similar measures were also introduced for the Czech Republic and Slovakia (new Articles19c and 19d of the recognition directive).

10 – Judgments in Case 67/74 Bonsignore [1975] ECR297; Case 77/82 Peskeloglou [1983] ECR1085 and Case C-3/87 Agegate [1989] ECR4459.

11 – Case C‑40/93 [1995] ECRI‑1319.

12 – See judgment in Commission v Italy, paragraph18.

13 – Judgment in Commission v Italy, paragraph24. See also order in Case C‑204/01 Klett [2002] ECRI‑10007, paragraph33, and order in Case C‑35/02 Vogel [2003] ECRI‑12229, paragraph28.

14 –Emphasis added.

15 – Judgment in Case C‑202/99 Commission v Italy [2001] ECRI‑9319, paragraph51. See also the order in Vogel, paragraph33. Emphasis added.