JUDGMENT OF 15. 12. 1983 — CASE 5/83 RIENKS
In Case 5/83 REFERENCE to the Court pursuant to Article 177 of the EEC Treaty by the Pretore [Magistrate] di Lodi, for a premilinary ruling in the criminal proceedings against
THE COURT (Second Chamber), composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: Sir Gordon Slynn Registrar: H. A. Rühi, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The order making the reference, the course of the procedure and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:
I — Facts and written procedure
Mr Rienks, a Netherlands national, who is the accused in the main action, was awarded a degree in veterinary medicine on 11 September 1970 by the State University of Utrecht which entitled him to practise as a veterinary surgeon in the Netherlands. On 12 May 1981 Mr Rienks, who lived in Italy and wished to practise his profession there, applied for enrolment on the register of veterinary surgeons in Varese. The application was rejected and the only reason given for the rejection was that the Italian State had not at that time implemented Council Directives 78/1026 and 78/1027 concerning the profession of veterinary surgeon.
Om 1 December 1981, the accused in the main action signed a pharmaceutical prescription which, according to Italian law, may be issued only by a veterinary surgeon entitled to practise as such in Italy, that is to say a veterinaiy surgeon who is enrolled on the register of veterinary surgeons in the place where he practises. In the absence of such enrolment the issue of a prescription of the type with which the present case in concerned is contrary to Article 348 of the Italian Criminal Code, which relates to the improper exercise of a profession.
According to the Magistrate who referred the questions to the Court the accused in the main action committed the abovementioned offence solely because Italy had failed to take the steps necessary to implement Directive 78/1026 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine. If that directive had, in fact, been implemented within the period prescribed there would have been no objection to the enrolment of Mr Rienks on the register of veterinary surgeons in Varese. The Magistrate also considered that the failure to implement the directives in question constituted a breach of Community law, which was confirmed by the fact that the Commission, by letter of 19 October 1981, commenced proceedings against Italy under Article 169 of the Treaty.
The Magistrate making the reference to the Court is therefore of the opinion that it should be ascertained whether the provisions of those directives may be relied upon directly by individuals in an appropriate case, even though the Member States have failed to implement them. Consequently he decided to refer the following two questions to the Court for a preliminary ruling:
1) May a host Member State which has not implemented Directives 78/1026 and 78/1027 concerning the veterinary profession enforce penal measures against a national of another Member State who is entitled to practise in his own country, but is not enrolled on the register of veterinary surgeons of the host Member State, for having performed an act (signing a pharmaceutical prescription) which is an offence even if performed by a national of the host country who is not enrolled on the relevant professional register of that country, where the Community national's failure to enrol on the said register is due solely to the fact that the host country has not implemented the EEC directives within the prescribed period?
2) If the reply to the above question is in the affirmative, does a Community national who is entitled to practise in his own country have the right to be enrolled on the local register of veterinary surgeons in the host country, on the basis of Directives 78/1026 and 78/1027 concerning the veterinary profession and on the basis of the case-law of the Court of Justice on the effect of EEC directives, even where the host country has not implemented the above directives and has thereby failed in its obligations to the Community? In such a case, may a Community national, pending impelementation of those directives, gain admittance to the register by applying to the appropriate judicial authority in the host Member State?
The order making the reference to the Court was registered at the Court of Justice on 12 January 1983.
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted by H. G. Rienks, represented by Mr Ubertazzi and Mr Capelli of the Milan Bar, by the Italian Government, represented by P. G. Ferri, Avvocato dello Stato, acting as Agent, and by the Commission of the European Communities, represented by M. G. Berardis, a member of its Legal Department, acting as Agent.
By order of 22 June 1983 the Court, having established that no Member State or institution party to the proceedings had requested that the case be heard in plenary session, assigned the case to the Second Chamber pursuant to Article 95 (1) and (2) of the Rules of Procedure.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
1. Observations of Mr Rienks, the accused in the main action
After recalling the principal facts of the case the accused in the main action examines the two questions referred to the Court by the Magistrate and contends that it is necessary to analyse the case-law of the Court in relation to the effect of a directive in order to reply to them, both as regards the penalties imposed on the accused in the main action and as regards the recognition of his right to practise as a veterinary surgeon.
(a) The effect of a directive with regard to the right of a State to impose its own penalties
The accused in the main action relies essentially on the judgment of 5 April 1979 in Ratti (Case 148/78 [1979] ECR 1629). He maintains that in that case the Court, first, confirmed its existing case-law to the effect that Community measures other than regulations may have an effect analogous to that of a regulation and that the effectiveness of a directive would be weakened “if persons were prevented from relying on it in legal proceedings and national courts prevented from taking it into consideration as an element of Community law” and, secondly, asserted the principle that national provisions which are incompatible with the provisions of the directive may not be applied inasmuch as the latter contain an obligation which is unconditional and sufficiently precise.
That innovatory aspect of the judgment in Ratti was further defined and clarified in the judgment of 6 May 1980 in Commission of the European Communities v Kingdom of Belgium (Case 102/79 [1980] ECR 1473), and in the judgment of 19 January 1982 in Becker (Case 8/81 [1982] ECR 53), in which the Court held that:
“A Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.”
According to the accused in the main action all the conditions required by the case-law are fulfilled in the present case:
The provisions of the directive in question are precise and complete; and
Italy has not implemented the said directives.
It follows that, as regards the reply to be given to the first question referred to the Court by the Magistrate, Italy may not “rely on its failure to perform its obligations in order to impose a sanction on a citizen who fulfils all the requirements laid down by the rules of Community law for obtaining recognition of a right conferred by the directive in question”. He therefore considers that the Court must answer the first question to that effect.
(b) The effect of a directive with regard to recognition of the right to practise
The accused in the main action recalls that the association of veterinary surgeons of Varese stated in reply to Mr Rienks's application for enrolment that there would be no further obstacles to his enrolment once the law implementing the EEC directives had been approved. Thus the only objection raised by the professional association was the failure of the State to implement the directive, and Mr Rienks fulfilled all the other conditions necessary for the practice of his profession in Italy.
After analysing first the case-law concerning the right of establishment and the freedom to provide services by reference to the directives on liberalization, the accused in the main action maintains that that case-law “highlights the fundamental purpose of the Treaty with regard to recognition of the right of a national of one Member State to practise a profession in another Member State under the same conditions as those which apply to the nationals of the latter State within the limits set by the Treaty provisions, and if appropriate, by liberalization directives, for the transitional period, and within the limits set by the Treaties and by coordinating directives for the post-transitional period”.
Since the main proceedings in the present case are concerned with the latter period the accused in those proceedings analyses, secondly, the case-law with regard to the right of establishment and the freedom to provide services by reference to the directives coordinating the national laws.
He states that the coordinating directives are now always indispensable in order, together with the rules of the Treaty, to remove the restrictions which may lawfully continue to be applied in the absence of such directives. In his view the most significant case in that connection is the judgment given on 7 February 1979 in Auer (Case 136/78 [1979] ECR 437), although that judgment gives only indirect support to the proposition submitted by him in the present case because in the Auer case the period within which the coordinating directive and the directive concerning the recognition of diplomas and other evidence of formal qualifications in veterinary medicine were to be implemented had not expired at the relevant time. It follows from Auer that the coordinating directives adopted in respect of the exercise of the profession of veterinary surgeon likewise facilitate, “together with the Treaty rules which apply to all cases, the attainment of the goal of liberalization which could be impeded lawfully without them”.
Subsequently the Court confirmed that authority in its judgment of 6 October 1981 in Broekmeulen (Case 246/80 [1981] ECR 2311). Paragraph 27 of that decision confirms conclusively the direct effect of Article 52 of the Treaty in conjunction with the coordinating directives and the directives on the recognition of diplomas and other evidence of formal qualifications.
The principles thus extracted from the case-law have merely to be applied to the present case. In fact this is a classic case for the application of the directives in question because it concerns a national of a Member State who possesses a diploma which was granted by his country of origin validly and in conformity with Community directives, and who is unable to exercise the profession for which he is qualified solely because the host Member State has not implemented the directive in due time. The accused in the main action should therefore be able to invoke the direct effect of the Treaty in conjunction with the directives in question not only before the courts but also before the professional association which has refused to enrol him on the register of veterinary surgeons.
Consequently, the accused in the main action considers that all aspects of the second question referred to the Court by the Magistrate must be answered in the affirmative.
2. Observations of the Commission
According to the Commission the questions referred to the Court raise once more the sensitive problem of the consequences of a failure to incorporate Community directives into the national law of the Member States. In particular they seek to “establish whether, and if so to what extent, a directive may itself, once the period laid down by the directive for its implementation by the Member States has expired, entitle individuals affected by it to rely on its provisions as against the defaulting State, both in a negative manner in the sense that it prevents the application of measures or sanctions which are inconsistent with its provisions and in a positive manner in the sense that it is possible to compel the State to act in conformity with the directive”.
Next, the Commission reviews the case-law concerning the effect of directives. It emphasizes, as did the accused in the main action, the particular importance of the decision in Ratti and submits that the conclusion to be drawn from the Court's case-law is that if the provisions of a directive are unconditional and sufficiently precise they may, in the absence of measures implementing them in due time, be relied upon as against any provision of national law which is incompatible with the directive or in so far as the provisions define rights which individuals may assert against the State.
In that connection the Commission emphasizes, first, that in the present case there is no doubt that at the material time the two-year period laid down for the implementation of the two directives in question had expired. Moreover, the Commission has already, on 21 June 1982, sent a reasoned opinion on the matter to the Italian Government.
Secondly, the Commission takes the view after examining the provisions of the directives in question that those provisions “are precise, unconditional and mandatory, both in their wording and their spirit, and leave no discretion at all to the Member States”.
The Commission therefore concludes that if the requirements which have been laid down are complied with, recognition of the qualifications is a subjective right vested in the holders of those qualifications involving the same right of access to the profession of veterinary surgeon and to the exercise thereof as arises from a national qualification. The Commission adds that if enrolment on the association's register is an administrative requirement for the exercise of the profession laid down by national law, there must at the same time be an obligation to enrol a person who makes an application therefor and fulfils all the necessary requirements, where such enrolment does not itself create the right to practise the profession because such a right is already vested in the person holding the recognized qualification. Consequently, the refusal to enrol the applicant on the association's register in the present case amounts to an unlawful act in breach of his personal right and one which deprives the directives in question of any useful effect.
Relying on the whole corpus of principles thus derived from the case-law the Commission maintains that:
Once the period prescribed for the implementation of the directives in question has expired, the holder of a qualification in veterinary medicine awarded by another Member State may object to the application to him of any rule of national law which is incompatible with unconditional and mandatory provisions of the directives.
Consequently the defaulting Member State may not enforce sanctions against a person who has complied with the provisions of the directives in question; and, furthermore, that Member State may not apply any other provision of national law which is incompatible with the directives which have not been implemented, in particular those relating to enrolment on the register of a professional association.
It is for the relevant administrative organizations and the professional association to apply directly those provisions of the directives which are precise and mandatory.
In the case of dispute the court seised of the matter must ensure that the recalcitrant administrative authorities observe Community law.
As a result the Commission considers that the following replies should be given to the questions referred to the Court by the Pretore di Lodi:
“(a) A Member State which has not implemented within the prescribed period Directives 78/1026/EEC and 78/1027/EEC concerning the veterinary profession cannot enforce, as against the holder of a qualification awarded by another Member State, rules of national law, even of a penal nature, which are incompatible with precise and unconditional provisions of the directives if the holder of such a qualification fulfils the conditions laid down by those directives with regard to recognition of the qualification and therefore the exercise of the profession. (b) The appropriate national authorities, both administrative and judicial, are required to give effect to the aforementioned provisions of the directives by refraining from applying, in an appropriate case, any national rules which are incompatible with them. In particular they must, each within its own jurisdiction, allow an applicant who satisfies the requirements of the directives to be enrolled on the register of the professional association.”
3. Observations of the Italian Government
The Italian Government is of the opinion that although an analogous question was referred to the Court in the Auer case (Case 136/78, cited above), the question referred to it in the present case has not, apparently, been the subject of a judicial decision as yet.
Next it recalls that, in connection with the question of the direct effect of directives, the principle recapitulated by the Court in the judgment in the Ratti case (cited above) lays down two fundamental conditions :
First, direct applicability is not one of the usual attributes of the sources of Community law other than a regulation; directives are applied within the national legal systems through compliance with the duty to implement them by means of national legal measures.
Secondly, “the mandatory nature of a directive cannot eliminate the distinction established by Article 189 of the Treaty, and therefore cannot take the form of effects which are of the same kind as those attached to regulations”.
Thus the possibility that a directive may have direct effect seems to depend on the characteristic of being both an exception to the rule, and different from the truly legislative character of regulations.
The cases in which the Court has allowed that in certain cases a directive may have direct effect also indicate that the terms of the obligation contained in the directive must be clear, complete and specific, leaving no element of discretion in their implementation in national law. Owing to the peculiar nature of directives, especially in exceptional cases where the possibility of their having direct effect in the national legal system may not be excluded in principle, it is “necessary for the Court to define in its judgment the conditions on which, and the limits within which, such direct effect may occur, regard being had to the rules of national law the application of which must be regarded as impeded inasmuch as they conflict with the obligation imposed by the Community directive”.
Considering next the problems raised by the main action, the Italian Government emphasizes that in order to practise as a veterinary surgeon in Italy it is essential to be enrolled first on a special register kept by the association of veterinary surgeons for each province.
According to the Italian Government the administrative rules of the profession and the rule contained in Article 348 of the Criminal Code operate in different spheres. The former rules define the requirements for enrolment on the association's register whilst the latter deal with the circumstances in which the practice of the profession is lawful, that is to say after enrolment on the said register. In addition, the considerations on which, the criminal law judge bases his decision as to the existence of the offence provided for in Article 348 of the Criminal Code are not the same as those on which the veterinary surgeons' association makes its decision. Furthermore, the offence is committed by a person who practises the profession without having been enrolled on the register, regardless of the reason for his failure to be enrolled, including an unjustified refusal to enrol him.
The Italian Government takes the view that regulating the matter in that manner is not contrary to the provisions of the directives in question. Referring to those provisions, it contends that far from providing that any person in possession of one of the qualifications mentioned in Articles 2 and 3 of Directive 78/1026 may automatically practise as a veterinary surgeon in eveiy Member State of the Community, Directive 78/1026 “expressly presupposes that admission to the practice of veterinary medicine is based on a certificate of admission issued to the person practising the profession by the State where he is established”, as follows from Article 10 of Directive 78/1026. The directive also recognizes the power of the State to supervise the profession of veterinary surgeon by checking the good character and good repute of its members and that aim is achieved in Italy by setting up professional associations and requiring that members be enrolled on their register.
Next, the Italian Government contends that in the present case “it appears to be most important that the Court's interpretative function with regard to Article 177 of the Treaty, especially where it is concerned with establishing whether and to what extent it is possible for Directive 78/1026/EEC to have direct effect, should be exercised in circumstances which reflect as far as possible the actual circumstances in which the principle of law to be expounded at the Community level has subsequently to be applied by the court in the main action”. Taking into account the fact that it is exceptional for a directive to have direct effect, and the limits within which and the conditions on which such direct effect may arise, the Italian Government considers that it might be undesirable to make statements which are too abstract and general; consequently, it is of the opinion that the request for an interpretation made by the Pretore di Lodi is not a suitable and useful occasion on which to consider the direct effect of the directives in question.
The Italian Government maintains that, if it were necessary to consider that matter the only possible answer would be a negative one, especially with regard to the first question. In fact, it would be advisables to rule that the directive does not oblige the Member States to exempt the person concerned from the procedure for admission to the practice of the veterinary profession and that that procedure may comprise enrolment on a special register.
Moreover, according to the Italian Government, it is clear that the second question has no connection with the subject-matter of the main action. On the one hand it does not identify the specific provisions of the directives in question or indicate the facts in relation to which the problem of the direct application of some of the aforementioned provisions might arise. On the other hand the Magistrate making the reference to the Court himself recognizes that any direct application of those provisions must be determined by another court to be appointed according to the jurisdictional rules of the legal system of the host Member State.
Consequently the Italian Government considers that the first question should be regarded as encompassing the second and should be answered as follows :
“Directives 78/1026/EEC and 78/1027/EEC do not prevent admission to the veterinary profession in the host Member State being based on enrolment on a special register according to the rules applicable to nationals of that State; it follows that the application in the host Member State, with regard to a national of another Member State, of a penal provision whereby it is a punishable offence to practice as a veterinary surgeon without being enrolled on the relevant professional register is not incompatible with the aforementioned directives.”
Ill — Oral procedure
At the sitting on 27 October 1983 the accused in the main proceedings, represented by Mr Capelli, of the Milan Bar, the Italian Government, represented by Mr Ferri, Avvocato dello Stato, and the Commission of the European Communities, represented by Mr Berardis, a member of its Legal Department, acting as Agent, presented oral argument.
The Advocate General delivered his opinion at the same sitting.
Decision
1. By order of 17 December 1982, which as received at the Court on 12 January 1983, the Pretore [Magistrate], Lodi, referred to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty two questions relating to the interpretation of Council Directives 78/1026 and 78/1027 of 18 December 1978, the first concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, and the second concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons (Official Journal, L 362, pp. 1 and 7).
2. The questions arose in the course of criminal proceedings instituted against Mr Rienks under Article 348 of the Italian Criminal Code in respect of the improper exercise of the profession of veterinary surgeon. Mr Rienks, a Netherlands national, was awarded a degree in veterinary medicine on 11 September 1970 by the State University of Utrecht entitling him to practise as a veterinaiy surgeon in the Netherlands.
3. Mr Rienks took up residence in Italy and applied on 12 May 1981 for enrolment on the register of veterinaiy surgeons in Varese. The application was rejected on the sole ground that the Italian State had not at that time implemented the two aforementioned directives in national law.
4. Nevertheless, on 1 December 1981 Mr Rienks signed a pharmaceutical prescription which, according to Italian law, may be issued only by a veterinary surgeon who is duly enrolled on the register of veterinaiy surgeons in the place in which he practises. Consequently he was prosecuted for the improper exercise of the profession of veterinaiy surgeon.
5. The court making the reference takes the view that there would have been no offence but for the failure to implement Directive 78/1026. The Pretore di Lodi took the view that it was necessary to ascertain whether those directives might be relied upon directly by individuals in an appropriate case, even though the Member States had failed to implement them, and referred the following questions to the Court for a preliminary ruling:
“1. May a host Member State which has not implemented Directives 78/1026 and 78/1027 concerning the veterinary profession enforce penal measures against a national of another Member State who is entitled to practise in his own country, but is not enrolled on the register of veterinary surgeons of the host Member State, for having performed an act (signing a pharmaceutical prescription) which is an offence even if performed by a national of the host country who is not enrolled on the relevant professional register of that country, where the Community national's failure to enrol on the said register is due solely to the fact that the host country has not implemented the EEC directives within the prescribed period?
2. If the reply to the above question is in the affirmative, does a Community national who is entitled to practise in his own country have the right to be enrolled on the local register of veterinery surgeons in the host country, on the basis of Directives 78/1026 and 78/1027 concerning the veterinary profession and on the basis of the case-law of the Court of Justice on the effect of EEC directives, even where the host country has not implemented the above directives and has thereby failed in its obligations to the Community? In such a case, may a Community national, pending implementation of those directives, gain admittance to the register by applying to the appropriate judicial authority in the host Member State?”
6. In order to reply to the first question it is necessary first to recall that the first paragraph of Article 2 of Directive 78/1026 provides that: “Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 1 of Directive 78/1027/EEC and which are listed in Article 3, by giving such qualifications, as far as the right to take up and pursue the activities of a veterinary surgeon is concerned, the same effect in its territory as those which the Member State itself awards.” The second paragraph of Article 2 adds that: “Where a diploma, certificate or other evidence of formal qualifications as listed in Article 3 was issued before the implementation of this directive, it shall be accompanied by a certificate from the competent authorities of the issuing country stating that it complies with Article 1 of Directive 78/1027/EEC.” The Member States had a period of two years from the date on which they were notified of the directives within which to comply with them.
7. It should be stated that it appears from the order making the reference that it is common ground that Mr Rienks satisfies both those conditions.
8. Secondly it should be noted, as the Court has already recalled in its judgment of 22 September 1983 in Case 271/82 (Auer [1983] ECR 2727), that the aforementioned provisions of Directive 78/1026 impose clear! complete, precise and unconditional duties on the Member States which leave them no discretion. In those circumstances, according to the consistent case-law of the Court, an individual may, in proceedings before the national court, rely upon the provisions of a Community directive which has not been implemented by the Member State concerned or which has been implemented incompletely.
9. With regard to the specific question raised by the Italian Government as to whether the person affected may be so entitled even if he has not been enrolled on the relevant professional register, it should be stated that the conformity of such a requirement with Community law depends upon whether the fundamental principles of Community law and in particular the principle of nondiscrimination are observed.
10. As the Court made clear in the aformentioned judgment, enrolment on a professional register cannot be refused on grounds which fail to take into account the validity of a professional qualification obtained in another Member State in so far as such a qualification is one which all the Member States and their professional organizations, acting as bodies entrusted with a public duty, are required to recognize under Community law. Thus legislation which provides for the bringing of criminal or administrative proceedings against a veterinary surgeon practising his profession without having been enrolled on the professional register, to the extent to which such enrolment has been refused in breach of Community law, is incompatible with Community law in so far as its result is to deprive öf any effectiveness the provisions of the Treaty and of Directive 78/1026, the second recital in the preamble to which states that it is to facilitate the ‘effective’ exercise of the right of establishment and freedom to provide services in respect of the activities of veterinary surgeons.
11. The reply to the first question referred to the Court by the Pretore di Lodi must therefore be that a Member State may not enforce a penal measure in respect of the improper practice of the profession of veterinary surgeon against a national of another Member State, who is entitled to practise as a veterinary surgeon in his own country, on the ground that he is not enrolled on the register of veterinary surgeons of the first Member State, where such enrolment is refused in breach of Community law.
12. It follows from that reply that the second question, which was put only in the event of the first question's being answered in the affirmative, no longer requires an answer.
Costs
13. The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the prosecution pending before the national court, the costs are a matter for that court.
On those grounds, THE COURT (Second Chamber), in answer to the question referred to it by the Pretore di Lodi, by order of 17 December 1982, hereby rules: