61992J0319

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1. Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Practitioners of dentistry - Appointment as a dental practitioner of a social security scheme - National provision requiring a national of another Member State authorized to practice as a dentist but only having a qualification from a non-member State to complete a preparatory training period - Whether permissible - Recognition of equivalence of diploma by another Member State - No effect

(Council Directives 78/686/EEC, Arts 3 and 20, and 78/687/EEC, Art. 1(4) )

2. Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Practitioners of dentistry - Appointment as a dental practitioner of a social security scheme - National provision requiring a national of another Member State only having a qualification from a non-member State, but having practised the profession in several Member States, to complete a preparatory training period - Obligation of the competent authorities to examine whether the professional experience required under national law corresponds to that already acquired by the person concerned

(EEC Treaty, Art. 52)

1. Article 20 of Directive 78/686/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, does not prohibit a Member State from requiring a national of another Member State who has none of the qualifications listed in Article 3 of the directive to complete a preparatory training period in order to be eligible for appointment as a dental practitioner of a social security scheme even though he is authorized to practise in the territory of the first State.

Similarly, the said Article 20 does not exempt from the preparatory training period a national of a Member State who holds a qualification awarded by a non-member State, where that qualification has been recognized by another Member State as equivalent to one listed in Article 3 of the directive.

If, in order to be exempt from the preparatory training period, it were sufficient to be a national of a Member State and to have pursued the profession in a Community State for a certain period without having to satisfy any additional condition as regards training, Directive 78/686 would not have distinguished between Community nationals applying for appointment before the expiry of the eight-year period following notification of the directive and those who apply for appointment subsequently, that is to say once the guarantees resulting from the requirements laid down in Directive 78/687 as regards theoretical and practical training had been brought into effect. Furthermore, it follows from Article 1(4) of Directive 78/687 that recognition by a Member State of qualifications awarded by non-member States, even if they have been recognized as equivalent in one or more Member States, does not bind the other Member States.

2. It is not permissible under Article 52 of the EEC Treaty for the competent authorities of a Member State to refuse appointment as a dental practitioner of a social security scheme to a national of another Member State who has none of the qualifications mentioned in Article 3 of Directive 78/686, but who has been authorized to practise, and has been practising, his profession both in the first and in another Member State, on the ground that he has not completed the preparatory training period required by the legislation of the first State, without examining whether and, if so, to what extent, the experience already established by the person concerned, including that acquired as an appointed dental practitioner of a social security scheme in another Member State, corresponds to that required by that provision.

In Case C-319/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht for a preliminary ruling in the proceedings pending before that court between

Salomone Haim

and

Kassenzahnaerztliche Vereinigung Nordrhein

on the interpretation of Article 20 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (Official Journal 1978 L 233, p. 1), and, in the alternative, Article 52 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, M. Díez de Velasco and D.A.O. Edward (Rapporteur), (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler and M. Zuleeg, Judges,

Advocate General: M. Darmon,

Registrar: H. Von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Mr Salomone Haim, by Dietrich Ehle, Rechtsanwalt, Cologne,

- the Kassenzahnaerztliche Vereinigung Nordrhein, represented by Peter Scholich, Rechtsanwalt, Cologne,

- the Commission, by Juergen Grunwald, a member of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Salomone Haim and of the Commission at the hearing on 6 October 1993,

after hearing the Opinion of the Advocate General at the sitting on 17 November 1993,

gives the following

Judgment

1 By order of 20 May 1992, which was received at the Court on 28 July 1992, the German Bundessozialgericht (Federal Social Court) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Article 20 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (Official Journal 1978 L 233, p. 1), and, in the alternative, Article 52 of the EEC Treaty.

2 Those questions arose in proceedings between Salomone Haim and the Kassenzahnaerztliche Vereinigung Nordrhein (Association of Dental Practitioners of Social Security Schemes in Nordrhein, hereinafter referred to as "the KVN") concerning the latter' s refusal to enrol him on the register of German dental practitioners of a social security scheme.

3 The object of Directive 78/686/EEC is the mutual recognition by Member States of qualifications in dentistry which are exhaustively listed in Article 3 and awarded by those States. The coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners is ensured by Council Directive 78/687/EEC of 25 July 1978 (Official Journal 1978 L 233, p. 10). According to Article 2 of Directive 78/686/EEC, qualifications awarded by a Member State in accordance with the minimum criteria as regards theoretical and practical training defined by Directive 78/687/EEC are automatically recognized in the other Member States.

4 According to Article 20 of Directive 78/686/EEC,

"Member States which require their own nationals to complete a preparatory training period in order to become eligible for appointment as a dental practitioner of a social security scheme may impose the same requirement on nationals of the other Member States for a period of eight years following notification of this directive. The training period may not, however, exceed six months."

5 That provision was transposed into German law by Paragraph 3 of the Zulassungsverordnung fuer Kassenzahnaerzte (Regulation on Eligibility for Appointment as a Dental Practitioner of a Social Security Scheme, hereinafter referred to as "the German regulation"), which provides that enrolment on the register of approved dental practitioners is subject to, first, recognition of the status of dental practitioner and, secondly, completion of a preparatory training period of two years. However, dental practitioners who have acquired a qualification recognized under Community law in another Member State and who applied for enrolment after 30 June 1986 are exempt from the condition regarding the preparatory training period. For those who submitted their application prior to that date, the preparatory training period is six months.

6 Mr Haim is an Italian national holding a diploma in dentistry awarded in 1946 by the University of Istanbul in Turkey. On 18 September 1981 the Regierungspraesident of Arnsberg recognized his status as a dental practitioner in the Federal Republic of Germany, which enabled him to practise there as a self-employed dentist.

7 In 1982 Mr Haim' s Turkish diploma was recognized by the Belgian Minister for National Education and French Culture as equivalent to the "diplôme légal belge de licencié en science dentaire". By virtue of that equivalence, Mr Haim worked for eight years in Brussels as a dental practitioner of a social security scheme.

8 In 1988 Mr Haim applied to the KVN to have his name entered on the register of dental practitioners in order to be eligible for appointment as a dental practitioner of a social security scheme. On 10 August 1988 the KVN refused to register him on the ground that Mr Haim had not completed the two-year preparatory training period required by the German regulation. The appeal against that decision was dismissed on 28 March 1988 by the Sozialgericht Duesseldorf and on 24 October 1990 by the Landessozialgericht Nordrhein-Westfalen.

9 Mr Haim then brought an appeal on a point of law before the Bundessozialgericht for a declaration that, pursuant to Article 20 of Directive 78/686/EEC, he was exempt from the requirement to complete the two-year preparatory training period provided for by the German regulation. Since it harboured doubts on the interpretation to be given to Community law, the Bundessozialgericht decided to stay the proceedings and refer to the Court of Justice for a preliminary ruling on the following questions:

"1. Is Article 20 of the Council Directive of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (Directive 78/686/EEC, Official Journal 1978 L 233, p. 1) to be interpreted as meaning that Member States which require their own nationals to complete a preparatory training period as a prerequisite for eligibility for appointment as practitioners of a social security scheme may after 1986 no longer require the same of nationals of the other Member States if under the law of the State of establishment they are already authorized to practise in that State, even though they do not possess evidence of formal qualifications which under the directive is required to be recognized?

2. If not, does the aforesaid provision give rise to entitlement to eligibility for such appointment without completion of a preparatory training period in any event in the case of those nationals of other Member States who hold a qualification from a non-member State which another Member State has recognized as equivalent to a qualification awarded under its own law and mentioned in the directive?

3. If not, is it permissible under Article 52 of the EEC Treaty to deny to a national of another Member State, who does not hold a qualification covered by the directive but has in another Member State and in the State of establishment been authorized to practise, eligibility for such appointment on the ground that he has not completed the preparatory training period, without examining whether his prior professional experience may be regarded in whole or in part as corresponding to that requirement?"

First question

10 The first question seeks essentially to ascertain whether Article 20 of Directive 78/686/EEC prohibits a Member State from requiring a national of another Member State who does not have any of the qualifications listed in Article 3 of that directive to complete a preparatory training period in order to be eligible for appointment as a dental practitioner of a social security scheme even though he is authorized to practise his profession in the territory of the first State.

11 In order to answer that question, the aforementioned provision must be placed in its legislative context.

12 Article 20 is part of the chapter containing the final provisions of Directive 78/686/EEC and refers only to the specific case of appointment as dental practitioners of social security schemes. The prohibition laid down by Article 20 on requiring after 30 June 1986 that Community nationals complete a training period is justified by the fact that the qualifications of Member State nationals, as listed in Article 3 of Directive 78/686/EEC, provide on the expiry of the eight year period after notification of the directive, every guarantee as regards the training of their holders.

13 Within that period, however, on the assumption that the guarantees inherent in the theoretical and practical training required by Directive 78/687/EEC could not be available yet, Article 20 confers on the Member States the possibility of requiring completion of a preparatory training period of not more than six months where they impose that requirement on their own nationals.

14 Mr Haim claims that, as a national of a Member State authorized to practise dentistry in the Federal Republic of Germany, he need not complete the training period provided for in that provision. In his view, it is irrelevant that he should have acquired his training in a non-member State.

15 That argument cannot be accepted.

16 If, in order to be exempt from the preparatory training period, it were sufficient to be a national of a Member State and to have pursued the profession in a Community State for a certain period without having to satisfy any additional condition as regards training, Directive 78/686/EEC would not have distinguished between Community nationals applying for appointment before the expiry of the eight-year period following notification of the directive and those who apply for appointment subsequently. Article 20 is based precisely on that distinction, which is consistent with the General scheme of Directives 78/686/EEC and 78/687/EEC.

17 It follows that the scope of Article 20 is the same as that of the directive of which it is a part and that it refers only to holders of a qualification conferred in the Member States.

18 The reply to the first question should therefore be that Article 20 does not prohibit a Member State from requiring a national of another Member State who has none of the qualifications listed in Article 3 of the directive to complete a preparatory training period in order to be eligible for appointment as a dental practitioner of a social security scheme even though he is authorized to practise his profession in the territory of the first State.

Second question

19 The second question seeks to ascertain whether Article 20 of Directive 78/686/EEC exempts from the preparatory training period a national of a Member State who holds a qualification awarded by a non-member State where that qualification has been recognized by another Member State as equivalent to one listed in Article 3 of the directive.

20 In order to answer that question, reference should be made to Article 1(4) of Directive 78/687/EEC, which provides that the directive

"shall [not] prejudice any facility which may be granted in accordance with their own rules by Member States in respect of their own territory to authorize holders of diplomas, certificates and other evidence of formal qualifications which have not been obtained in a Member State to take up and pursue the activities of a dental practitioner".

21 It follows from that provision that, as the Court indicated in paragraph 13 of its judgment in Case C-154/93 Tawil-Albertini [1994] ECR I-0000, recognition by a Member State of qualifications awarded by non-member States, even if they have been recognized as equivalent in one or more Member States, does not bind the other Member States.

22 The reply to the second question should therefore be that Article 20 of Directive 78/686/EEC does not exempt from the preparatory training period a national of a Member State who holds a qualification awarded by a non-member State, where that qualification has been recognized by another Member State as equivalent to one mentioned in Article 3 of the directive.

Third question

23 The third question seeks to ascertain whether it is permissible under Article 52 of the Treaty for the competent authorities of a Member State to refuse appointment as a dental practitioner of a social security scheme to a national of another Member State who has none of the qualifications mentioned in Article 3 of Directive 78/686/EEC but who has been authorized to practise, and who has been practising, his profession both in the first and in another Member State, on the ground that he has not completed the preparatory training period required by the legislation of the first State without examining whether that condition may be regarded as having been fulfilled in whole or in part in view of the professional experience he has acquired.

24 The purpose of Article 52 of the Treaty is to abolish restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State.

25 A case such as this, where a Community national makes use of the freedom conferred upon him by the Treaty to establish himself in a Member State other than that of his nationality, falls within the scope of that provision.

26 As the Court has already indicated in the judgment in Case C-340/89 (Vlassopoulou [1991] ECR I-2357, paragraph 15), even if applied without any discrimination on the basis of nationality, national requirements concerning qualifications may have the effect of hindering nationals of the other Member States in the exercise of their right of establishment guaranteed to them by Article 52 of the EEC Treaty. That could be the case if the national rules in question took no account of the knowledge and qualifications already acquired by the person concerned in another Member State.

27 In the same judgment (paragraph 16) the Court also held that a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialized knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules.

28 By application of that same principle, it should be considered in the present case that the competent national authority, in order to verify whether the training period requirement prescribed by the national rules is met, must take into account the professional experience of the plaintiff in the main proceedings, including that which he has acquired during his appointment as a dental practitioner of a social security scheme in another Member State.

29 The reply to the third question should therefore be that it is not permissible under Article 52 of the Treaty for the competent authorities of a Member State to refuse appointment as a dental practitioner of a social security scheme to a national of another Member State who has none of the qualifications mentioned in Article 3 of Directive 78/686/EEC, but who has been authorized to practise, and has been practising, his profession both in the first and in another Member State, on the ground that he has not completed the preparatory training period required by the legislation of the first State, without examining whether and, if so, to what extent, the experience already established by the person concerned corresponds to that required by that provision.

Costs

30 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundessozialgericht by order of 20 May 1992, hereby rules:

1. Article 20 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, does not prohibit a Member State from requiring a national of another Member State who has none of the qualifications listed in Article 3 of the directive to complete a preparatory training period in order to be eligible for appointment as a dental practitioner of a social security scheme even though he is authorized to practise in the territory of the first State.

2. Article 20 of Directive 78/686/EEC does not exempt from the preparatory training period a national of a Member State who holds a qualification awarded by a non-member Sate, where that qualification has been recognized by another Member State as equivalent to one listed in Article 3 of the directive.

3. It is not permissible under Article 52 of the EEC Treaty for the competent authorities of a Member State to refuse appointment as a dental practitioner of a social security scheme to a national of another Member State who has none of the qualifications mentioned in Article 3 of Directive 78/686/EEC, but who has been authorized to practise, and has been practising, his profession both in the first and in another Member State, on the ground that he has not completed the preparatory training period required by the legislation of the first State, without examining whether and, if so, to what extent, the experience already established by the person concerned corresponds to that required by that provision.