Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - EFFECT
( EEC TREATY , ART . 189 , THIRD PARA .)
FREE MOVEMENT OF PERSONS - FREEDOM OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES - VETERINARY SURGEONS - MUTUAL RECOGNITION OF DIPLOMAS - MEMBER STATES ' OBLIGATION - SCOPE
( COUNCIL DIRECTIVE NO 78/1026 , ARTS 2 AND 3 )
2 . FREE MOVEMENT OF PERSONS - FREEDOM OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES - VETERINARY SURGEONS - RIGHT TO PRACTISE THE PROFESSION - DIPLOMA OBTAINED IN A MEMBER STATE BEFORE THE IMPLEMENTATION OF DIRECTIVE NO 78/1026 - RIGHT TO PRACTISE THE PROFESSION IN ANOTHER MEMBER STATE ON THE EXPIRY OF THE PERIOD PRESCRIBED FOR THE IMPLEMENTATION OF THE DIRECTIVE - CONDITIONS - CERTIFICATE FROM ISSUING COUNTRY STATING THAT THE DIPLOMA COMPLIES WITH THE REQUIREMENTS OF DIRECTIVE NO 78/1027 - EFFECTS
( COUNCIL DIRECTIVES NOS 78/1026 , ARTS 2 AND 3 , AND 78/1027 , ART . 1 )
3 . FREE MOVEMENT OF PERSONS - FREEDOM OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES - VETERINARY SURGEONS - RIGHT TO PRACTISE THE PROFESSION IN A MEMBER STATE OTHER THAN THE MEMBER STATE WHICH ISSUED THE DIPLOMA - CONDITIONS - OBLIGATION OF REGISTRATION WITH THE PROFESSIONAL SOCIETY OF VETERINARY SURGEONS OF THE HOST STATE - PERMISSIBILITY - REFUSAL OF REGISTRATION CONTRARY TO THE OBLIGATION OF THE MUTUAL RECOGNITION OF DIPLOMAS OF VETERINARY SURGEON - IMPROPER PRACTICE OF THE PROFESSION - NONE
( EEC TREATY , ARTS 52 AND 57 ; COUNCIL DIRECTIVE NO 78/1026 )
Summary
1 . THE PROVISIONS OF ARTICLES 2 AND 3 OF DIRECTIVE NO 78/1026 WHICH CONCERN IN PARTICULAR THE MUTUAL RECOGNITION OF DIPLOMAS , CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS IN VETERINARY MEDICINE , IMPOSE ON EACH MEMBER STATE CLEAR , COMPLETE , PRECISE AND UNCONDITIONAL OBLIGATIONS WHICH EXCLUDE THE POSSIBILITY OF DISCRETIONARY ASSESSMENTS . THUS AN INDIVIDUAL MAY RELY BEFORE THE NATIONAL COURT ON THOSE PROVISIONS WHERE THEY HAVE NOT BEEN IMPLEMENTED OR WHERE THEY HAVE BEEN ONLY PARTIALLY IMPLEMENTED BY THE MEMBER STATE CONCERNED .
2 . A NATIONAL OF A MEMBER STATE WHO HAS THE RIGHT TO PRACTISE THE PROFESSION OF VETERINARY SURGEON IN ANOTHER MEMBER STATE WHICH HAS ISSUED TO HIM ONE OF THE DIPLOMAS , CERTIFICATES OR OTHER EVIDENCE OF FORMAL QUALIFICATIONS REFERRED TO IN ARTICLE 3 OF DIRECTIVE NO 78/1026 EVEN BEFORE THAT DIRECTIVE HAS BEEN IMPLEMENTED , IS ENTITLED TO PRACTISE THAT PROFESSION IN THE FIRST-MENTIONED STATE ON THE EXPIRY OF THE PERIOD PRESCRIBED FOR THE IMPLEMENTATION OF THE DIRECTIVE , PROVIDED THAT THE COMPETENT AUTHORITIES OF THE STATE IN WHICH HE OBTAINED HIS DIPLOMA HAVE ISSUED TO HIM THE CERTIFICATE PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 2 OF THE DIRECTIVE .
THAT CERTIFICATE DOES NOT HAVE THE EFFECT OF CREATING ' ' EX NUNC ' ' THE RIGHT TO PRACTISE THE PROFESSION OF VETERINARY SURGEON ON THE TERRITORY OF MEMBER STATES OTHER THAN THE ISSUING STATE , BUT OF PROVING THAT THE DIPLOMA AWARDED BEFORE THE IMPLEMENTATIN OF DIRECTIVE NO 78/1026 IS IN CONFORMITY WITH ARTICLE 1 OF DIRECTIVE NO 78/1027 .
IT FOLLOWS THAT A VETERINARY SURGEON , PROSECUTED FOR HAVING IMPROPERLY PRACTISED VETERINARY MEDICINE AFTER THE EXPIRY OF THE PERIOD PRESCRIBED FOR THE IMPLEMENTATION OF DIRECTIVE NO 78/1026 ON THE TERRITORY OF A MEMBER STATE OTHER THAN THE STATE WHICH ISSUED THE DIPLOMA , MAY RELY ON SUCH A CERTIFICATE , EVEN IF IT WAS DRAWN UP AFTER THE EVENTS WHICH LED TO CRIMINAL CHARGES BEING PAID .
3 . ALTHOUGH THE LAWS OF MEMBER STATES WHICH PROVIDE FOR THE COMPULSORY REGISTRATION WITH OR AFFILIATION TO A PROFESSIONAL ORGANIZATION OR BODY ARE NOT , AS SUCH , INCOMPATIBLE WITH COMMUNITY LAW , IT IS NOT PERMISSIBLE TO REFUSE TO REGISTER A NATIONAL OF A MEMBER STATE WITH THE PROFESSIONAL SOCIETY OF VETERINARY SURGEONS OF THAT STATE ON GROUNDS WHICH DISREGARD THE VALIDITY OF A PROFESSIONAL QUALIFICATION OBTAINED IN ANOTHER MEMBER STATE , WHEN THAT QUALIFICATION IS ONE OF THOSE WHICH ALL THE MEMBER STATES , AND THEIR PROFESSIONAL SOCIETIES , AS BODIES ENTRUSTED WITH A PUBLIC DUTY , ARE REQUIRED TO RECOGNIZE UNDER COMMUNITY LAW .
THEREFORE LEGISLATION WHICH PROVIDES FOR CRIMINAL OR ADMINISTRATIVE PROCEEDINGS AGAINST A VETERINARY SURGEON WHO PRACTISES HIS PROFESSION WITHOUT BEING REGISTERED WITH THE PROFESSIONAL SOCIETY , IN SO FAR AS THAT REGISTRATION HAS BEEN REFUSED IN CONTRAVENTION OF COMMUNITY LAW , IS NOT COMPATIBLE WITH COMMUNITY LAW INASMUCH AS IT WOULD ULTIMATELY RENDER WHOLLY INEFFECTIVE THE PROVISIONS OF THE TREATY AND OF DIRECTIVE NO 78/1026 .
Parties
IN CASE 271/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR D ' APPEL ( CHAMBRE DES APPELS CORRECTIONNELS ) ( COURT OF APPEAL , CRIMINAL APPEALS DIVISION ), COLMAR , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
VINCENT RODOLPHE AUER , OF MULHOUSE , ACCUSED ,
AND
MINISTERE PUBLIC ( PUBLIC PROSECUTOR ),
CIVIL PARTIES :
ORDRE NATIONAL DES VETERINAIRES DE FRANCE ( NATIONAL SOCIETY OF VETERINARY SURGEONS OF FRANCE ), WHOSE REGISTERED OFFICE IS IN PARIS , IN THE PERSON OF ITS PRESIDENT ,
AND
SYNDICAT NATIONAL DES VETERINAIRES PRATICIENS DE FRANCE ( NATIONAL UNION OF PRACTISING VETERINARY SURGEONS OF FRANCE ), WHOSE REGISTERED OFFICE IS IN PARIS , IN THE PERSON OF ITS PRESIDENT ,
Subject of the case
ON THE INTERPRETATION OF ARTICLES 52 TO 57 OF THE EEC TREATY AND OF COUNCIL DIRECTIVES NOS 78/1026/EEC AND 78/1027/EEC OF 18 DECEMBER 1978 , ( OFFICIAL JOURNAL 1978 , L 362 , PP . 1 AND 7 ),
Grounds
1 BY JUDGMENT OF 16 SEPTEMBER 1982 , RECEIVED AT THE COURT ON 4 NOVEMBER 1982 , THE COURT D ' APPEL ( COURT OF APPEAL ), COLMAR , SUBMITTED TO THE COURT , A QUESTION PURSUANT TO ARTICLE 177 OF THE EEC TREATY , FOR A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLES 52 AND 57 OF THE TREATY , AND OF COUNCIL DIRECTIVES NOS 78/1026/EEC AND 78/1027/EEC OF 18 DECEMBER 1979 , 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 1978 , L 362 , PP . 1 AND 7 ).
2 THAT QUESTION WAS RAISED IN THE CONTEXT OF CRIMINAL PROCEEDINGS BROUGHT AGAINST VINCENT RODOLPHE AUER , WHO WAS CHARGED , INTER ALIA , WITH UNLAWFULLY PRACTISING VETERINARY MEDICINE IN FRANCE . MR AUER , WHO WAS ORIGINALLY OF AUSTRIAN NATIONALITY , STUDIED VETERINARY MEDICINE IN VIENNA ( AUSTRIA ), THEN AT LYON AND FINALLY IN PARMA ( ITALY ), WHERE HE OBTAINED , ON 1 DECEMBER 1956 , THE DEGREE OF DOCTOR OF VETERINARY MEDICINE ( LAUREA IN MEDICINA VETERINARIA ), ON 11 MARCH 1957 , A PROVISIONAL PRACTISING CERTIFICATE IN VETERINARY MEDICINE AND , ON 2 MAY 1980 , THE DEFINITIVE PRACTISING CERTIFICATE FOR THAT PROFESSION . IN 1958 , HE SETTLED IN FRANCE IN ORDER TO PRACTISE HIS PROFESSION THERE , FIRST AS AN ASSISTANT TO FRENCH VETERINARY SURGEONS AND SUBSEQUENTLY ON HIS OWN ACCOUNT .
3 MR AUER BECAME A NATURALIZED FRENCH CITIZEN IN 1961 AND ON SEVERAL OCCASIONS APPLIED FOR THE AUTHORIZATION TO ENGAGE IN THE MEDICAL AND SURGICAL TREATMENT OF ANIMALS WITHIN THE MEANING OF MINISTERIAL DECREE NO 62-1481 OF 27 NOVEMBER 1962 , ACCORDING TO WHICH THAT AUTHORIZATION MAY BE GRANTED TO VETERINARY SURGEONS OF FOREIGN ORIGIN WHO HAVE ACQUIRED FRENCH NATIONALITY AND WHO ARE HOLDERS OF A DEGREE IN VETERINARY MEDICINE AWARDED ABROAD WHICH HAS BEEN RECOGNIZED AS EQUIVALENT TO THE FRENCH DEGREE BY A COMMITTEE SET UP FOR THAT PURPOSE . HOWEVER HIS APPLICATIONS HAVE ALWAYS BEEN REJECTED SINCE THAT COMMITTEE HAS REFUSED TO ACCEPT SUCH EQUIVALENCE IN HIS CASE AND HIS DEGREE HAS BEEN RECOGNIZED AS VALID ' ' SOLELY AS AN ACADEMIC QUALIFICATION ' ' . MR AUER HAS THEREFORE NOT SUCCEEDED IN OBTAINING THE ENROLMENT WHICH HE SOUGHT ON THE REGISTER OF THE PROFESSIONAL SOCIETY .
4 NEVERTHELESS , SINCE HE CONSIDERED THAT REFUSAL TO BE UNJUSTIFIED , MR AUER OPENED A VETERINARY SURGERY IN MULHOUSE , WHERE HE BEGAN TO PRACTISE . AS A RESULT OF COMPLAINTS BY THE ORDRE NATIONAL DES VETERINAIRES ( NATIONAL SOCIETY OF VETERINARY SURGEONS ), HE HAS BEEN PROSECUTED ON SEVERAL OCCASIONS FOR IMPROPERLY PRACTISING VETERINARY MEDICINE . IT WAS IN THE CONTEXT OF ONE OF THOSE PROSECUTIONS , INITIATED IN 1978 , THAT THE COUR D ' APPEL , COLMAR , REFERRED TO THE COURT FOR A PRELIMINARY RULING A FIRST QUESTION AS TO WHETHER THE FACT OF PROHIBITING , IN FRANCE , A PERSON WHO HAS ACQUIRED THE RIGHT TO PRACTISE AS A VETERINARY SURGEON IN ANOTHER MEMBER STATE FROM PRACTISING THAT PROFESSION CONSTITUTES A RESTRICTION ON THE FREEDOM OF ESTABLISHMENT RECOGNIZED BY ARTICLES 52 AND 57 OF THE TREATY .
5 AT THAT TIME ARTICLE 57 OF THE EEC TREATY HAD NOT YET BEEN IMPLEMENTED AS REGARDS TAKING UP THE PROFESSION OF VETERINARY SURGEON . ONLY ON 18 DECEMBER 1978 WERE THE TWO DIRECTIVES MENTIONED ABOVE ADOPTED BY THE COUNCIL . THE DIRECTIVES PROVIDE , IN ARTICLES 18 ( 1 ) AND 3 ( 1 ) RESPECTIVELY , THAT MEMBER STATES ARE TO BRING INTO FORCE THE MEASURES NECESSARY TO COMPLY WITH THE DIRECTIVES WITHIN TWO YEARS OF THEIR NOTIFICATION , NAMELY 20 DECEMBER 1980 .
6 SINCE MR AUER RELIED ON THE DIRECT APPLICATION IN HIS FAVOUR OF THE PROVISIONS OF THE DIRECTIVES IN QUESTION , THE COURT , IN ITS JUDGMENT OF 7 FEBRUARY 1979 ( CASE 136/79 , AUER ( 1979 ) ECR 437 ) HELD :
THAT FOR THE PERIOD PRIOR TO THE DATE ON WHICH THE MEMBER STATES WERE REQUIRED TO HAVE TAKEN THE MEASURES NECESSARY TO COMPLY WITH THE DIRECTIVES IN QUESTION , THE NATIONALS OF A MEMBER STATE COULD NOT RELY ON THAT PROVISION WITH A VIEW TO PRACTISING THE PROFESSION OF VETERINARY SURGEON IN THAT MEMBER STATE ON ANY CONDITIONS OTHER THAN THOSE LAID DOWN BY THE NATIONAL LEGISLATION ;
THAT , MOREOVER , THAT ANSWER IN NO WAY PREJUDGED THE EFFECTS OF THE ABOVE-MENTIONED DIRECTIVES FROM THE TIME AT WHICH MEMBER STATES WERE REQUIRED TO HAVE COMPLIED WITH THEM ;
AND , FINALLY , THAT THERE WAS NO PROVISION OF THE TREATY WHICH MADE IT POSSIBLE TO TREAT NATIONALS OF A MEMBER STATE DIFFERENTLY ACCORDING TO THE TIME AT WHICH OR THE MANNER IN WHICH THEY ACQUIRED THE NATIONALITY OF THAT STATE .
7 AT 20 DECEMBER 1980 , THE FRENCH REPUBLIC HAD STILL NOT COMPLIED WITH THE ABOVE-MENTIONED DIRECTIVES . IMPLEMENTING MEASURES WERE ONLY ADOPTED BY LAW NO 82899 OF 20 OCTOBER 1982 . IN THE MEANTIME , MR AUER CONTINUED TO PRACTISE HIS PROFESSION IN MULHOUSE , STILL WITHOUT BEING ENTERED ON THE REGISTER OF THE VETERINARY SURGEONS ' PROFESSIONAL SOCIETY . FOLLOWING A NEW COMPLAINT FROM THE ORDRE NATIONAL DES VETERINAIRES DE FRANCE ( NATIONAL SOCIETY OF VETERINARY SURGEONS OF FRANCE ) AND SYNDICAT NATIONAL DES VETERINAIRES PRACTICIENS FRANCAIS ( NATIONAL SOCIETY OF PRACTISING VETERINARY SURGEONS OF FRANCE ), HE WAS AGAIN PROSECUTED FOR THE UNLAWFUL PRACTICE OF VETERINARY MEDICINE , IN RESPECT OF ACTS WHICH WERE OFFICIALLY RECORDED ON 26 JANUARY AND 15 JUNE 1981 . THOSE ACTS WERE CARRIED OUT AFTER THE EXPIRY OF THE PERIOD PRESCRIBED FOR THE IMPLEMENTATION OF THE DIRECTIVES IN QUESTION , BUT PRIOR TO THE ADOPTION OF THE FRENCH LAW WHICH IMPLEMENTED THEM .
8 IN THE COURSE OF THOSE PROCEEDINGS MR AUER RELIED ON RIGHTS BASED ON COMMUNITY RULES . IN PARTICULAR HE MAINTAINED THAT SINCE , AT THE MATERIAL TIME , THE PERIOD WITHIN WHICH MEMBER STATES WERE REQUIRED TO COMPLY WITH THE DIRECTIVES HAD EXPIRED , AND FRANCE HAD NOT ADOPTED THE MEASURES NECESSARY FOR IMPLEMENTING THEM , THE PROVISIONS OF THE DIRECTIVES HAD BECOME DIRECTLY APPLICABLE AND THAT HE WAS THEREFORE ENTITLED TO PRACTISE HIS PROFESSION IN FRANCE .
9 THE COURT OF FIRST INSTANCE REJECTED THAT ARGUMENT . THE COUR D ' APPEL , ( COURT OF APPEAL ), COLMAR , CONSIDERED THAT ' ' ON THE ONE HAND , IT IS CLEAR THAT THE ANSWER GIVEN IN THE JUDGMENT OF 7 FEBRUARY 1979 OF THE COURT OF JUSTICE IS EXPRESSLY LIMITED TO THE TWO-YEAR TRANSITIONAL PERIOD , WHICH PROVIDES REASON FOR BELIEVING THAT A DIFFERENT ANSWER MIGHT BE GIVEN SO FAR AS THE SUBSEQUENT PERIOD IS CONCERNED ' ' AND THAT ' ' ON THE OTHER HAND . . . IT SEEMS INCONCEIVABLE THAT A PERSON WHO IS A NATIVE OF A FOREIGN COUNTRY AND WHO HOLDS A FOREIGN QUALIFICATION COULD BE ALLOWED TO PRACTISE VETERINARY MEDICINE IN FRANCE WITHOUT HAVING TO SEEK REGISTRATION WITH THE PROFESSIONAL SOCIETY , AND THUS ENJOY MORE RIGHTS THAN A PERSON WHO HAS ALWAYS HELD FRENCH NATIONALITY AND HOLDS NATIONAL QUALIFICATIONS ' ' . IT THEREFORE REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
' ' IF A PERSON WHO HAS BECOME ENTITLED TO PRACTISE THE PROFESSION OF VETERINARY SURGEON IN A MEMBER STATE OF THE EUROPEAN COMMUNITY WHICH HAS CONFERRED ON HIM THE QUALIFICATIONS REFERRED TO IN ARTICLE 3 OF DIRECTIVE NO 78/1206 , AND WHO HAS ACQUIRED THE NATIONALITY OF ANOTHER MEMBER STATE , IS REQUIRED , AFTER THE EXPIRY OF THE TWO-YEAR PERIOD ALLOWED FOR ADOPTING THE MEASURES NECESSARY TO COMPLY WITH DIRECTIVES NOS 78/1206 AND 78/1207 , TO BE REGISTERED WITH A NATIONAL BODY ESTABLISHED UNDER NATIONAL LAW AS A CONDITION FOR PRACTISING THAT PROFESSION , DOES THAT REQUIREMENT AMOUNT TO A RESTRICTION ON THE FREEDOM OF ESTABLISHMENT PROVIDED FOR IN ARTICLES 52 AND 57 OF THE TREATY OF ROME?
' '
10 THE CIVIL PARTIES IN THE MAIN PROCEEDINGS , NAMELY THE ORDRE NATIONAL DES VETERINAIRES AND THE SYNDICAT NATIONAL DES VETERINAIRES , OBSERVE THAT THE DEGREE WHICH MR AUER HOLDS IN NO WAY SATISFIES THE TRAINING REQUIREMENTS LAID DOWN IN ARTICLE 1 OF DIRECTIVE NO 78/1027 AND THAT THE PRACTISING CERTIFICATE ISSUED TO THE ACCUSED ON 2 MAY 1980 DOES NOT CONSTITUTE CONFIRMATION THAT HE HAS SATISFIED THE TRAINING CONDITIONS LAID DOWN IN THAT PROVISION .
11 MR AUER EMPHASIZES THAT ARTICLE 2 OF DIRECTIVE NO 78/1026 REQUIRES MEMBER STATES TO RECOGNIZE THE DIPLOMAS LISTED IN ARTICLE 3 , AND THAT THAT LIST INCLUDES UNDER ( F ) PRECISELY THOSE DIPLOMAS WHICH WERE AWARDED TO HIM IN ITALY . IT FOLLOWS THAT HE IS ENTITLED TO PRACTISE THE PROFESSION OF VETERINARY SURGEON IN FRANCE , INASMUCH AS THE DIRECTIVE IMPOSES ON MEMBER STATES CLEAR , PRECISE AND UNCONDITIONAL OBLIGATIONS AND IS THEREFORE CAPABLE OF DIRECT APPLICATION , IN THE SENSE THAT AN INDIVIDUAL MAY RELY ON IT AS AGAINST A MEMBER STATE WHICH HAS FAILED TO FULFIL ITS OBLIGATION TO COMPLY WITH THE DIRECTIVE WITHIN THE PRESCRIBED PERIOD . THE COMMISSION ESSENTIALLY SHARES THAT OPINION .
12 IN ORDER TO ASSESS THE ARGUMENTS OF THE PARTIES , IT IS NECESSARY TO EXAMINE IN THE FIRST PLACE THOSE PROVISIONS OF THE ABOVE-MENTIONED DIRECTIVES , WHICH ARE APPLICABLE IN THIS INSTANCE . ARTICLE 2 ( 1 ) OF DIRECTIVE NO 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 NO 78/1027/EEC AND WHICH ARE LISTED IN ARTICLE 3 , BY GIVING SUCH QUALIFI- CATIONS , 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 THAT ARTICLE 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 NO 78/1027/EEC . ' ' ARTICLE 3 OF DIRECTIVE NO 78/1026 MENTIONS , UNDER ( F ), IN RESPECT OF QUALIFICATIONS AWARDED IN ITALY , ' ' IL DIPLOMA DI LAUREA DI DOTTORE IN MEDICINA VETERINARIA ACCOMPAGNATO DAL DIPLOMA DI ABILITAZIONE ALL ' ESERCIZIO DELLA MEDICINA VETERINARIA AWARDED BY THE MINISTER OF EDUCATION ON THE BASIS OF THE FINDINGS OF THE COMPETENT STATE EXAMINING BOARD . ' '
13 IT SHOULD BE NOTED THAT THE DIPLOMA OF ' ' LAUREA ' ' ( DOCTOR ) AND THE CERTIFICATE OF ' ' ABILITAZIONE ' ' ( PRACTISING CERTIFICATE ) WHICH MR AUER HOLDS CORRESPOND PRECISELY TO THOSE SET FORTH IN ARTICLE 3 ( F ) OF DIRECTIVE NO 78/1026 , AS , MOREOVER , THE COUR D ' APPEL , COLMAR , ITSELF OBSERVES IN ITS JUDGMENT MAKING THE REFERENCE TO THE COURT . SINCE THOSE QUALIFICATIONS WERE AWARDED ( IN 1956 AND 1980 RESPECTIVELY ) BEFORE THE IMPLEMENTATION OF THE DIRECTIVE , THE SECOND PARAGRAPH OF ARTICLE 2 APPLIES .
14 IN THAT RESPECT , IT MUST BE RECORDED THAT AT THE HEARING MR AUER ' S LAWYER PRODUCED A DOCUMENT , DATED 3 DECEMBER 1982 , ISSUED BY THE DEAN ( ' ' PRESIDE ' ' ) OF THE FACULTY OF VETERINARY MEDICINE AT THE UNIVERSITY OF PARMA , WHICH STATES THAT THE ' ' DIPLOMA DI LAUREA ' ' AND THE ' ' CERTIFICATO DI ABILITAZIONE ' ' ISSUED TO MR AUER IN 1956 AND 1980 RESPECTIVELY COMPLY WITH ARTICLE 1 OF DIRECTIVE NO 78/1027 .
15 THE FACT THAT THAT CERTIFICATE WAS DRAWN UP AFTER THE EVENTS WHICH LED TO MR AUER ' S BEING CHARGED WITH CRIMINAL OFFENCES DOES NOT ALTER HIS LEGAL POSITION , BECAUSE THE DOCUMENT IN QUESTION DOES NOT HAVE THE EFFECT OF CREATING ' ' EX NUNC ' ' THE RIGHT TO PRACTISE THE PROFESSION OF VETERINARY SURGEON , BUT MERELY PROVES THAT THE DIPLOMAS AWARDED AT AN EARLIER DATE ARE IN CONFORMITY WITH DIRECTIVE NO 78/1027 . THE REQUIREMENT LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 2 OF DIRECTIVE NO 78/1026 HAS THEREFORE BEEN SATISFIED IN THIS INSTANCE .
16 THE ABOVE-MENTIONED PROVISIONS OF DIRECTIVE NO 78/1026 IMPOSE ON EACH MEMBER STATE CLEAR , COMPLETE , PRECISE AND UNCONDITIONAL OBLIGATIONS WHICH EXCLUDE THE POSSIBLITY OF DISCRETIONARY ASSESSMENTS . IN THOSE CIRCUMSTANCES , IN ACCORDANCE WITH A CONSISTENT LINE OF DECISIONS OF THE COURT , AN INDIVIDUAL MAY RELY , BEFORE THE NATIONAL COURT , ON THE PROVISIONS OF A COMMUNITY DIRECTIVE WHICH HAS NOT BEEN IMPLEMENTED OR WHICH HAS BEEN ONLY PARTIALLY IMPLEMENTED BY THE MEMBER STATE CONCERNED . THAT IS THE CASE OF MR AUER WHOSE RIGHT TO PRACTISE VETERINARY MEDICINE IN FRANCE , AS FROM THE DATE ON WHICH THE DIRECTIVES IN QUESTION SHOULD HAVE BEEN IMPLEMENTED BY THE FRENCH REPUBLIC , BY VIRTUE OF THE UNIVERSITY DEGREES AND QUALIFICATIONS ACQUIRED IN ITALY , CANNOT THEREFORE BE CONTESTED .
17 AS REGARDS THE SPECIFIC QUESTION RAISED BY THE NATIONAL COURT WHETHER A NATIONAL OF A MEMBER STATE WHO HAS OBTAINED IN ANOTHER MEMBER STATE QUALIFICATIONS WHICH ENTITLE HIM TO PRACTISE THE PROFESSION OF VETERINARY SURGEON HAS THE RIGHT TO PRACTISE THAT PROFESSION EVEN IF HE IS NOT ENTERED ON THE REGISTER OF THE PROFESSIONAL SOCIETY , THE CIVIL PARTIES IN THE MAIN PROCEEDINGS CONTEND THAT SUCH A PERSON CANNOT BE EXEMPTED FROM THE OBLIGATION OF REGISTRATION EVEN IF THE DEGREES OR CERTIFICATES WHICH HE HOLDS ARE VALID .
18 IN THAT RESPECT , IT SHOULD BE NOTED THAT COMPULSORY REGISTRATION WITH OR MEMBERSHIP OF A PROFESSIONAL ORGANIZATION OR BODY ARE REFERRED TO IN SEVERAL PROVISIONS OF DIRECTIVE NO 78/1026 - IN PARTICULAR IN THE FIRST RECITAL IN THE PREAMBLE THERETO AND IN ARTICLES 7 AND 12 THEREOF AND MUST BE REGARDED AS LAWFUL , INASMUCH AS THEY SEEK TO ENSURE THE OBSERVANCE OF MORAL AND ETHICAL PRINCIPLES AND THE DISCIPLINARY CONTROL OF THE ACTIVITY OF VETERINARY SURGEONS , REQUIREMENTS WHICH ARE WORTHY OF PROTECTION . THE LAWS OF MEMBER STATES WHICH PROVIDE FOR COMPULSORY REGISTRATION WITH THE PROFESSIONAL SOCIETY ARE NOT , THEREFORE , AS SUCH , INCOMPATIBLE WITH COMMUNITY LAW .
19 HOWEVER , AS THE CIVIL PARTIES THEMSELVES ACKNOWLEDGE , THE CONFORMITY OF THAT OBLIGATION WITH COMMUNITY LAW IS SUBJECT TO THE CONDITION THAT THE FUNDAMENTAL PRINCIPLES OF THAT LAW , AND IN PARTICULAR THE PRINCIPLE OF NON-DISCRIMINATION , ARE RESPECTED . IT IS NOT PERMISSIBLE TO REFUSE TO ENTER A PERSON ON THE REGISTER OF THE PROFESSIONAL SOCIETY ON GROUNDS WHICH DISREGARD THE VALIDITY OF A PROFESSIONAL QUALIFICATION OBTAINED IN ANOTHER MEMBER STATE , WHEN THAT QUALIFICATION IS ONE OF THOSE WHICH ALL THE MEMBER STATES , AND THEIR PROFESSIONAL SOCIETIES , AS BODIES ENTRUSTED WITH A PUBLIC DUTY , ARE REQUIRED TO RECOGNIZE UNDER COMMUNITY LAW . THEREFORE LEGISLATION WHICH PROVIDES FOR CRIMINAL OR ADMINISTRATIVE PROCEEDINGS AGAINST A VETERINARY SURGEON WHO PRACTISES HIS PROFESSION WITHOUT BEING REGISTERED WITH THE PROFESSIONAL SOCIETY , IN SO FAR AS THAT REGISTRATION HAS BEEN REFUSED IN CONTRAVENTION OF COMMUNITY LAW , IS NOT COMPATIBLE WITH COMMUNITY LAW INASMUCH AS IT WOULD ULTIMATELY RENDER WHOLLY INEFFECTIVE THE PROVISIONS OF THE TREATY AND OF DIRECTIVE NO 78/1026 WHICH , ACCORDING TO THE SECOND RECITAL OF THE PREAMBLE TO THE LATTER , ARE DESIGNED TO FACILITATE THE ' ' EFFECTIVE ' ' EXERCISE OF THE RIGHT OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES IN RESPECT OF THE SERVICES OF VETERINARY SURGEONS .
20 THE ANSWER TO BE GIVEN TO THE QUESTION PUT TO THE COURT BY THE COUR D ' APPEL , COLMAR , SHOULD THEREFORE BE AS FOLLOWS :
A NATIONAL OF A MEMBER STATE WHO IS QUALIFIED TO PRACTISE THE PROFESSION OF VETERINARY SURGEON IN ANOTHER MEMBER STATE WHICH HAS ISSUED TO HIM ONE OF THE DIPLOMAS , CERTIFICATES OR OTHER EVIDENCE OF FORMAL QUALIFICATIONS REFERRED TO IN ARTICLE 3 OF DIRECTIVE NO 78/1026 EVEN BEFORE THAT DIRECTIVE HAS BEEN IMPLEMENTED , IS ENTITLED TO PRACTISE THAT PROFESSION IN THE FIRST-MENTIONED STATE AS FROM 20 DECEMBER 1980 , PROVIDED THAT THE COMPETENT AUTHORITIES OF THE STATE IN WHICH HE OBTAINED HIS DIPLOMA HAVE ISSUED TO HIM A CERTIFICATE STATING THAT THE DIPLOMA IS IN CONFORMITY WITH THE REQUIREMENTS OF ARTICLE 1 OF DIRECTIVE NO 78/1027 ;
THE FACT THAT A PERSON IS NOT REGISTERED WITH A NATIONAL SOCIETY OF VETERINARY SURGEONS CANNOT PREVENT THAT PERSON FROM PRACTISING THE PROFESSION AND CANNOT PROVIDE GROUNDS FOR A PROSECUTION FOR IMPROPER PRACTISE THEREOF WHEN SUCH REGISTRATION IS REFUSED IN CONTRAVENTION OF COMMUNITY LAW .
Decision on costs
COSTS
21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES IN THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D ' APPEL , COLMAR , ( CHAMBRE DES APPELS CORRECTIONNELS ), BY JUDGMENT OF 16 SEPTEMBER 1982 , HEREBY RULES :
1 . A NATIONAL OF A MEMBER STATE WHO HAS THE RIGHT TO PRACTISE THE PROFESSION OF VETERINARY SURGEON IN ANOTHER MEMBER STATE WHICH HAS ISSUED TO HIM ONE OF THE DIPLOMAS , CERTIFICATES OR OTHER EVIDENCE OF FORMAL QUALIFICATIONS REFERRED TO IN ARTICLE 3 OF DIRECTIVE NO 78/1026 EVEN BEFORE THAT DIRECTIVE HAS BEEN IMPLEMENTED , IS ENTITLED TO PRACTISE THAT PROFESSION IN THE FIRST-MENTIONED STATE AS FROM 20 DECEMBER 1980 , PROVIDED THAT THE COMPETENT AUTHORITIES IN THE MEMBER STATE IN WHICH HE OBTAINED HIS DIPLOMA HAVE ISSUED TO HIM A CERTIFICATE STATING THAT THE DIPLOMA IS IN CONFORMITY WITH THE REQUIREMENTS OF ARTICLE 1 OF DIRECTIVE NO 78/1027 .
2.THE FACT THAT A PERSON IS NOT REGISTERED WITH A NATIONAL SOCIETY OF VETERINARY SURGEONS CANNOT PREVENT HIM FROM PRACTISING THE PROFESSION AND CANNOT PROVIDE GROUNDS FOR PROSECUTION FOR IMPROPER PRACTISE THEREOF WHEN THAT REGISTRATION IS REFUSED IN CONTRAVENTION OF COMMUNITY LAW .
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