Avis juridique important
Judgment of the Court (Second Chamber) of 15 December 1983. - Criminal proceedings against H.G. Rienks. - Reference for a preliminary ruling: Pretura di Lodi - Italy. - Veterinary surgeons - Freedom of establishment - Direct effect of directives. - Case 5/83.
European Court reports 1983 Page 04233
Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
1 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - EFFECT
( EEC TREATY , THIRD PARA . OF ART . 189 )
FREE MOVEMENT OF PERSONS - FREEDOM OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES - VETERINARY SURGEONS - MUTUAL RECOGNITION OF DIPLOMAS - DUTIES IMPOSED ON MEMBER STATES - SCOPE
( COUNCIL DIRECTIVE 78/1026 , ARTS 2 AND 3 )
2 . FREE MOVEMENT OF PERSONS - FREEDOM OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES - VETERINARY SURGEONS - RIGHT TO PRACTISE A PROFESSION IN A MEMBER STATE OTHER THAN THE STATE AWARDING THE DIPLOMA - REQUIREMENT OF ENROLMENT ON THE REGISTER OF VETERINARY SURGEONS IN THE HOST MEMBER STATE - REFUSAL TO ENROL IN BREACH OF COMMUNITY LAW - ENFORCEMENT OF PENAL MEASURES - NOT PERMISSIBLE
( COUNCIL DIRECTIVE 78/1026 )
Summary
1 . ARTICLES 2 AND 3 OF DIRECTIVE 78/1026 , WHICH PROVIDE IN PARTICULAR FOR THE MUTUAL RECOGNITION OF DIPLOMAS , CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS IN VETERINARY MEDICINE , IMPOSE CLEAR , COMPLETE , PRECISE AND UNCONDITIONAL DUTIES ON EACH MEMBER STATE WHICH LEAVE IT NO DISCRETION . IN THOSE CIRCUMSTANCES AN INDIVIDUAL MAY , IN PROCEEDINGS BEFORE THE NATIONAL COURT , RELY UPON THOSE PROVISIONS WHERE THEY HAVE NOT BEEN IMPLEMENTED BY THE MEMBER STATE CONCERNED OR HAVE BEEN IMPLEMENTED INCOMPLETELY .
2.THE CONFORMITY WITH COMMUNITY LAW OF THE REQUIREMENT THAT VETERINARY SURGEONS SHOULD BE ENROLLED ON THE RELEVANT PROFESSIONAL REGISTER DEPENDS UPON WHETHER THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW AND IN PARTICULAR THE PRINCIPLE OF NON-DISCRIMINATION ARE OBSERVED .
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 AD MINISTRATIVE 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 OF ANY EFFECTIVENESS THE PROVISIONS OF THE TREATY AND OF DIRECTIVE 78/1206 .
Parties
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
H . G . RIENKS
Subject of the case
ON THE INTERPRETATION OF TWO COUNCIL DIRECTIVES OF 18 DECEMBER 1978 , THE ONE BEING DIRECTIVE 78/1026/EEC 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 ( OFFICIAL JOURNAL 1978 , L 362 , P . 1 ), AND THE OTHER BEING DIRECTIVE 78/1027/EEC 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 , P . 7 ),
Grounds
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 VETERINARY SURGEON IN THE NETHERLANDS .
3 MR RIENKS TOOK UP RESIDENCE IN ITALY AND APPLIED ON 12 MAY 1981 FOR ENROLMENT ON THE REGISTER OF VETERINARY 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 VETERINARY SURGEONS IN THE PLACE IN WHICH HE PRACTISES . CONSEQUENTLY HE WAS PROSECUTED FOR THE IMPROPER EXERCISE OF THE PROFESSION OF VETERINARY 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 NON-DISCRIMINATION 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 OF 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 .
Decision on costs
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 .
Operative part
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 :
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 .
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