C-35/02

Case C-35/02 Landeszahnärztekammer Hessen v Markus Vogel (Reference for a preliminary ruling from the Bundesverwaltungsgericht) «(Article 104(3) of the Rules of Procedure – Freedom of establishment – Freedom to provide services – Directives 78/686/EEC and 78/687/EEC – The practice of dentistry by a doctor)» Order of the Court (Fourth Chamber), 17 October 2003 I - 0000      Summary of the Order Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Practitioners of dentistry – Coordination of national provisions – Directive 78/687 – National rule allowing doctors who have not completed the training required by the directive to practice as dental practitioners – Not permissible – Title under which these activities are carried out – Not relevant (Council Directive 78/687, Art. 1(1)) Directive 78/687 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, properly construed, precludes a national rule containing a general authorisation for doctors who have not completed the training required by Article 1 of that directive to carry out the activities of a dental practitioner, irrespective of the title under which those activities are carried out.see para. 38, operative part ORDER OF THE COURT (Fourth Chamber) 17 October 2003 (1) ((Article 104(3) of the Rules of Procedure – Freedom of establishment – Freedom to provide services – Directives 78/686/EEC and 78/687/EEC – The practice of dentistry by a doctor)) In Case C-35/02, REFERENCE to the Court under Article 234 EC by the Bundesverwaltungsgericht (Germany) for a preliminary ruling in the proceedings pending before that court between Landeszahnärztekammer Hessen and Markus Vogel, Third parties : Landesärtztekammer Hessen, Oberbundesanwalt beim Bundesverwaltungsgericht, on the the interpretation of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners (OJ 1978 L 233, p. 10), as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), THE COURT (Fourth Chamber), composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, A. La Pergola and S. von Bahr, Judges, Advocate General: A. Tizzano, Registrar: R. Grass, the national court having been informed of its intention to give its decision by reasoned order in accordance with Article 104(3) of the Rules of Procedure, the persons referred to in Article 23 of the Statute of the Court of Justice having been invited to submit observations on that point, after hearing the Advocate General, makes the following Order By order of 8 November 2001, received at the Court on 12 February 2002, the Bundesverwaltungsgericht (Federal Administrative Court) referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners (OJ 1978 L 233, p. 10), as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1; the Act of Accession). Those questions were raised in the context of proceedings between the Landeszahnärztekammer Hessen (professional association of dental practitioners in the German Land of Hessen) and Mr Vogel concerning the refusal of the Landeszahnärztekammer to grant Mr Vogel's request for both admission to that association and permission to use the title Zahnarzt (dentist). Legal background Community legislation Article 1(1) and (2) of Directive 78/687, as amended by the Act of Accession ( Directive 78/687), provides: 1. The Member States shall require persons wishing to take up and pursue a dental profession under the titles referred to in Article 1 of Directive 78/686/EEC to hold a diploma, certificate or other evidence of formal qualifications referred to in Article 3 of the same Directive which guarantees that during his complete training period the person concerned has acquired: (a) adequate knowledge of the sciences on which dentistry is based and a good understanding of scientific methods, including the principles of measuring biological functions, the evaluation of scientifically established facts and the analysis of data; (b) adequate knowledge of the constitution, physiology and behaviour of healthy and sick persons as well as the influence of the natural and social environment on the state of health of the human being, in so far as these factors affect dentistry; (c) adequate knowledge of the structure and function of the teeth, mouth, jaws and associated tissues, both healthy and diseased, and their relationship to the general state of health and to the physical and social well-being of the patient; (d) adequate knowledge of clinical disciplines and methods, providing the dentist with a coherent picture of anomalies, lesions and diseases of the teeth, mouth, jaws and associated tissues and of preventive, diagnostic and therapeutic dentistry; (e) suitable clinical experience under appropriate supervision. 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. Article 5 of Directive 78/687 states: Member States shall ensure that dental surgeons shall generally be entitled to take up and pursue activities involving the prevention, diagnosis and treatment of anomalies and diseases of the teeth, mouth, jaws and associated tissues in accordance with the regulatory provisions and the rules of professional conduct governing the profession at the time of notification of this directive.Those Member States which do not have such provisions or rules may define or limit the pursuit of certain activities referred to in the first subparagraph to an extent which is comparable to that existing in the other Member States. Article 1 of Council Directive 78/686/EEC of 25 July 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 (OJ 1978 L 233, p.1), as amended by the Act of Accession ( Directive 78/686) provides: This directive shall apply to the activities of dental practitioners as defined in Article 5 of Directive 78/687/EEC pursued under the following titles: ─ in Germany: Zahnarzt, ... Article 2 of Directive 78/686 states: 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 Article 1 of Directive 78/687/EEC and which are listed in Article 3 of 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. Article 7(1) of Directive 78/686 provides: In the case of nationals of Member States whose diplomas, certificates and other evidence of formal qualifications do not satisfy all the minimum training requirements laid down in Article 1 of Directive 78/687/EEC, each Member State shall recognise as being sufficient proof the diplomas, certificates and other evidence of formal qualifications in dentistry awarded by those Member States before the implementation of Directive 78/687/EEC, accompanied by a certificate stating that those nationals have effectively and lawfully been engaged in the activities in question for at least three consecutive years during the five years prior to the date of issue of the certificate. National legislation Paragraph 1(1) of the Gesetz über die Ausübung der Zahnheilkunde (Law on the practice of dentistry) of 31 March 1952 (BGBl. 1952 I, p. 221), in the version published on 16 April 1987 (BGBl. 1987 I, p. 1225; the ZHG) provides: Anyone wishing to practice dentistry on a permanent basis on the territory to which this law applies must obtain a licence to practice ( Approbation) as either a Zahnarzt (dentist) in accordance with the provisions of this law or an Arzt (doctor) in accordance with the provisions of national law. The licence to practice entitles its holder to use the title Zahnarzt or Zahnärztin. The temporary practice of dentistry requires authorisation which may be revoked at any time. The dispute in the main proceedings and the questions referred Mr Vogel completed his medical training in 1994. He then obtained a licence to practice medicine, and he has done so since that time. At the beginning of 2000, Mr Vogel wanted to establish himself as a dentist and to practice that profession under the title Zahnarzt in the region for which the Landeszahnärztekammer Hessen has jurisdiction. He informed the Landeszahnärztekammer Hessen of his plans by letter of 15 January 2000. That body replied to Mr Vogel stating that he could not become a member of the professional association of dentists or use any professional title for a dental practitioner on the name plate of his practice because the title Zahnarzt is reserved for people who have obtained an Approbation as dentists. On 28 March 2000, Mr Vogel brought an action before the relevant Verwaltungsgericht (Administrative Court) seeking a declaration that he is entitled to practice dentistry on a permanent basis in the Land of Hessen and to use the title Zahnarzt. By judgment of 5 April 2001, the Verwaltungsgericht granted Mr Vogel's application in its entirety. It justified its decision on the ground that Mr Vogel's right, as a qualified doctor, to practice dentistry on a permanent basis derives from Paragraph 1(1) of the ZHG, which requires a person to hold an Approbation, either as a dentist or a doctor, in order to practice dentistry. The purpose of that law was to put an end to the coexistence of Zahnärzte and Dentisten in the dentistry profession (the latter being practitioners whose only training is by way of professional experience), but not to exclude qualified doctors from that medical field. Directives 78/686 and 78/687 introduced, in each Member State, a system of national treatment for nationals from other Member States, without, however, laying down the conditions which the Federal Republic of Germany must place on the right to pursue the profession of dentistry on a permanent basis. The Landeszahnärztekammer Hessen has appealed to the Bundesverwaltungsgericht on a point of law against that decision. In its order for reference, the Bundesverwaltungsgericht states that were the dispute to be resolved entirely by applying the criteria laid down in national law, the judgment of the Verwaltungsgericht would have to be upheld in its entirety. However, it seems doubtful that the relevant national law, so construed, is compatible with Directive 78/687 and, in particular, with Article 1 thereof, which specifies in detail the dental training required of a dentist. A general authorisation for qualified doctors to practice dentistry would not be compatible with the requirements of that directive. If the Court were to conclude that Paragraph 1(1) of the ZHG is not compatible with Community law, the national court considers that it would be both possible and necessary to take account of that fact by interpreting that provision in such a way as to comply with Community law. However, that court observes that the first part of the first subparagraph of Article 1(1) of Directive 78/687 refers to the pursuit of the dental profession under the titles referred to in Article 1 of Directive 78/686. That provision could be understood as meaning that Member States remain free to authorise the practice of dentistry without taking account of the training requirements set out in Directive 78/687 where it is not practised under the titles referred to in Article 1 of Directive 78/686, namely, as regards Germany, under the title Zahnarzt. The question thus arises whether such an interpretation is compatible with the objectives pursued by those two directives. Moreover, the Bundesverwaltungsgericht takes the view that the judgment in Case C-40/93 Commission v Italy [1995] ECR I-1319 does not clear up all the doubts on that point since it was given in the context of proceedings for failure to fulfil obligations and the wording used at several instances in that judgment emphasises activities of dental practitioners without making clear what importance is to be attached to the precise title. In those circumstances, taking the view that in the case before it the correct interpretation of the Community rules is uncertain and that a decision on that point is necessary in order to resolve the dispute, the Bundesverwaltungsgericht decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: (1) Is it compatible with Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners ... for national legislation to grant general authorisation to doctors to practise dentistry on a permanent basis without having the dental training required by the directive and certified by a diploma? (2) Does the answer to that question turn on whether the activity is pursued under the title Zahnarzt? The questions referred Observations submitted to the Court The Landeszahnärztekammer Hessen, the German, Italian and Austrian Governments and the Commission submit that it is clear from Directives 78/686 and 78/687 that there is no doubt as to the current law on the matter, namely that a person who does not hold the diploma in dentistry required by those directives cannot be authorised to practice dentistry in Germany. In other words, a doctor who is authorised to practice as an Arzt could pursue the profession of Zahnarzt only if he holds a Zeugnis über die zahnärztliche Staatsprüfung (the State examination certificate in dentistry) within the meaning of Article 3(a) of Directive 78/686 and thus if he has received the appropriate training as laid down in Article 1 of Directive 78/687. In support of their interpretation, the Landeszahnärztekammer Hessen, the governments referred to above, and the Commission submit that according to settled case-law (see Case C-40/93 Commission v Italy , cited above, and Case C-202/99 Commission v Italy [2001] ECR I-9319), Directive 78/687 precludes a Member State from establishing a second system of training giving entry to the profession of dental practitioner which consists of a basic training in medicine supplemented by a specialisation in the field of dentistry. Therefore, they consider that if the profession of dentist cannot be pursued by a person who holds a diploma in medicine and who has followed a specialist course in dentistry of three years' duration, it likewise cannot be pursued, in the German system, by a national who holds only a diploma in medicine. However, according to Mr Vogel, Directives 78/686 and 78/687 cannot be applied to his case. In particular, he submits that a directive is secondary Community law and does not have any direct legal effect. The vertical effect in the present case is the opposite of that permissible for the provisions of a directive. The Court has held that a Member State may not directly rely on the provisions of a directive against its citizens. That means that a directive cannot directly create obligations for individuals or deprive them of their rights. A Member State cannot rely, to the detriment of its citizens, on either the failure to transpose a directive or its incomplete transposition (see Case 152/84 Marshall [1986] ECR 723, and Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969). In addition, Mr Vogel submits that if Directives 78/686 and 78/687 were directly applicable in Germany, the requirement of transparency laid down in the Grundgesetz (the German Constitution) would be infringed. To assign to those directives a higher rank than the ZHG would also be contrary to the principles of the rule of law, protection of legitimate expectations, equality, legal certainty and non-retroactivity. He asserts that those directives cannot be applicable in Germany unless they have been transposed into German law. Moreover, Mr Vogel submits that Article 27 of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1), as amended by the Act of Accession ( Directive 93/16) refers to odontostomatology (a discipline in the field of dentistry) as a branch of medicine. It thus directly follows from that directive that in the European Union doctors are entitled to practice odontostomatology, which is dentistry. Moreover, neither Directive 93/16 nor Directives 78/686 and 78/687 impose any restriction on the scope of doctors' activities. Directives 78/686 and 78/687 concern solely the practice of dentistry under the titles listed in Article 1 of Directive 78/686 and therefore do not prohibit doctors from practising dentistry. If the Court were to rule that, on the basis of those directives, only dentists, and not doctors, may practice dentistry, those directives would be incompatible with Directive 93/16, since under that latter directive, doctors are entitled to practice dentistry. The Court's reply By its two questions, which can be examined together, the national court is asking whether Directive 78/687 must be interpreted as precluding a national rule that grants a general authorisation to doctors who have not received the training required by Article 1 of that directive to carry out the activities of a dental practitioner and whether the answer to that question depends on the title under which those activities are practised. Taking the view that the answer to the questions raised can clearly be deduced from the existing case-law, the Court, in accordance with Article 104(3) of its Rules of Procedure, informed the national court that it intended to rule on the case by reasoned order and invited the parties referred to in Article 23 of the Statute of the Court of Justice to submit observations on that point. Only Mr Vogel has submitted observations to the Court. He claims that it is incorrect to state that the Court has already answered the questions raised in the main proceedings. Mr Vogel submits, inter alia, that Directives 78/686 and 78/687, and the Court's previous judgments relating to those directives, concern the right to practice dentistry under the title of dentist and not, as is the case at issue here, the right to practice dentistry as a doctor. In any event, those judgments were delivered well after he had embarked on his medical studies, on the basis of which he was expecting to be able to practice dentistry by virtue of Paragraph 1(1) of the ZHG, with the result that were those judgments to apply to his situation they would infringe the principle of non-retroactivity. At the outset, it should be recalled that Article 1(1) of Directive 78/687 provides that to be entitled to practice dentistry under one of the titles referred to in Article 1 of Directive 78/686, a dental practitioner must hold a diploma, certificate or other evidence of formal qualifications referred to in Article 3 of Directive 78/686. Only derogations expressly provided for in the EC Treaty or in the relevant directives are allowed (see Case C-40/93 Commission v Italy , cited above, paragraph 23). In that regard, three types of derogation are provided for, namely, first, the derogation set out in Article 7 of Directive 78/686, second, the one referred to in Articles 19, 19a and 19b of that directive and, finally, the derogation mentioned in Article 1(4) of Directive 78/687 (see Case C-40/93 Commission v Italy , paragraph 21). Article 1(4) of the Directive 78/687 applies only to the recognition of diplomas, certificates or other evidence of formal qualifications obtained in a non-member State (see Case C-40/93 Commission v Italy , paragraph 22). Article 7 of Directive 78/686 is applicable only to nationals who hold diplomas, certificates or other qualifications issued by the Member States before Directive 78/687 came into effect, in other words before 28 January 1980. Articles 19, 19a and 19b of Directive 78/686 concern only the transitional provisions applicable to people who received or embarked on their dental training in Italy, Spain or Austria respectively, under a system prior to the one in place as a result of the entry into force of those directives in those Member States. Paragraph 1(1) of the ZHG, which grants a general authorisation, from 28 January 1980 onwards, for doctors to practice dentistry on a permanent basis without completing the dental training required by Article 1 of Directive 78/687 is therefore not covered by any of the derogations from that provision referred to in paragraph 25 of this order. Moreover, it should be recalled that it is not open to Member States to create a category of dental practitioners which does not correspond to any category provided for by Directives 78/686 and 78/687 (see Case C-40/93 Commission v Italy , cited above, paragraph 24, and the order of 5 November 2002 in Case C-204/01 Klett [2002] ECR I-10007, paragraph 33). Applying that interpretation of those directives, the Court has ruled that a person may not carry out the activities of a dental practitioner even where he holds a diploma in medicine and has followed a specialised course in dentistry of three years' duration (see Case C-40/93 Commission v Italy , Case C-202/99 Commission v Italy , and Klett , all cited above). Persons who hold only a diploma in medicine are, a fortiori , precluded from carrying out such activities. It follows that a general authorisation for doctors to practice dentistry on a permanent basis without holding the diplomas, certificates or other qualifications referred to in Article 3 of Directive 78/686, as required by Article 1 of Directive 78/687, is contrary to Community law. In that regard, the title under which those doctors intend to practice dentistry is of no relevance. If German doctors who do not have the training required by Article 1 of Directive 78/687 were authorised to practice dentistry under a title other than Zahnarzt, that would create a category of dental practitioners which does not correspond to any category provided for by Directives 78/686 and 78/687. However, Mr Vogel submits that neither Directive 93/16 nor Directives 78/686 and 78/687 contain any restriction on the scope of doctors' activities. In his view, if the Court were to rule that under Directives 78/686 and 78/687 doctors may not practice dentistry, those directives would be incompatible with Directive 93/16, since under that latter directive, doctors are entitled to practice odontostomatology, a discipline in the field of dentistry. In that regard, it need only be noted that Directives 78/686 and 78/687 seek to establish a clear separation of the professions of dental practitioner and doctor (see Case C-202/99 Commission v Italy , cited above, paragraph 51). Those directives apply to dental practitioners whereas Directive 93/16 applies to doctors and specialist medical practitioners. Even though Article 27 of that directive authorises specialist medical practitioners to practice stomatology, they must have met the training requirements laid down in that directive, namely at least three years of specialist training. Mr Vogel also submits that the provisions of Directives 78/686 and 78/687 cannot apply to the dispute in the main proceedings because the provisions of a directive do not have direct effect against individuals. In that regard, it should be remembered, first, that the Member States' obligation under a directive to achieve the result envisaged by the directive, and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, inter alia, Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 41, and Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 24). It follows that, in applying domestic law, regardless of whether the provisions concerned are prior or subsequent to the directive, the national court called upon to interpret that law is required to do so, as far as possible, in the light of the wording and purpose of the directive, in order to achieve the purpose of the directive and thereby comply with the third paragraph of Article 249 EC (Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Marks & Spencer , cited above, paragraph 24). In the present case, the Bundesverwaltungsgericht has itself stated that it is possible to interpret the national legislation at issue in the main proceedings in such a way that it applies only to dental practitioners who have obtained the diploma required under Article 1 of Directive 78/687. It follows from all the foregoing that the answer to the question referred must be that Directive 78/687, properly construed, precludes a national rule containing a general authorisation for doctors who have not completed the training required by Article 1 of that directive to carry out the activities of a dental practitioner, irrespective of the title under which those activities are carried out. Costs The costs incurred by the German, Italian, and Austrian Governments and by the Commission, which have 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 (Fourth Chamber), in answer to the questions referred to it by the Bundesverwaltungsgericht by order of 8 November 2001, hereby rules: Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, properly construed, precludes a national rule containing a general authorisation for doctors who have not completed the training required by Article 1 of that directive to carry out the activities of a dental practitioner, irrespective of the title under which those activities are carried out. Luxembourg, 17 October 2003. R. Grass V. Skouris Registrar President – Language of the case: German.