C-136/78

Article 52 of the Treaty must be nationals of a Member State cannot rely interpreted as meaning that for the on that provision with a view to period prior to the date on which the practising the profession of veterinary Member States are required to have surgeon in that Member State on any taken the measures necessary to comply conditions other than those laid down by with Council Directives Nos 78/1026 national legislation. and 78/1027 of 18 December 1978, the

In Case 136/78

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d'Appel, Colmar, for a preliminary ruling in the proceedings pending before that court between

Ministère Public

and

Vincent Auer, resident in Mulhouse,

on the interpretation of Articles 52 and 57 of the EEC Treaty,

THE COURT

composed of: H. Kutscher, President, J. Menens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

arrangements are to be made for a State French degree of veterinary surgeon or examination to be held for the purpose doctor of veterinary medicine or the of practising that profession. degree of doctor of veterinary medicine Mr Auer took up residence in Mulhouse of the universities of Paris, Lyon and in 1958 where he practised veterinary Toulouse, created by the above- medicine, first under the direction of a mentioned Decree of 18 August 1956, or French veterinary surgeon and then on a degree of veterinary surgeon awarded his own account. When he became a abroad which the Examining Committee established by Article 1 (above) has naturalized Frenchman he requested the recognized as being equivalent to a application to himself of Decree No French degree". 62-1481 of 27 November 1962 "relating to the medical and surgical treatment of When the application was made to the animals by veterinary surgeons who have Committee established by the 1962 acquired or reacquired French na- decree it delivered an adverse opinion, tionality" (Journal Officiel de la mainly on the ground that the degree République Française of 7 December which the person concerned was 1962). awarded by the University of Parma was not equivalent to the French university Article 1 of that decree provides that "An authorization to undertake the degree of doctor of veterinary medicine. On a fresh application being made the medical and surgical treatment of Committee delivered on 18 February animals may be granted by order of the 1965 an opinion confirming its previous Minister for Agriculture to veterinary view, which it upheld subsequently and surgeons who have acquired or on the same ground on each occasion reacquired French nationality who do not hold the State doctorate referred to when the person concerned reapplied in Article 340 of the Code Rural. A and produced documents or put forward new facts, as is shown by its minutes of committee convened by the Minister for 26 July 1966, 22 October 1968 and 23 Agriculture shall examine the June 1970. In the latter minutes it also qualifications and deliver its opinion as gives an adverse opinion on the integrity to the professional competence and of the person concerned on the ground integrity of candidates". Article 2 of the that he had been found guilty of decree provides that "The following shall unlawfully undertaking medical treat- benefit from the above provisions: ment of animals. (1) ... Although each of Mr Auer's applications (2) ... was turned down he set himself up in (3) Veterinary surgeons of foreign ori- practice as a veterinary surgeon and on gin who have acquired French 17 October 1974 was found guilty by the nationality by decision of the official Tribunal de Grande Instance, Mulhouse,

"Does the fact that a person who has establishment in his own country. This acquired the right to practise the point of view has been approved by the profession of veterinary surgeon in a Commission and is in accordance with Member State of the European the opinion of the Advocate General in Community and who, after acquiring Case 71/76, judgment of 28 April 1977, that right, has adopted the nationality of Thieffry [1977] ECR 765. The appellant another Member State is forbidden to then proceeds to consider the scope of practise the said profession in the second Articles 52 and 57 of the Treaty in Member State constitute a restriction on- relation to the refusals to allow him to the freedom of establishment provided practise as a veterinary surgeon and for by Article 52 of the Treaty of Rome submits, in reliance on the judgment in and, in relation to the taking up of Case 71/76 (mentioned above) delivered activities as self-employed persons, by by the Court of Justice on 28 April 1977, Article 57 of that Treaty?" that the argument that in the absence of The order making the reference of 9 any Community directives on the mutual May 1978 was received at the Court recognition of qualifications it must Registry on 14 June 1978. Pursuant to simply be assumed that the requirement Article 20 of the Protocol on the Statute of a national degree is to be retained of the Court of Justice of the EEC the must be rejected. appellant in the main proceedings, the The combined effect of Articles 5, 52 French Government, L'Ordre National and 57 and the grounds of the Thieffry des Vétérinaires (France) (The National judgment is that the national authorities Society of Veterinary Surgeons of are under an obligation, in the case of France), Le Syndicat National des Vétéri- every application made to them, to naires (France) (The National Union of examine the formal qualifications and Veterinary Surgeons of France) and competence of each national of a the Commission of the European Member State who wishes to establish Communities submitted written obser- himself on their territory, since the vations. benefit of freedom of establishment

proceedings) appellant in the main proceedings there has not been any breach of the principle According to the parties seeking of freedom of establishment. In this damages in the main proceedings the connexion they submit in the first place dispute is concerned not with Article 52 that Mr Auer has not proved that he is of the Treaty or with the direct entitled to practise veterinary medicine in applicability of that article, which is not Italy. In fact the Italian Law exempting at issue since the appellant in the main holders of a university degree obtained action has French nationality, but with before 21 December 1956 — the the scope of the provisions relating to the appellant in the main proceedings is in mutual recognition of diplomas, certi- this category — from passing the State ficates and other evidence of formal examination in order to practise the qualifications as referred to in Article 57, profession of veterinary surgeon reserves and in particular qualifications relating the benefit of that transitional provision to veterinary medicine, and their effect exclusively for graduates of Italian nat- with regard to the right of establishment. ionality. Since the qualification upon Two sets of rules emerge in this which the person concerned relies does connexion from the provisions of the not permit him to practise veterinary EEC Treaty and the case-law of the medicine in the Member State where that

could not enjoy freedom of In the second place, although the Court establishment. There is first of all no held in the Thieffry judgment (which has doubt whatever that his Italian already been mentioned) and in the qualification does not entitle him to judgment of 28 June 1977 in Case 11/77 perform the official duties undertaken by (Patrick [1977] ECR 1199), which deal French veterinary surgeons, a prohibition with the question of the recognition by a originating in Article 55 of the Treaty. competent national authority of the Next, the benefit of freedom of equivalence of a foreign diploma, that establishment cannot be relied on as long Article 52 might be relied upon by as the directives based on Article 57 (3) nationals who can prove that they have of the Treaty have not been issued. a qualification recognized by the competent authorities or the State where Finally, the equivalence of Mr Auer's establishment is to be effected as Italian degree with the French State equivalent to the qualification which that degree of doctor of veterinary medicine has never been recognized, because the State requires of its own nationals, the Advocate General in the Thieffry case training offered by the University of Parma is not as advanced as the ([1977] ECR 765), while he avoided giving his view on the principle involved, corresponding French training.

JUDGMENT OF 7. 2. 1979 — CASE 136/78

Frenchs Conseil d'État of 16 January So far as the first supposition is 1969, which stated that "a person concerned the Treaty, according to the practising as a veterinary surgeon who French Government, has rejected the holds only a veterinary surgeon's principle of the automatic recognition of diploma awarded abroad, the diplomas for a certain number of equivalence whereof with a French activities for which a specific professional diploma has not been recognized by qualification is required. Recognition of the Examining Committee, cannot, in equivalent qualifications was therefore to any event, whatever evidence of take place at the end of a procedure qualifications and practical experience he initiated under Article 57, which provides can show, be authorized to practise for the adoption of directives permitting veterinary medicine and surgery in the assessment of comparable training France", assert positively that this, refusal levels in the various Member States. The

to recognize equivalence is by no means profession of veterinary surgeon is one based on considerations relating to the of those for which specific professional nationality of the person concerned or qualifications are required. However, the country where the diploma was since no Community directive had been awarded but solely on professional issued during the period covered by the facts of the case before the national requirements. court, a national of a Member State can The parties seeking damages in the main be granted the right of establishment proceedings therefore contend that the only if the equivalence of his diploma is Court should declare that, having regard recognized by the competent authority to the facts of the case, there has not of the State where he intends to practise been any restriction of freedom of his profession. establishment. As far as concerns the second

practised as a veterinary surgeon for Although the wording of Article 52 is many years in France "to the entire satis- open to argument, because it only refers faction of his many clients", points out to the situation in each Member State of

countries of which they are not nationals "The fact that a Member State does not and bring up their children there. If the allow its own citizens to benefit from the latter are given their vocational training provisions of Community law relating to in the host country they might, if the establishment, and especially those benefit of freedom of movement were relating to the recognition of reserved to non-nationals, be prevented from re-establishing themselves in the country of which they are still nationals, even though they could establish themselves in any other Member State.

JUDGMENT OF 7. 2. 1979 — CASE 136/78

qualifications obtained in another being equivalent but only for Member State, is a restriction of the academic purposes does not in itself freedom of establishment which is justify the refusal to recognize such prohibited by Article 52 of the EEC equivalence as an entitlement to Treaty". practise a profession. On the contrary, it is for the competent auth- The effect of the academic recognition orities to consider all the facts in

of diplomas order to decide whether that limited

— The fact that, under national law, a foreign diploma is recognized as

MINISTÈRE AUER

to acceptance of the equivalence of Court by the Cour d'Appel, Colmar, diplomas awarded prior to the should be answered as follows: implementation of the directive, even if "The requirement of possession of a such diplomas do not satisfy the national diploma for entry into a minimum training requirements pre- profession such as that of veterinary scribed by the co-ordinating directive, provided that they have been surgeon in the case of a national of a supplemented by a finding that the Member State who establishes fully both activities in question have in fact been in law and in fact that his professional lawfully carried on during a certain qualifications, substantiated by a diploma which he obtained in a Member State number of years determined by each directive. other than the host State, supplemented, It is certain that the directive on the where appropriate, by actual and lawful mutual recognition of diplomas of practice of the profession, are equivalent veterinary medicine, which is under to the professional qualifications discussion in the Council at the present required in the country of establishment, time, contains a similar provision. The amounts to a restriction which is

result is that an Italian university degree incompatible with the freedom of gives the holder the right to enter the establishment guaranteed by Article 52 of profession of veterinary surgeon in all the Treaty". the Member States provided that such The appellant in the main proceedings, holder can establish that he has in fact represented by Mr Thieffry of the Paris lawfully practised that profession. Bar, the parties seeking damages in the In these circumstances the French main proceedings, represented by Mr Examining Committee can no longer Petit of the Paris Bar, and the refuse to recognize the civil effect of an Commission of the European Com- Italian degree awarded by the University munities, represented by its Agent, Mr of Parma or another university coupled Leleux, presented oral argument. with a period of practice in the profession. The Advocate General delivered his

establishment provided for by Article 52 of the Treaty of Rome and, in relation to the taking up of activities as self-employed persons, by Article 57 of that Treaty?"

2 This question was raised in the context of criminal proceedings on the ground, amongst others, of unlawfully practising as a veterinary surgeon in France.

3 The accused, who was originally of Austrian nationality, studied veterinary medicine first in Vienna (Austria), then in Lyon and finally at the University of Parma where he was awarded on 1 December 1956 the degree of doctor of veterinary medicine (laurea in medicina veterinaria) and on 11 March 1957 he was granted a provisional certificate to practise as a veterinary surgeon, which was issued by a commission set up by that university.

4 That certificate was issued to him in pursuance of the transitional provisions of the Italian Law of 8 December 1956, in accordance with which the practice of veterinary medicine was in future to be made subject, in addition to the possession of a degree of doctor in veterinary medicine, to the passing of a state examination, although holders of a degree acquired before the entry into force of that Law were exempt from passing that examination on condition that they produced a provisional practising certificate, issued by one of the commissions set up for that purpose, in particular at universities.

5 The accused took up residence in France and on 4 October 1961 acquired French nationality by naturalization; he then applied on a number of occasions for the application to himself of the provisions of French Decree No 62-1481 of 27 November 1962 "relating to the medical and surgical treatment of animals by veterinary surgeons who have acquired or reacquired French nationality" (Journal Officiel de la République Française of 7 December 1962, p. 12014).

10 The situation referred to by the national court is that of a natural person who is a national of the Member State in which he actually resides, and who is invoking the provisions of the Treaty relating to freedom of establishment with a view to being authorized to practise the profession of veterinary surgeon there, whereas, he does not possess the degrees required of nationals for that purpose but possesses degrees and qualifications acquired in another Member State which allow him to practise that profession in that other Member State.

11 It should also be stated that the question refers to the situation as it existed at a time when Article 57 (1) of the Treaty relating to mutual recognition of diplomas, certificates and other qualifications had not yet been applied as regards the practice of the profession of veterinary surgeon.

12 This matter has subsequently been dealt with by Council Directive No 78/1026 of 18 December 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in

JUDGMENT OF 7. 2. 1979 — CASE 136/78

veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (Official Journal No L 362, p. 1), supplemented by Council Directive No 78/1027 of the same date concerning the co-ordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons (Official Journal No L 362, p. 7).

13 According to Article 18 of the first and Article 3 of the second of these directives Member States have a period of two years in which to bring into force the measures necessary to comply with them, dating from the notification of the directives.

State in the territory of another Member State shall be abolished by

MINISTÈRE PUBLIC AUER

progressive stages in the course of the transitional period" and, secondly, that such freedom of establishment shall include the right to take up and pursue activities as self-employed persons, "under the conditions laid down for its own nationals by the law of the country where such establishment is effected".

20 In so far as it is intended to ensure, within the transitional period, with direct effect, the benefit of national treatment, Article 52 concerns only — and can concern only — in each Member State the nationals of other Member States, those of the host Member State coming already, by definition, under the rules in question.

21 However, it may be seen from the provisions of Articles 54 and 57 of the Treaty that freedom of establishment is not completely ensured by the mere application of the rule of national treatment, as such application retains all obstacles other than those resulting from the non-possession of the nationality of the host State and, in particular, those resulting from the disparity of the conditions laid down by the different national laws for the acquisition of an appropriate professional qualification.

22 With a view to ensuring complete freedom of establishment, Article 54 of the Treaty provides that the Council shall draw up a general programme for the abolition of existing restrictions on such freedom and Article 57 provides that the Council shall issue directives for the mutual recognition of diplomas, certificates and other evidence of qualifications.

State concerned, as is the case with other directives.

27 It appears, both from the wording of the question referred to the Court and from the recitals to the decision of the national court, that that court would also like to know whether the fact that the person concerned had acquired French nationality by naturalization at a date subsequent to that on which he had obtained the Italian degrees and qualifications on which he relies, was of such a nature as to influence the reply to the question which it has put.

28 There is no provision of the Treaty which, within the field of application of the Treaty, makes 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, as long as, at the time at which they rely on the benefit of the provisions of Community law, they possess the nationality of one of the Member States and that, in addition, the other conditions for the application of the rule on which they rely are fulfilled.

29 Hence, in assessing the rights of a national of a Member State, in periods both prior and subsequent to that referred to in the directives cited above, the date on which he acquired the status of a national of a Member State is irrelevant as long as he possesses it at the time at which he relies upon the provisions of Community law, the enjoyment of which is linked to the status of a national of a Member State.

MINISTERE PUBLIC AUER

30 It follows from the considerations set out above that Article 52 of the Treaty must be interpreted as meaning that for the period prior to the date on which the Member States are required to have taken the measures necessary to comply with Council Directives Nos 78/1026 and 78/1027 of 18 December 1978, the nationals of a Member Sute cannot 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 national legislation.

in answer to the question referred to it by the Cour d'Appel, Colmar, by an order dated 9 May 1978, hereby rules:

Article 52 of the Treaty must be interpreted as meaning that for the period prior to the date on which the Member States are required to have taken the measures necessary to comply with Council Directives

OPINION OF MR WARNER — CASE 136/78

Nos 78/1026 and 78/1027 of 18 December 1978, the nationals of a Member State cannot 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 national legislation.

Kutscher Mertens de Wilmars Mackenzie Stuart Donner Pescatore

Sørensen O'Keeffe Bosco Touffait

the Cour d'Appel, was born in Austria in veterinary surgeons enacted, by way of 1924. His nationality was originally transitional provision, that a Doctor of. Austrian. After the war he embarked on Veterinary Medicine of Italian na- veterinary studies at the University of tionality who had obtained his degree Vienna, but was, so it is said on his before 21 December 1956 could, on pres- behalf, prevented by financial difficulties from completing them. Subsequently he obtained scholarships to study successively at the École Nationale