C-271/82

Civil parties :

ORDRE NATIONAL DES VÉTÉRINAIRES 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 VÉTÉRINAIRES PRATICIENS DE FRANCE [National Union of Practising Veterinary Surgeons of France], whose registered office is in Paris, in the person of its president,

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),

THE COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Since French law regards enrolment on the register of the Ordre National des In 1958 he took up residence in Vétérinaires as a necessary requirement Mulhouse (France), where he began to for practising the profession, Mr Auer practise his profession under the has on several occasions been prosecuted direction of another veterinary surgeon, for unlawfully practising veterinary Dr Paul Gutknecht. He experienced no medicine. Those prosecutions resulted in problems with the professional society. convictions; the sentences imposed, Some years later, having acquired French however, were always restricted to small nationality, he requested, with a view to fines. In addition, Mr Auer has benefited practising his profession on his own from a law of amnesty. account, that the provisions of Decree No 62-1481, relating to "the medical and surgical treatment of animals by veterinary surgeons who have acquired or reacquired French nationality" should On the occasion of one of those pros­ be applied to him. However, the com­ ecutions, which were always brought at mittee set up by that decree, to which he the instance of the Ordre National des applied on several occasions, always Vétérinaires, a reference was made to issued adverse opinions on his appli­ the Court of Justice in June 1978 by the cations and maintained that there was no Cour d'Appel, Colmar, for a preliminary equivalence between the Italian and the ruling on the question whether, under French degrees of doctor of veterinary the Community provisions relating to the medicine. Those systematic refusals freedom of establishment, as they stood

The Court nevertheless specified that At the time of the events in question, the "this answer in no way prejudges the provisions of the Treaty concerning the effects of the . .. directives from the time mutual recognition of diplomas and at which the Member States are required other evidence of formal qualifications to have complied with them". It also (namely Article 57) had not yet been stated that there was no provision of the implemented in respect of the profession Treaty which made it possible "to treat of veterinary surgeon. A few months nationals of a Member State differently according to the time at which or the after those events, on 18 December manner in which they acquired the nati­ 1978, two directives were adopted by the onality of that State, as long as, at the Council and were relied on by Mr Auer time at which they rely on the benefit of in the course of the criminal proceedings. the provisions of Community law, they The first was Council Directive No possess the nationality of one of the 78/1026/EEC (Official Journal 1978, Member States". L 362, p. 1) 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 By way of direct summons issued at the right of establishment and freedom to instance of the Ordre National des provide services; the second was Council Vétérinaires and the Syndicat National Directive No 78 / 1027 / EEC (Official des Vétérinaires de France Mr Auer Journal 1978, L 362, p. 7) concerning the was again prosecuted for unlawfully coordination of provisions laid down by practising veterinary medicine and for law, regulation or administrative action other related offences, following certified in respect of the activities of veterinary reports drawn up by a huissier de justice surgeons. The Member States were on 26 January and 15 June 1981. The allowed a period of two years within accused in no way contested the facts in which to comply with those directives relation to the offences with which he which, when the reference for a pre­ was charged, but claimed that his actions liminary ruling was made, had not yet were lawful. As the events in question expired inasmuch as it was due to expire occurred after the expiry of the period on 20 December 1980. In those circum­ within which Member States were stances, the Court ruled in its judgment required to comply with the above- of 7 February 1979 (Case 136/78 Auer mentioned directives, and as France, at [1979] ECR 437) that "Article 52 of the the time of those events, had not yet Treaty must be interpreted as meaning implemented the directives, Mr Auer that for the period prior to the date on claimed that he was entitled to rely which the Member States are required to directly on the provisions concerning the have taken the measures necessary to mutual recognition of diplomas. The comply with Council Directives Nos Italian degree which he held was

The court of first instance did not accept In accordance with Article 20 of the that view. However, the Cour d'Appel Protocol on the Statute of the Court of considered, on the one hand, that, Justice of the EEC, written observations inasmuch as the reply given by the Court were submitted by the accused in the of Justice in the above-mentioned judg­ main proceedings, Mr V. Auer, rep­ ment of 7 February 1979 was expressly resented by Mr Y. Vanus, of the limited to the transitional period laid Mulhouse Bar, by the civil parties in the down for the implementation of the main proceedings, the Ordre National directives, it "provides reason for des Vétérinaires de France, in the person believing that a different answer might of its president, and the Syndicat be given so far as the subsequent period National des Vétérinaires Practiciens de is concerned". On the other hand, the France, in the person of its president, court took the view that it appeared represented by Mr P. Lafarge, of the "inconceivable that a person who is a Paris Bar, and by the Commission of the native of a foreign country and who European Communities, represented by holds a foreign qualification could be H . Delmoly, a member of its Legal allowed to practise veterinary medicine Department. in France without having to seek registration with the Ordre and thus enjoy more rights than a person who has Upon hearing the report of the Judge- always held French nationality and holds Rapporteur and the views of the national qualifications". Therefore, the Advocate General, the Court decided to court found that there was a problem of open the oral procedure without any interpretation of Community law and it . preparatory inquiry. The Court also, by referred the following question to the order of 23 February 1983, assigned the Court of Justice for a preliminary ruling: case to the First Chamber.

provides for measures to facilitate the giving such qualifications, as far as the effective exercise of the right of es­ right to take up and pursue the activities tablishment and freedom to provide of a veterinary surgeon is concerned, the services. same effect in its territory as those which the Member State itself awards." In the first recital in the preamble thereto it is stated that: "Where a diploma, certificate or other evidence of formal qualifications as listed in Article 3 was issued before the ".. . all discriminatory treatment based implementation of this directive, it shall on nationality with regard to be accompanied by a certificate from the establishment and provision of services is competent authorities of the issuing prohibited as from the end of the country stating that it complies with transitional period; ... the principle of Article 1 of Directive No 78 / 1027 / such treatment based on nationality EEC ." applies in particular to the grant of any authorization required to practise as a veterinary surgeon and also to the Article 3 contains the list of diplomas, registration with or membership of pro­ certificates and other evidence of formal fessional organizations or bodies." qualifications referred to in Article 2 and, under (f), in respect of qualifi­ cations in Italy, states: The fifth recital in the preamble states: "il diploma di laurea di dottore in ".. ., in view of the differences between medicina veterinaria accompagnato dal Member States regarding the nature and diploma di abilitazione all'esercizio della the duration of the training of veterinary medicina veterinaria awarded by the surgeons, certain coordinating provisions Minister of Education on the basis of designed to enable Member States to the findings of the competent State proceed with the mutual recognition of Examining Board." diplomas, certificates and other evidence of formal qualifications should be laid Article 4 which concerns acquired rights, down; . . . such coordination has been provides : effected by Council Directive No 78 / 1027 / EEC of 18 December 1978 concerning the coordination of pro­ "In the case of nationals of Member visions laid down by law, regulation or States whose diplomas, certificates and administrative action in respect of the other evidence of formal qualifications activities of veterinary surgeons." do not satisfy all the minimum training requirements laid down in Article 1 of Directive No 78 / 1027 / EEC , each Article 2 of the directive is worded as Member State shall recognize, as being follows : sufficient proof, the diplomas, certificates and other evidence of formal qualifi­ cations in veterinary medicine awarded "Each Member State shall recognize the by those Member States before the diplomas, certificates and other evidence implementation of Directive No 78 / of formal qualifications awarded to 1027/EEC, accompanied by a certificate nationals of Member States by other stating that those nationals have Member States in accordance with effectively and lawfully been engaged in Article 1 of Directive No 78 / 1027 / EEC the activities in question for at least three and which are listed in Article 3, by consecutive years during the five years

prior to the date of issue of the certi­ persons wishing to take up and pursue ficate." the profession of veterinary surgeon to hold a diploma, certificate or other evidence of formal qualifications in Articles 6 and 7 govern respectively cases veterinary medicine referred to in Article in which the host Member State requires 3 of Directive No 78 / 1026 / EEC which of its nationals proof of good character guarantees that during his complete or good repute when they take up for training period the person concerned has the first time activities as a veterinary acquired knowledge in certain specific surgeon, and the case in which there are areas, which are listed in detail, and in force, in a host Member State, certain clinical and other practical provisions laid down by law, regulation experience. It provides that the training or administrative action relating to good must comprise in all at least five years character or good repute, including theoretical and practical full-time in­ provisions prescribing disciplinary sanc­ struction given in a university or an tions in respect of serious professional equivalent institution and must include at misconduct or conviction for criminal least study of the subjects listed in the offences and relating to the practising of annex to the directive. However, that veterinary medicine. It is acknowledged, annex specifies that instruction in one or by implication, that such national more of these subjects may be given as provisions are legitimate. part of, or in association with, other courses. Finally, Article 12, relating to the provision of services, provides : Sixteen months after the last of the events in question and shortly after the expiry of the period prescribed in the "Where a Member State requires of its directives for their implementation, the own nationals wishing to take up or French Republic adopted Law No pursue the activities referred to in Article 82-899 of 20 October 1982, concerning 1, an authorization or membership of, or the pursuit of activities of veterinary registration with, a professional organi­ surgeons (Journal Officiel de la zation or body, that Member State shall République Française [French Official in the case of the provision of services Journal] of 21 October 1982, p. 3179). exempt the nationals of Member States That was followed by the order of the from that requirement." Minister for Agriculture, provided for by the above-mentioned Law and published Directive No 78/1027 states, inter alia, in in the Journal Officiel de la République the first recital in the preamble thereto, Française of 14 November 1982. In their written observations, the parties did not that express their views on the new legislative situation in the French Republic in the ". .. the comparable nature of training matter in question. courses (for veterinary surgeons) in the Member States enables coordination in this field to be confined to the requirement that minimum standards be Ill — Observations of the parties observed ..."

3 (f) of Directive No 78/1026, and that, directives which have not been at the dates of the relevant events, transposed into national law within the France had not yet fulfilled its obligation prescribed period. In accordance with to bring its national law into conformity what is now firmly established case-law with the provisions of that directive. of the Court of Justice, provisions of In those circumstances he considers directives which impose unconditional that those provisions must be directly obligations on Member States and which applicable to him. That follows a are sufficiently precise may be relied on contrario from the above-mentioned by any interested person, even where judgment of the Court of 7 February national implementing measures have not 1979 and from the judgment of 10 been adopted or where the directives December 1980 of the French Cour de have been incorrectly implemented.

period has expired, the "direct effect" of that directive precludes any Member State from applying its national law, which has not yet been adapted so as to In this instance, the two directives of comply with a directive, even if that law 18 December 1978 impose on Member carries with it criminal penalties, to a States obligations which are uncon person who has complied with the ditional and sufficiently clear, in par provisions of that directive. ticular those contained in Articles 2 and 3 of Directive No 78/1026.

ization. He claims that that problem has veterinary surgeons, in other words those already been resolved by the Court in its who possessed a degree corresponding to judgment of 7 February 1979, in which it their nationality, and entitling them to stated that there was no provision of the practise in their country of origin. It is Treaty which made it possible to treat therefore clearly the intention of the nationals of a Member State differently professional society to find pretexts for according to the time at which or the preventing Mr Auer from being entered manner in which they acquired the on the register. The requirement of being nationality of that State. The only registered with a professional society or problem which remains to be solved is body must, therefore, be regarded as therefore that of the direct effect of incompatible with Community law, in so

far as that registration is required by a origin in the event of acts committed by national provision which does not a member of the profession which are conform to that law. capable of having consequences on his practising of the profession. Moreover, under the recent Law of 20 October 1982 (Journal Officiel de la République Mr Auer considers, in conclusion, that in Française of 21 October 1982), which reply to the question referred to the was adopted precisely with a view to Court of Justice by the Cour d'Appel, implementing the directives in question, Colmar, it should be stated that, after enrolment on the register of the Ordre the expiry of the period prescribed for its National des Vétérinaires continues to be implementation, Directive No 78/1026 required for any veterinary surgeon who has direct effect and is binding on all the claims the right to establishment in Member States, so that no provision of France and that law has not been national law, in particular provisions contested by the Community authorities requiring registration with a professional as being contrary to the provisions of the society, may be used to prevent holders Treaty. It is therefore for Mr Auer to

Directive No 75 / 362 / EEC the principale of non-discrimination is on the freedom of establishment of respected. The French provisions relating doctors prohibits any Member State from to the Ordre national des Vétérinaires making entry to the profession of general are designed to meet the requirements of practitioner by holders of the diplomas the public interest and public policy, referred to in Article 3 subject to based on the need to control access to additional training requirements, such as the profession and to ensure professional are prescribed, for example, under

including those which provide for disciplinary measures, and which is On that basis, the civil parties dispute the limited to providing for procedures of relevance of th case-law of the Court coordination and assistance between the concerning the direct effect of directives, host State and the Member State of relied on by Mr Auer, inasmuch as that

case-law does not authorize the latter the directives in question, notwith to practise veterinary medicine without standing the fact that, at the time of the being entered on the register of the pro relevant events, national implementing fessional body, even assuming that he measures had not been adopted within has submitted an application in due and the prescribed period. In that sense, this proper form for registration to the case differs considerably from Case competend authority and that he can 136/78, which was decided by the show that he holds a degree recognized judgment of the Court of 7 February as equivalent by virtue of Directives Nos 1979, cited above, inasmuch as in this 78/1026 and 78/1027. instance the Court is no longer concerned to ascertain the exact scope of Articles 52 to 57 of the EEC Treaty; rather it must determine the effect of the In any event, they consider that the provisions of the directives in question. degree which Mr Auer holds in no way satisfies the training requirements provided for by Directive No 78/1027; that the certificate of proficiency in the Therefore, although the Commission profession of veterinary surgeon issued does not wish to extract from the judg on 2 May 1980 by the University of ment of 7 February 1979 an argument Parma does not constitute a genuine and a contrario, it considers that it is authentic confirmation that Mr Auer has permissible to state that the Court, in satisfied the training requirements laid that judgment, left open the question of down by that directive; that Mr Auer the direct effect of those directives. cannot benefit from the provisions relating to acquired rights under Article 4 of Directive No 78/1026, and that he could not produce a certificate stating The Commission considers that the

ruling. Those provisions must therefore be acknowledged as having a direct effect, in accordance with the case-law of the Court, in the sense that subjective rights The Commission shares Mr Auer's view, may be created for individuals where the according to which the considerations State fails to fulfil its obligations in expressed in the judgment making the regard to the transposition of directives reference concerning the accused's recent into national law. Individuals may acquisition of French nationality are not therefore rely in the national courts on relevant, so that the only question to be provisions of the directives which, at the settled is whether the national adminis time of the relevant events, had not been trative and judicial authorities are under transposed into the national law of the an obligation to apply the provisions of Member State.

In this instance, the directives in question3 of Directive No 78/1026. If that were ought to have been the subject of not the case, in other words, if the national implementing measures before degrees did not meet the minimum 20 December 1980. At that date France training requirements laid down in had failed to adopt any measures with Article 1 of Directive No 78/1027, the the result that, in 1981, the Commission Commission considers that Article 4 initiated a procedure under Article 169 of Directive No 78/1026 concerning of the EEC Treaty, which led to the acquired rights, should be applied and communication of a reasoned opinion on that that article also contains provisions 4 May 1982. Moreover, the Commission which are capable of having direct effect. has received five official complaints from It is true that the said article refers to a veterinary surgeons who are nationals of "lawful" exercise of the activities of a a Member State and who have been veterinary surgeon and that, on the other refused registration with the French hand, Mr Auer, since taking up residence professional society, because the latter in France, has exercised his activity in systematically refuses to register holders contravention of French laws. However, of foreign degrees which have not been the French courts have never imposed on recognized for the purposes of the Mr Auer penalties which are really profession of veterinary surgeon indissuasive, nor ordered the closure of his France by the examining committee surgery, so that a practice involving a set up by Decree No 62-1421 of certain tolerance seems to have been 27 November 1962. adopted in his case. It follows that the French State could scarcely take a more severe view of Mr Auer's position today, without laying itself open to criticism The Commission maintains that it is under the rule "venire contra factum common ground that in France the proprium". Moreover, the accused failure to register with the professional could, perhaps, provide evidence of society exposes practitioners of veter­ having practised veterinary medicine in inary medicine to civil and criminal Italy, which would remove the difficulty. penalties. Moreover, it considers that The Commission emphasizes, in any such consequences, which are peculiar to event, that it is doubtful whether that the national law, cannot disguise the lack problem comes within the terms of the of conformity of the French legal system, question for a preliminary ruling as in that area, with the Community formulated by the national court, in directives. If follows from that lack of particular because Mr Auer did not rely conformity, on the one hand, that on Article 4 of Directive No 78/1026 in national administrative bodies are under the main proceedings. a duty to apply directly the provisions of the directives, and, on the other hand, that national courts must make the rules In conclusion the Commission considers of the directives take precedence over that the reply to the question submitted national provisions and unlawful admin­ by the Cour d'Appel, Colmar, should be istrative practices and in that way place based on the following principles: the administrative authorities under a duty to comply with Community law.

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 sub­ sequently on his own account.

JUDGMENT OF 22. 9. 1983 — CASE 271/82

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.

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 hew complaint from the Ordre National des Vétérinaires de France [National Society of Veterinary Surgeons of France] and Syndicat National des Vétéri­ naires Practiciens Français [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.

s 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.

,o The civil parties in ¿he main proceedings, namely the Ordre National des Vétérinaires and the Syndicat National des Vétérinaires, 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 cer­ tificate issued to the accused on 2 May 1980 does not constitute confir­ mation that he has satisfied the training conditions laid down in that provision.

1 1 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.

AUER v MINISTERE PUBLIC

M 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.

is 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

JUDGMENT OF 22. 9. 1983 — CASE 271/82

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.

,6 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 ol 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 trench Republic, by virtue of the university degrees and qualifications acquired in Italy, cannot therefore be contested.

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, ard 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 pro­ fessional 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 m 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;

in answer to the question referred to it by the Cour d'Appel, Çolmar, (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.

O'Keeffe Bosco Koopmans

Delivered in open court in Luxembourg on 22 September 1983.

J. A. Pompe A. O'Keeffe