C-5/83

T H E C O U R T (Second Chamber),

composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: Sir Gordon Slynn Registrar: H. A. Rühi, Principal Administrator

gives the following

RIENKS

JUDGMENT

The order making the reference, the concerned is contrary to Article 348 of course of the procedure and the written the Italian Criminal Code, which relates observations submitted under Article 20 to the improper exercise of a profession. of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows: According to the Magistrate who referred the questions to the Court the accused in the main action committed the abovementioned offence solely because Italy had failed to take the I — Facts and w r i t t e n p r o c e d u r e steps necessary to implement Directive 78/1026 concerning the mutual rec- ognition of diplomas, certificates and other evidence of formal qualifications in Mr Rienks, a Netherlands national, who veterinary medicine. If that directive had, is the accused in the main action, was in fact, been implemented within the awarded a degree in veterinary medicine period prescribed there would have been on 11 September 1970 by the State no objection to the enrolment of Mr University of Utrecht which entitled him Rienks on the register of veterinary to practise as a veterinary surgeon in the surgeons in Varese. The Magistrate also Netherlands. On 12 May 1981 Mr considered that the failure to implement Rienks, who lived in Italy and wished to the directives in question constituted a practise his profession there, applied for breach of Community law, which was enrolment on the register of veterinary confirmed by the fact that the surgeons in Varese. The application was Commission, by letter of 19 October rejected and the only reason given for 1981, commenced proceedings against the rejection was that the Italian State Italy under Article 169 of the Treaty. had not at that time implemented Council Directives 78/1026 and 78/1027 concerning the profession of veterinary The Magistrate making the reference to surgeon. the Court is therefore of the opinion that it should be ascertained whether the provisions of those directives may be relied upon directly by individuals in an Om 1 December 1981, the accused in the appropriate case, even though the main action signed a pharmaceutical Member States have failed to implement prescription which, according to Italian them. Consequently he decided to refer law, may be issued only by a veterinary the following two questions to the Court surgeon entitled to practise as such in for a preliminary ruling: Italy, that is to say a veterinaiy surgeon who is enrolled on the register of veterinary surgeons in the place where he 1. May a host Member State which has practises. In the absence of such not implemented Directives 78/1026 enrolment the issue of a prescription of and 78/1027 concerning the vet- the type with which the present case in erinary profession enforce penal

2. If the reply to the above question is in the affirmative, does a Community Upon hearing the report of the Judge- national who is entitled to practise in Rapporteur and the views of the his own country have the right to be Advocate General, the Court decided to enrolled on the local register of open the oral procedure without any veterinary surgeons in the host preparatory inquiry. 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 II — O b s e r v a t i o n s submitted where the host country has not u n d e r A r t i c l e 20 of t h e implemented the above directives and P r o t o c o l on t h e S t a t u t e of has thereby failed in its obligations to t h e C o u r t of J u s t i c e of t h e the Community? In such a case, may EEC a Community national, pending impelementation of those directives, gain admittance to the register by applying to the appropriate judicial authority in the host Member State? 1. Observations of Mr Rienks, the accused in the main action

The order making the reference to the After recalling the principal facts of the Court was registered at the Court of case the accused in the main action Justice on 12 January 1983. examines the two questions referred to the Court by the Magistrate and contends that it is necessary to analyse In accordance with Article 20 of the the case-law of the Court in relation to Protocol on the Statute of the Court of the effect of a directive in order to reply Justice of the EEC written observations to them, both as regards the penalties were submitted by H. G. Rienks, imposed on the accused in the main

Italy has not implemented the said directives. The accused in the main action relies essentially on the judgment of 5 April 1979 in Ratti (Case 148/78 [1979] ECR It follows that, as regards the reply to be 1629). He maintains that in that case the given to the first question referred to the Court, first, confirmed its existing Court by the Magistrate, Italy may not case-law to the effect that Community "rely on its failure to perform its measures other than regulations may obligations in order to impose a sanction have an effect analogous to that of a on a citizen who fulfils all the regulation and that the effectiveness of a requirements laid down by the rules of directive would be weakened "if persons Community law for obtaining rec- were prevented from relying on it in ognition of a right conferred by the legal proceedings and national courts directive in question". He therefore prevented from taking it into con- considers that the Court must answer the sideration as an element of Community first question to that effect. law" and, secondly, asserted the principle that national provisions which are incompatible with the provisions of (b) The effect of a directive with regard the directive may not be applied to recognition of the right to practise inasmuch as the latter contain an obligation which is unconditional and sufficiently precise. The accused in the main action recalls that the association of veterinary surgeons of Varese stated in reply to Mr Rienks's application for enrolment that That innovatory aspect of the judgment there would be no further obstacles to in Ratti was further defined and clarified his enrolment once the law implementing in the judgment of 6 May 1980 in the EEC directives had been approved. Commission of the European Communities Thus the only objection raised by the v Kingdom of Belgium (Case 102/79 professional association was the failure [1980] ECR 1473), and in the judgment of the State to implement the directive, of 19 January 1982 in Becker (Case 8/81 and Mr Rienks fulfilled all the other [1982] ECR 53), in which the Court held conditions necessary for the practice of that: his profession in Italy.

The principles thus extracted from the Since the main proceedings in the case-law have merely to be applied to the present case are concerned with the present case. In fact this is a classic case latter period the accused in those for the application of the directives in proceedings analyses, secondly, the question because it concerns a national case-law with regard to the right of of a Member State who possesses a establishment and the freedom to provide diploma which was granted by his services by reference to the directives country of origin validly and in coordinating the national laws. conformity with Community directives, and who is unable to exercise the profession for which he is qualified solely because the host Member State has He states that the coordinating directives not implemented the directive in due are now always indispensable in order, time. The accused in the main action together with the rules of the Treaty, to should therefore be able to invoke the remove the restrictions which may direct effect of the Treaty in conjunction lawfully continue to be applied in the with the directives in question not only absence of such directives. In his view before the courts but also before the the most significant case in that professional association which has connection is the judgment given on refused to enrol him on the register of 7 February 1979 in Auer (Case 136/78 veterinary surgeons. [1979] ECR 437), although that judgment gives only indirect support to the proposition submitted by him in the present case because in the Auer case the Consequently, the accused in the main period within which the coordinating action considers that all aspects of the directive and the directive concerning the second question referred to the Court by recognition of diplomas and other the Magistrate must be answered in the evidence of formal qualifications in affirmative. veterinary medicine were to be im- plemented had not expired at the relevant time. It follows from Auer that the coordinating directives adopted in respect of the exercise of the profession 2. Observations of the Commission of veterinary surgeon likewise facilitate, "together with the Treaty rules which apply to all cases, the attainment of the goal of liberalization which could be According to the Commission the ques- impeded lawfully without them". tions referred to the Court raise once

more the sensitive problem of the Secondly, the Commission takes the view consequences of a failure to incorporate after examining the provisions of the Community directives into the national directives in question that those law of the Member States. In particular provisions "are precise, unconditional they seek to "establish whether, and if so and mandatory, both in their wording to what extent, a directive may itself, and their spirit, and leave no discretion once the period laid down by the at all to the Member States". directive for its implementation by the Member States has expired, entitle individuals affected by it to rely on its provisions as against the defaulting State, both in a negative manner in the sense The Commission therefore concludes that it prevents the application of that if the requirements which have been measures or sanctions which are laid down are complied with, recognition inconsistent with its provisions and in a of the qualifications is a subjective right positive manner in the sense that it is vested in the holders of those quali- possible to compel the State to act in fications involving the same right of conformity with the directive". access to the profession of veterinary surgeon and to the exercise thereof as arises from a national qualification. The Commission adds that if enrolment on the association's register is an adminis- Next, the Commission reviews the trative requirement for the exercise of case-law concerning the effect of the profession laid down by national law, directives. It emphasizes, as did the there must at the same time be an accused in the main action, the particular obligation to enrol a person who makes importance of the decision in Ratti and an application therefor and fulfils all the submits that the conclusion to be drawn necessary requirements, where such from the Court's case-law is that if the enrolment does not itself create the right provisions of a directive are un- to practise the profession because such a conditional and sufficiently precise they right is already vested in the person may, in the absence of measures holding the recognized qualification. implementing them in due time, be relied Consequently, the refusal to enrol the upon as against any provision of national applicant on the association's register in law which is incompatible with the the present case amounts to an unlawful directive or in so far as the provisions act in breach of his personal right and define rights which individuals may one which deprives the directives in assert against the State. question of any useful effect.

qualification in veterinary medicine qualification fulfils the conditions awarded by another Member State may laid down by those directives with object to the application to him of any regard to recognition of the rule of national law which is in- qualification and therefore the compatible with unconditional and exercise of the profession. mandatory provisions of the directives. (b) The appropriate national auth- Consequently the defaulting Member orities, both administrative and State may not enforce sanctions against a judicial, are required to give effect person who has complied with the to the aforementioned provisions of provisions of the directives in question; the directives by refraining from and, furthermore, that Member State applying, in an appropriate case, may not apply any other provision of any national rules which are national law which is incompatible with incompatible with them. In par- the directives which have not been ticular they must, each within its implemented, in particular those relating own jurisdiction, allow an applicant to enrolment on the register of a prof- who satisfies the requirements of essional association. the directives to be enrolled on the register of the professional as- sociation." It is for the relevant administrative organizations and the professional association to apply directly those provisions of the directives which are 3. Observations of the Italian Govern- precise and mandatory. ment

Secondly, "the mandatory nature of a According to the Italian Government the directive cannot eliminate the distinction administrative rules of the profession and established by Article 189 of the Treaty, the rule contained in Article 348 of the and therefore cannot take the form of Criminal Code operate in different effects which are of the same kind as spheres. The former rules define the those attached to regulations". requirements for enrolment on the association's register whilst the latter deal with the circumstances in which the practice of the profession is lawful, that is to say after enrolment on the said

Referring to those "necessary for the Court to define in its provisions, it contends that far from judgment the conditions on which, and providing that any person in possession the limits within which, such direct effect of one of the qualifications mentioned in may occur, regard being had to the rules Articles 2 and 3 of Directive 78/1026 of national law the application of which may automatically practise as a must be regarded as impeded inasmuch veterinary surgeon in eveiy Member as they conflict with the obligation State of the Community, Directive imposed by the Community directive". 78/1026 "expressly presupposes that admission to the practice of veterinary medicine is based on a certificate of admission issued to the person practising the profession by the State where he is established", as follows from Article 10 Considering next the problems raised by of Directive 78/1026.

JUDGMENT OF 15. 12. 1983 — CASE 5/83

RIENKS

Decision

i 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 veterinaiy surgeon in the Netherlands.

3 Mr Rienks took up residence in Italy and applied on 12 May 1981 for enrolment on the register of veterinaiy 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 pre- scription which, according to Italian law, may be issued only by a veterinary surgeon who is duly enrolled on the register of veterinaiy surgeons in the place in which he practises. Consequently he was prosecuted for the improper exercise of the profession of veterinaiy surgeon.

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."

RIENKS

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.

? 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.

s 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.

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.

Costs

1 3 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.

On those grounds,

T H E C O U R T (Second Chamber),

in answer to the question referred to it by the Pretore di Lodi, by order of 17 December 1982, hereby rules:

O P I N I O N O F A D V O C A T E G E N E R A L SIR G O R D O N S L Y N N D E L I V E R E D O N 27 O C T O B E R 1983

My Lords, had not been implemented in Italy. They should have been implemented by December 1980. Those two directives deal respectively with the mutual recognition of diplomas in veterinary Mr Rienks is a Dutch national. In 1970 medicine, with measures to facilitate the he obtained a degree in veterinary effective exercise of the rights of medicine from the University of Utrecht establishment and the right to provide which entitled him to practise as a services and with the coordination of veterinary surgeon in the Netherlands. rules relating to the activities of veterinary surgeons. On 12 May 1981, by which time he was living in Italy, he applied to be enrolled on the register of veterinary surgeons in Varese where he wished to practise. His On 1 December 1981, Mr Rienks signed application was refused. The reason for a pharmaceutical prescription which, the refusal appears to have been that under Italian national law, could only be Council Directives 78/1026 and 78/1027 lawfully issued by a veterinary surgeon