C-263/88
ECLI:EU:C:1990:210
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OPINION OF MR MISCHO — CASE C-263/88
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 17 May 1990 *
Mr President, Republic, the Kingdom of the Netherlands Members of the Court, or the United Kingdom of Great Britain and Northern Ireland, established in a country or territory, or for companies or firms subject to the laws of the country or territory concerned and established therein, the relevant authorities of that country or territory shall not be bound to accord such 1. These proceedings brought by the treatment.' Commission against the French Republic are for a declaration that by failing to adopt the measures needed to allow nationals of other Member States in possession of the requisite French qualifications to establish themselves or provide services as doctors, general 2. According to the Commission, that nurses, midwives, dentists or veterinary condition of reciprocity has been fulfilled in surgeons in French Polynesia or as any event, at least from the date of veterinary surgeons in New Caledonia and implementation of Directives 75 / 362 / EEC , its dependencies, that Member State has 77 / 452 / EEC , 80/154/EEC, 78 / 686 / EEC failed to fulfil its obligations under Article and 78 / 1026 / EEC concerning the mutual 137 of Council Decision 80 / 1186 / EEC of recognition of diplomas, certificates and 16 December 1980 1 and Article 176 of other evidence of formal qualifications in Council Decision 86 / 283 / EEC of 30 June medicine, general nursing, midwifery, 1986, 2 on the association of the overseas dentistry and veterinary medicine. By virtue countries and territories with the European of those directives, the other Member States Economic Community. Those provisions are bound, according to the substantive and state in identical terms: formal conditions provided for in the matter, to recognire French diplomas, and also those issued by another Member State, in medicine, general nursing, midwifery, dentistry and veterinary medicine, held by a national of the French Republic without being able to attach to them any condition 'As regards the arrangements that may be as regards the place of establishment of the applied in matters of establishment and said national. provision of services, the relevant authorities of the countries and territories shall treat nationals and companies or firms of Member States on a non-discriminatory basis. However, if, for a given activity, a 3. For its part, the French Government Member State is unable to provide similar accepts that those directives necessarily treatment to nationals or companies or firms establish a presumption of reciprocity since of the Kingdom of Denmark, the French a French national subject to Polynesian rules and holding a diploma from another * Original language: French. Member State should be able to establish 1 — OJ 1980 L 361, p. 1. 2 — OJ 1986 L 175, p. 1. himself in that Member State. It is therefore
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only where the Member State from which a 7. (a) All the directives cited by the national who wishes to establish himself in Commission are also applicable to nationals an overseas territory originates does not of the Member States who exercise or will grant such reciprocity that the freedom of exercise the activities in question as establishment for a national of that Member employees. It follows from Article 135 of State is not automatically conferred. the EEC Treaty that:
'freedom of movement within Member States for workers from the countries and 4. In other words, for the French territories, and within the countries and Government, it is the general prohibition territories for workers from Member States, which is contrary to Community law. In its shall be governed by agreements to be view, the Community directives on the concluded subsequently with the unanimous mutual recognition of diplomas, which do approval of Member States'. not apply as a whole to the overseas countries and territories (which is, moreover, also the opinion of the Commission), do not imply reciprocity Since no agreement of that type has been within the meaning of Article 176. They concluded, the proceedings by the simply render a general nationality clause Commission cannot be concerned with the illegal under Community law. The French exercise of the activities in question in the Government is endeavouring to remove that capacity of employee. That follows, prohibition wherever it exists. Since the moreover, from the wording itself of the commencement of the proceedings, the application, where it is only a question of legislation applying in New Caledonia has establishment and provision of services, already been brought into conformity with which, in the language of the Treaty, means Community law. That is, moreover, the independent professions. accepted by the Commission.
8. (b) As regards the difficulties described by the French Government concerning French Polynesia, it must be observed that 5. The French Government admits that, as those circumstances cannot prevent the far as Polynesia is concerned, the question Court from upholding the Commission's has not yet been resolved. The difficulty of request. It follows from the consistent the matter relates to the particular nature of case-law of the Court that a Member State the territorial organization in the territory may not plead provisions, practices or in question and the fact that the laws to be circumstances existing in its internal legal passed affect the respective powers of the system in order to justify a failure to central and local authorities. The context observe the obligations and time-limits laid and procedures to be followed mean that it down by Community law (see, in particular, will take some time to achieve the the judgment in Case 254/83 Commission v conformity sought. Italy [1984] ECR 3395).
9. (c) As regards the bringing into conformity of the legislation applying in 6. Those positions of the two parties lead New Caledonia on establishment and the me to make four observations. provision of services in medicine and
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veterinary surgery, which occurred in 1989, 12. Article 132(5) of the EEC Treaty states it may observed that, in particular in its that: judgment in Case C-287/87 Commission v Hellenic Republic [1990] ECR 1-125, the Court recalled that: 'In relations between Member States and the countries and territories the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions and procedures laid down in 'The object of an action under Article 169 is the Chapter relating to the right of estab established by the Commission's reasoned lishment and on a non-discriminatory basis, opinion and, even when the default has subject to any special provisions laid down been remedied subsequently, there is still an pursuant to Article 136'. interest in pursuing the action in order to establish the basis of liability which a Member State may incur as a result of its default as regards other Member States, the 13. The special provisions which have been Community or private parties.' implemented under Article 136 concern only the situation of a national of a Member State wishing to establish himself in an overseas country or territory. The provisions involved are Articles 137 and 176 at issue in The Commission's application should the present case. It follows that, as regards therefore also be upheld in so far as it persons originating from a country or concerns New Caledonia. territory who wish to establish themselves in Europe, it is necessary to refer to the provisions and procedures of the chapter concerning freedom of establishment and the principle of non-discrimination. 10. (d) There remains the question whether, as the French Government affirms, the directives in question establish only a 14. It must be emphasized in this context, presumption of reciprocity and whether it is that, unlike Article 135 of the Treaty, still necessary to ascertain whether in each which uses the words 'freedom of particular case the authorities of the movement ... for workers ... shall be Member States from which a national governed by agreements', Article 132(5) wishes to establish himself in an overseas provides that 'the right of establishment... country or territory effectively grants shall be regulated in accordance with the 'similar treatment' to 'nationals of the provisions ... '. French Republic ... established in a country or territory' (see the wording of Articles 137 and 176 of the two Council decisions). 15. Since the present proceedings are concerned with professions for which have been adopted directives on the mutual recognition of diplomas containing 11. In my view, this 'similar treatment' measures intended to facilitate the effective could only be refused by a Member State at exercise of the right of establishment and the price of contravening the Community the free provision of services, it is necessary rules applying to the matter. I shall explain. to refer to those directives in order to
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examine whether they leave Member States 17. Since those directives do not therefore any discretion as regards the admission or make a distinction between the nationals of non-admission of persons established prior the Member States according to whether thereto in an overseas country or territory. they were established in the European territory of a Member State or in an overseas country or territory, it must be 16. It appears that the directives in question concluded that the persons coming from do not leave Member States any such those countries or territories enjoy all the discretion, since they all provide in their Article 2, that: advantages conferred by the directives without restriction.
'Each Member State shall recognize the diplomas, certificates and other evidence of 18. It may also be said that there is more formal qualifications awarded to nationals than reciprocity since a French Polynesian of Member States by the other Member holding a French diploma may, according to States ... by giving such qualifications, as those directives, establish himself in far as the right to take up and pursue the Germany, whereas a German cannot self-employed activities (of a doctor) is establish himself in Polynesia if he only concerned, the same effect in its territory as possesses a German diploma; he must be those which the Member State itself able to provide evidence of a French awards'. 3 diploma.
19. I therefore propose that the Court declare that by failing to adopt the measures needed to allow nationals of other Member States in possession of the requisite French qualifications to establish themselves or provide services as doctors, general nurses, midwives, dentists or veterinary surgeons in the overseas territory of French Polynesia or as veterinary surgeons in New Caledonia and its dependencies, the French Republic has failed to fulfil its obligations under Article 137 of Council Decision 80/1186 of 16 December 1980 and Article 176 of Council Decision 86/283 of 30 June 1986 on the association of the overseas countries and territories with the European Economic Community.
20. It follows that the French Republic must bear the costs of the proceedings.
3 — Council Directive 75/362/EEC of 16 June 1975 ... 'doctors' ... (OJ 1975 L 167, p. 1); Council Directive 77/452/EEC of 27 June 1977...'nurses responsible for general care' . . . (OJ 1977 L 176, p. 1); Council Directive 78/686/EEC of 25 July 1978 ... 'practitioners of dentistry' ... (OJ 1978 L 233, p. 1); Council Directive 78/1026/EEC of 18 December 1978...'veterinary medicine' ... (OJ 1978 L 362, p. 1); Council Directive 80/154/EEC of 21 January 1980 ... 'midwifery' ... (OJ 1980 L 33, p. 1).
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