C-319/92

Mr President, 3. In order to practise as a dental practitio­ Members of the Court, ner of a social security scheme in Germany, Paragraph 3 (2) of the Zulassungsverordnung für Kassenzahnärzte (Regulation on Eligibil­ ity for Appointment as a Dental Practitioner of a Social Security Scheme, hereinafter 1. Mr Haim, an Italian national, born referred to as 'the ZZV') requires enrolment in 1922, obtained in 1946 a diploma in den­ on the register of dental practitioners subject tistry from the University of Istanbul, to the following conditions: where he practised until 1980. On 18 September 1981 the Regierungsprä­ sident of Arnsberg recognized Mr Haim's qualifications, enabling him to practise his profession in the Federal Republic of Ger­ — recognition of the status of dental practi­ many. He was not, however, authorized to tioner; treat patients who were affiliated to social security schemes and could only treat patients under private insurance. He estab­ lished himself in Belgium where he passed a — completion of a preparatory training theoretical and practical examination which period of two years. entitled him to a 'Certificate of equivalence' to the 'diplôme légal belge de licencié en sci­ ence dentaire'. Mr Haim was appointed as a dental practitioner of a social security scheme there. 4. According to Article 20 of Council Directive 78/686/EEC of 25 July 1978 con­ cerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, 2. From 1988 he decided to work as assistant including measures to facilitate the effective to his son, who is established in Germany exercise of the right of establishment and and appointed as a dental practitioner of a freedom to provide services ('the first direc­ 1 social security scheme. In order to be able to tive') 'Member States which require their treat patients who are covered by a social own nationals to complete a preparatory security scheme, he applied to be enrolled training period in order to become eligible on the Kassenzahnärztliche Vereinigung for appointment as a dental practitioner of a Nordrhein (Association of Dental Practitio­ social security scheme may impose the same ners of Social Security Schemes, hereinafter requirement on nationals of the other Mem­ referred to as 'the KVN'). ber States for a period of eight years follow-

8. The appeal against that decision was dis­ missed first by the Sozialgericht Düsseldorf (3) if not, whether it is permissible under and subsequently by the Landessozialgericht Article 52 of the Treaty to deny an Nordrhein-Westfalen. The Bundes­ appointment to a practitioner who is a sozialgericht, before which an appeal was Community national who does not hold brought on a point of law, referred to the a diploma mentioned in the directive but Court for a preliminary ruling three ques­ who has been authorized to practise in tions on the interpretation of Article 20 of the State of establishment, on the ground the directive and Article 52 of the Treaty. that he has not completed the required preparatory training period, without examining whether that condition may be regarded as having been fulfilled in 2 — Commission observations, page 6 of the French translation. view of the professional experience 3 — See Commission observations, page 5 of the French transla­ tion. acquired.

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10. The object of the question before the second directive') 4to which the first direc­ Court is therefore clearly defined: it is not a tive of the same date refers. question here of determining the conditions for taking up and pursuing the practice of dentistry — which is not at issue in the present case —· but rather for appointment as 15. Diplomas conferred by any Member a dental practitioner for a Community State are automatically recognized in the national holding a diploma awarded by a other States of the Community because they non-member State and recognized as equiv­ correspond to the minimum criteria, defined alent in the Member State where he has by the second directive, 6 on which the established himself and by another State of Member States have agreed. the Community.

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tives on the mutual recognition of diplomas. and training to supplement Directive Generally they refer to it only in order to 89/48/EEC 1 likewise does not apply to explain that it is governed by national law professions which are the subject of a spe­ which determines its own criteria for equiva­ cific directive establishing arrangements for lence and which retains an unfettered power the mutual recognition of diplomas by Mem­ 1 of discretion which Community law does ber States. 3 not put in question. 8

20. Council Directive 92/51 /EEC of 18 June 1992 on a second general system for 24. First, the wording itself of Article 20 the recognition of professional education enables Member States which require their own nationals to complete a preparatory training period in order to be appointed to 8 — Sec, for example. Article 1 (4) of Council impose for a period of eight years the same Directive 78/1027/EEC of 18 December 1978 concerning requirement on nationals of other Member the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of veteri­ States without any other condition: they nary surgeons (OJ 1978 L 362, p. 7). 9 — OJ 1989 L 19, p. 16. 10 — Second paragraph of Article 2. 11 — Council Recommendation 89/49/EEC concerning nationals of Member States who hold a diploma conferred in a non- 12 — OJ 1992 L 209, p. 25. member State (OJ 1989 L 19, p. 2-1). 13 — Article 2.

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would not be required in addition to be 28. I am not convinced by that analysis. holders of a Community diploma.

27. Finally, that interpretation is in accord­ 31. Thus, although a Member State is free to ance with the ratio legis of the provision, the continue to make its own nationals who have purpose of which is not to require experi­ obtained the national diploma subject to an enced dental practitioners to undertake a additional training period in order to become period of training but solely to compensate dental practitioners of a social security for the lack of practical training of entrants 17 scheme, I see this only as a classic example of into the profession. reverse discrimination within that State, which Community law does not penalize.

14 — Observations of the applicant in the main proceedings, paragraphs 18 and 19. 15 — Ibid., paragraph 20. 18 — Druesne, G. Droit matériel et politiques de la Communauté 16 — Ibid., paragraph 25. européenne, 2nd edition, 1991, p. 92. 17 — Ibid., paragraphs 21 and 25. 19 — See Article 1 (1) to (3) of the second directive.

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32. Moreover, recognition by a Member 35. How can one ignore, at this juncture, the State of a diploma awarded by a non- fact that the aim of the directive is to harmon­ member State falls solely within the scope of ize laws between Member States, whereas the the national law of that State which, for rec­ situation under examination by the national ognition of diplomas obtained in non- court concerns merely the establishment in member States, is not obliged at all to apply Germany of a holder of a diploma obtained the same criteria and the same requirements in a non-member State without there being 20 as the directive on Community diplomas. any question of coordination or harmoniza­ tion of diplomas obtained in Member States}

34. Finally, the argument based on the sedes materiae may be reversed. All the other articles of the 'Final Provisions' refer to other provisions of the legal instrument and in particular to those relating to the mutual 38. If the argument maintained by the appli­ recognition of diplomas. cant in the main proceedings were to be accepted, it would lead to a logical impasse: in effect, the facility granted to a Member State pursuant to Article 1 (4) of the second 20 — Article 1 (4) of the second directive reserves the facility directive would become an obligation with which may be granted in accordance with their own rules by Member States in respect of their own territory to regard to all the others. Such a construction authorize holders of diplomas obtained in a non-member State to practise dentistry. That recognition docs not neces­ cannot be placed on that provision without sarily reflect the requirements and the standard set out in distorting it. More specifically, the equiva­ Article 1 of the same directive, even if the creation of the single market logically implies the requirement of a mini­ lence of diplomas within the Community mum level of training for any practitioner pursuing his activities within the Community, irrespective of the origin cannot depend on bilateral agreements con­ of his diploma. The host State is free to provide a special cluded between Member States on one side, system of rules for dental practitioners holding diplomas obtained in a non-member State. and non-member States on the other, and 21 — Let me note at this point that in the main proceedings Ger­ which do not observe a minimum Commu­ man recognition is on the basis of the Turkish diploma and not of the recognition accorded by the Belgian authorities. nity standard.

40. That view was repeated on 13 March 1989 in an answer given by Mr Bangemann, again on behalf of the Commission. Com­ menting in particular on that occasion on the 43. However, does Article 52 of the Treaty directives of 25 July 1978, he stated that 'the authorize the host Member State to disregard diplomas of non-Community States are not his previous qualifications and training? That covered by this "mutual recognition". The is the object of the third question. legal instruments in question specifically leave to the Member States the right to grant on their own territory and in line with their own regulations access to the professional activities in question and their exercise by 44. A situation in which a Community the holders of diplomas acquired in non- national makes use of the freedom conferred Community States. However, recognition of upon him by the Treaty to establish himself such diplomas by a Member State does not in a Member State other than his Member automatically imply an obligation upon the State of origin falls unquestionably within other Member States to recognize them as the scope of the Treaty. 24 well'.

22 — Council Directive of 16 June 1975 concerning the coordina­ 45. Certainly, if Article 52 precluded only tion of provisions laid down by law, regulation or adminis­ trative action in respect of activities of doctors (OJ 1975 national measures which, in form or sub­ L 167, p. 14). stance, discriminated between nationals of 23 — Written Question No 2076/87 (OJ 1988 C 283, p . 11) . that Member State and nationals of the other 24 — Answer to Written Question No 2103/88 (OJ 1989 C 202, p . 19). Member States, it could not be applied in the

51. The Court concluded that: 48. Besides her Greek diplomas, Mrs Vlas- sopoulou had obtained a doctorate in law in Germany and had practised for five years in that country as a legal adviser. 'a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional 49. During the course of an appeal brought qualification must take into consideration by her against the decision to refuse her the diplomas, certificates and other evidence application, a question was referred to the of qualifications which the person concerned Court for the purpose of ascertaining has acquired in order to exercise the same whether Article 52 requires that, in order to profession in another Member State by mak­ enable a Community national to pursue the ing a comparison between the specialized profession of lawyer, the competent author­ knowledge and abilities certified by those ity of the relevant Member State take into diplomas and the knowledge and qualifica­ account the diplomas obtained in another 28 tions required by the national rules'.

25 — Huglo, J.-G.: Droit d'établissement et libre prestation des services, Chronique, RTDE 1992, p. 696. 27 — Paragraph 9. 26 — Casc C-340/89 Vlassopoulon [1991] ECR I-2357. 28 — Paragraph 16, my emphasis.

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52. The host Member State must therefore principles of cost-effectiveness and control of consider whether the candidate has estab­ health expenditure. lished that he already possesses knowledge and qualifications equivalent to those it requires.

59. A self-employed dentist who has already worked as a dental practitioner of a social security scheme in Member State A and who 56. Certain Member States make the has been authorized to work as a self- appointment of dental practitioners to a employed dentist in Member State B applies social security scheme subject to a period of for authorization to work as a dental practi­ training intended to acquire, as well as expe­ tioner of a social security scheme in the latter rience, knowledge relating to accountancy State. This should be compared with the within the social security scheme and the Vlassopoulott case. Mrs Vlassopoulou, who system of direct billing, together with the had been authorized to work as a 'Rechtsbeistand', applied for authorization to work as a 'Rechtsanwalt'. 29 — Paragraph 22. 30 — Case C-104/91 Aguirre Borrell [1992] ECR 1-3003. 31 — Directive 89/48/EEC of 21 December 1988, as I have pointed out, is not applicable here. 32 — See the KVN reply to the questions put by the Court.

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60. A Member State which receives an appli­ 61. It is a matter for the national cation for admission to the profession of court to assess whether the experience dental practitioner appointed to a social of the applicant in the main proceed­ security scheme made by a Community ings as well as the authorization national who has not completed the manda­ granted to him by the Belgian author­ tory preparatory training period must, ities to work as dental practitioner of a social accordingly, before requiring completion of security scheme still make the that training period, verify on a case-by-case training period provided for by the basis whether the experience acquired and German rules necessary and, if so, to what the qualifications obtained by the person extent. concerned in another Member State may replace it.

respond only partially, the national authorities in question are entitled to require the person concerned to acquire or prove that he has acquired the knowledge and qualifications which are lacking.

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