C-154/93
ECLI:EU:C:1993:898
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TAWIL-ALBERTINI
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 17 November 1993
Mr President, administrative action in respect of the activi Members of the Court, ties of dental practitioners ('the second direc 3 tive'), lays down the training which the Member States are to require for access to 4 the dental profession.
1. May a Member State refuse to recognize a diploma of dentistry awarded by a non- member State although the holder has had it recognized in another Member State? That, essentially, is the question referred to the Court from the French Conseil d'État. 4. As regards recognition of qualifications awarded by Member States before the entry into force of the second directive, Article 7 (1) of the first directive provides that
2. Article 3 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including meas ures to facilitate the effective exercise of the 'In the case of nationals of Member States right of establishment and freedom to pro whose diplomas, certificates and other evi vide services ('the first directive') ' lists the dence of formal qualifications do not satisfy diplomas awarded by each of the Member all the minimum training requirements laid States to which the others must give the down in Article 1 of Directive 78/687/EEC, same effect in their territory as those which each Member State shall recognize as being they themselves award. 2 sufficient proof the diplomas, certificates and other evidence of formal qualifications in dentistry awarded by those Member States before the implementation of Directive 78/687/EEC, accompanied by a certificate stating that those nationals have effectively 3. Council Directive 78/687/EEC of 25 July and lawfully been engaged in the activities in 1978 concerning the coordination of provi question for at least three consecutive years sions laid down by law, regulation or during the five years prior to the date of issue of the certificate.'
* Original language: French. 1 — OJ 1978 L 233, p. 1. 3 — OJ 1978 L 233, p. 10. 2 — Article 2. 4 — Article 1.
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5. That article was transposed into French 8. Relying on such recognition by the law by Article L.356-2 of the Code de la authorities of various Member States, Mr Santé Publique (Public Health Code) making Tawil-Albertini applied to the Minister for the right to practise as a dental surgeon in Social Security and Employment for authori France available to those holding 'either the zation to practice dentistry in France. He French State Diploma of Doctor of Dental was refused that authorization on 2 May Surgery ... or, if the person concerned is a 1986. national of a Member State of the European Economic Community, a diploma, certificate or other evidence of formal qualifications as a practitioner of dentistry awarded by one of those States in accordance with Community 9. By a judgment of 28 October 1987, obligations ... or any other diploma, certifi the Tribunal Administratif (Administrative cate or other evidence of formal qualifica Court), Paris, dismissed his application for tions as a dental practitioner awarded by one annulment of that decision. of the Member States attesting to training as a dental practitioner acquired in one of those States which was commenced before 28 January 1980, provided that it is accompa nied by a certificate from that State stating 10. The matter was brought before the that the holder of the diploma, certificate or Conseil d'État, which referred a question to other evidence of formal qualifications has the Court of Justice in order to ascertain actually been lawfully engaged in dental whether Article 7 excludes from its scope practice for at least three consecutive years qualifications obtained by virtue of equiv during the five years prior to the date of alence which therefore do not testify to den issue of the certificate'. tal training acquired in one of the Member States of the Community .
6. Mr Tawil-Albertini, a French national, obtained a diploma of doctor of dental sur 11. This provision must be placed in its leg gery in Beirut (Lebanon) in 1968. islative context.
7. On 20 July 1979, that is to say prior to the entry into force of the second directive, the 12. It appears from Articles 2 and 3 that the Belgian Minister for National Education and object of the first directive is the mutual rec- French Culture recognized his Lebanese ognition by Member States of diplomas in qualification as equivalent to the Belgian dentistry which are exhaustively listed and 'diplôme légal de licencié en science dentaire' awarded by those States. (official diploma of graduate in dental sci ence), a decision which had the effect of authorizing Mr Tawil-Albertini to pursue a dental profession in Belgium. His qualifica tion was also recognized by the United 13. Diplomas conferred by any Member Kingdom and Irish authorities. State are automatically recognized in the
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other States of the Community because they recognition is not able to verify such training correspond to the minimum criteria, defined to the same degree as that received in its ter by the second directive, 5 on which the ritory.' Member States have agreed.
16. By means of Directive 89/48/EEC of 21 14. There is no such coordination of training December 1988, 8the Council introduced a and legislation with non-member countries. general system for the recognition of higher- Article 1 (4) of the second directive provides, education diplomas awarded on completion in that respect, that 'nothing in this directive of professional education and training of at shall prejudice any facility which may be least three years' duration. However, that granted in accordance with their own rules directive does not apply to professions by Member States in respect of their own ter- which are the subject of a separate directive ritory to authorize holders of diplomas, cer establishing arrangements for the mutual rec 9 tificates and other evidence of formal qualifi ognition of diplomas by Member States. cations which have not been obtained in a Thus, although the effect of Article 1 (a) is Member State to take up and pursue the that diplomas obtained in a non-member activities of a dental practitioner'. 6 State may be recognized, the present dispute falls outwith its scope. Moreover, by a rec ommendation of that date, the Council rec ommended that the governments of the Member States should allow their nationals who hold diplomas awarded by a non- member State to take up and pursue regu 10 15. The ratio legis of that provision was lated professions within the Community. explained in an answer given on 29 July 1993 on behalf of the Commission by Mr Vanni d'Archirafi to a written question submitted by an MEP: '...automatic recognition is based on procedures ensuring mutual trust between Member States (each Member State 17. Council Directive 92/51/EEC of 18 awards a diploma in respect of training given June 1992 on a second general system in its territory which it guarantees as meeting for the recognition of professional education the minimum training standards laid down in and training to supplement Directive Directive 78/687/EEC) . Yet it follows from 89/48/EEC 11 likewise does not apply to Article 1 (4) referred to above that Member States have not been — and are still not — prepared to trust one another in the case of training received in a third country, the rea 7 — Answer to Written Question No 257/93 (OJ 1993 C 297, p. 26) . Sec also the answer to Question No 690/93 son being that the Member State granting (OJ 1993 C 292, p. 39) which appears to relate to the situa tion of the applicant in the mam proceedings. 8 — OJ 1989 L 19, p. 16. 9 — Second paragraph of Article 2. 10 — Council Recommendation 89/49/EEC concerning nationals 5 — The first recital of the directive refers to 'the requirement of Member States who hold a diploma conferred in a non- that minimum standards be observed'. member State (OJ 1989 L 19, p. 24). 6 — My emphasis. 11 — OJ 1992 L 209, p. 25.
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professions which are the subject of a speci 21. Any other solution would lead to a logi fic directive establishing arrangements for cal impasse: in effect, the facility granted to a the mutual recognition of diplomas by Mem Member State pursuant to Article 1 (4) of the ber States. 12 second directive would become an obligation with regard to all the others. Such a con struction cannot be placed on that provision without distorting it. More specifically, the equivalence of diplomas within the Commu 18. There is therefore no requirement for a nity cannot depend on bilateral agreements Member State to recognize a diploma concluded between Member States on one obtained in a non-member State, even in the side, and non-member States on the other, case of a Community national. That is still and which do not observe a minimum Com the case as regards the transitional arrange munity standard. ments provided for in Article 7 which refers only to the recognition of qualifications awarded by the Member States.
22. Commenting on a provision analogous to Article 1 (4) of the second directive which appears in Article 1 (5) of the 19. However, must a Member State recog Directive 75/363/EEC on doctors, 14 Lord nize as equivalent a qualification obtained in Cockfield, replying on behalf of the Com a non-member State on the ground that mission to a question from an MEP, 15 stated another Member State has recognized it as as follows: 'Recognition of diplomas equivalent to its own diplomas? obtained in a non-Community country thus depends solely on the regulations in force in the host Member State; these regulations must, of course, apply equally to nationals of 20. The question of recognition by Member that Member State and the nationals of the States of diplomas conferred by non-member other Member States. By virtue of Article 1 States is not germane to the specific direc (5) referred to above, the United Kingdom tives on the mutual recognition of diplomas. retains the right not to recognize a basic Generally they refer to it only in order to Israeli diploma, even though it has been rec explain that it is governed by national law ognized by the Federal Republic of Ger which determines its own criteria for equival many'. ence and which retains an unfettered power of discretion which Community law does 13 not put in question. Thus, a Member State cannot be obliged to recognize a diploma 23. That view was repeated on 13 March awarded by a non-member State on the 1989 in an answer given by Mr Bangemann, ground that another Member State considers again on behalf of the Commission. it to be equivalent. Commenting in particular on that occa-
12 — Article 2. 14 — Council Directive of 16 June 1975 concerning the coordina 13 — See, for example, Article 1 (4) of Council Direc tive 78/1027/EEC of 18 December 1978 concerning the tion of provisions laid down by law, regulation or adminis coordination of provisions laid down by law, regulation or trative action in respect of activities of doctors (OJ 1975 administrative action in respect of the activities of veteri L 167, p. 14). nary surgeons (OJ 1978 L 362, p, 7). 15 — Written Question No 2076/87 (OJ 1988 C 283, p. 11).
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sion on the directives of 25 July 1978, he does not automatically imply an obligation stated that 'the diplomas of non-Community upon the other Member States to recognize States are not covered by this "mutual recog them as well'. nition". The 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 24. It follows that, where a national of a professional activities in question and their Member State does not hold a Community exercise by the holders of diplomas acquired qualification, he may not rely on the provi in non-Community States. However, recog sions of the first directive, and in particular nition of such diplomas by a Member State on Article 7 of that directive.
25. I therefore propose that the Court give the following answer to the question submitted by the national court:
A Community national who holds a diploma in dentistry awarded by a non- member State cannot rely vis-à-vis a Member State on the provisions of Article 7 of Council Directive 78 / 686 / EEC of 25 July 1978 concerning the mutual recognition of diplomas , certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, even if the diploma in question has been recognized as equivalent in one or more other Member States.
16 — Answer to Written Question No 2103/88 (OJ 1989 C 202, p. 19).
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