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14 December 1964 (hereinafter 'the 1964 5. On 8 November 1991, the Italian Law'), which states: Republic adopted Law No 362 laying down rules regarding the reorganisation of the pharmaceutical sector (hereinafter 'the 1991 Law').

'In the case mentioned in point (b), a member of a health profession who exer- cises his profession abroad or who works abroad in a hospital service, for public authorities or for private persons may, at This Law amended Article 9(e) of the his request, keep his name on the rolls of Legislative Decree, which now provides the Council or Board from which he had that, to be on the register, a practitioner been removed'. 'must reside or exercise his profession within the district of the Council or Board'.

4. On 24 July 1985, the Italian Republic adopted Law No 409 on the profession of dental surgeons and laying down provi- sions concerning the right of establishment 6. It is apparent from the documents before and the freedom to provide services of the Court 2 that the regulations of the dentists who are nationals of Member Council of Medical Surgeons and Dental States of the European Communities (here- Surgeons of the province of Imperia, 3 inafter 'the 1985 Law'). adopted in 1991, contain provisions iden- tical to the original version of the Legisla- tive Decree.

The sixth paragraph of Article 9 of the 1985 Law states that 'the appropriate professional Council shall carry out the procedure of enrolment in accordance with Firstly, these rules require, for the purpose the laws in force at the time'. of enrolment, that the practitioner be resident in the district of the Council or Board to which he belongs [Article 9(e)]. Secondly, it provides that a practitioner is to be removed from the register in the event Furthermore, Article 15 of the same Law of transfer of residence abroad [Arti- states that 'dental surgeons of Italian cle 11(b)]. nationality who transfer their residence to another Member State of the European 2 — Annex 5 of the application lodged by the Commission. Communities may, on request, remain on 3 — Hereinafter 'the regulations of the Council of the province the relevant Italian dental register'. of Imperia'.

— by maintaining in force Article 15, Title IV of Law No 409 of 24 July 10. The Commission repeated its criticisms 1985, which refers to Article 1 of Law in its reasoned opinion which it addressed No 1398 of 14 December 1964, hav- to the Italian Republic on 11 June 1998. ing the effect that only Italian citizens may remain registered in case of trans- fer of residence to another Member 4 —Written question E-1715/95 of 21 June 1995 (OJ 1995 C 227, p. 20). State'.

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14. The Italian Republic asks the Court to In the same way, the residence requirement dismiss the action and to order the Com- constitutes an obstacle to the free move- mission to pay the costs of the proceedings. ment of workers since it prevents dentists established in another Member State from practising as employees on Italian territory.

Furthermore, the residence requirement is I I I— Arguments put forward by the par- not justified either by the necessity to ties guarantee respect for the medical code of ethics or by a concern to guarantee con- tinuity in medical treatment. 6

15. In their statements, the parties distin- guished the residence requirement laid down in Article 9(e) of the Legislative Decree from the obligatory removal from 17. The Commission also calls into ques- the register in the event of residence being tion the legislative technique adopted by transferred abroad, stipulated by Article 15 the Italian authorities, in amending the of the 1985 Law. Legislative Decree — that is to say a piece of general legislation — by a sectoral law relating to pharmacists — the 1991 Law.

The obligatory removal from the register in the event of transfer of residence 18. The Italian Republic is of the opinion that the Legislative Decree is compatible with Articles 48 and 52 of the EC Treaty.

20. The Commission also claims that the obligatory removal from the register in the case of residence being transferred abroad — provided for in Article 11(b) of the Legislative Decree — constitutes an It points out that Article 9(e) of the Decree obstacle to freedom of establishment and was expressly amended by the 1991 Law. to the free movement of workers. 9 This provision now provides that, in order to be registered, the applicant practitioner must either be resident within the relevant practising district or practise his profession within that district. This last require- ment — the practice of the profession within the relevant practising district — According to the Commission, such a is compatible with the right of establish- measure has the effect of preventing den- ment and the free movement of workers. 8 tists established and resident in another Member State from opening a second surgery or from working as employees on Italian territory. Furthermore, this measure is discriminatory in that it does not prohibit dentists established in Italy from opening a 19. The Italian Government also argues second surgery in another Member State, that the legislative technique used does not on condition that they remain resident in leave room for any uncertainty. According the practising district to which they belong in Italy.

7 — Annex 11 of the Commission's application. 8 — The Italian Republic refers to the cases of Klopp and 9 — The Commission cites Case 96/85 Commission v France, Gebhard, cited above. cited above.

According to the Italian Republic, the Italian legislation must be interpreted in accordance with the right of establishment 25. The Court has repeatedly held that enjoyed by nationals of other Member 'freedom of establishment is not confined States. The Italian Government points out to the right to create a single establishment that Article 11(b) of the Legislative Decree within the Community, but entails the right was amended by the 1964 Law so that any to set up and maintain, subject to obser- person practising a health profession in vance of the relevant professional rules of Italy can, on request, remain on the register conduct, more than one place of work when transferring residence to another within the Community'. 11 Member State. Accordingly, the Italian legislation should be interpreted to the effect that the Legislative Decree, as amen- 10 — Case C-106/91 Ramrath v Ministre de la justice [1992] ded by the 1964 Law, notwithstanding ECR I-3351, at paragraph 21. 11 — Case 143/87 Stanton v Inasti [1988] ECR 3877, at Article 15 of the 1985 Law, also allows paragraph 11. See also Case 107/83 Ordre des avocats v nationals of other Member States to remain Klopp [1984] ECR 2971, at paragraphs 18 and 19; Case 270/83 Commission v france [1986] ECR 273, at para- on a register in Italy when they transfer graph 15; Joined Cases 154/87 and 155/87 RSVZ v Wolf and Others [1988] ECR 3897, at paragraph 11; and residence to another EU Member State. Ramrath, at paragraph 20.

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26. In Stanton v INASTI, 12 the Court also territory. In the same way, such a measure stated that these considerations are 'equally constitutes an obstacle to the free move- true in respect of a person who is employed ment of workers since it prevents dentists in one Member State and wishes, in addi- established in another Member State from tion, to work in another Member State in a practising as employees in the host Member self-employed capacity'. State without transferring their residence there.

12 — Cited above, at paragraph 12. 13 — Stanton, at paragraph 13. See also Ramrath (cited above), 14 — Annex 6 of the Commission's application. at paragraph 28; and Case C-18/95 Terhoeve [1999] ECR 15 — Article9, paragraph 1, of the 1991 Law (translation, I-345, at paragraph 37. emphasis added).

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Furthermore, the Italian Government has from the State which, in themselves, create explained the reasons for which, under the restrictions on trade between Member rules of interpretation in force in Italy, the States. It also applies where a Member field of application of the 1991 Law is not State abstains from adopting the measures limited to the pharmaceutical sector alone, required in order to deal with obstacles to but also covers dentists. 16 the free movement of goods which are not caused by the State'. 19

30. Therefore, the Italian legislation no longer formally contains any provision that makes the practice of the profession of dentist conditional upon a residence requirement. 17 The Court considered that 'the fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private 31. However, the formal compliance of the individuals on its territory aimed at pro- Italian rules with Articles 48 and 52 of the ducts originating in other Member States is EC Treaty is not sufficient to discharge the just as likely to obstruct intra-Community Italian Republic of its obligations under trade as is a positive act'. 20 these provisions. 18

Indeed, in his letter of 16 January 1998 the President of the National Federation expressly confirmed 'that a Community 'In response to your letter of 17 December national who wishes to practise the profes- 1997, reference no. 2864, we would inform sion in [Italy] must, in accordance with you that neither the Minister for Health [the] national law, reside in the district of nor the Minister for Foreign Affairs have the provincial Council in which they wish replied to our question concerning the to register'. 23 Italian residence requirement for Commu- nity nationals wishing to practise the pro- fession in Italy.

37. In this regard, certain evidence gives grounds for assuming that the residence requirement in question is applied through- out a significant part of Italy. In the absence of these responses, we can only confirm that a Community national who wishes to practise the profession in our country must, in accordance with our national law, reside in the district of the provincial Council in which they wish to First, the letter produced by the Commis- practise'. 22 sion came from the 'National' Federation of medical surgeons and dental surgeons, in

21 — Annex 11 of the application. 22 — Translation. 23 — Emphasis added.

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other words the supervisory authority trouble to approach the Minister for Health which is responsible for the entire national and the Minister for Foreign Affairs to find territory. The context of this correspon- out their positions on 'the residence dence reveals that certain provincial Coun- requirement for Community nationals cils turn to the National Federation to who wish to practice in [Italy]'. determine how to interpret Italian legisla- tion.

24 — Defence (p. 6 of the French translation). 25 — Letter of 16 January 1998 (emphasis added).

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40. I therefore propose that the Court find State of the European Union. Indeed, the that the Italian Government has failed to objections in that case would be identical to fulfil its obligations under Articles 5, 48 the objections to a national law that stated and 52 of the Treaty. that dentists wishing to transfer their residence to another Member State must be removed from the register of dentists in their original Member State.

The obligatory removal from the register in the event of transfer of residence 44. In the present case, Article 11(b) of the Legislative Decree — which originally provided that removal from the register took place in the case of 'transfer of 41. The Commission's second complaint residence of the registered practitioner relates to the provisions of Italian law abroad' — has been amended twice. concerning the obligatory removal from the register in the event of transfer of residence abroad.

First, Article 1 of the 1964 Law provided that 'a member of a health profession who practises his profession abroad... may, on 42. In Case 96/85 Commission v France, 26 request, remain on the Council or Board the Court held that a Member State could from which he had been removed'. not make the practice of dentistry in that Member State conditional, for dentists established in another Member State, upon their removal from the register in that other Member State. The Court considered such a condition to be contrary to the Treaty Second, Article 15 of the 1985 Law states provisions that guarantee the free move- that: 'Dental surgeons of Italian nationality ment of persons. who transfer their residence to another Member State of the European Commu- nities may, on request, remain on the relevant Italian dental Council.'

49. However, in the present case, the Italian Government has admitted the neces- 47. I do not think that the Italian Govern- sity to end the ambiguity created by its ment's view should be accepted. legislation by stating that 'to clear up any doubt on the subject, the Council of Ministers... has already announced... a legislative initiative to specify that this right [to maintain enrolment in the case of transfer of residence] extends to all dentists of the Member States'. 29 48. The Court has consistently ruled that a breach of obligations by a Member State can arise simply from maintaining in force 28 — Case 168/85 Commission v Italy [1986] ECR 2945, at paragraph 11. See also Case 167/73 Commission v France [19741 ECR 359, at paragraphs 34-48; Case 159/78 Commission v Italy [19791 ECR 3247, at paragraphs 20- 27 —Case 38/87 Commission v Greece [1988] ECR 4415, at 23; and Case C-58/90 Commission v Italy [1991] ECR paragraph 6. See also, among others, Case 33/88 Allué and I-4193, at paragraphs 12 and 13. Cooman [19891 ECR 1591, at paragraph 11. 29 — Defence (p. 8 of the French translation).

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50. Accordingly, I suggest that the Court 51 .Ialso propose that the Court order the should find that, by maintaining Article 15 Italian Republic to pay the costs of the of the 1985 Law in its internal legal order, proceedings, in accordance with Arti- the Italian Republic has failed to fulfil its cle 69(2) of the Rules of Procedure and obligations under Articles 48 and 52 of the with the Commission's claims. Treaty.

— maintaining in force Article 15 of Law No 409 of 24 July 1985 which allows only Italian dentists to remain on the dental register of their professional Council in the case of transfer of residence to another Member State.

(2) The Italian Republic is ordered to pay the costs.

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