C-202/99

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL LÉGER delivered on 31 May 2001 1

1. In these infringement proceedings the dental practitioners 3and coordination of Commission has put in issue the conformity their activities. 4 with Directive 78/687/EEC 2of the second system of training leading to entry to the profession of dentist in Italy, as well as the possibility, in that Member State, for doc- tors who practise as dentists to be regis- tered both as medical and dental practi- tioners. 3. Article 1 of the coordination directive provides that the Member States are to require persons wishing to take up and pursue a dental profession under the titles referred to in Article 1 of the recognition directive to hold a diploma, certificate or other evidence of formal qualifications referred to in Article 3 of the coordination directive, which guarantees that the person I — Legal background concerned has, during his complete training period, acquired the knowledge and experi- ence required by the said directive. That dental training is to comprise at least a five- year full-time course of theoretical and practical instruction.

A — Community law

did not exist in Italy, and was carried on by B — The Italian legislation doctors. In order to take account of this state of affairs, Article 19 of the recogni- tion directive provides, under the heading 'Chapter VII — Transitional provisions covering the special case of Italy', that: 5. Italy transposed the recognition and coordination directives into its internal legal order by Law No 409 of 24 July 1985, entitled 'Istituzione della professione sanitaria di odontoiatria e disposizioni relative al diritto di stabilimento ed alla 'From the date on which Italy takes the libera prestazione di servizi da parte dei measures necessary to comply with this dentisti cittadini di Stati membri delle Directive, Member States shall recognise, Comunità europee'. 5 for the purposes of carrying out the activ- ities referred to in Article 1 of this Direc- tive, the diplomas, certificates and other evidence of formal qualifications in medi- cine awarded in Italy to persons who had begun their university medical training not 6. This law established the profession of later than 18 months after notification of dentist in Italy and reserved the practice of this Directive, accompanied by a certificate it, under the title 'odontoiatra', to persons issued by the competent Italian authorities, having completed: certifying that these persons have effec- tively, lawfully and principally been engaged in Italy in the activities specified in Article 5 of Directive 78/687/EEC for at least three consecutive years during the five years prior to the issue of the certificate and — either the new specialised training for that these persons are authorised to carry dentists of five years, certified by the out the said activities under the same diploma of 'laurea in odontoiatria e conditions as holders of the diploma, protesi dentaria', 6resulting in author- certificate or other evidence of formal isation to practise; qualifications referred to in Article 3(f) of this Directive.

urgia', 7resulting in authorisation to — the second system of training provided practise medicine and surgery, and for by Law No 409/85 does not com- completed by a specialist diploma in ply with the minimum training criteria dentistry. The minimum period of laid down by the coordination direc- training is nine years: six years of tive, which requires dental training of medical training followed by three at least five years. Furthermore, that years of dental specialisation. training corresponds exactly to the specialised Italian diploma in stoma- tology referred to in Article 7 of Coun- cil Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition 7. Article 4 of Law No 409/85 provides of their diplomas, certificates and other that registration as a dentist is incompatible evidence of formal qualifications. 8 with registration in any other profession. Article 5 nevertheless allows doctors spe- cialising in dentistry to maintain their registration in both the register of doctors and that of dentists. The transitional provi- sion referred to in Article 20 of that law required non-specialist doctors who began their training before 28 January 1980 to opt for registration in the register of dentists, if they intended to practise den- — the possibility for the doctors referred tistry, within a period of five years com- to in Article 19 of the recognition mencing from the entry into force of Law directive, who primarily practise as No 409/85, that is to say, before 28 August dentists, to be registered in both the 1990. register of doctors and that of dentists is not in conformity with the recogni- tion and coordination directives.

11. The Commission's application was lodged at the Court Registry on 26 May 1999. The Commission claims that the (3) order the Commission to pay the costs. Court should:

Ill — Admissibility of the application (1) declare that, by maintaining a second system of training for entry to the profession of dentist contrary to the 13. The Italian Government raises two coordination directive, and by main- objections to the admissibility of the Com- taining the possibility for doctors who mission's application. practise as dentists to be registered in both the register of doctors and that of dentists, the Italian Republic has failed to fulfil its obligations under the said directive;

First objection of inadmissibility

14. It submits, firstly, that the complaint of (2) order the Italian Republic to pay the having maintained a second system of costs. training, and the possibility of dual regis- tration in the registers of doctors and dentists do not correspond to the reality 10 — GURI No 260 of 6 November 1998. of the situation. The provisions in issue

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18. It will be recalled that, according to the Court's settled case-law, the Commission 22. It does not appear that the capacity of a must indicate, in any application made Member State to put forward its defence under Article 226 EC, the specific com- depends on the date on which the national plaints on which the Court is asked to rule provisions considered to be contrary to and, at the very least in summary form, the Community law were adopted. The reality legal and factual particulars on which those of the breach itself is independent of this complaints are based. 11 date, and is determined by the existence of

11 — See, for a recent example, Case C-375/95 Commission v 12 — Case C-365/97 Commission v Italy [1999] ECR I-7773, Greece [1997] ECR I-5981, paragraph 35. paragraph 23.

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measures infringing Community law at the put forward its case in defence. This plea of end of the period laid down by the inadmissibility must therefore be rejected. Commission in the reasoned opinion. 13

23. From the point of view of the rights of defence of the Member State concerned, it Second objection of inadmissibility is important that it be in a position to identify the provisions of its national law considered to infringe Community law, as well as their content. 27. The Italian Government submits, sec- ondly, that the Commission has not indi- cated, in support of its application, the provisions of the directive that have not been complied with. The infringement said 24. In that respect, it should be observed to have been committed by the Italian that they are accurately set out in the Republic cannot therefore be identified. application.

34. In a certain number of judgments the 30. As a result, the Commission's applica- Court has ruled on pleas of inadmissibility tion must be held to be admissible on this alleging either the imprecise nature of the point. relief sought in the application, or the lack of formal citation by the Commission of the rules of Community law alleged to have been infringed by a Member State.

Admissibility of the second complaint

35. In one of those judgments the Member State alleged imprecision on the part of the 31. According to the Italian Government, Commission as regards the relief sought. the Commission has failed to link the The Commission was seeking 'a declaration complaint about dual registration in that the directive and "in particular" Arti- the registers of doctors and dentists of the cles 2, 3 and 8 thereof had been infringed. doctors referred to in Article 19 of the [Germany considers that] only the infringe- recognition directive to a specific provision ment of the provisions of the directive of the coordination directive. For this expressly referred to, and not a general reason, it claims, the application should complaint that the directive has been be held to be inadmissible. breached, may be taken into account'. 18

32. Before dealing with this point, it is The Court dismissed that plea on the appropriate to recall certain principles laid grounds that the articles of the directive down by the Court's case-law on admissi- expressly cited by the Commission had bility. enabled the defendant government to understand unambiguously that a breach of those specific provisions was alleged. According to the Court, the adverbial phrase 'in particular' was used in the sense 33. As I have already said, the Commission must set out in its application the specific 17 — Point 18 of this Opinion. complaints on which it relies, as well as, in 18 — Case C-431/92 Commission v Germany [1995] ECR summary form, the matters of law or of I-2189, patagtaph 13.

of 'specifically' in order to designate pre- The Court firstly pointed out that Arti- cisely those articles of the directive which cle 141 of the EAEC Treaty was identical had been infringed. 19 to Article 169 of the EEC Treaty. After stating that, according to settled case-law, a letter of formal notice could necessarily only be a first, brief summary of the complaints, the Court then stated that the annexed list included the directive in issue in the case, expressly stated to be a 36. In the same case, the Member State in Euratom directive. According to the Court, question submitted that the infringement of the Commission had made good its failure an article of a directive had not been to cite the relevant provisions of the EAEC referred to in the reasoned opinion and Treaty in its reasoned opinion, which had been raised for the first time in the referred to various articles of that Treaty. application. The Court held that, whilst it In its application to the Court, the Com- was true that the article in dispute was not mission also referred to those same provi- formally referred to in the conclusions of sions. 2 3 the reasoned opinion, it was nevertheless mentioned in the body of that document amongst the provisions relied on by the Commission. The objection of inadmissi- bility was therefore dismissed. 20 A more recent judgment has applied the same principle. 21 The Court lastly stated that the Commis- sion's real complaint, namely the non- transposition of the directive, had not changed throughout the pre-litigation pro- cedure. The Member State in question could not, therefore, be in any doubt that 37. In another case, the Member State the Commission's complaint concerned a concerned alleged that the letter of formal breach of the EAEC Treaty on the grounds notice did not constitute a lawful act of a failure to transpose the directive in initiating an infringement procedure. It question. 24 submitted that the Commission had sent a standard letter of formal notice, listing in an annex several directives, including that forming the subject of the action. The Commission had, furthermore, stated that it was proceeding under Article 169 of the EEC Treaty instead of under Article 141 of 38. Even though they are few in number, the EAEC Treaty, which was, however, the and the issues concerned are not strictly the only provision concerned. 22 same, those judgments seem to me to indicate a pattern that it would be useful to make clearer when the Court is called 19 — Ibid., paragraph 15. upon to rule on a plea of inadmissibility 20 — Commission v Germany, cited above, paragraphs 16 to 18. 21 — Case C-135/94 Commission v Italy, cited above, paragraph 38. 22 — Case C-135/94 Commission v Italy [1995] ECR I-1805, 23 — Ibid., paragraph 8. paragraph 3. 24 — Ibid., paragraphs 9 and 10.

39. In the light of that case-law a first observation is called for: where the Com- munity rules whose infringement is alleged are cited, in one way or another, a plea of inadmissibility based on insufficient preci- sion in the application will be dismissed. It is enough that, in the letter of formal This concern to check the citation of the notice, the text containing the relevant texts in question implies a duty to cite on provisions is referred to — Treaty or direc- the part of the Commission. tive, for example —, if these are then mentioned in the reasoned opinion and then in the application. The location of these citations matters little because they do not have to appear in the operative part of the reasoned opinion and the applica- tion. It is enough that they can be read in 41. I do not think that such a strict the body of the text of those documents for interpretation of the above-cited judg- them to be invoked by the Commission in ments, founded on reasoning by contrary support of its application. inference, is the only possible one. It would be going too far to dismiss an infringement application which does not formally cite the Community provision alleged to be infringed, without verifying whether the Member State concerned is in a position to 40. It may be asked whether it is necessary know its content. to go further and interpret the case- law cited above as meaning that the citation of the relevant Community provisions, held to be sufficient in the cases mentioned, is necessary in all cases. On that basis, the failure to refer precisely to the provision infringed by the Member State would result in the inadmissibility of the action. 42. What is really in point in the discussion over the degree of precision of the terms of an application in infringement proceedings is, of course, the ability of the defendant government to prepare its defence. It will not be in a position to advance relevant The Court has taken care to state that, objections to the complaints raised against although the Community provision in issue it if it does not know the precise content of was not formally referred to in the conclu- the Community rules it is said to have sions of the reasoned opinion, it was none infringed.

48. In the application the Commission has thus described the second complaint by reference to the recognition directive alone. 46. In the application the Commission states that the separation between the professions of dentist and doctor is far from complete in Italy, without linking the rule said to be infringed to a specific provision of one of the two directives. 49. It acknowledged at the reply stage that 'the "recognition" directive appears neither in the reasoned opinion nor in the form of order sought in the application', 28 and concluded by stating, at the same proce- 47. The recognition directive is the only dural stage, that 'it is Article 1 of the relevant Community norm cited by the "coordination" directive 78/687 that Commission in the part of the application clearly constitutes the framework of the dealing with the second complaint. It states two complaints'. 29 that 'the "recognition" directive precludes

27 — Paragraph 17. 25 — Points 19 and 20 of this Opinion. 28 — Paragraph 13. 26 — Ibid., point 33. 29 — Ibid., paragraph 11, emphasis added.

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COMMISSION v ITALY

50. In response to the Italian Government's 52. The coordination directive is also cited plea of inadmissibility, the Commission in the operative part of the application, thought it useful to point out that it has without referring to any particular article 'carefully set out [in the reasoned opinion and without accompanying legal reasoning. and the application] the national and Community "legislative framework" within which the two alleged infringements of the "coordination" directive arise'. 30

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IV — The plea alleging existence of a 58. The second system of training for second system of training for entry to the dentists could not therefore be maintained profession of dentist that is contrary to the beyond the transposition of the coordina- coordination directive tion directive. Moreover, it corresponds exactly to the specialist medical diploma in stomatology (odontostomatologia) men- tioned in Article 7 of Directive 93/16.

Arguments of the parties 59. The Italian Government replies that, in calculating the duration of that training, it is necessary to include certain periods of study undertaken during the training required to obtain the diploma in medicine. 56. The Commission submits that the sec- Furthermore, Article 1 of the coordination ond system of training laid down by Law directive does not state that the training No 409/85, in which three years are dedi- referred to in the annex must be undertaken cated to dentistry, clearly fails to fulfil the solely within a single course of studies requirement for a specialised training of exclusively designed to lead to a diploma in five years, set out in Article 1 of the dentistry. coordination directive.

65. It will be noted that, whilst it sets as Assessment five years the total period of study neces- sary for acquiring a dental training, the latter provision is silent as to the time to be spent within that period on each subject- 62. It follows from Article 1(1) of the matter listed in the annex to the coordina- coordination directive that the Member tion directive. States are to require persons wishing to take up and pursue a dental profession under the titles in force in their territories to hold a qualification guaranteeing that the person concerned has acquired during the full period of his training appropriate knowledge in various subjects relating to dentistry, as well as suitable experience in 66. Among the three groups of subjects the field. appearing in the annex, only group (c), entitled 'Subjects directly related to dentis- try', constitutes specialised dental training. Groups (a) and (b), entitled 'Basic subjects' and 'Medico-biological subjects and gen- eral medical subjects', include subjects 63. According to that article, '[T]his train- which must be taken in order to practise ing shall provide him with the skills neces- medicine just as much as dentistry. Arti- sary for carrying out all activities involving cle 1(2) says nothing about a possible the prevention, diagnosis and treatment of minimum period to be devoted to purely anomalies and diseases of the teeth, mouth, dental subjects. jaws and associated tissues'.

64. Article 1(2) provides, finally, that '[A] complete period of dental training of this 67. The only clarification appears in the kind shall comprise at least a five-year full text preceding the list of subjects, which time course of theoretical and practical states that the programme of studies lead- instruction given in a university, in a higher- ing to a qualification in dentistry is to education institution recognised as having include at least those subjects.

71. It cannot be ignored that the training referred to in Article 1(2) of the coordina- tion directive is expressly categorised as 'dental training', which implies that the five years of theory and practical study making 74. In the light of the foregoing, and in the up this training are devoted to a significant absence of any particular indications in the education in the subjects of dentistry. text on the organisation of the training during those five years, Article 1(2) of the coordination directive is to be interpreted as meaning that the Member States are required to spread the teaching of the group (c) subjects mentioned in the annex to that 72. Furthermore, the Italian Government's directive over the whole legal period pro- reading seems to me to conflict with a vided for by that article. Accordingly, I uniform interpretation of the coordination consider that the Commission's application directive, which is essential in view of its must be allowed in this respect.

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V — Costs asked for in the successful party's plead- ings. However, under the first subpara- graph of Article 69(3), the Court may order that each party bears its own costs if each succeeds on some but fails on other heads. 75. Under Article 69(2) of the Rules of Since both the Commission and the Italian Procedure, the unsuccessful party is to be Republic have been partially unsuccessful, ordered to pay the costs if they have been they should bear their own costs.

Conclusion

76. In the light of the above considerations, I propose that the Court declare that: