C-437/03 · GlobalLawDB

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Judgment of the Court (First Chamber)27 October 2005^noteIn Case C-437/03,ACTION under Article 226 EC for failure to fulfil obligations, brought on 16 October 2003,Commission of the European Communities, represented by C. Schmidt, C. Tufvesson and A. Manville, acting as Agents, with an address for service in Luxembourg,vRepublic of Austria, represented by E. Riedl, acting as Agent, with an address for service in Luxembourg,THE COURT (First Chamber),composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), N. Colneric, K. Lenaerts and E. Juhász, Judges,Advocate General: A. Tizzano,Registrar: R. Grass,after hearing the Opinion of the Advocate General at the sitting on 17 March 2005,gives the following

Judgment

1By its application, the Commission of the European Communties requests the Court to declare that:— by allowing dentists (‘Dentisten’) under Paragraphs 6 and 4(3) of the Law on Dentists (Dentistengesetz, BGBl. 90/1949) to engage in their occupation under the title ‘Zahnarzt’ (dental practitioner) or ‘Zahnarzt (Dentist)’ (dental practitioner (dentist)) and to make use of the exception laid down in Article 19b of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1978 L 233, p. 1), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p. 1) (‘the Recognition Directive’), although they do not meet the minimum requirements under Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners (OJ 1978 L 233, p. 10), as amended by Directive 2001/19 (‘the Coordination Directive’) to be covered by the rules under the Recognition and Coordination Directives, the Republic of Austria has failed to fulfil its obligations under Articles 1 and 19b of the Recognition Directive and under Article 1 of the Coordination Directive;— by allowing, under Paragraphs 17 and 23 of the Law On Doctors (Ärztegesetz, BGBl. I 169/1998) of 10 November 1998, specialists in dental, oral and maxillofacial surgery (Fachärzte für Zahn-, Mund- und Kieferheilkunde) to continue, in breach of Article 19b of the Recognition Directive, to engage in their occupation under the title ‘Fachärzte für Zahn-, Mund- und Kieferheilkunde’ and by those specialists not being placed on the same footing as dental practitioners in so far as those specialists are entitled to carry out their activities under the same conditions as holders of the diplomas, certificates or other evidence of formal qualifications referred to in Annex A to that directive (dental practitioners), the Republic of Austria has failed to fulfil its obligations under Articles 1 and 19b of the Recognition Directive.

Relevant provisions

Community legislation

Provisions of general application

2The Recognition and Coordination Directives were adopted on the basis, in particular, of the provisions of the EC Treaty intended to achieve freedom of movement of workers and to abolish restrictions on freedom of establishment and freedom to provide services.

3The aim of the Recognition Directive, according to the fourth recital in the preamble thereto, is the mutual recognition of diplomas, certificates and other evidence of formal qualifications of a dental practitioner enabling activities in the field of dentistry to be taken up and pursued and the mutual recognition of diplomas, certificates and other evidence of formal qualifications in respect of practitioners of specialised dentistry.

4It is apparent from the sixth recital in the Recognition Directive and the first recital in the preamble to the Coordination Directive that the objective of the latter directive is to coordinate the number of specialisations in dentistry and the type and the length of training courses for such specialisations in order to enable Member States to proceed with the mutual recognition of diplomas, certificates and other evidence of formal qualifications by the Recognition Directive.

5Under Article 1(1) of the Coordination Directive, the Member States are to require persons wishing to take up and pursue activities as dental practitioners using 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 Annex A to the same directive which guarantees that during his complete training period the person concerned has acquired the appropriate knowledge and experience which the Coordination Directive defines. Article 1(2) of that directive states, in particular, that that training is to comprise at least a five-year fulltime course.

6In Article 1 of the Recognition Directive is a list of titles in respect of dental practitioners. That article was supplemented by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1) by the addition, in particular, of the following words:‘in Austria: the title which will be notified by Austria to the Member States and to the Commission by 31 December 1998 at the latest’.

7Annex A to the ‘Recognition Directive’, introduced by Directive 2001/19, contains a list of diplomas, certificates and other evidence of formal qualifications of a dental practitioner. As regards the Republic of Austria, that annex includes a reference to a diploma entitled ‘Bescheid über die Verleihung des akademischen Grades “Doktor der Zahnheilkunde”’(decision on the grant of the university degree of ‘doctor in dentistry’) awarded by the faculties of medicine of the universities.

Transitional provisions regarding the Republic of Austria

8Article 19b of the Recognition Directive provides:‘From the date on which the Republic of Austria takes the measures necessary to comply with this Directive, the Member States shall recognise, for the purposes of carrying out the activities referred to in Article 1 of this Directive, the diplomas, certificates and other evidence of formal qualifications in medicine awarded in Austria to persons who had begun their university training before 1 January 1994, accompanied by a certificate issued by the competent Austrian authorities, certifying that these persons have effectively, lawfully and principally been engaged in Austria in the activities [involving the prevention, diagnosis and treatment of anomalies and diseases of the teeth, mouth, jaws and associated tissues] for at least three consecutive years during the five years prior to the issue of the certificate and that these persons are authorised to carry out the said activities under the same conditions as holders of the diploma, certificate or other evidence of formal qualifications referred to in Annex A.The requirement of three years' experience referred to in the first subparagraph shall be waived in the case of persons who have successfully completed at least three years of study which are certified by the competent authorities as being equivalent to the training referred to in Article 1 of the [Coordination] Directive.’

Provisions regarding use of titles

9Article 8 of the Recognition Directive is the sole provision of Chapter V of that directive, entitled ‘Use of academic title’. It provides:1. Without prejudice to Article 17, host Member States shall ensure that the nationals of Member States who fulfil the conditions laid down in Article ... 19b have the right to use the lawful academic title in so far as this is not identical with the professional title or, where appropriate, the abbreviation thereof, of their Member State of origin or of the Member State from which they come, in the language of that State. Host Member States may require this title to be followed by the name and location of the establishment or examining board which awarded it.2. If the academic title used in the Member State of origin or in the Member State from which a foreign national comes can be confused in the host Member State with a title requiring in that State additional training which the person concerned has not undergone, the host Member State may require such a person to use the title employed in the Member State of origin or the Member State from which he comes in suitable wording to be drawn up by the host Member State.’

10Under Article 17(1) ofthat directive:‘Where in a host Member State the use of the professional title relating to any of the activities referred to in Article 1 is subject to rules, nationals of other Member States who fulfil the conditions laid down in Article ... 19b shall use the professional title of the host Member State which, in that State, corresponds to those conditions of qualification and shall use the abbreviated title.’

National legislation

Provisions concerning the profession of Dentist

11Until 31 December 1975, there was specific training in Austria giving access to the profession of ‘Dentist’. The members of that profession, who carry out some of the activities of dental practitioners, have undergone three years of non-university training and may not, according to the Austrian Government, be placed on the same footing as doctors. Practice of the profession of ‘Dentist’ is governed by the Law on Dentists. The version of that law applicable to the facts here is that resulting from the amendments made by the Federal Law of 10 March 1999 (BGBl. I, 45/1999).

12Pursuant to Paragraph 6(1) of the Law on Dentists, a ‘Dentist’ is authorised to pursue his profession under the professional title ‘Zahnarzt’ and to add the academic title ‘Dentist’ in brackets.

13Under Paragraph 4(3) of the same law, the professional body of ‘Dentisten’ (Dentistenkammer) is to issue to them, on request, the certificate provided for in Article 19b of the Recognition Directive in order to allow them to pursue the profession of dental practitioner in the other Member States.

Provisions concerning the profession of Facharzt für Zahn-, Mund- und Kieferheilkunde

14At the time of the accession of the Republic of Austria to the European Union, there was no training for dental practitioners in that Member State which satisfied the requirements laid down in Article 1 of the Coordination Directive. Dental care was entrusted to doctors who, after their studies in general medicine, had completed a postdoctoral specialisation of dental practitioner and pursued their profession under the title ‘Facharzt für Zahn-, Mund- und Kieferheilkunde’.

15In order to comply with the Recognition and Coordination Directives, the Republic of Austria therefore had to introduce after its accession to the Union a new system of training for access to the specialisation in dentistry. To that end, a Law on Doctors was adopted. The version of that law applicable to the facts of the present case is that resulting from the amendments made by the Federal Law of 10 August 2001 (BGBl. I, 110/2001).

16The Law on Doctors introduced new training for the dental practitioner (‘Zahnarzt’), which came into force on 1 August 1998. The training courses for the specialisation in dentistry intended for qualified doctors and giving access to the profession of specialist in dental, oral and maxillofacial surgery (‘specialist in dental surgery’) were simultaneously abolished with effect from the end of the 2000-2001 academic year.

17Under Paragraph 17(1) of that law, only dental practitioners (‘Zahnärzte’) and specialists in dental surgery (‘Fachärzte für Zahn-, Mund- und Kieferheilkunde’) are allowed to pursue the activities of dental practitioner independently.

18Paragraph 23 of that law, entitled ‘Definitions’ and included in the third section thereof, is worded as follows:‘Unless provided otherwise herein, in this section(1) the generic term “doctor” (“medical”) means all doctors, irrespective of whether they are authorised to pursue their profession as “physician” (“Arzt für Allgemeinmedizin”), “licensed doctor” (“approbierter Arzt”), “medical specialist” (“Facharzt”), “dental practitioner” (“Zahnarzt”) or “house officer” (“Turn-usarzt”),(2) the term “medical specialist” (“Facharzt”) means all medical specialists including specialists in dental surgery (“Facharzt für Zahn-, Mund- und Kieferheilkunde”).’

19The use of professional medical titles is governed by the rules in Paragraphs 43 and 44 of the Law on Doctors. Paragraph 43(7) provides that:‘Specialists in dental surgery (“Fachärzte für Zahn-, Mund- und Kieferheilkunde”) may use the professional title either of “Specialist in dental surgery” (“Facharzt für Zahn-, Mund- und Kieferheilkunde”) or “Dental practitioner” (“Zahnarzt”).’

Pre-litigation procedure

20On 26 July 1999 the Republic of Austria notified the Commission, under Article 1 of the Recognition Directive, of the titles ‘Zahnarzt’, ‘Zahnarzt (Dentist)’ and ‘Facharzt für Zahn-, Mund- und Kieferheilkunde’. It also notified the Commission and the other Member States of the diploma awarded on completion of the training of ‘Dentist’ with a view to its inclusion in Annex A to the Recognition Directive. That diploma is entitled ‘Prüfungszeugnis über die staatliche Dentistenprüfung, ausgestellt von der Österreichischen Dentistenkammer, Lehrinstitut für Dentisten, und Bescheinigung über die einjährige Tätigkeit als Dentistenassistent’ (State diploma in dentistry, awarded by the Institute of dental studies of the Austrian dentists' association, and Certificate of one year's activity as a dental assistant).

21The Commission took the view that the provisions of Austrian law concerning pursuit of the professions of ‘Dentist’ and specialist in dental surgery were incompatible with the Recognition and Coordination Directives and therefore initiated the procedure for failure to fulfil obligations provided for in the first paragraph of Article 226 EC. Having given the Republic of Austria notice to submit its observations, on 18 July 2001 the Commission issued a reasoned opinion calling on that Member State to take the steps necessary to comply with that opinion within two months of its notification. As it considered that the situation was still unsatisfactory, notwithstanding the observations communicated by the Austrian authorities in reply to that reasoned opinion, the Commission decided to bring the present action.

The action

The first complaint, concerning the profession of Dentist

22That ground is divided into two limbs, which should be analysed separately.

Paragraph 6(1) of the Law on Dentists

23By the first limb of its first complaint, the Commission claims, essentially, that Paragraph 6(1) of the Law on Dentists, which authorises ‘Dentisten’ to pursue their profession under the professional title ‘Zahnarzt’, is contrary to Article 1 of the Coordination Directive, inasmuch as ‘Dentisten’ do not fulfil the training criteria imposed by that article in respect of pursuing the profession of dental practitioner under the titles referred to in Article 1 of the Recognition Directive, which include ‘Zahnarzt’ for the Republic of Austria.

24The Austrian Government did not take a view in its observations on that limb of the first complaint.

25It is common ground that the training of ‘Dentisten’ is non-university training of only three years' duration, which does not therefore fulfil the criteria imposed by Article 1(2) of the Coordination Directive. Accordingly, the Commission was entitled to consider that the diploma awarded on completion of that training, notified by the Republic of Austria, could not be included in Annex A to the Recognition Directive.

26Paragraph 6(1) of the Law on Dentists is therefore contrary to Article 1 of the Coordination Directive in that it grants the possibility of pursuing the profession of dental practitioner under the title ‘Zahnarzt’ to persons who do not satisfy the training requirements imposed by that article in respect of pursuing that profession under that title.

27In those circumstances, the first limb of the Commission's first complaint is well founded.

Paragraph 4(3) of the Law on Dentists

28By the second limb of its first complaint, the Commission claims, essentially, that Paragraph 4(3) of the Law on Dentists is contrary to Article 19b of the Recognition Directive in that it provides for the grant of the certificate referred to in Article 19b, although the requirements set out in that article are not satisfied.

29The Austrian Government admits that ‘Dentisten’ do not come within the scope of Article 19b of the Recognition Directive if they are not holders of ‘formal qualifications in medicine’ and do not have ‘university training’.

30It follows that the second limb of the Commission's first complaint is also well founded.

The Commission's second complaint, concerning the profession of specialist in dental surgery

31The Commission claims, essentially, that the fact that in Austria specialists in dental surgery are authorised to use the title ‘Facharzt für Zahn-, Mund- und Kieferheilkunde’and that, accordingly, they are not required to use the title ‘Zahnarzt’, is contrary to Article 19b of the Recognition Directive.

32First, it must be stated that, although the Commission cites Paragraphs 17 and 23 of the Law on Doctors in its action, it is clear that the authorisation given to such specialists to use the title ‘Facharzt für Zahn-, Mund- und Kieferheilkunde’ which is challenged by the Commission stems from Paragraph 43(7) of that law.

33The Commission relies, first, on a literal interpretation of Article 19b of the Recognition Directive. It points out that the ‘holders of the diploma, certificate or other evidence of formal qualifications referred to in Annex A’, referred to in the first paragraph of that article, are dental practitioners and that they can use only the title ‘Zahnarzt’. The Commission infers that, in order to satisfy the condition laid down in that article, according to which the persons concerned must be authorised to carry out their activities ‘under the same conditions’, specialists in dental surgery must also be able to use only that title, to the exclusion of any other.

34The Austrian Government merely notes that specialists in dental surgery are authorised to carry out their activities using the title ‘Zahnarzt’.

35In that respect, it must be stated that, contrary to the contentions of the Commission, the wording of Article 19b of the Recognition Directive is not conclusive so far as concerns whether it is obligatory for the doctors referred to in that article to use the same tide as dental practitioners or whether, on the contrary, they must only be authorised to use it. The condition that the persons concerned must be ‘authorised to carry out [their] activities under the same conditions’ as dental practitioners can give rise to two interpretations. On the one hand, as the Commission submits, Article 19b can be interpreted as imposing a condition that the activities in question must be carried out ‘under the same conditions’, which would be incompatible with the fact that the two professional groups concerned are not subject to the same authorisation arrangements on use of titles in Austria. On the other hand, by emphasising the use of the verb ‘authorise’, the same provision can be interpreted as requiring only that specialists in dental surgery be, as they are under Paragraph 43(7) of the Law on Doctors, ‘authorised’ to use the same title as dental practitioners and therefore ‘authorised’ — but not required — to practise under the same conditions as dental practitioners, using the title ‘Zahnarzt’.

36Since the wording of Article 19b is not conclusive on that question, that provision must be interpreted in the light of the other provisions of the Recognition and Coordination Directives. In that regard, it should be noted that the Recognition Directive contains, in Articles 8 and 17, specific provisions on the use of titles which show that, contrary to the contentions of the Commission, the Community legislature did not wish to impose uniform use of titles in the field of dentistry. That finding is also supported by the fact that the list in Article 1 of the Recognition Directive contains, as regards certain Member States, more than one title.

37Although it is true that the Recognition and Coordination Directives aim to establish a clear separation of the professions of dental practitioner and doctor, the Commission has not adduced any evidence to show that the authorisation for the doctors referred to in Article 19b to continue to pursue their profession under the professional title ‘Facharzt für Zahn-, Mund- und Kieferheilkunde’ may lead to a genuine risk of confusion between specialists in dental surgery and other doctors.

38In any event, contrary to the Commissions contentions, it is clear that neither Article 19b of the Recognition Directive nor Articles 8 and 17 of that directive contain restrictions on the precise wording of the professional titles which the Member States may authorise in their territory.

39Next, a requirement for doctors coming within the transitional regime of Article 19b of the Recognition Directive to give up their professional title ‘Facharzt für Zahn-, Mund- und Kieferheilkunde’ in favour of ‘Zahnarzt’ would effectively oblige them to hold themselves out to patients as dentists without indicating their initial training and skillset as a physician, which would be harmful to the pursuit of their profession (see, to that effect, Case C-202/99 Commission v Italy [2001] ECR I-9319, paragraph 51).

40Finally, the possibility for specialists in dental surgery to continue to use the professional title ‘Facharzt für Zahn-, Mund- und Kieferheilkunde’ under Paragraph 43(7) of the Law on Doctors appears to be justified on grounds of transparency, in that it enables patients to distinguish dentists who have done the full training of dental practitioner introduced by the Law on Doctors (‘Zahnarzt’) from general practitioners who have completed a postdoctoral specialisation of dental practitioner (‘Facharzt für Zahn-, Mund- und Kieferheilkunde’).

41The fact that the title ‘Facharzt für Zahn-, Mund- und Kieferheilkunde’ cannot be included in Article 1 of the Recognition Directive since the training of those practitioners does not satisfy the criteria set out in Article 1 of the Coordination Directive is not relevant, since Article 19b of the Recognition Directive was inserted into the directive, as the Commission acknowledges, in order to allow specialists in dental surgery to continue to pursue their profession.

42In those circumstances, the Commission is wrong to rely on case-law according to which Member States may not create a category of dental practitioners which does not correspond to any category provided for by the directives in question (Case C-40/93 Commission v Italy [1995] ECR I-1319, paragraph 24). Unlike the Member State concerned by that judgment, the Republic of Austria, first, has not created a new category of dental practitioners, but has simply maintained an existing category, and, secondly, specialists in dental surgery do not constitute a category of dental practitioners which is not provided for by the Recognition and Coordination Directives. They are, on the contrary, specifically covered by Article 19b of the first of those directives.

43Having regard to all those considerations, the Commission's second complaint must be rejected.

44In view of the preceding considerations, it must be declared that, by allowing dentists (‘Dentisten’) under Paragraphs 4(3) and 6 of the Law on Dentists to engage in their occupation under the title ‘Zahnarzt’ (dental practitioner) or ‘Zahnarzt (Dentist)’ (dental practitioner (dentist)) and to make use of the exception laid down in Article 19b of the Recognition Directive, although they do not meet the minimum requirements under Article 1 of the Coordination Directive to be covered by the rules under those directives, the Republic of Austria has failed to fulfil its obligations under Articles 1 and 19b of the Recognition Directive and Article 1 of the Coordination Directive. The remainder of the application must be dismissed.

Costs

45Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. The Republic of Austria has not applied for the Commission to be ordered to pay the costs. However, under the first subparagraph of Article 69(3) of those Rules, the Court may order that the costs be shared or that the parties bear their own costs where each party succeeds on some and fails on other heads. Since the Republic of Austria and the Commission have each been partially unsuccessful, the parties must be ordered to bear their own costs.

Operative part

On those grounds, the Court (First Chamber) hereby:

1.Declares that, by allowing dentists (‘Dentisten’) under Paragraphs 4(3) and 6 of the Law on Dentists (Dentistengesetz)— to engage in their occupation under the title ‘Zahnarzt’ (dental practitioner) or ‘Zahnarzt (Dentist)’ (dental practitioner (dentist)), and— to make use of the exception laid down in Article 19b of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001,although they do not meet the minimum requirements under Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners, as amended by Directive 2001/19, to be covered by the rules under those directives,the Republic of Austria has failed to fulfil its obligations under Articles 1 and 19b of Directive 78/686 and Article 1 of Directive 78/687;

2.Dismisses the remainder of the application;

3.Orders the Republic of Austria and the Commission of the European Communities to bear their own costs.