Contents
Judgment of the Court (Fourth Chamber)8 May 2024note(Failure of a Member State to fulfil obligations — Directive 2005/36/EC — Recognition of professional qualifications — Article 3(1)(g) and (h) — Obligation for the Member States to ensure that the competent authorities of the host Member State determine the status of persons undergoing an adaptation period or preparing themselves for an aptitude test — Article 7(3) — Obligation for Member States to ensure that, in particular, veterinary surgeons and architects have the possibility to provide services, within the framework of the freedom to provide services, under the professional title of the host Member State — Article 45(2)(c), (f) and, in part, (e) — Obligation for the Member States to ensure that the holders of evidence of formal qualifications in pharmacy at university level or a level recognised as equivalent, which satisfies the requirements of Article 44 of that directive, are able to gain access to at least the activities referred to in Article 45(2) of that directive, subject to the requirement, where appropriate, of supplementary professional experience — Article 51(1) — Obligation for the Member States to ensure that the competent authority of the host Member State has a time limit of one month within which to acknowledge receipt of the application for recognition of professional qualifications and to inform the applicant of any missing document — Not transposed into national law)In Case C‑75/22,ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 4 February 2022,European Commission, represented by L. Armati, M. Mataija and M. Salyková, acting as Agents,vCzech Republic, represented by A. Edelmannová, L. Halajová, T. Müller, O. Serdula, M. Smolek and J. Vláčil, acting as Agents,THE COURT (Fourth Chamber),composed of C. Lycourgos, President of the Chamber, O. Spineanu-Matei, J.‑C. Bonichot (Rapporteur), S. Rodin and L.S. Rossi, Judges,Advocate General: P. Pikamäe,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 14 September 2023,gives the following
Judgment
1By its application, the European Commission requests the Court to declare that, by failing to adopt the provisions necessary to comply with Article 3(1)(g) and (h), Article 6, first paragraph, point (b), Article 7(3), Article 21(6), Article 31(3), Article 45(2)(c), (f) and, in part, (e), Article 45(3), Article 50(1), read in conjunction with Annex VII, point 1(d) and (e), and Article 51(1) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22), as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 (OJ 2013 L 354, p. 132) (‘Directive 2005/36’), the Czech Republic has failed to fulfil its obligations under Directive 2005/36, and to order the Czech Republic to pay the costs.
Legal context
European Union law
2Article 3 of Directive 2005/36, entitled ‘Definitions’, provides in paragraph 1 thereof:1.For the purposes of this Directive, the following definitions apply:…(g) “adaptation period”: the pursuit of a regulated profession in the host Member State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. This period of supervised practice shall be the subject of an assessment. The detailed rules governing the adaptation period and its assessment as well as the status of a migrant under supervision shall be laid down by the competent authority in the host Member State.The status enjoyed in the host Member State by the person undergoing the period of supervised practice, in particular in the matter of right of residence as well as obligations, social rights and benefits, allowances and remuneration, shall be established by the competent authorities in that Member State in accordance with applicable Community law;(h) “aptitude test”: a test of the professional knowledge, skills and competences of the applicant, carried out or recognised by the competent authorities of the host Member State with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State.In order to permit this test to be carried out, the competent authorities shall draw up a list of subjects which, on the basis of a comparison of the education and training required in the host Member State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant.The aptitude test must take account of the fact that the applicant is a qualified professional in the home Member State or the Member State from which the applicant comes. It shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to pursue the profession in question in the host Member State. The test may also cover knowledge of the professional rules applicable to the activities in question in the host Member State.The detailed application of the aptitude test and the status, in the host Member State, of the applicant who wishes to prepare himself for the aptitude test in that State shall be determined by the competent authorities in that Member State;…’
3Article 5 of Directive 2005/36, entitled ‘Principle of the free provision of services’, provides in paragraphs 1 and 2 thereof:1.Without prejudice to specific provisions of Community law, as well as to Articles 6 and 7 of this Directive, Member States shall not restrict, for any reason relating to professional qualifications, the free provision of services in another Member State:(a) if the service provider is legally established in a Member State for the purpose of pursuing the same profession there (hereinafter referred to as the Member State of establishment), and(b) where the service provider moves, if he has pursued that profession in one or several Member States for at least one year during the last 10 years preceding the provision of services when the profession is not regulated in the Member State of establishment. The condition of one year’s pursuit shall not apply if the profession or the education and training leading to the profession is regulated.2. The provisions of this title shall only apply where the service provider moves to the territory of the host Member State to pursue, on a temporary and occasional basis, the profession referred to in paragraph 1.The temporary and occasional nature of the provision of services shall be assessed case by case, in particular in relation to its duration, its frequency, its regularity and its continuity.’
4Under Article 6 of that directive, entitled ‘Exemptions’:‘Pursuant to Article 5(1), the host Member State shall exempt service providers established in another Member State from the requirements which it places on professionals established in its territory relating to:…(b) registration with a public social security body for the purpose of settling accounts with an insurer relating to activities pursued for the benefit of insured persons.The service provider shall, however, inform in advance or, in an urgent case, afterwards, the body referred to in point (b) of the services which he has provided.’
5Article 7 of that directive, entitled ‘Declaration to be made in advance, if the service provider moves’, provides, in paragraph 3 thereof:3. The service shall be provided under the professional title of the Member State of establishment, in so far as such a title exists in that Member State for the professional activity in question. That title shall be indicated in the official language or one of the official languages of the Member State of establishment in such a way as to avoid any confusion with the professional title of the host Member State. Where no such professional title exists in the Member State of establishment, the service provider shall indicate his formal qualification in the official language or one of the official languages of that Member State. By way of exception, the service shall be provided under the professional title of the host Member State for cases referred to in Title III Chapter III.’
6Article 21 of that directive, entitled ‘Principle of automatic recognition’, provides in paragraphs 1 and 6 thereof:1. Each Member State shall recognise evidence of formal qualifications as … veterinary surgeon, … and as architect … and shall, for the purposes of access to and pursuit of the professional activities, give such evidence the same effect on its territory as the evidence of formal qualifications which it itself issues.…6. Each Member State shall make access to, and pursuit of, the professional activities of doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives and pharmacists subject to possession of evidence of formal qualifications referred to in points 5.1.1, 5.1.2, 5.1.4, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.5.2 and 5.6.2 of Annex V respectively, attesting that the professional concerned, over the duration of his training, has acquired, as appropriate, the knowledge, skills and competences referred to in Articles 24(3), 31(6), 31(7), 34(3), 38(3), 40(3) and 44(3).In order to take account of generally acknowledged scientific and technical progress, the Commission shall be empowered to adopt delegated acts in accordance with Article 57c to update the knowledge and skills referred to in Articles 24(3), 31(6), 34(3), 38(3), 40(3), 44(3) and 46(4) to reflect the evolution of Union law directly affecting the professionals concerned.Such updates shall not entail an amendment of existing essential legislative principles in Member States regarding the structure of professions as regards training and conditions of access by natural persons. Such updates shall respect the responsibility of the Member States for the organisation of education systems, as set out in Article 165(1) [TFEU].’
7Article 31 of Directive 2005/36, entitled ‘Training of nurses responsible for general care’, provides in the first subparagraph of paragraph 3 thereof:3. The training of nurses responsible for general care shall comprise a total of at least three years of study, which may in addition be expressed with the equivalent ECTS [(European Credit Transfer and Accumulation System)] credits, and shall consist of at least 4600 hours of theoretical and clinical training, the duration of the theoretical training representing at least one third and the duration of the clinical training at least one half of the minimum duration of the training. Member States may grant partial exemptions to professionals who have received part of their training on courses which are of at least an equivalent level.’
8Article 32 of that directive, entitled ‘Pursuit of the professional activities of nurses responsible for general care’, provides:‘For the purposes of this Directive, the professional activities of nurses responsible for general care are the activities pursued on a professional basis and referred to in Annex V, point 5.2.2.’
9Article 44 of that directive, entitled ‘Training as a pharmacist’ provides:1. Admission to a course of training as a pharmacist shall be contingent upon possession of a diploma or certificate giving access, in a Member State, to the studies in question, at universities or higher institutes of a level recognised as equivalent.…’
10Article 45 of that directive, entitled ‘Pursuit of the professional activities of a pharmacist’, provides in paragraphs 2 and 3 thereof:2.The Member States shall ensure that the holders of evidence of formal qualifications in pharmacy at university level or a level recognised as equivalent, which satisfies the requirements of Article 44, are able to gain access to and pursue at least the following activities, subject to the requirement, where appropriate, of supplementary professional experience:(a) preparation of the pharmaceutical form of medicinal products;(b) manufacture and testing of medicinal products;(c) testing of medicinal products in a laboratory for the testing of medicinal products;(d) storage, preservation and distribution of medicinal products at the wholesale stage;(e) supply, preparation, testing, storage, distribution and dispensing of safe and efficacious medicinal products of the required quality in pharmacies open to the public;(f) preparation, testing, storage and dispensing of safe and efficacious medicinal products of the required quality in hospitals;(g) provision of information and advice on medicinal products as such, including on their appropriate use;(h) reporting of adverse reactions of pharmaceutical products to the competent authorities;(i) personalised support for patients who administer their medication;(j) contribution to local or national public health campaigns.3. If a Member State makes access to or pursuit of one of the activities of a pharmacist contingent upon supplementary professional experience, in addition to possession of evidence of formal qualifications referred to in Annex V, point 5.6.2, that Member State shall recognise as sufficient proof in this regard a certificate issued by the competent authorities in the home Member State stating that the person concerned has been engaged in those activities in the home Member State for a similar period.’
11Article 50 of Directive 2005/36, entitled ‘Documentation and formalities’, provides:1. Where the competent authorities of the host Member State decide on an application for authorisation to pursue the regulated profession in question by virtue of this Title, those authorities may demand the documents and certificates listed in Annex VII.The documents referred to in Annex VII, point 1(d), (e) and (f), shall not be more than three months old by the date on which they are submitted.The Member States, bodies and other legal persons shall guarantee the confidentiality of the information which they receive.2. In the event of justified doubts, the host Member State may require from the competent authorities of a Member State confirmation of the authenticity of the attestations and evidence of formal qualifications awarded in that other Member State, as well as, where applicable, confirmation of the fact that the beneficiary fulfils, for the professions referred to in Chapter III of this Title, the minimum training conditions set out respectively in Articles 24, 25, 28, 31, 34, 35, 38, 40, 44 and 46.3.In cases of justified doubt, where evidence of formal qualifications, as defined in Article 3(1)(c), has been issued by a competent authority in a Member State and includes training received in whole or in part in an establishment legally established in the territory of another Member State, the host Member State shall be entitled to verify with the competent body in the Member State of origin of the award:(a) whether the training course at the establishment which gave the training has been formally certified by the educational establishment based in the Member State of origin of the award;(b) whether the evidence of formal qualifications issued is the same as that which would have been awarded if the course had been followed entirely in the Member State of origin of the award; and(c) whether the evidence of formal qualifications confers the same professional rights in the territory of the Member State of origin of the award.…’
12Article 51 of that directive, entitled ‘Procedure for the mutual recognition of professional qualifications’, provides in paragraph 1 thereof:1. The competent authority of the host Member State shall acknowledge receipt of the application within one month of receipt and inform the applicant of any missing document.’
13Article 54 of that directive, entitled ‘Use of academic titles’ provides:‘Without prejudice to Articles 7 and 52, the host Member State shall ensure that the right shall be conferred on the persons concerned to use academic titles conferred on them in the home Member State, and possibly an abbreviated form thereof, in the language of the home Member State. The host Member State may require that title to be followed by the name and address of the establishment or examining board which awarded it. Where an academic title of the home Member State is liable to be confused in the host Member State with a title which, in the latter Member State, requires supplementary training not acquired by the beneficiary, the host Member State may require the beneficiary to use the academic title of the home Member State in an appropriate form, to be laid down by the host Member State.’
14Annex VII of that directive, entitled ‘Documents and certificates which may be required in accordance with Article 50(1)’, provides in point 1 (d) and (e) thereof:1.Documents…(d) Where the competent authority of a host Member State requires of persons wishing to take up a regulated profession proof that they are of good character or repute or that they have not been declared bankrupt, or suspends or prohibits the pursuit of that profession in the event of serious professional misconduct or a criminal offence, that Member State shall accept as sufficient evidence, in respect of nationals of Member States wishing to pursue that profession in its territory, the production of documents issued by competent authorities in the home Member State or the Member State from which the foreign national comes, showing that those requirements are met. Those authorities must provide the documents required within a period of two months.Where the competent authorities of the home Member State or of the Member State from which the foreign national comes do not issue the documents referred to in the first subparagraph, such documents shall be replaced by a declaration on oath – or, in States where there is no provision for declaration on oath, by a solemn declaration – made by the person concerned before a competent judicial or administrative authority or, where appropriate, a notary or qualified professional body of the home Member State or the Member State from which the person comes; such authority or notary shall issue a certificate attesting the authenticity of the declaration on oath or solemn declaration.(e) Where a host Member State requires of its own nationals wishing to take up a regulated profession, a document relating to the physical or mental health of the applicant, that Member State shall accept as sufficient evidence thereof the presentation of the document required in the home Member State. Where the home Member State does not issue such a document, the host Member State shall accept a certificate issued by a competent authority in that State. In that case, the competent authorities of the home Member State must provide the document required within a period of two months.’
Czech law
The Law on the recognition of professional qualifications
15Paragraph 13(1) of zákon č. 18/2004 Sb., o uznávání odborné kvalifikace a jiné způsobilosti státních příslušníků členských států Evropské unie a některých příslušníků jiných států a o změně některých zákonů (zákon o uznávání odborné kvalifikace) (Law No 18/2004 on recognition of professional qualifications and other skills of nationals of Member States of the European Union and of certain nationals of other States and amending certain laws (Law on the recognition of professional qualifications)), in the version applicable in the present case (‘the Law on the recognition of professional qualifications’) provides:(1) “Adaptation period” shall mean the period in which regulated activities are pursued in the Czech Republic by an applicant under the supervision of a professionally qualified natural person in order to supplement theoretical and practical knowledge in areas which form part of the education and training content leading to the issuance of a certificate of formal qualifications required in the Czech Republic and knowledge of which is necessary for the pursuit of the regulated activities. The adaptation period may also include further study or training to supplement professional qualifications.’
16Paragraph 14(1) of the Law on the recognition of professional qualifications provides:(1) An aptitude test shall be an examination of the professional knowledge, skills and competences of the applicant with the aim of assessing the applicant’s ability to pursue a regulated activity in the Czech Republic. The aptitude test shall be taken before a recognition authority or other administrative authority, or at a university or other education establishment for the purpose in question …’
17Paragraph 15 of that law states:‘An implementing regulation or professional regulation may stipulate for individual regulated activities or a group of regulated activities, having regard to their specific features, the method for determining the length of the adaptation period and the conditions for completing and assessing the adaptation period and for taking and assessing the aptitude test, including the form, content and scope of the aptitude test.’
18Under Paragraph 20 of that law:(1) If the pursuit of a regulated activity in the Czech Republic requires documentary evidence proving the good character of the applicant or that he or she has not been punished for an administrative offence or a disciplinary offence linked to the pursuit of the activity in question, a document issued by the competent authority of the home Member State proving that fact shall be deemed sufficient. That document shall be an extract from the criminal record or from a similar register of the home Member State or an equivalent document issued by the competent authority of the home Member State or, if there is no such register in the home Member State, a solemn declaration as to the good character of the applicant.(2) If the pursuit of a regulated activity in the Czech Republic requires documentary evidence proving that, during the period laid down by special legal regulation, the applicant has not been the subject of a decision to open bankruptcy proceedings, that he or she has not been declared bankrupt or that the insolvency petition was not rejected on grounds of lack of assets, or that the exercise of the function of a governing board, a member of a governing board or another body of a legal person by the applicant is not prevented by the earlier practice of a comparable function in a legal person whose assets have been declared subject to bankruptcy or against which the insolvency petition was rejected on grounds of lack of assets, the document issued by the competent authority of the home Member State proving that to be the case shall be sufficient.(3) Where the competent authorities of the Member States do not issue the documents referred to in subparagraphs 1 and 2, those documents shall be replaced by a solemn declaration made by the applicant before the competent authority of the home Member State or before a notary established in that Member State.(4) If the pursuit of a regulated activity in the Czech Republic requires the medical fitness of the applicant, the document attesting to medical fitness required by the home Member State shall be deemed sufficient. If the home Member State does not require medical fitness to pursue the activity in question, a document issued by the competent authority of the home Member State proving compliance with the condition provided for by a special legal regulation of the Czech Republic shall be deemed sufficient.…’
19Paragraph 27(2) of that law is drafted as follows:(2) An applicant who pursues a regulated profession in the Czech Republic on a temporary or occasional basis … shall use the professional title of the home Member State in accordance with its legislation and in the official language or one of the official languages of the home Member State.’
20Paragraph 33(1) of the Law on the recognition of professional qualifications provides:(1) At the request of the competent authority of another Member State, the competent authority of the Czech Republic shall make the necessary inquiries and produce the information requested without delay. Where it is not possible to provide the information within a period of 30 days, the competent authority of the other Member State must be informed of that fact.’
21Paragraph 36a(1) of that law is worded as follows:(1) An applicant who is a national of a Member State … and who, in accordance with the legislation of the home Member State, pursues the activity in question, which is a regulated activity in the Czech Republic, shall also be authorised to pursue that activity on a temporary or occasional basis in the territory of the Czech Republic without having to comply with the requirements relating to enrolment with, registration with, authorisation by or membership of a professional body under specific legislation and without having to apply for recognition of his or her professional qualifications …’
Law No 95/2004
22Under Paragraph 2(g) of zákon č. 95/2004 Sb., o podmínkách získávání a uznávání odborné způsobilosti a specializované způsobilosti k výkonu zdravotnického povolání lékaře, zubního lékaře a farmaceuta (Law No 95/2004 on the conditions for acquisition and recognition of professional competences and specialised competences for pursuing the professions of doctor, dentist and pharmacist), in the version applicable to the facts of the present case (‘Law No 95/2004’):‘For the purposes of applying the present law, the following definitions shall apply:…… “independent pursuit of the activity of dentist or pharmacist” means the pursuit of activities for which the dentist or the pharmacist is authorised without professional supervision and based on his or her own evaluation and assessment of the patient’s state of health and related circumstances.’
23Paragraph 10(2) of Law No 95/2004 provides:(2) After acquiring professional competences, … the pharmacist shall have the right to pursue independently activities involved in the provision of pharmaceutical care in accordance with zákon č. 372/2011 Sb., o zdravotních službách a podmínkách jejich poskytování (zákon o zdravotních službách) (Law No 372/2011 on health services and the conditions under which they are provided (Law on health services)), of 6 November 2011 (‘the Law on health services’), except for activities the independent pursuit of which is contingent upon acquisition of specialised competences within the meaning of Paragraph 11. The pharmacist shall also be authorised to pursue activities not classified as provision of healthcare services, namely in connection with the manufacture and testing of medicinal products and the storage and distribution of medicinal products at the premises of a distributor of medicinal products in accordance with zákon č. 378/2007 Sb., o léčivech a o změnách některých souvisejících zákonů (zákon o léčivech) (Law No 378/2007 on medicinal products and on the amendments made to certain related laws (Law on medicinal products)), of 6 December 2007.’
24Paragraph 11(1), (2), and (7) to (12) of Law No 95/2004 provides:(1)Specialised competence as a pharmacist shall be acquired:(a) by successfully completing specialised training attested by a certified examination …, on the basis of which the Ministry issues to the pharmacist a specialist diploma in the field of specialisation concerned, or(b) by obtaining supplementary professional experience based on the relevant training programme at an institution accredited for the relevant field of specialised training or for the relevant field of supplementary professional experience, which shall issue a certificate of completion to the applicant.(2) The fields of specialised training for pharmacists, evidence of qualifications and the duration of the specialised training are described in Annex 1 to the present law. …(7)Acquisition of specialised competences in accordance with subparagraph 1(a), shall be a condition … for the independent pursuit of activities(a) related to protection of public health,(b) in transfusion establishments,(c) in the field of pharmaceutical technologies,(d) in the field of laboratory and analysis methods in health, and(e) in the field of radiopharmaceutical medicines.(8) Acquisition of specialised competences in accordance with subparagraph 1 in the field of practical dispensing pharmacy shall be a condition for the independent pursuit of activities related to management of a pharmacy …(9) Acquisition of specialised competences in the field of clinical pharmacy in accordance with subparagraph 1(a) shall be a condition for the independent pursuit of activities as a clinical pharmacist.(10) Acquisition of particular specialised competences in the field of hospital pharmacy shall be a condition for the independent pursuit of activities related to management of a pharmacy with specialised facilities for the preparation of particularly complex pharmaceutical forms; for the purposes of the present law, “particularly complex pharmaceutical forms” means sterile medicinal products for parenteral application prepared in specialised facilities in pharmacies.(11) Acquisition of specialised competences in accordance with subparagraph 1(a) in the field of radiopharmaceutical medicines or pharmaceutical technologies or acquisition of particular specialised competences in the field of hospital pharmacy shall be a condition for the independent pursuit of activities relating to the preparation of particularly complex pharmaceutical forms.(12) Before acquiring specialised competences, the pharmacist shall pursue the activities mentioned in subparagraphs 7 to 11 under the professional supervision of a healthcare professional who has the relevant specialised competences.’
25Under Paragraph 27(6) of that law:(6) Doctors, dentists or pharmacists in respect of whom the document attesting to their professional qualification satisfies the conditions laid down in Paragraph 28a or 28b shall be authorised to pursue their profession using the professional title (‘the specialist title’) referred to in the present law. Where the professional qualification has been verified in accordance with Paragraph 27b, the medical profession shall be pursued under the specialist title provided for by the present law.’
26Paragraph 28a(5) of that law is worded as follows:(5) In the event of supplementary professional experience, within the meaning of Paragraph 11(1)(b) [of Law No 95/2004], the Ministry shall automatically recognise as proof of the qualification obtained a certificate issued by the competent authorities of the Member State proving that the person concerned has been engaged in those activities in the home Member State for an equivalent period.’
The Code of administrative procedure
27Paragraph 44(1) of zákon č. 500/2004 Sb., správní řád (Law No 500/2004 on the Code of administrative procedure), in the version applicable to the present case (‘the Code of administrative procedure’), provides:(1) The application procedure shall be initiated as of the date on which the application or any other act by which the procedure is initiated … is received by the substantively and territorially competent administrative authority.’
28Paragraph 45(2) of the Code of administrative procedure states:(2) If the application does not meet the prescribed criteria or if it is vitiated by other flaws, the administrative authority shall assist the applicant to remedy the deficiencies on its premises or shall request him or her to remedy those deficiencies; it shall grant him or her a reasonable period for doing so and inform him or her of the consequences if the application is not remedied within that period;…’
29Paragraph 47(1) of that code provides:(1) The administrative authority shall be required to inform without delay all the participants in the procedure of which it has knowledge of the initiation of the procedure.’
30Under Paragraph 71 of that code:(1) The administrative authority shall issue its decision without delay.…’(3) If it is not possible to issue a decision without delay, the administrative authority shall issue its decision at the latest within 30 days of the initiation of the procedure, to which shall be added a period … of up to 30 days if a hearing or on-site investigation is found to be necessary, if it is necessary to summon a person or to order their appearance before that administrative authority or to serve a public notice on a person where it is demonstrated that notifications have remained unsuccessful, or where the case is particularly complicated, [or a period] necessary for the execution of a letter of request under Paragraph 13(3), a request for an expert opinion or a notification sent abroad.…’
31Paragraph 154 of that code states:‘If the administrative authority issues an attestation, a certificate, carries out investigations or makes a statement concerning the parties concerned, it shall proceed in accordance with … the following provisions of Part Two: Paragraphs 10 to 16, Paragraphs 19 to 26, Paragraphs 29 to 31, Paragraphs 33 to 35, Paragraph 37, Paragraph 40, Paragraph 62, Paragraph 63; and, analogously, the following provisions of Part III: Paragraph 134, Paragraph 137 and Paragraph 142(1) and (2); it shall comply adequately with the other provisions of the present Law, if their application proves to be necessary.’
The Law on health services
32Paragraph 5(2) of the Law on health services provides:‘(2) …(i) pharmaceutical care and clinical pharmaceutical care (together, “pharmaceutical care”) [shall be care] whose objective is to supply, to prepare, to treat, to store, to check and to distribute medicinal products – with the exception of the products of transfusion and the raw materials for the preparation of blood derivatives in accordance with the Law on medicinal products, and laboratory chemicals, reagent products, disinfectants – and to supply, to store, to distribute and to sell the medical devices covered by the Law on medical devices, … to supply, to store, to distribute and to sell food products for specific medical purposes; advisory, consultation and other services in the field of the prevention and early detection of illnesses and the promotion of good health, and the assessment and verification of the effective, safe and economical use of medicinal products and related processes are also provided in connection with such care.…’
33Under Paragraph 12(3) of that law:‘(3) If health services are provided…(c) in the field of pharmacy or in the fields of specialised training for pharmacists, an authorisation for the independent exercise of the profession of pharmacist shall be required in at least one of the fields of specialised training for pharmacists.…’
The Law on veterinary care
34Paragraph 59 of zákon č. 166/1999 Sb. o veterinární péči a o změně některých souvisejících zákonů (veterinární zákon) (Law No 166/1999 on veterinary care and on the amendment of certain related Laws (Law on veterinary care)), in the version applicable in the present case, provides:‘…(2) The following persons shall also be considered veterinary surgeons:(a) persons holding a qualification, certificate or other evidence attesting to the acquisition of the required training, referred to in the implementing legislation and issued by the competent body of another Member State,…(3) Persons who are nationals of another Member State who satisfy the conditions provided for in subparagraphs 1 and 2 shall have the right to use the academic title or its abbreviation they have obtained, in the language of the State where the academic title was obtained.…’
The Law on public health insurance
35Paragraph 11(1) of zákon č. 48/1997 Sb. o veřejném zdravotním pojištění a o změně a doplnění některých souvisejících zákonů (Law No 48/1997 on public health insurance and amending and supplementing certain related laws), in the version applicable in the present case (‘the Law on public health insurance’) provides:‘(1) The insured person shall have the right:(a) to choose a health insurance fund …;(b) to choose a health service provider in the territory of the Czech Republic … which has a contractual relationship with the corresponding health insurance fund …;(c) to access in time and space reimbursed services supplied by contractual providers from the corresponding health insurance fund;(d) to the provision of reimbursed services to the extent and under the conditions laid down by this Law, it being understood that the provider may not receive any payment in respect of those reimbursed services from the insured person;…’
36Paragraph 17(1) of the Law on public health insurance provides:(1)‘In order to ensure benefits in kind in the context of the provision of reimbursed services to insured persons, the Všeobecná zdravotní pojišťovna České republiky (General health insurance fund of the Czech Republic) and the other health insurance funds shall conclude … agreements with providers on the provision and reimbursement of reimbursed services. … Agreements shall be not required in respect of the provision of(a) urgent treatment to the insured person,…’
The Law on authorisation
37Paragraph 13 of zákon č. 360/1992 Sb., České národní rady o výkonu povolání autorizovaných architektů a o výkonu povolání autorizovaných inženýrů a techniků činných ve výstavbě (autorizační zákon) (Law No 360/1992 of the Czech National Council on the exercise of the profession of authorised architect and on the exercise of the profession of authorised engineer and authorised technician in the construction field (the Law on authorisation)), in the version applicable in the present case (‘the Law on authorisation’), is drafted as follows:(1) The authorised person shall have the right, according to the type of authorisation given, to use the title “authorised architect” …, linked with the name of the field, or, as the case may be, the specialisation in respect of which the authorisation has been issued.…’
38Paragraph 30c(2) of the Law on authorisation provides:(2) … The provisions of Paragraphs 10 and 11, of Paragraph 13(1) … shall apply adequately to visiting persons. …’
The Law on the Chamber of veterinary surgeons
39Paragraph 5a(1) of zákon č. 381/1991 Sb. České národní rady o Komoře veterinárních lékařů České republiky (Law No 381/1991 of the Czech National Council on the Chamber of veterinary surgeons of the Czech Republic), in the version applicable in the present case (‘the Law on the Chamber of veterinary surgeons’), provides:(1) A veterinary surgeon of a Member State of the European Union … who plans to exercise in the Czech Republic preventative and curative veterinary care on a temporary or occasional basis (“the visiting veterinary surgeon”) shall not be required to become a member of the Chamber; nevertheless, he or she shall be required to inform the Chamber beforehand of the pursuit of preventative and curative veterinary care in the Czech Republic, in accordance with the Law on the recognition of professional qualifications. …’
Decree No 39/2005
40Paragraph 4 of vyhláška č. 39/2005 Sb., kterou se stanoví minimální požadavky na studijní programy k získání odborné způsobilosti k výkonu nelékařského zdravotnického povolání (Decree No 39/2005 setting the minimum requirements for the purposes of study programs to obtain professional competence to pursue a non-medical health profession), in the version applicable to the present case, entitled ‘Pursuit of the activity of a general nurse’, provides, in subparagraph 2 thereof:‘(2) The study program provided for in subparagraph 1 shall take place either(a) by means of attendance in person, with a specific professional component, in a form including at least three years of study and at least 4600 hours of theoretical and clinical teaching, of which the clinical teaching is to comprise between 2300 and 3000 hours, or(b) by means of a form of study other than attendance in person, including a total teaching duration which is not lower than that referred to in point (a) and without compromising the standard of study concerned. …’
41Paragraph 20c of Decree No 29/2005, in the version applicable in the present case, entitled, ‘Pursuit of the activity of a nurse practitioner’, provides, in subparagraph 2 thereof:(2) The study program shall have a standard study duration of at least four years, including clinical training representing at least 1200 hours. The training program shall include at least 700 hours of theoretical teaching and at least 600 hours of clinical teaching.’
The pre-litigation stage
42Directive 2005/36 was amended, inter alia, by Directive 2013/55, which had to be transposed no later than 18 January 2016, in accordance with Article 3 thereof.
43In that context, the Czech authorities notified the Commission of the transposition measures.
44On 25 January 2019, the Commission sent the Czech Republic a letter of formal notice in which it took the view that the Czech legislation infringed a number of provisions of Directive 2005/36.
45On 28 November 2019, considering that the response of the Czech authorities concerning the complaints raised in that letter of formal notice was insufficient, the Commission sent those authorities a reasoned opinion.
46On 28 January 2020, the Czech Republic sent its observations in relation to the reasoned opinion.
47On 18 February 2021, the Commission served on the Czech Republic a supplementary reasoned opinion.
48On 4 February 2022, the Commission brought the present action.
The action
Preliminary observations
49It must be borne in mind that, according to the Court’s settled case-law, in an action under Article 258 TFEU, the letter of formal notice sent by the Commission to the Member State and the reasoned opinion issued by the Commission delimit the subject matter of the dispute, so that it cannot afterwards be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to make use of it, is an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the application must be based on the same complaints as those in the letter of formal notice initiating the pre-litigation procedure (judgment of 22 September 2016, Commission v Czech Republic, C‑525/14, EU:C:2016:714, paragraph 17 and the case-law cited).
50If that is not the case, that irregularity cannot be regarded as having been cured by the fact that the Member State submitted observations on the reasoned opinion (judgment of 25 April 2013, Commission v Spain, C‑64/11, EU:C:2013:264, paragraph 14 and the case-law cited).
51That being said, while the reasoned opinion and the action must be based on identical complaints, that requirement nevertheless cannot be stretched so far as to mean that in every case the complaints set out in the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject matter of the proceedings has not been extended or altered (see, to that effect, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 25 and the case-law cited). Accordingly, in its application the Commission may clarify its initial complaints provided, however, that it does not alter the subject matter of the dispute (judgment of 30 April 2020, Commission v Romania (Exceedance of the limit values for PM10), C‑638/18, EU:C:2020:334, paragraph 49).
52Lastly, it is apparent from settled case-law of the Court that the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, so that the Member State is able to present an effective defence and also the Court is able to determine whether there has been a breach of obligations, as alleged (judgment of 8 March 2022, Commission v United Kingdom (Action to counter undervaluation fraud), C‑213/19, EU:C:2022:167, paragraph 133 and the case-law cited).
The first complaint, alleging failure to transpose Article 3(1)(g) and (h) of Directive 2005/36
Arguments of the parties
53The Commission claims that the Czech Republic has failed to fulfil its obligations under Article 3(1)(g) and (h) of Directive 2005/36, which provides for the obligation on the competent authorities of the host Member State to determine the ‘status’ of persons undergoing an adaptation period or preparing themselves for an aptitude test.
54The Commission takes the view that the primary objective of Article 3(1)(g) and (h) of Directive 2005/36 is to guarantee the persons concerned a legal status in the host Member State so that they do not find themselves in a ‘legal vacuum’. That requires that the status concerned be defined sufficiently clearly and precisely.
55According to the Commission, a correct transposition of that provision in national law means, for example, enabling that status to be made clear or established by the competent authorities under that law.
56The Commission accepts that that status might also be determined by general legislation on the condition that the latter is sufficiently clear and precise in that respect.
57In addition, it argues that Paragraphs 13 to 15 of the Law on the recognition of professional qualifications relied on by the Czech authorities do not make explicit the legal status of those persons and those authorities moreover admit that that status is difficult to determine in practice.
58The Czech Government contends that the first complaint is inadmissible and, in any event, unfounded.
59As regards the admissibility of the first complaint, the Czech Government submits that that complaint as stated in the application does not correspond to the complaint as set out in the reasoned opinion.
60It contends that, in the reasoned opinion, the Commission referred exclusively to the fact that the Czech legislation does not make clear the status of the persons concerned, whereas, in the application, the Commission now alleges that the Czech Republic failed to introduce into its national law the obligation on the competent authorities to determine the status of those persons.
61The Czech Government considers that the first complaint must also be rejected as inadmissible inasmuch as it is not set out coherently and precisely. In point 23 of the application, the Commission implied that that status could be determined in respect of each person concerned by the competent authority, whereas, in point 22 thereof, it seems to accept that the status concerned should be provided for by law.
62The Commission contests the grounds of inadmissibility put forward by the Czech Government. It submits that the subject matter of the dispute was neither extended nor modified in relation to the letter of formal notice and that it clearly relates to the fact that the Czech Republic did not correctly transpose Article 3(1)(g) and (h) of Directive 2005/36 so far as concerns the obligation on the competent authorities to determine the legal status of the persons covered under that provision.
63As to the substance, the Czech Government submits that the first complaint is, in any event, unfounded.
64That government points out that Member States are not obliged to transpose a provision of a directive literally.
65It submits that Article 3(1)(g) and (h) of Directive 2005/36 neither mentions the specific rights and obligations which must be granted to the persons concerned nor provides that a specific status must be reserved to them. That provision does not therefore prohibit that status from deriving from general provisions of national law, as is the case in Czech law.
66The Czech Government disputes the Commission’s analysis that the national legislation must expressly refer to the persons concerned. In its view, such a requirement is based on the incorrect presumption that those persons constitute a homogeneous group capable of being the subject of a single specific status, whereas their status necessarily depends on their personal situation.
67Finally, the Czech Government submits that that status cannot be determined, on a case-by-case basis, by an authority without creating significant legal uncertainty.
Findings of the Court
68As regards the admissibility of the first complaint, it is clear from the reasoned opinion and the application that the Commission claims, in all cases, that the determination of the ‘legal status’, in the host Member State, of the migrant under supervision and the applicant wishing to prepare him or herself for the aptitude test, referred to in Article 3(1)(g) and (h) of Directive 2005/36 respectively, is insufficiently clear and precise.
69As regards the ground of inadmissibility alleging infringement of the obligation to present the complaint coherently and precisely, it follows from the Commission’s line of argument, summarised in paragraphs 53 to 57 of the present judgment, that the Commission unequivocally submits in the application that Czech law does not enable the legal status of the persons concerned to be determined with sufficient clarity and precision.
70Contrary to what the Czech Government maintains, such an analysis cannot be called into question on a reading of points 22 and 23 of the application. In point 22 thereof, the Commission merely states that the ‘general’ Czech legislation does not enable the status of the persons concerned to be precisely determined. As regards point 23 thereof, the Commission refers, by way of illustration, to a situation in which, in its view, it could be considered that Article 3(1)(h) and (g) of Directive 2005/36 has been correctly transposed.
71Consequently, the grounds of inadmissibility put forward by the Czech Government must be rejected.
72As regards the merits of the first complaint, it should be borne in mind that Article 3(1)(g) of Directive 2005/36 defines an ‘adaptation period’, within the meaning of that directive, as the pursuit of a regulated profession in the host Member State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. That provision also states that that period of supervised practice is to be the subject of an assessment and that the detailed rules governing that adaptation period, its assessment as well as the status of the migrant under supervision are to be laid down by the competent authority in the host Member State.
73That provision states, moreover, that the status enjoyed in the host Member State by the migrant undergoing the period of supervised practice, in particular in the matter of right of residence as well as obligations, social rights and benefits, allowances and remuneration, is to be established by the competent authorities in that Member State in accordance with applicable EU law.
74Article 3(1)(h) of Directive 2005/36 defines an ‘aptitude test’ as a test of the professional knowledge, skills and competences of the applicant, carried out or recognised by the competent authorities of the host Member State, with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State. That provision also provides that the status, in the host Member State, of the applicant who wishes to prepare him or herself for that test in that Member State is to be determined by the competent authorities in that Member State.
75It is therefore apparent from the very wording of Article 3(1)(g) and (h) of Directive 2005/36 that that provision requires the persons concerned to have a status, the objective of the EU legislature being to guarantee to the persons concerned rights and obligations, which that directive nevertheless merely provides must relate, in particular, to the right of residence, social rights and benefits, allowances and remuneration and must comply with EU law.
76It should be recalled in that regard that, although, under the third paragraph of Article 288 TFEU, a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but is to leave to the national authorities the choice of form and methods, the provisions of a directive must, however, be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, to that effect, judgment of 12 May 2022, U.I. (Indirect customs representative), C‑714/20, EU:C:2022:374, paragraphs 58 and 59).
77It follows that the persons referred to in Article 3(1)(g) and (h) of Directive 2005/36 must be able easily to ascertain, in the host Member State, the ‘status’ applicable to them, within the meaning of that provision, which implies the existence of clear rules specifically referring to their situation.
78However, it is apparent from the file submitted to the Court that such is not the case here.
79In particular, although Paragraphs 13 to 15 of the Law on the recognition of professional qualifications lay down the detailed rules governing the adaptation period and the aptitude test, they do not contain any specific provision relating to the status of the persons concerned, nor do they refer to other rules for the determination of that status.
80As regards the rules of the ‘general’ legislation on which the Czech Government relies, the latter acknowledges that the application of those rules to migrants under supervision or applicants wishing to prepare themselves for the aptitude test likewise does not enable that status to be easily determined.
81In those circumstances, it must be held that the Czech Republic has failed to fulfil its obligations under Directive 2005/36 by failing to adopt, in accordance with Article 3(1)(g) and (h) of that directive, the provisions necessary to enable the competent authorities of the host Member State to determine the status of persons undergoing an adaptation period or wishing to prepare themselves for an aptitude test.
The second complaint, alleging failure to transpose point (b) of the first paragraph of Article 6 of Directive 2005/36
Arguments of the parties
82The Commission claims that the Czech Republic has failed to fulfil its obligations under point (b) of the first paragraph of Article 6 of Directive 2005/36 as regards the obligation on the host Member State to exempt service providers established in another Member State from the requirements imposed on professionals established in its territory relating to ‘registration with a public social security body for the purpose of settling accounts with an insurer relating to activities pursued for the benefit of insured persons’, as well as the obligations on it under the second paragraph of Article 6 of that directive, which provides that the service provider concerned is to inform, in advance or, in an urgent case, afterwards, the body referred to in point (b) of the services which he or she has provided.
83According to the Commission, Paragraph 36a of the Law on the recognition of professional qualifications relied on by the Czech authorities is not sufficient to transpose correctly point (b) of the first paragraph of Article 6 of Directive 2005/36, since Paragraph 11(1) and Paragraph 17(1) of the Law on public health insurance make reimbursement of the insured person, in the situation referred to in that provision of Directive 2005/36, subject, in any event, to the existence of a contractual relationship between the service provider and a Czech health insurance fund.
84The Commission points out that, since point (b) of the first paragraph of Article 6 of Directive 2005/36 requires the host Member State to exempt service providers established in another Member State from the obligation to register with a public social security body in order to ensure cover for insured persons, that provision precludes Member States from making reimbursement of the costs of treatment provided in that context subject to such registration.
85The Commission considers that that ‘registration’, referred to in point (b) of the first paragraph of Article 6 of Directive 2005/36, constitutes an autonomous concept of EU law, which must be interpreted in the light of the context and the objective pursued by the legislation concerned, which is to ensure compliance with the freedom to provide services.
86Thus, that concept covers not only registration, in the strict sense of the term, with the body identified by the host Member State as its principal social security body, but also the other administrative or legal requirements producing similar effects, which might have to be satisfied by the service provider vis-à-vis other bodies of that Member State which contribute, in one way or another, to the functioning of the national social security system.
87The Commission points out that, according to the information available to it, the Czech health insurance system is organised in such a way that, where a doctor established in another Member State has not concluded a contract with the insured person’s health insurance fund, the insured person is not reimbursed for the treatment provided by that doctor in the Czech Republic, even though that insured person pays contributions to his or her health insurance fund.
88The Commission adds that the conclusion of such a contract is subject to a complex process and is subject to demanding selection.
89The Commission considers that the judgment of 16 May 2002, Commission v Spain (C‑232/99, EU:C:2002:291), to which the Czech Government refers, did not concern a situation comparable to that at issue in the present case.
90In the reply, the Commission accepts that EU law does not, in principle, prevent a Member State from making reimbursement of the costs of treatment subject to compliance with certain requirements, but takes the view that point (b) of the first paragraph of Article 6 of Directive 2005/36 precludes administrative requirements such as ‘registration’, within the meaning of that provision, which in themselves render entirely impossible any reimbursement of the cost of services provided.
91The Commission submits that the concept of ‘public social security body’, within the meaning of point (b) of the first paragraph of Article 6 of Directive 2005/36, also refers to health insurance funds, since they are responsible for reimbursing medical services provided to patients under health insurance.
92The Commission states that Article 55 of Directive 2005/36, on approval by health insurance funds, is not relevant in the present case, since it relates to freedom of establishment. That article states, moreover, that it applies without prejudice to the application of point (b) of the first subparagraph of Article 6 of that directive.
93As regards the implications of recital 38 of that directive, the Commission states that the Court’s case-law expressly provides that the freedom to provide services enshrined in Article 56 TFEU requires Member States to adapt their social security systems.
94Lastly, the Commission submits that the Court found, on two occasions in 2007, that the Czech Republic had failed to fulfil its obligations by reason of the failure to transpose the same provisions on the freedom of doctors and dentists to provide services laid down by earlier directives (judgments of 18 January 2007, Commission v Czech Republic, C‑203/06, EU:C:2007:41, and of 18 January 2007, Commission v Czech Republic, C‑204/06, EU:C:2007:42).
95The Czech Government raises two grounds of inadmissibility with regard to the second complaint.
96First of all, the Czech Government submits that the Commission did not delimit the subject matter of the infringement in question in the letter of formal notice and failed to comply with the requirements relating to a coherent and precise presentation of the complaint at that stage of the pre-litigation procedure.
97The Czech Government adds that the Commission also failed to comply, in the reasoned opinion, with the obligation to provide a coherent and detailed statement of the reasons which led it to conclude that the Czech Republic had failed to fulfil its obligations, since that institution did not explain that the obligation to conclude a contract, laid down in Czech law, should be equated with registration of the doctor with a health insurance scheme.
98In fact, it was only in the application that the Commission specified, for the first time, the substance of its complaint in that regard and identified the provisions of national law at issue, and the Czech Government was therefore only able to respond for the first time to that complaint at the stage of the defence.
99Accordingly, the Commission extended the subject matter of the infringement concerned at the stage of the application.
100Next, the Czech Government submits that, as regards the part of the complaint relating to non-compliance with the second paragraph of Article 6 of Directive 2005/36, the Commission did not mention that provision either in the letter of formal notice or in the reasoned opinion or the application, with the result that that part of the complaint should be rejected as manifestly inadmissible.
101Furthermore, the second complaint does not appear to have been mentioned at the stage of the letter of formal notice, so that adding it to the reasoned opinion and then to the application likewise constitutes an extension of the subject matter of that complaint, which renders it inadmissible.
102The result of this is also that the reasoned opinion lacks coherence and precision.
103The Commission contests those two grounds of inadmissibility.
104The Commission submits, first of all, that, since the letter of formal notice, the content of the second complaint has remained unchanged, namely that it refers to the failure to transpose the obligation on the host Member State to exempt service providers from registration with a public social security body for the purpose of settling accounts with an insurer relating to activities pursued for the benefit of insured persons under point (b) of the first paragraph of Article 6 of Directive 2005/36.
105The Commission states that the information provided by the Czech Government in response to the letter of formal notice shows that the latter had understood the subject matter of the second complaint, even if it did not substantiate its assertions by referring to specific provisions of national law. In that regard, the Commission submits that it had to seek out the relevant provisions of Czech law itself, so that the fact that it referred to them at the application stage cannot be regarded as a modification of that complaint.
106As regards, next, the part of the second complaint relating to the requirement for the service provider to inform that public social security body, the Commission accepts that it should have referred to the ‘second paragraph of Article 6’ of Directive 2005/36, and not only point (b) of the first paragraph of Article 6 thereof, but states that, in any event, it reiterated the content of the former provision in the letter of formal notice and in the reasoned opinion and that the Czech Republic submitted observations in that regard.
107In the alternative, the Czech Government submits that the second complaint is unfounded.
Findings of the Court
108As regards the grounds of inadmissibility raised by the Czech Government, it should be noted that at the stage of the letter of formal notice, the Commission merely stated that point (b) of the first paragraph of Article 6 of Directive 2005/36, concerning the exemption of service providers from registration with a social security body, had not been transposed into Czech law. In the reasoned opinion, the Commission stated that that exemption requirement and the obligation on the service provider to provide prior information, which is set out in the second paragraph of Article 6 of that directive but which it incorrectly attributed to point (b) of the first paragraph of Article 6 of the Directive, had not been transposed. Furthermore, such a complaint is not addressed in the supplementary reasoned opinion.
109By contrast, at the stage of the application, the Commission claims, in essence, that the obligation on the service provider to conclude a contract with the patient’s health insurance fund in order to ensure reimbursement of the patient’s treatment, laid down in Czech law, corresponds to an obligation to register with a social security body which is therefore contrary to point (b) of the first paragraph of Article 6 of Directive 2005/36.
110That complaint therefore differs in its subject matter from the complaint initially referred to, which, as the Commission acknowledged in its written pleadings, was based on the failure to transpose the exemption from registration with a social security body laid down in that provision. The Commission cannot therefore validly maintain that the content of that complaint has remained unchanged since the letter of formal notice.
111The Commission justifies such a difference by the fact that the Czech Republic did not provide it with sufficient relevant information in that regard and that it therefore had to seek for itself, in national law, the transposition provisions which it considered relevant.
112It must be borne in mind in that regard that, while it is true that it is for the Commission to prove the allegation that the obligation has not been fulfilled, by providing the information necessary for the purposes of determining whether the infringement is made out, that institution is largely reliant on the information provided by the Member State concerned, which must, under Article 4(3) TEU, facilitate the achievement of the Commission’s tasks, which consists, inter alia, under Article 17(1) TEU, in ensuring that the provisions of the FEU Treaty and the measures taken by the institutions pursuant thereto are applied (see, to that effect, judgment of 2 September 2021, Commission v Sweden (Waste water treatment plants), C‑22/20, EU:C:2021:669, paragraphs 143 and 144 and the case-law cited).
113However, in the present case, since the provisions of the law of the Czech Republic relied on by the Commission in the application raise new questions relating to the compliance of the requirements laid down in those provisions with point (b) of the first paragraph of Article 6 of Directive 2005/36, the second complaint must be rejected as inadmissible in so far as it relates to those questions, since the Commission did not specify, but substantially altered the subject matter of that complaint at the stage of the reasoned opinion and the application.
114The obligation on that Member State to provide information, referred to in paragraph 112 of the present judgment, cannot therefore be validly relied on by the Commission in a situation where the Commission has not complied with its obligations relating to the delimitation of the subject matter of the dispute, as set out in paragraph 49 of this judgment.
115As regards the part of the second complaint relating to failure to transpose the obligation, incumbent on the service provider, to inform the social security body of the host Member State, the Czech Government raised a ground of inadmissibility alleging that the Commission referred to point (b) of the first paragraph of Article 6 of Directive 2005/36, although that obligation is laid down in the second paragraph of Article 6 of that directive.
116The wording of the latter provision was nevertheless reiterated at the stage of the letter of formal notice, with the result that that plea cannot be upheld.
117On the other hand, such a lack of precision in the numbering of the provision of EU law cited does not make it possible to determine easily to what extent the arguments relied on by the Commission in support of the infringement of point (b) of the first paragraph of Article 6 of Directive 2005/36 are or are not relied on in support of the infringement of the second paragraph of Article 6 of that directive.
118Although the obligation laid down in the second paragraph of Article 6 of Directive 2005/36, according to which the service provider must inform in advance the body referred to in point (b) of the first paragraph of Article 6 of that directive of the services he or she has provided, is linked to the exemption, provided for under that provision, for that service provider from registration with a public social security body, the fact remains that they are two separate obligations, the purported infringement of which must be made clear at the stage of the letter of formal notice. That applies all the more so since, as pointed out in paragraph 110 of the present judgment, the second complaint initially concerned the failure to transpose such an exemption from registration and not the failure to transpose the obligation to provide information.
119In those circumstances, the wording of the part of the second complaint relating to a failure to transpose the obligation, incumbent on the service provider, to inform the social security body of the host Member State, lacks coherence and precision and that part must therefore be regarded as inadmissible.
120Consequently, the second complaint must be rejected as inadmissible.
The third complaint, alleging failure to transpose Article 7(3) of Directive 2005/36
Arguments of the parties
121The Commission claims that the Czech Republic has failed to fulfil its obligations under Article 7(3) of Directive 2005/36 by failing to transpose, for veterinary surgeons and architects, the possibility to provide services, within the framework of the freedom to provide services, under the professional title of the host Member State.
122The Commission submits that, where a provider moves from one Member State to another to provide a service, Article 7(3) of Directive 2005/36 provides that that service is to be provided under the professional title of the Member State of establishment, with the exception of regulated professions, such as veterinary surgeons and architects, the academic titles for which are automatically recognised, that service then being provided under the professional title of the host Member State.
123The Commission considers that Czech law explicitly provides for such a rule in respect of certain professions, but that there are no specific provisions for veterinary surgeons, so that the general rule laid down in Paragraph 27(2) of the Law on the recognition of professional qualifications should be applied, according to which an applicant who pursues a regulated activity in the Czech Republic on a temporary or occasional basis is to use the professional title of the home Member State. The application of that provision to veterinary surgeons is therefore contrary to Article 7(3) of Directive 2005/36.
124The Commission further submits that the Law on veterinary care, in the version applicable in the present case, relied on by the Czech Government, does not contain any reference to a professional title or to the provision of services by veterinary surgeons from other Member States and that Paragraph 59(3) of that law, which refers to the use of an academic title and authorises the use of that title only in the language of the State in which that title was obtained, could be misleading as to the rules governing the professional title concerned.
125As regards the Law on the Chamber of Veterinary Surgeons, that law does not govern the use of a professional title by a veterinary surgeon either, and the title of ‘visiting veterinary surgeon’ to which it refers is, in any event, different from that of ‘veterinary surgeon’.
126The Commission claims, using similar arguments, that the same applies to architects.
127Thus, in the absence of specific provisions, it is appropriate to apply the general rule laid down in Paragraph 27(2) of the Law on the recognition of professional qualifications.
128Paragraph 30c(2) of the Law on authorisation, which relates to the exercise of the profession of architect and which provides that Paragraph 13(1) of that law, relating to the use of the professional title of ‘authorised architect’, is to apply ‘adequately’ to the visiting persons, is drafted in terms which are too imprecise to permit the inference that it correctly transposes Article 7(3) of Directive 2005/36 into Czech law.
129The Commission points out that, although the Court’s case-law does not require the provisions of a directive to be reproduced verbatim when transposing it into national law, it is necessary to satisfy the requirement of legal certainty by means of sufficiently clear and precise transposition measures.
130The fact that Czech law does not give rise to ‘any difficulties in practice’, as the Czech Government maintains, is irrelevant for the purpose of assessing whether Directive 2005/36 has been correctly transposed.
131The Czech Government contends that the third complaint is inadmissible and, in any event, unfounded.
132In the rejoinder, the Czech Government submits that the arguments relied on by the Commission in the reply justify rejecting the third complaint as inadmissible, having regard to that complaint’s lack of precision and to the fact that the Commission changed its argument at that stage of the proceedings in so far as that institution considers that visiting persons are obliged, under Czech law, to use the professional title of ‘visiting veterinary surgeon’ or ‘visiting authorised architect’.
133The Czech Government submits that Member States are not obliged to reproduce verbatim the provisions of a directive in their legal systems and that its national law leaves no doubt as to the possibility for veterinary surgeons and architects from other Member States to use the professional titles of the host Member State.
134The Czech Government observes that the Law on the Chamber of veterinary surgeons classifies a veterinary surgeon from another Member State, who temporarily or occasionally provides services in the Czech Republic, as a ‘visiting veterinary surgeon’.
135As regards architects, the Czech Government refers to Paragraph 13 of the Law on authorisation, which introduces the professional title of ‘authorised architect’. Furthermore, that government points out that, under Paragraph 30c(2) of that law, Article 13 thereof applies ‘adequately’ to the persons concerned.
136In practice, the Czech legislation does not therefore raise ‘any difficulties’ and ‘visiting’ architects are in no way prevented from using the title of ‘authorised architect’.
Findings of the Court
137As a preliminary point, the Czech Government’s ground of inadmissibility must be rejected, since it does not appear in any way that the third complaint is too imprecise or that the Commission altered its content at the stage of the reply.
138As regards the substantive analysis of the third complaint, Article 7 of Directive 2005/36 relates to the situation in which a service provider moves. Article 7(3) of that directive states not only that the service must be provided under the professional title of the Member State of establishment in so far as such a title exists in that Member State for the professional activity concerned, so as to avoid any confusion with the professional title of the host Member State, but also that, by way of derogation, the service must be provided under the professional title of the host Member State in the cases referred to in Chapter III of Title III of that directive.
139It follows that, as the Commission submits, for professions enjoying automatic recognition under Chapter III of Title III of Directive 2005/36, the service is provided under the professional title of the host Member State. That is, inter alia, the case for veterinary surgeons and architects, having regard to Article 21(1) of that directive, which covers both professions.
140As regards veterinary surgeons, Paragraph 5a(1) of the Law on the Chamber of veterinary surgeons refers to the case of a veterinary surgeon in a Member State of the European Union who plans to exercise in the Czech Republic preventative and curative veterinary care on a temporary or occasional basis and designates that veterinary surgeon as a ‘visiting veterinary surgeon’. However, it does not appear that that provision governs the use of the professional title by a veterinary surgeon who moves from one Member State to the Czech Republic in order to pursue his or her activity there.
141In addition, Paragraph 27(2) of the Law on the recognition of professional qualifications provides, generally, that an applicant who pursues a regulated profession in the Czech Republic on a temporary or occasional basis is to use the professional title of the home Member State in accordance with its legislation and in the official language or one of the official languages of that Member State.
142Consequently, it does not appear that veterinary surgeons who exercise their activity on an occasional or temporary basis in the Czech Republic have the right to use the professional title of that Member State as required by Article 7(3) of Directive 2005/36.
143Although it follows from the case-law that under EU law it is not always necessary to formally enact the requirements of a directive in a specific express legal provision, the fact remains that, where a provision of the directive is intended to create rights for individuals, the legal situation arising from those rights must be sufficiently precise and clear and the persons concerned must be put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts (see, to that effect, judgment of 30 November 2006, Commission v Luxembourg, C‑32/05, EU:C:2006:749, paragraph 34 and the case-law cited).
144Furthermore, the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, to that effect, judgment of 30 June 2016, Commission v Poland, C‑648/13, EU:C:2016:490, paragraph 78).
145In the present case, Article 7(3) of Directive 2005/36, which provides that the service is to be provided under the professional title of the host Member State in the cases referred to in Chapter III of Title III of that directive, is intended to create such rights for the professionals concerned, inter alia for veterinary surgeons.
146Consequently, the lack of precision in national law as to the use of the professional title of the Czech Republic by veterinary surgeons who come to pursue their activity there on a temporary and occasional basis, where that law provides for the general rule of use of the title of the Member State of establishment, does not satisfy the requirements of precision and clarity for the purposes of the case-law cited in paragraph 143 of the present judgment.
147The fact, relied on by the Czech Republic, that, in practice, veterinary surgeons are not prevented from using the professional title of the Czech Republic is, in that regard, irrelevant.
148Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations to transpose a directive (see, to that effect, judgment of 30 June 2016, Commission v Poland, C‑648/13, EU:C:2016:490, paragraph 79).
149As regards the situation of architects who come to pursue their activity on a temporary and occasional basis in the Czech Republic, it should be noted that although, unlike in the case of veterinary surgeons, Czech law lays down specific provisions on the use of the professional title in that Member State, those provisions likewise do not appear to be sufficiently clear and precise for the purposes of the case-law cited in paragraph 143 of the present judgment.
150Paragraph 30c(2) of the Law on authorisation, which concerns the exercise of the profession of architect and which states that the provisions of Paragraph 13(1) of that law, relating to the professional title of ‘authorised architect’, are to apply ‘adequately’ to the visiting persons, is not entirely clear as regards the conditions under which that rule is to be applied.
151Furthermore, the fact that, in practice, the system provided for in Czech law does not raise any difficulties cannot call that analysis into question either.
152It follows that it must be held that the Czech Republic has failed to fulfil its obligations under Directive 2005/36 by failing to adopt, in accordance with Article 7(3) of that directive, the provisions necessary to enable veterinary surgeons and architects to provide services, within the framework of the freedom to provide services, under the professional title of the host Member State.
The fourth complaint, alleging failure to transpose Article 21(6) and Article 31(3) of Directive 2005/36
Arguments of the parties
153The Commission submits that the Czech Republic has failed to fulfil its obligations under Article 21(6) and Article 31(3) of Directive 2005/36 by allowing, in its national law, the exercise of ‘parallel’ nursing professions that are nevertheless comparable, one of which is subject to lower qualification requirements than those required by Directive 2005/36.
154According to the Commission, the provisions of that national law allowing the exercise of those ‘parallel’ professions undermine the effectiveness of that directive and may lead to a circumvention of the rules concerning the minimum requirements for vocational training and automatic recognition.
155Czech law provides for the profession of ‘general nurse’, corresponding to that of ‘nurse responsible for general care’, referred to in Article 21(6) of Directive 2005/36, and that of ‘nurse practitioner’, for which the professional training requirements laid down in Czech law are lower than those required by Article 31(3) of that directive for ‘nurses responsible for general care’.
156The Commission considers that, having regard not only to their name but also to the highly comparable nature of the corresponding activities, the existence of those two ‘parallel’ professions is confusing both for patients and for persons wishing to practise nursing.
157Such a situation is contrary to the objective of Article 54 of Directive 2005/36, which is to prevent confusion between the academic titles obtained in the home Member State and that obtained in the host Member State.
158The Czech Government contends that the fourth complaint is inadmissible and, in any event, unfounded.
159As regards the admissibility of the fourth complaint, the Czech Government puts forward, first of all, a first ground of inadmissibility alleging that that complaint was not referred to in the operative part of the reasoned opinion or in that of the supplementary reasoned opinion, such an error not being rectifiable in the light of the principles stemming from the judgment of 8 July 2010, Commission v Portugal (C‑171/08, EU:C:2010:412, paragraph 28).
160The Czech Government next raises a second ground of inadmissibility alleging that the Commission extended the subject matter of the fourth complaint at the stage of the application. It argues that, in the pre-litigation procedure, that complaint concerned only the likelihood of confusion between the name of the profession of ‘nurse practitioner’ and that of ‘general nurse’, also provided for in the law of that Member State, the latter profession corresponding to that of ‘nurse responsible for general care’ covered by Directive 2005/36. Thus that complaint, in the Czech Government’s view, did not in any way concern the issue, raised in the application, of whether the Member States can create two comparable professions, only one of which falls within the scope of Directive 2005/36.
161The Czech Government states that the mere citation of a provision of a directive in the heading of a complaint does not mean that the Commission has included in that complaint all conceivable infringements of that provision.
162Finally, the Czech Government raises a third ground of inadmissibility, alleging that the fourth complaint was not formulated coherently and precisely, in particular because, in point 115 of the application, the Commission summarises its analysis solely by reference to the name of the profession of ‘nurse practitioner’.
163The Commission contests those grounds of inadmissibility.
164As regards the first ground of inadmissibility, the Commission submits that the purpose of the pre-litigation procedure is to enable the Member State concerned to comply with its obligations under EU law or to defend itself effectively against the complaints made, but that does not mean that the statement of those complaints in the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject matter of the proceedings, as defined in the reasoned opinion, is not extended or altered.
165The fact that the fourth complaint was not referred to in the operative part of the reasoned opinion or in that of the supplementary reasoned opinion is the result of an ‘administrative error’ which had no effect on the Czech Republic’s compliance with its obligations under EU law or with that Member State’s rights of defence.
166As regards the second and third grounds of inadmissibility, the Commission submits that it did not alter the content of the fourth complaint at the stage of the application since, in the letter of formal notice, it had referred to Article 21(6), Article 31(3) and Article 32 of Directive 2005/36.
167The Commission further submits that it stated, from the time of the pre-litigation procedure, that that directive did not preclude certain activities of the profession of nurse from also being carried out by other, less qualified persons, provided that there was no ambiguity as to the different levels of training and competence of the professionals concerned.
168Finally, in their reply, the Czech authorities pointed out the differences between the two professions and therefore understood perfectly well that the Commission criticised the coexistence of those two professions.
169As to the substance, the Czech Government submits that the fourth complaint is, in any event, unfounded.
Findings of the Court
170As regards the grounds of inadmissibility raised by the Czech Government, it should be noted that the subject matter of the fourth complaint was indeed altered at the stage of the application.
171In the reasoned opinion, the fourth complaint related essentially to the title ‘nurse practitioner’ granted by the Czech Republic to a profession, on the ground that that title caused confusion with the title ‘general nurse’, also provided for in national law, which corresponds to the profession of ‘nurse responsible for general care’ referred to in Article 21(6) of Directive 2005/36.
172By contrast, in the application, the fourth complaint concerns, in essence, the separate question of the compatibility with Directive 2005/36 of the very existence in Czech law of a ‘parallel’ profession to that of nurse responsible for general care referred to in that directive, but subject to lower training requirements than those laid down in Article 31(3) of that directive for the latter profession, a question which furthermore requires a comparative and detailed analysis of the activities assigned to each of those two professions in the Czech Republic.
173In so doing, as the Advocate General observed in point 118 of his Opinion, the Commission did not therefore confine itself to clarifying the fourth complaint, but substantially altered its subject matter.
174The fact, relied on by the Commission, that it referred, in the application, to the same provisions of Directive 2005/36 as it did during the pre-litigation procedure cannot call that finding into question, since the citation of a provision is not sufficient in itself to define the complaint raised by the Commission.
175The fourth complaint must therefore be rejected as inadmissible.
The fifth complaint, alleging failure to transpose Article 45(2) of Directive 2005/36
Arguments of the parties
176The Commission claims that the Czech Republic has failed to fulfil its obligations under Article 45(2)(c), (f) and, in part, (e) of Directive 2005/36, by making the independent exercise of certain activities as a pharmacist subject to a requirement of ‘specialised competences’ involving additional training.
177The Commission points out that Article 45(2) of Directive 2005/36 requires that Member States guarantee pharmacists who satisfy the conditions relating to professional qualifications laid down in Article 44 of that directive access to the activities mentioned in Article 45(2) thereof, subject only to the requirement, where appropriate, of supplementary professional experience.
178The Commission submits that the Czech Republic has not correctly transposed the latter provision as regards the activities referred to in Article 45(2)(c), (f) and, in part, (e) of that directive, since Czech law makes the independent exercise of those activities subject to the acquisition of additional specialised competences, provided for in subparagraphs 7 to 11 of Paragraph 11 of Law No 95/2004, which cover activities relating to pharmaceutical technologies, laboratory and health analysis methods, radiopharmaceutical medicinal products, practical dispensing pharmacy, clinical pharmacy and hospital pharmacy.
179The Commission submits that, contrary to what the Czech Government maintains, the activities covered by the fifth complaint correspond to those referred to in Article 45(2)(c), (f) and, in part, (e) of Directive 2005/36, Article 45(2) of that directive referring to all the activities traditionally pursued by pharmacists.
180The Commission adds that the Czech Republic’s legal regime is all the more unclear in that Paragraph 12(3)(c) of the Law on health services provides that, if health services are provided in the field of pharmacy or in the fields of specialised training for pharmacists, an authorisation for the independent exercise of the profession of pharmacist is required in at least one of the fields of specialised training for pharmacists.
181The Commission submits that the Czech Government’s argument that Directive 2005/36 does not, in any event, require the activities mentioned in Article 45(2) thereof to be carried out independently cannot be accepted, since, in its view, that provision requires, on the contrary, pharmacists to have full access to the activities concerned.
182The Commission points out that the specific nature of the regulated professions referred to in Chapter III of Title III of Directive 2005/36 implies automatic recognition of professional qualifications and that such automatic recognition is one of the fundamental principles and objectives of that directive.
183The Commission disputes the Czech Government’s argument that the training required to obtain the specialised competences may, in any event, be replaced by supplementary professional experience, in accordance with Article 45(2) of Directive 2005/36.
184Finally, the Commission adds that, even if it were to be considered that subparagraphs 7 to 11 of Paragraph 11 of Law No 95/2004 do not cover the activities mentioned in Article 45(2)(c), (f) and, in part, (e) of Directive 2005/36, the fact remains that Czech law remains insufficiently clear and precise on the subject, since Paragraph 12(3)(c) of the Law on health services appears to require authorisation for the independent exercise of the profession of pharmacist in at least one field in order that pharmacists may pursue any activities whatsoever.
185The Czech Government contends that the fifth complaint is inadmissible.
186The Czech Government argues that the Commission has not stated coherently and precisely in what the infringement of EU law it alleges consists and that it did not clearly identify, at the pre-litigation stage, the provisions of Czech law which it considers contrary to Article 45(2) of Directive 2005/36. In particular, in the application, the Commission no longer refers to vyhláška č. 187/2009 Sb., o minimálních požadavcích na studijní programy všeobecné lékařství, zubní lékařství, farmacie a na vzdělávací program všeobecné praktické lékařství (Decree No 187/2009, on minimum requirements for study programmes in general medicine, dentistry and for the training programme for general medical practitioners) (‘Decree No 187/2009’), which was, however, invoked in support of the fifth complaint in the letter of formal notice.
187The Czech Government also argues in that regard that the subject matter of the fifth complaint has been extended.
188The Czech Government contends that the application itself does not allow the scope of the infringement to be defined either, in so far as it refers sometimes to Article 45(2) of Directive 2005/36 in its entirety and sometimes only to points (c), (f) and (e) of that provision.
189The Czech Government adds that the mere citation of the wording of a provision of a directive is not sufficient to set out a complaint clearly and that the Commission must state, from the pre-litigation stage, the specific reasons and arguments on which its analysis is based.
190The Commission contests those grounds of inadmissibility.
191The Commission submits that, as early as the letter of formal notice, it complained that the Czech Republic had failed to transpose Article 45(2) of Directive 2005/36 in a sufficiently clear and precise manner and that it referred to Law No 95/2004 in the reasoned opinion in the light of the observations submitted by the Czech Republic on that letter.
192The Commission points out that, in any event, Law No 95/2004 was also discussed from the beginning of the pre-litigation procedure and that it is incorrect to claim that the letter of formal notice referred only to Decree No 187/2009.
193The Commission adds that, following the observations made by the Czech Republic on the letter of formal notice, it ultimately limited the scope of the fifth complaint to Article 45(2)(c), (f) and, in part, (e) of Directive 2005/36 in the reasoned opinion and that the scope of that complaint was not altered in the application.
194The Czech Government also contends that the fifth complaint is, in any event, unfounded.
Findings of the Court
195As regards the grounds of inadmissibility relied on by the Czech Government, it should be noted that the Commission referred, in the letter of formal notice, to a failure to fulfil obligations under Article 45(2) of Directive 2005/36, essentially on the ground that Decree No 187/2009 ‘[did] not transpose at all’ points (c), (f) and (h) to (j) of Article 45(2) of that directive, and that that decree transposed point (e) of that provision ‘incompletely’.
196In the reasoned opinion, the Commission, on the other hand, referred to the requirements for specialised training laid down in Paragraph 11 of Law No 95/2004 in order to carry out independently certain activities as a pharmacist, referred to in Article 45(2)(c), (f) and, in part, (e) of Directive 2005/36, for the purposes of arguing that those requirements do not comply with Article 45(2).
197In the supplementary reasoned opinion, the Commission referred again to those requirements, but in order to claim that the Czech Republic had failed to fulfil its obligations under Article 45(3) of Directive 2005/36.
198It follows that, between the letter of formal notice and the reasoned opinion, the subject matter of the fifth complaint was amended, raising new questions, such as whether Article 45(2) of Directive 2005/36 is intended to apply exhaustively to all the activities of a pharmacist, or whether that provision allows Member States, in respect of activities other than those to which it expressly refers, to impose additional requirements and, as the case may be, whether or not the activities subject to the requirement of specialised competences, laid down in subparagraphs 7 to 11 of Paragraph 11 of Law No 95/2004, fall within the activities referred to in Article 45(2) (c), (f) and, in part, (e) of that directive.
199Thus, those new questions concern issues substantially different from those of whether that provision of Directive 2005/36 was transposed into Czech law.
200The fifth complaint must therefore be rejected as inadmissible.
The sixth complaint, alleging failure to transpose Article 45(3) of Directive 2005/36
Arguments of the parties
201The Commission claims that the Czech Republic has failed to fulfil its obligations under Article 45(3) of Directive 2005/36, relating to the conditions under which the supplementary professional experience required is recognised for pharmacists in the host Member State.
202The Commission notes, first of all, that Article 45(3) of Directive 2005/36 must be read in the light of Article 45(2) thereof, which provides that Member States may require pharmacists to have supplementary professional experience.
203The Commission refers, next, as in the fifth complaint, to Paragraph 11 of Law No 95/2004, which, in subparagraph 1(a) thereof, makes independent access to certain activities as a pharmacist subject to additional specialised training, or, in subparagraph 1(b) thereof, to obtaining what the Czech Republic presents as ‘supplementary professional experience’, but which, in practice, requires completion of a training programme which can be followed only in an accredited institution which issues a certificate of completion to the applicant.
204Therefore, according to the Commission, the requirement relating to additional ‘specialised training’, laid down in Paragraph 11(1)(a), does not comply with Directive 2005/36, for the same reasons as those set out in the fifth complaint.
205As regards Paragraph 11(1)(b) of Law No 95/2004, the Commission considers there to be two possible interpretations of that provision.
206That provision could be interpreted as establishing an ‘alternative training programme’, for the purposes of obtaining the specialisations referred to in Paragraph 11(1)(a) of Law No 95/2004, which are the subject of the fifth complaint and which interpretation has, moreover, been confirmed by the Czech Republic. In that situation, Paragraph 11(1)(b) of that law would be contrary to Article 45(2) of Directive 2005/36 for the same reasons as those set out in the fifth complaint.
207A second way of interpreting Paragraph 11(1)(b) of Law No 95/2004 would be to consider that it lays down a ‘professional experience’ requirement within the meaning of Article 45(2) and (3) of Directive 2005/36. However, since the Czech law provides also for the completion of a training programme which can be carried out only in an accredited institution and which must result in a certificate of completion, the content of Paragraph 11(1)(b) goes beyond the provision made in Article 45(2) and (3).
208According to the Commission, Paragraph 28a of Law No 95/2004, relied on by the Czech Government, read in conjunction with Paragraph 11(1)(b) thereof, therefore exceeds the limit of mere recognition of the duration of professional experience.
209The Czech Government submits that the requirements relating to specialised competences for pharmacists laid down in Czech law do not fall within the scope of Article 45(2) of Directive 2005/36, since the activities concerned are not those falling within the scope of that provision and, consequently, those requirements do not fall within the scope of Article 45(3) of that directive either.
210The Czech Government adds that there is no need, moreover, to transpose the latter provision in a Member State where that State does not provide for the application of a ‘supplementary professional’ requirement within the meaning of Article 45(2) of that Directive.
211In any event, irrespective of the questions relating to the scope of Article 45(2) of Directive 2005/36, the wording of Paragraph 28a(5) of Law No 95/2004 reproduces verbatim Article 45(3) of that directive and provides that ‘in the event of supplementary professional experience, within the meaning of Paragraph 11(1)(b) [of Law No 95/2004], the Ministry shall automatically recognise as proof of the qualification obtained a certificate issued by the competent authorities of the Member State proving that the person concerned has been engaged in those activities in the home Member State for an equivalent period’.
212Finally, if the Commission considers that several interpretations of national law are possible, it should demonstrate that, in practice, that law is applied in a manner contrary to EU law.
Findings of the Court
213Under Article 45(3) of Directive 2005/36, ‘if a Member State makes access to or pursuit of one of the activities of a pharmacist contingent upon supplementary professional experience, in addition to possession of evidence of formal qualifications …, that Member State shall recognise as sufficient proof in this regard a certificate issued by the competent authorities in the home Member State stating that the person concerned has been engaged in those activities in the home Member State for a similar period’.
214As the Commission has pointed out, Article 45(3) of Directive 2005/36 must be read in the light of Article 45(2) thereof, which allows Member States to make access to the activities referred to in the latter provision subject to ‘supplementary professional experience’. The requirement for recognition by the host Member State of the supplementary professional experience obtained in the home Member State, referred to in Article 45(3), applies only to the activities mentioned in Article 45(2).
215In the present case, the Czech Government relies on Paragraph 28a(5) of Law No 95/2004, which provides that ‘in the event of supplementary professional experience, within the meaning of Paragraph 11(1)(b) [of that law], the Ministry shall automatically recognise as proof of the qualification obtained a certificate issued by the competent authorities of the Member State proving that the person concerned has been engaged in those activities in the home Member State for an equivalent period’.
216However, Paragraph 11(1)(b) of Law No 95/2004 refers to the acquisition of ‘supplementary professional experience based on the relevant training programme at an institution accredited for the relevant field of specialised training or for the relevant field of supplementary professional experience, which shall issue a certificate of completion to the applicant’.
217Thus, in order to determine whether Paragraph 28a(5) of Law No 95/2004, read in conjunction with Paragraph 11(1)(b) of that law, imposes a condition additional to that relating to ‘supplementary professional experience’ within the meaning of Article 45(3) of Directive 2005/36, it is necessary, first of all, to examine whether those provisions of Czech law concern the activities of a pharmacist falling within the scope of Article 45(2) of that directive. That question is part of the fifth complaint and the latter was rejected as inadmissible since, as has been pointed out in paragraph 198 of the present judgment, the Commission altered the subject matter of that fifth complaint, raising new questions between the letter of formal notice and the reasoned opinion. Consequently, inasmuch as, during the pre-litigation procedure, the Czech Republic’s rights of defence were not observed in connection with that fifth complaint, the Court is likewise unable to carry out such an examination in the context of the sixth complaint.
218Consequently, the sixth complaint must be rejected as unfounded.
The seventh complaint, alleging failure to transpose Article 50(1) of Directive 2005/36, read in conjunction with point 1(d) and (e) of Annex VII thereto
Arguments of the parties
219The Commission claims that the Czech Government has failed to fulfil its obligations under Article 50(1) of Directive 2005/36, read in conjunction with point 1(d) and (e) of Annex VII thereto, as regards the obligation imposed on the home Member State to send, within a maximum period of two months, the documents referred to in those provisions which the host Member State may require the applicant to produce in order to take up a regulated profession. Those documents relate, respectively, to the good character and repute of the applicant, to the fact that he or she has not been declared bankrupt or to the proof that he or she has not been the subject of a measure suspending or prohibiting the pursuit of such a profession in the event of serious professional misconduct or a criminal offence, on the one hand, and to the applicant’s physical or mental health, on the other.
220The Commission submits that the provisions of national law relied on by the Czech authorities are inadequate to transpose correctly Article 50(1) of Directive 2005/36, read in conjunction with point 1(d) and (e) of Annex VII to that directive.
221In particular, Paragraph 71(1) and (3) and Paragraph 154 of the Code of administrative procedure, relied on by the Czech authorities, are too general and insufficiently clear and precise to guarantee such a right to the applicant. Furthermore, Paragraph 154, which concerns the issue by the administration of an attestation or certificate, does not expressly refer to the time limit laid down in Paragraph 71 for providing that document, since it provides that that time limit must be taken into account ‘adequately’ and only if its application ‘proves to be necessary’.
222As regards Paragraph 33(1) of the Law on the recognition of professional qualifications, which lays down a time limit for communications between the authorities of the Member States, it is likewise not clear or precise enough to guarantee rights to the persons concerned. In addition, that provision makes it possible to exceed the period of one month for which it provides, without imposing any temporal limit.
223Furthermore, that provision concerns only the issuing of documents between the Member States, whereas compliance with the two-month period covered by the seventh complaint concerns, in principle, the relationship between an applicant wishing to pursue a profession in another Member State and his or her home Member State. The Commission submits in that regard that Article 50(1) of Directive 2005/36 does not expressly mention any administrative cooperation between the authorities of the Member States in relation to the documents requested, since such cooperation is expressly provided for, in the event of justified doubts, only in paragraphs 2, 3 and 3a of that article. Consequently, the Commission considers that the documents concerned must, first, be requested by the host Member State directly from the applicant who, to that end, must have the possibility of obtaining them from the authorities of the home Member State within the two-month period laid down for that purpose.
224The Commission points out that, in any event, even though the Member States have the choice of the form and methods for implementing directives, it is essential that national law effectively guarantees their full application by the national authorities and that the legal situation concerned is sufficiently clear and precise.
225As regards the arguments put forward by the Czech Government in the defence, to the effect that the documents concerned can be obtained by other means in practice, the Commission points out that it is largely reliant on the information provided by the Member State concerned in order to monitor the actual transposition of a directive and that that Member State must notify it of the measures adopted. However, no such action was taken in relation to the new measures referred to above.
226The Commission also submits that Article 63 of Directive 2005/36 requires Member States to refer to that directive in the provisions adopted to transpose it.
227The Commission infers from this that the seventh complaint is well founded, despite the additional observations made by the Czech Government.
228Furthermore, and in any event, the Commission considers that, as regards the evidence of good character and the absence of a declaration of bankruptcy to which the Czech Government refers in the defence, that government has not shown that all professionals, in particular those who pursue a profession as employees, are entered in the Commercial Register or that the possibility of requesting documents electronically is sufficient in itself, since not all persons necessarily have the material possibility of accessing them electronically.
229Thus, the Commission considers that the seventh complaint is well founded at least in so far as it relates to the documents referred to in point 1(d) of Annex VII of Directive 2005/36.
230The Czech Government contends that the seventh complaint is inadmissible on the ground that Article 50(1) of Directive 2005/36 is not referred to by the Commission in the application and that, in any event, that provision does not provide that the authorities of the home Member State must provide the documents listed in point 1(d) and (e) of Annex VII to that directive within a prescribed period. In the rejoinder, the Czech Government submits that that ground of inadmissibility is not based on the fact that the Commission did not cite the wording of Article 50(1) of Directive 2005/36, but on the fact that that institution does not explain the scope of the infringement alleged against the Member State on the basis of that provision, since that provision does not lay down the time limit which is the subject of the complaint.
231The Commission submits that that ground of inadmissibility is unfounded since the literal citation of the provisions of EU law alleged to have been infringed cannot constitute a condition for the admissibility of a complaint. Furthermore, the seventh complaint refers to the wording of Article 50(1) of Directive 2005/36 and, in any event, also to point 1(d) and (e) of Annex VII to Directive 2005/36, which lays down the two-month period at issue in that complaint.
232In the alternative, the Czech Government submits that the seventh complaint is unfounded.
233The Czech Government submits that point 1(d) and (e) of Annex VII to Directive 2005/36 does not specify the beneficiary of the two-month period, that is to say, the person to whom the competent authority of the home Member State must provide the documents concerned within that period.
234In any event, Czech law ensures that those documents are communicated within the two-month period both to the person who has requested them from the home Member State and to the competent authority of the host Member State, if that authority has forwarded that request.
235Thus, where it is the person concerned who requests that those documents be issued to the Czech authorities, Paragraph 154 of the Code of administrative procedure, read in conjunction with Paragraph 71(1) and (3) of that code, applies and requires the Czech administrative authority to issue a decision or a certificate without delay, at the latest within a period of 30 days, which may be extended by 30 days.
236Furthermore, the documents referred to in point 1(d) of Annex VII to Directive 2005/36, relating to good character, good repute or the absence of a declaration of bankruptcy, could also be obtained by means of an extract from the Commercial Register and would, under the applicable law, be issued at the request of the person concerned.
237Moreover, proof of the absence of any suspension or prohibition of the pursuit of a professional activity may be provided by means of an extract from the criminal record, which is also issued at the request of the person concerned.
238It is further possible to obtain an extract from the Commercial Register or an extract from the criminal record electronically, on the public administration portal concerned.
239The issue of the documents referred to in point 1(e) of Annex VII to Directive 2005/30, relating to supporting documents concerning the physical or mental health of the applicant, is governed by zákon č. 373/2011 Sb., o specifických zdravotních službách (Law No 373/2011 on Specific health services). Paragraph 43(1)(a) of that law requires the document relating to the medical assessment to be issued within 10 working days of receipt of the request.
240Thus, both Czech general administrative law and specific provisions of Czech law make it possible to ensure that the person concerned receives the documents concerned within a substantially shorter period than that required by Article 50(1) of Directive 2005/36, read in conjunction with point 1(d) and (e) of Annex VII thereto.
241In addition, if the documents concerned are requested directly by the competent authority of the host Member State from the competent authorities of the home Member State, the latter authorities must communicate those documents without delay pursuant to Paragraph 33(1) of the Law on the recognition of professional qualifications.
242Lastly, the relevant provisions of Czech law are sufficiently clear and precise.
243In the rejoinder, the Czech Government disputes the Commission’s arguments that it did not comply with the obligation to provide clear and precise information when notifying the transposition measures and adds that the infringement of Article 63 of Directive 2005/36 is not the subject of the present proceedings.
244The Czech Government also states that, where persons are not registered in the national Commercial Register, they may also demonstrate their good reputation and the non-existence of bankruptcy proceedings against them by means of an extract from the insolvency register, which is issued to them at their request at the time of filing that application with the administrator of that register, with other service providers or on the internet.
Findings of the Court
245It is necessary, in the first place, to reject the ground of inadmissibility raised by the Czech Government, according to which the seventh complaint is imprecise in so far as it relates to Article 50(1) of Directive 2005/36 since the two-month period envisaged for the provision of the documents concerned which is the subject of that complaint is not set out in that provision.
246As is apparent from the very wording of that complaint, that provision must be read in conjunction with point 1(d) and (e) of Annex VII to that directive, to which, moreover, it expressly refers for the purposes of determining the documents and certificates which may be required of the applicant by the host Member State and which lays down a period of two months for the provision of those documents and certificates by the home Member State.
247In the second place, as regards the question whether that period was correctly transposed into Czech law, it is apparent from the defence that that is the case, having regard both of the rules of general administrative law and of the specific rules applicable to the obtaining of such documents.
248It should be noted at the outset in that connection that, contrary to what the Czech Government maintains, it follows from the wording and scheme of Article 50 of Directive 2005/36 that it is, in principle, a priori for the person concerned to request those documents from the authorities of the home Member State.
249It should be noted that, unlike Article 50(1) of Directive 2005/36, paragraphs 2, 3 and 3a of that article expressly refer to situations in which information is requested by the host Member State from the competent authorities of another Member State.
250It follows from the provisions of Czech law referred to by the Czech Government that, where the person concerned requests one of the documents referred to in point 1(d) and (e) of Annex VII to Directive 2005/36 from the Czech authorities, it is necessary to apply the rules of general administrative law, namely Paragraph 154 of the Code of administrative procedure, read in conjunction with Paragraph 71(1) and (3) of that code, which requires the administration to take a decision ‘without delay’ and, failing that, at the latest within 30 days of the initiation of a procedure, to which may be added an additional period in certain circumstances.
251However, the Commission correctly argues that those provisions are imprecise.
252If such a request is made, Paragraph 154 of the Code of administrative procedure stipulates that the provisions of Paragraph 71 of that code must be followed ‘adequately’ and ‘if their application proves to be necessary’, which creates some uncertainty as to the conditions for the application of the time limit laid down in Paragraph 71.
253It follows that those provisions do not appear to have transposed in a sufficiently clear and precise manner the requirement of the two-month time limit imposed on the competent authorities of the home Member State where a person requests one of the documents referred to in point 1(d) and (e) of Annex VII to Directive 2005/36.
254However, in the defence, the Czech Government also relies on the application of other measures and rules of national law and, in particular, on the fact that the person concerned is able to obtain the document attesting to his or her good character, good repute or the fact that he or she has not been declared bankrupt, as referred to in point 1(d) of Annex VII to Directive 2005/36, by requesting an extract from the national Commercial Register or an extract from the criminal record. In that situation, such a document must be issued on application or obtained online. That government explains, in that regard, that the competent national authorities issue the document in question at the time when the application is lodged and that, in the event of an online application, the person concerned may download that document directly.
255As regards the document relating to the physical or mental health of the applicant, referred to in point 1(e) of Annex VII to that directive, the Czech Government refers to Law No 373/2011 on Specific health services, Paragraph 43(1)(a) of which provides for the issue of a medical assessment within ten working days of receipt of the application submitted.
256The Commission submits that those provisions of national law constitute transposition measures that were not notified by the Czech Republic, with the result that the Czech Government cannot rely on them. It adds that Article 63 of Directive 2005/36 also requires Member States to refer to that directive in the provisions transposing it.
257The Commission also maintains, first, that persons who are employees are not entered in the Commercial Register and, second, that the possibility of requesting documents by electronic means is inadequate since not everyone has access to them electronically.
258The Czech Government replies that the information concerned may be issued via other public information systems and that internet access is not the only means of obtaining it.
259As regards those new arguments, it must be borne in mind, first, that the Member States are required, under Article 4(3) TEU, to facilitate the achievement of the Commission’s tasks, which consist inter alia, pursuant to Article 17(1) TEU, in ensuring that the provisions of the FEU Treaty and the measures taken by the institutions pursuant thereto are applied. In particular, account should be taken of the fact that, where it is a question of checking that the national provisions intended to ensure effective implementation of a directive are applied correctly in practice, the Commission, which does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants and by the Member State concerned (judgment of 2 September 2021, Commission v Sweden (Waste water treatment plants), C‑22/20, EU:C:2021:669, paragraph 144).
260However, according to settled case-law relating to the burden of proof in proceedings for failure to fulfil an obligation under Article 258 TFEU, it is also for the Commission to prove the existence of the infringement alleged. It is the Commission that must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (judgment of 2 September 2021, Commission v Sweden (Waste water treatment plants), C‑22/20, EU:C:2021:669, paragraph 143 and the case-law cited).
261In the present case, the arguments relied on by the Commission in the reply do not make it possible to establish to the requisite standard the reasons why the measures and rules of national law, relied on by the Czech Government at the stage of the defence, which, as is apparent from that pleading, were applicable before the expiry of the period laid down in the reasoned opinion, are not sufficient to transpose correctly the two-month period laid down for providing the documents referred to in point 1(d) and (e) of Annex VII to Directive 2005/36.
262Consequently, the seventh complaint must be rejected as unfounded.
The eighth complaint, alleging failure to transpose Article 51(1) of Directive 2005/36
Arguments of the parties
263The Commission claims that the Czech Republic has failed to fulfil its obligations under Article 51(1) of Directive 2005/36, in so far as that article provides that the competent authority of the host Member State is to have one month in which to acknowledge receipt of the application for recognition of professional qualifications and to inform the applicant of any missing document.
264The Commission takes the view that the transposition of Article 51(1) of Directive 2005/36 into Czech law is not sufficiently clear and precise.
265In particular, Paragraph 45(2) of the Code of administrative procedure does not grant a specific right to the applicant to obtain, within a specified period, information about any missing document.
266Paragraph 47(1) of that code merely lays down an obligation to inform the person concerned of the initiation of the procedure following his or her application ‘without delay’.
267Paragraph 71(1) and (3) of that code authorises the administrative authority concerned to take its decision after the one-month period laid down therein.
268The Czech Government submits that the eighth complaint is unfounded, since Czech law provides for the obligation to inform the person concerned of the initiation of the procedure within one month and to acknowledge receipt of the application, in accordance with Article 51(1) of Directive 2005/36.
269The Czech Government submits that, under Paragraph 47(1) of the Code of administrative procedure, the administrative authority concerned is required to inform, ‘without delay’, all the parties to the proceedings of the request to open the procedure, which means that, in practice, that ‘period’ is limited to a few days, as the Czech courts have confirmed.
270As regards the information relating to any missing document, the Czech Government adds that, under Paragraph 45(2) of the Code of administrative procedure, the administrative authority concerned is to assist the applicant to remedy any deficiencies in his or her application and is to grant him or her a reasonable period of time to do so.
271The Czech Government also submits that Paragraph 6(1) of the Code of administrative procedure requires that administrative authority to deal with the case ‘without undue delay’.
272In addition, the Czech Government points out that, under Paragraph 71(1) of the Code of administrative procedure, that administrative authority is required to take a decision ‘without delay or, where this is not possible, within 30 days’.
273Thus, the Czech Government considers that it follows from the scheme of the Code of administrative procedure that the applicant must be informed of any deficiencies in his or her application well before the expiry of the one-month period laid down in Article 50(1) of Directive 2005/36.
274The Czech Government adds that, contrary to what the Commission maintains, the national provisions on the subject are clear and consistent with that directive and that it is, in any event, for the Commission to demonstrate that, in practice, Czech law is applied in a manner contrary to EU law.
275The Czech Government also points out that a Member State is not required to reproduce the provisions of a directive expressly in its national legal order in order to transpose it correctly and that a general legal context may suffice.
276Lastly, the Czech Government submits that it is not aware of any practical difficulties in that regard.
Findings of the Court
277Article 51(1) of Directive 2005/36 imposes a time limit of one month on the competent authority of the host Member State to acknowledge receipt of the application for recognition of professional qualifications and to inform the applicant of any shortcomings in that application.
278However, the legislative provisions relied on by the Czech Government make no such provision.
279In particular, as regards the rules of general administrative law relied on by the Czech Government, it should be noted that Paragraph 71 of the Code of administrative procedure, under which the Czech authorities must take a decision ‘without delay’ and at the latest within 30 days of an application, to which an additional period may be added in certain circumstances, does not transpose the obligations arising from Article 51(1) of Directive 2005/36, since it does not refer to the obligation to acknowledge receipt of the application or to indicate any documents which may be missing. Furthermore, and in any event, Paragraph 71 allows the administration to take a decision on an application within a period that may exceed one month.
280As regards Paragraph 45(2) of the Code of administrative procedure, under which the administrative authority must assist the applicant to remedy the deficiencies in his or her application and grant him or her a ‘reasonable period’ for doing so, it is likewise not sufficient in order to fully transpose the exact requirements of Article 51(1) of Directive 2005/36 in that regard.
281The same is true of Paragraph 6(1) of the Code of administrative procedure, under which the administration must process a request ‘without undue delay’, and Paragraph 47(1) of that code, under which the administrative authority must inform ‘without delay’ ‘all the participants’ of which it has knowledge that a procedure has been initiated, since those provisions do not correspond either to the specific requirements set out in Article 51(1) of Directive 2005/36.
282Finally, the Czech Government’s argument that Czech law does not give rise to difficulties in practice cannot, as pointed out in paragraph 148 of this judgment, compensate for the lack of sufficiently clear and precise transposition thus found.
283Consequently, it must be held that the Czech Republic has failed to fulfil its obligations under Directive 2005/36, by failing to adopt, in accordance with Article 51(1) of that directive, the provisions necessary to ensure that the competent authority of the host Member State has one month to acknowledge receipt of the application for recognition of professional qualifications and to inform the applicant of any missing document.
284In the light of all the foregoing considerations, it must be held that the Czech Republic has failed to fulfil its obligations under Directive 2005/36 by failing to adopt:– in accordance with Article 3(1)(g) and (h) of Directive 2005/36, the provisions necessary to enable the competent authorities of the host Member State to determine the status of persons undergoing an adaptation period or wishing to prepare themselves for an aptitude test;– in accordance with Article 7(3) of Directive 2005/36, the provisions necessary to enable veterinary surgeons and architects to provide services, within the framework of the freedom to provide services, under the professional title of the host Member State;– in accordance with Article 51(1) of Directive 2005/36, the provisions necessary to ensure that the competent authority of the host Member State has one month to acknowledge receipt of the application for recognition of professional qualifications and to inform the applicant of any missing document.
Costs
285Under Article 138(3) of its Rules of Procedure, where each party succeeds on some heads and fails on others, the Court may order that the costs be shared or that the parties bear their own costs. Since the Commission’s application has been upheld only in part, it must be held that each party is to bear its own costs.
Operative part
On those grounds, the Court (Fourth Chamber) hereby:
1.Declares that the Czech Republic has failed to fulfil its obligations under Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013, by failing to adopt:– in accordance with Article 3(1)(g) and (h) of Directive 2005/36, as amended, the provisions necessary to enable the competent authorities of the host Member State to determine the status of persons undergoing an adaptation period or wishing to prepare themselves for an aptitude test;– in accordance with Article 7(3) of Directive 2005/36, as amended, the provisions necessary to enable veterinary surgeons and architects to provide services, within the framework of the freedom to provide services, under the professional title of the host Member State;– in accordance with Article 51(1) of Directive 2005/36, as amended, the provisions necessary to ensure that the competent authority of the host Member State has one month to acknowledge receipt of the application for recognition of professional qualifications and to inform the applicant of any missing document;
2.Dismisses the action as to the remainder;
3.Orders the European Commission and the Czech Republic to bear their own costs.
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