CJEC, February 7, 1979, No 136-78

THE COURT,

1. By a judgment of 9 May 1978 which reached the Court on 14 June 1978 the Cour d'appel, Colmar, asked the Court, in pursuance of Article 177 of the EEC Treaty, to give a preliminary ruling on the following question:

"Does the fact that a person who has acquired the right to practise the profession of veterinary surgeon in a Member State of the European Community and who, after acquiring that right, has adopted the nationality of another Member State is forbidden to practise the said provision in the second Member State constitute a restriction on the freedom of establishment provided for by Article 52 of the Treaty of Rome and, in relation to the taking up of activities as self-employed persons, by Article 57 of that Treaty?"

2. This question was raised in the context of criminal proceedings on the ground, amongst others, of unlawfully practising as a veterinary surgeon in France.

3. The accused, who was originally of Austrian nationality, studied veterinary medicine first in Vienna (Austria), then in Lyon and finally at the university of Parma where he was awarded on 1 December 1956 the degree of doctor of veterinary medicine (Laurea in medicina veterinaria) and on 11 March 1957 he was granted a provisional certificate to practise as a veterinary surgeon, which was issued by a Commission set up by that university.

4. That certificate was issued to him in pursuance of the transitional provisions of the Italian law of 8 December 1956, in accordance with which the practice of veterinary medicine was in future to be made subject, in addition to the possession of a degree of doctor in veterinary medicine, to the passing of a state examination, although holders of a degree acquired before the entry into force of that law were exempt from passing that examination on condition that they produced a provisional practising certificate, issued by one of the commissions set up for that purpose, in particular at universities.

5. The accused took up residence in France and on 4 October 1961 acquired French nationality by naturalization ; he then applied on a number of occasions for the application to himself of the provisions of French Decree No 62-1481 of 27 November 1962 "relating to the medical and surgical treatment of animals by veterinary surgeons who have acquired or reacquired French nationality" (Journal Officiel de la République française of 7 December 1962, p. 12014).

6. Under the first paragraph of Article 1 of that decree, an authorization to undertake the medical and surgical treatment of animals may be granted by order of the minister for Agriculture to veterinary surgeons who have acquired or reacquired French nationality and who do not hold the state doctorate referred to in Article 340 of the Code rural.

7. The second paragraph of the same Article provides that a committee convened by the minister for Agriculture shall examine the qualifications and deliver its opinion as to the professional competence and integrity of candidates ; in Article 3 the decree provides that no authorization may be granted to the persons concerned unless they hold either certain French degrees specifically named, or "a veterinary degree awarded abroad of which the equivalence to a French degree shall have been recognized by the examining committee established under Article 1 above".

8. The competent committee took the view that it could not recognize the equivalence, from the point of view of the exercise of veterinary medicine, of the degree produced by the accused to a French degree. His successive applications were therefore rejected but he nevertheless practised veterinary medicine as a result of which he has been prosecuted on several occasions.

9. The question referred to the Court inquires essentially whether, having regard to the provisions of community law relating to freedom of establishment as they were in force at the time of the facts on which the prosecution before the national Court is based, the person concerned was in a position to claim in France the right to practise the profession of veterinary surgeon which he had acquired in Italy.

10. The situation referred to by the national Court is that of a natural person who is a national of the Member State in which he actually resides, and who is invoking the provisions of the Treaty relating to freedom of establishment with a view to being authorized to practise the profession of veterinary surgeon there, whereas, he does not possess the degrees required of nationals for that purpose but possesses degrees and qualifications acquired in another Member State which allow him to practise that profession in that other Member State.

11. It should also be stated that the question refers to the situation as it existed at a time when Article 57(1) of the Treaty relating to mutual recognition of diplomas, certificates and other qualifications had not yet been applied as regards the practice of the profession of veterinary surgeon.

12. This matter has subsequently been dealt with by council Directive No 78-1026 of 18 December 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (Official Journal No L 362, p. 1), supplemented by council Directive No 78-1027 of the same date concerning the co-ordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons (Official Journal No L 362, p. 7).

13. According to Article 18 of the first and Article 3 of the second of these directives Member States have a period of two years in which to bring into force the measures necessary to comply with them, dating from the notification of the directives.

14. Consideration must therefore be given to the question whether, and if so to what extent, nationals of the Member State in which they were established were entitled, at the time in question, to rely on the provisions of Articles 52 to 57 of the Treaty in situations such as those decribed above.

15. These provisions must be interpreted in the light of their place in the general structure of the Treaty and of its objectives.

16. Under Article 3 of the Treaty the activities of the community with a view to the establishment of the Common Market include, inter alia, the abolition of obstacles to freedom of movement for persons and services.

17. In the words of Article 7 of the Treaty, within the scope of its application, any discrimination on grounds of nationality is prohibited.

18. Thus freedom of movement for persons is intended to contribute to the establishment of a common market, in which nationals of the Member States have opportunity to carry on their economic activities by establishing themselves or by providing services in any place within the territory of the community.

19. As regards freedom of establishment, the realization of this objective is in the first place brought about by Article 52 of the Treaty which provides, first, that "restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be abolished by progressive stages in the course of the transitional period" and, secondly, that such freedom of establishment shall include the right to take up and pursue activities as self-employed persons, "under the conditions laid down for its own nationals by the law of the country where such establishment is effected".

20. In so far as it is intended to ensure, within the transitional period, with direct effect, the benefit of national treatment, Article 52 concerns only - and can concern only - in each Member State the nationals of other Member States, those of the host Member State coming already, by definition, under the rules in question.

21. However, it may be seen from the provisions of Articles 54 and 57 of the Treaty that freedom of establishment is not completely ensured by the mere application of the rule of national treatment, as such application retains all obstacles other than those resulting from the non-possession of the nationality of the host state and, in particular, those resulting from the disparity of the conditions laid down by the different national laws for the acquisition of an appropriate professional qualification.

22. With a view to ensuring complete freedom of establishment, Article 54 of the Treaty provides that the council shall draw up a general programme for the abolition of existing restrictions on such freedom and Article 57 provides that the council shall issue directives for the mutual recognition of diplomas, certificates and other evidence of qualifications.

23. It follows from the general structure both of the general programmes of 18 December 1961, drawn up in implementation of Articles 54 and 63 of the Treaty (Official Journal, English special edition, second series, ix, pp. 3 and 7) and of the directives issued in implementation of those programmes, that the field of application, ratione personae, of the measures for securing freedom of establishment and freedom to provide services is to be determined on each occasion without distinction based on the nationality of those concerned.

24. This idea, in particular to the extent to which it relates to the effects of mutual recognition of diplomas, certificates and other qualifications, is in conformity with the general rule set out in Article 7 of the Treaty according to which, within the scope of application of the Treaty, any discrimination on grounds of nationality is prohibited.

25. Moreover, in so far as the practice of the profession of veterinary surgeon is concerned, this idea was fully confirmed by a declaration concerning the definition of the persons covered by the directives, which was recorded in the minutes of the meeting of the council during which the directives relating to the mutual recognition of diplomas and the co-ordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons were adopted.

26. That declaration states that : "the council reaffirms that it is to be understood that freedom of establishment, particularly for the holders of certificates obtained in other Member States, must be accorded on the same terms to nationals of other Member States and to nationals of the Member State concerned, as is the case with other directives.

27. It appears, both from the wording of the question referred to the Court and from the recitals to the decision of the national Court, that that Court would also like to know whether the fact that the person concerned had acquired French nationality by naturalization at a date subsequent to that on which he had obtained the Italian degrees and qualifications on which he relies, was of such a nature as to influence the reply to the question which it has put.

28. There is no provision of the Treaty which, within the field of application of the Treaty, makes it possible to treat nationals of a Member State differently according to the time at which or the manner in which they acquired the nationality of that state, as long as, at the time at which they rely on the benefit of the provisions of community law, they possess the nationality of one of the Member States and that, in addition, the other conditions for the application of the rule on which they rely are fulfilled.

29. Hence, in assessing the rights of a national of a Member State, in periods both prior and subsequent to that referred to in the directives cited above, the date on which he acquired the status of a national of a Member State is irrelevant as long as he possesses it at the time at which he relies upon the provisions of community law, the enjoyment of which is linked to the status of a national of a Member State.

30. It follows from the considerations set out above that Article 52 of the Treaty must be interpreted as meaning that for the period prior to the date on which the Member States are required to have taken the measures necessary to comply with council Directives Nos 78-1026 and 78-1027 of 18 December 1978, the nationals of a Member State cannot rely on that provision with a view to practising the profession of veterinary surgeon in that Member State on any conditions other than those laid down by national legislation.

31. This answer in no way prejudges the effects of the above-mentioned directives from the time at which the Member States are required to have complied with them.

Costs

32. The costs incurred by the Government of the French Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

33. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national Court, the decision on costs is a matter for that Court.

On those grounds,

The Court,

In answer to the question referred to it by the Cour d'appel, Colmar, by an order dated 9 May 1978, hereby rules:

Article 52 of the Treaty must be interpreted as meaning that for the period prior to the date on which the Member States are required to have taken the measures necessary to comply with council Directives Nos 78-1026 and 78-1027 of 18 December 1978, the nationals of a Member State cannot rely on that provision with a view to practising the profession of veterinary surgeon in that Member State on any conditions other than those laid down by national legislation.