Court of Justice 17-10-2003 ECLI:EU:C:2003:570

Community legislation

Article 1(1) and (2) of Directive 78/687, as amended by the Act of Accession (‘Directive 78/687’), provides:

The Member States shall require persons wishing to take up and pursue a dental profession under the titles referred to in Article 1 of Directive 78/686/EEC to hold a diploma, certificate or other evidence of formal qualifications referred to in Article 3 of the same Directive which guarantees that during his complete training period the person concerned has acquired:

1. adequate knowledge of the sciences on which dentistry is based and a good understanding of scientific methods, including the principles of measuring biological functions, the evaluation of scientifically established facts and the analysis of data;

2. adequate knowledge of the constitution, physiology and behaviour of healthy and sick persons as well as the influence of the natural and social environment on the state of health of the human being, in so far as these factors affect dentistry;

3. adequate knowledge of the structure and function of the teeth, mouth, jaws and associated tissues, both healthy and diseased, and their relationship to the general state of health and to the physical and social wellbeing of the patient;

4. adequate knowledge of clinical disciplines and methods, providing the dentist with a coherent picture of anomalies, lesions and diseases of the teeth, mouth, jaws and associated tissues and of preventive, diagnostic and therapeutic dentistry;

5. suitable clinical experience under appropriate supervision.

This training shall provide him with the skills necessary for carrying out all activities involving the prevention, diagnosis and treatment of anomalies and diseases of the teeth, mouth, jaws and associated tissues.

A complete period of dental training of this kind shall comprise at least a five-year full time course of theoretical and practical instruction given in a university, in a higher-education institution recognised as having equivalent status or under the supervision of a university and shall include the subjects listed in the Annex.’

Article 5 of Directive 78/687 states:

‘Member States shall ensure that dental surgeons shall generally be entitled to take up and pursue activities involving the prevention, diagnosis and treatment of anomalies and diseases of the teeth, mouth, jaws and associated tissues in accordance with the regulatory provisions and the rules of professional conduct governing the profession at the time of notification of this directive.

Those Member States which do not have such provisions or rules may define or limit the pursuit of certain activities referred to in the first subparagraph to an extent which is comparable to that existing in the other Member States.’

Article 1 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1978 L 233, p.1), as amended by the Act of Accession (‘Directive 78/686’) provides:

‘This directive shall apply to the activities of dental practitioners as defined in Article 5 of Directive 78/687/EEC pursued under the following titles:

• in Germany: Zahnarzt,

...’

Article 2 of Directive 78/686 states:

‘Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications in dentistry awarded to nationals of Member States by the other Member States in accordance with Article 1 of Directive 78/687/EEC and which are listed in Article 3 of this directive, by giving such qualifications, as far as the right to take up and pursue the activities of a dental practitioner is concerned, the same effect in its territory as those which the Member State itself awards.’

Article 7(1) of Directive 78/686 provides:

‘In the case of nationals of Member States whose diplomas, certificates and other evidence of formal qualifications do not satisfy all the minimum training requirements laid down in Article 1 of Directive 78/687/EEC, each Member State shall recognise as being sufficient proof the diplomas, certificates and other evidence of formal qualifications in dentistry awarded by those Member States before the implementation of Directive 78/687/EEC, accompanied by a certificate stating that those nationals have effectively and lawfully been engaged in the activities in question for at least three consecutive years during the five years prior to the date of issue of the certificate.’

National legislation

Paragraph 1(1) of the Gesetz über die Ausübung der Zahnheilkunde (Law on the practice of dentistry) of 31 March 1952 (BGBl. 1952 I, p. 221), in the version published on 16 April 1987 (BGBl. 1987 I, p. 1225; ‘the ZHG’) provides:

‘Anyone wishing to practice dentistry on a permanent basis on the territory to which this law applies must obtain a licence to practice (“Approbation”) as either a “Zahnarzt” (dentist) in accordance with the provisions of this law or an “Arzt” (doctor) in accordance with the provisions of national law. The licence to practice entitles its holder to use the title “Zahnarzt” or “Zahnärztin”. The temporary practice of dentistry requires authorisation which may be revoked at any time.’

Observations submitted to the Court

The Landeszahnärztekammer Hessen, the German, Italian and Austrian Governments and the Commission submit that it is clear from Directives 78/686 and 78/687 that there is no doubt as to the current law on the matter, namely that a person who does not hold the diploma in dentistry required by those directives cannot be authorised to practice dentistry in Germany. In other words, a doctor who is authorised to practice as an ‘Arzt’ could pursue the profession of‘Zahnarzt’ only if he holds a ‘Zeugnis über die zahnärztliche Staatsprüfung’ (the State examination certificate in dentistry) within the meaning of Article 3(a) of Directive 78/686 and thus if he has received the appropriate training as laid down in Article 1 of Directive 78/687.

In support of their interpretation, the Landeszahnärztekammer Hessen, the governments referred to above, and the Commission submit that according to settled case-law (see Case C-40/93 Commission v Italy, cited above, and Case C-202/99 Commission v Italy [2001] ECR I-9319), Directive 78/687 precludes a Member State from establishing a second system of training giving entry to the profession of dental practitioner which consists of a basic training in medicine supplemented by a specialisation in the field of dentistry. Therefore, they consider that if the profession of dentist cannot be pursued by a person who holds a diploma in medicine and who has followed a specialist course in dentistry of three years' duration, it likewise cannot be pursued, in the German system, by a national who holds only a diploma in medicine.

However, according to Mr Vogel, Directives 78/686 and 78/687 cannot be applied to his case. In particular, he submits that a directive is secondary Community law and does not have any direct legal effect. The vertical effect in the present case is the opposite of that permissible for the provisions of a directive. The Court has held that a Member State may not directly rely on the provisions of a directive against its citizens. That means that a directive cannot directly create obligations for individuals or deprive them of their rights. A Member State cannot rely, to the detriment of its citizens, on either the failure to transpose a directive or its incomplete transposition (see Case 152/84 Marshall [1986] ECR 723, and Case 80/86 Kolpingbuis Nijmegen [1987] ECR 3969).

In addition, Mr Vogel submits that if Directives 78/686 and 78/687 were directly applicable in Germany, the requirement of transparency laid down in the Grundgesetz (the German Constitution) would be infringed. To assign to those directives a higher rank than the ZHG would also be contrary to the principles of the rule of law, protection of legitimate expectations, equality, legal certainty and non-retroactivity. He asserts that those directives cannot be applicable in Germany unless they have been transposed into German law.

Moreover, Mr Vogel submits that Article 27 of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1), as amended by the Act of Accession (‘Directive 93/16’) refers to odontostomatology (a discipline in the field of dentistry) as a branch of medicine. It thus directly follows from that directive that in the European Union doctors are entitled to practice odontostomatology, which is dentistry. Moreover, neither Directive 93/16 nor Directives 78/686 and 78/687 impose any restriction on the scope of doctors' activities. Directives 78/686 and 78/687 concern solely the practice of dentistry under the titles listed in Article 1 of Directive 78/686 and therefore do not prohibit doctors from practising dentistry. If the Court were to rule that, on the basis of those directives, only dentists, and not doctors, may practice dentistry, those directives would be incompatible with Directive 93/16, since under that latter directive, doctors are entitled to practice dentistry.

The Court's reply

By its two questions, which can be examined together, the national court is asking whether Directive 78/687 must be interpreted as precluding a national rule that grants a general authorisation to doctors who have not received the training required by Article 1 of that directive to carry out the activities of a dental practitioner and whether the answer to that question depends on the title under which those activities are practised.

Taking the view that the answer to the questions raised can clearly be deduced from the existing case-law, the Court, in accordance with Article 104(3) of its Rules of Procedure, informed the national court that it intended to rule on the case by reasoned order and invited the parties referred to in Article 23 of the Statute of the Court of Justice to submit observations on that point.

Only Mr Vogel has submitted observations to the Court. He claims that it is incorrect to state that the Court has already answered the questions raised in the main proceedings.

Mr Vogel submits, inter alia, that Directives 78/686 and 78/687, and the Court's previous judgments relating to those directives, concern the right to practice dentistry under the title of dentist and not, as is the case at issue here, the right to practise dentistry as a doctor. In any event, those judgments were delivered well after he had embarked on his medical studies, on the basis of which he was expecting to be able to practise dentistry by virtue of Paragraph 1(1) of the ZHG, with the result that were those judgments to apply to his situation they would infringe the principle of non-retroactivity.

At the outset, it should be recalled that Article 1(1) of Directive 78/687 provides that to be entitled to practise dentistry under one of the titles referred to in Article 1 of Directive 78/686, a dental practitioner must hold a diploma, certificate or other evidence of formal qualifications referred to in Article 3 of Directive 78/686.

Only derogations expressly provided for in the EC Treaty or in the relevant directives are allowed (see Case C-40/93 Commission v Italy, cited above, paragraph 23). In that regard, three types of derogation are provided for, namely, first, the derogation set out in Article 7 of Directive 78/686, second, the one referred to in Articles 19, 19a and 19b of that directive and, finally, the derogation mentioned in Article 1(4) of Directive 78/687 (see Case C-40/93 Commission v Italy, paragraph 21).

Article 1(4) of the Directive 78/687 applies only to the recognition of diplomas, certificates or other evidence of formal qualifications obtained in a nonmember State (see Case C-40/93 Commission v Italy, paragraph 22). Article 7 of Directive 78/686 is applicable only to nationals who hold diplomas, certificates or other qualifications issued by the Member States before Directive 78/687 came into effect, in other words before 28 January 1980. Articles 19, 19a and 19b of Directive 78/686 concern only the transitional provisions applicable to people who received or embarked on their dental training in Italy, Spain or Austria respectively, under a system prior to the one in place as a result of the entry into force of those directives in those Member States.

Paragraph 1(1) of the ZHG, which grants a general authorisation, from 28 January 1980 onwards, for doctors to practise dentistry on a permanent basis without completing the dental training required by Article 1 of Directive 78/687 is therefore not covered by any of the derogations from that provision referred to in paragraph 25 of this order.

Moreover, it should be recalled that it is not open to Member States to create a category of dental practitioners which does not correspond to any category provided for by Directives 78/686 and 78/687 (see Case C-40/93 Commission v Italy, cited above, paragraph 24, and the order of 5 November 2002 in Case C-204/01 Klett [2002] ECR I-10007, paragraph 33).

Applying that interpretation of those directives, the Court has ruled that a person may not carry out the activities of a dental practitioner even where he holds a diploma in medicine and has followed a specialised course in dentistry of three years' duration (see Case C-40/93 Commission v Italy, Case C-202/99 Commission v Italy, and Klett, all cited above). Persons who hold only a diploma in medicine are, a fortiori, precluded from carrying out such activities.

It follows that a general authorisation for doctors to practise dentistry on a permanent basis without holding the diplomas, certificates or other qualifications referred to in Article 3 of Directive 78/686, as required by Article 1 of Directive 78/687, is contrary to Community law.

In that regard, the title under which those doctors intend to practice dentistry is of no relevance. If German doctors who do not have the training required by Article 1 of Directive 78/687 were authorised to practise dentistry under a title other than ‘Zahnarzt’, that would create a category of dental practitioners which does not correspond to any category provided for by Directives 78/686 and 78/687.

However, Mr Vogel submits that neither Directive 93/16 nor Directives 78/686 and 78/687 contain any restriction on the scope of doctors' activities. In his view, if the Court were to rule that under Directives 78/686 and 78/687 doctors may not practice dentistry, those directives would be incompatible with Directive 93/16, since under that latter directive, doctors are entitled to practise odontostomatology, a discipline in the field of dentistry.

In that regard, it need only be noted that Directives 78/686 and 78/687 seek to establish a clear separation of the professions of dental practitioner and doctor (see Case C-202/99 Commission v Italy, cited above, paragraph 51). Those directives apply to dental practitioners whereas Directive 93/16 applies to doctors and specialist medical practitioners. Even though Article 27 of that directive authorises specialist medical practitioners to practice stomatology, they must have met the training requirements laid down in that directive, namely at least three years of specialist training.

Mr Vogel also submits that the provisions of Directives 78/686 and 78/687 cannot apply to the dispute in the main proceedings because the provisions of a directive do not have direct effect against individuals.

In that regard, it should be remembered, first, that the Member States' obligation under a directive to achieve the result envisaged by the directive, and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, inter alia, Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 41, and Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 24).

It follows that, in applying domestic law, regardless of whether the provisions concerned are prior or subsequent to the directive, the national court called upon to interpret that law is required to do so, as far as possible, in the light of the wording and purpose of the directive, in order to achieve the purpose of the directive and thereby comply with the third paragraph of Article 249 EC (CaseC-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Marks & Spencer, cited above, paragraph 24).

In the present case, the Bundesverwaltungsgericht has itself stated that it is possible to interpret the national legislation at issue in the main proceedings in such a way that it applies only to dental practitioners who have obtained the diploma required under Article 1 of Directive 78/687.

It follows from all the foregoing that the answer to the question referred must be that Directive 78/687, properly construed, precludes a national rule containing a general authorisation for doctors who have not completed the training required by Article 1 of that directive to carry out the activities of a dental practitioner, irrespective of the title under which those activities are carried out.